This is something I wrote in my third year of law school.
What is law? This is an oft asked question. We have been given many answers. Some say that law is a rule. Some say that is a norm for society to follow. Some equate law with punishment. Some trot out a technical definition and say that the legislature makes law, i.e an act passed by the parliament is law. A dictionary defines one of the meanings of law as,
“the rules of conduct established and enforced by the authority, legislation, or custom of a given community, state, or other group b) any one of such rules. ” The jurisprudential meaning is given as, ” the branch of knowledge dealing with such rules, jurisprudence.” The word is derived from early Anglo-Saxon ‘lagu’ meaning something laid down or settled, a base.
I am sure that there are many other definitions, meanings and understandings of law. I do not know them all. I doubt if anyone does. But what does law really mean? Is law merely a rule for people to follow? Is it just an act passed by a competent legislature? Is it more than this? Should it be more than this?
1939. Warsaw, Poland. Hitler has just invaded Poland. The Nazi’s have one item on top of their list. Jews. The Aryan super race has no room and no desire to share the Earth with Jews. So what do they do? Embark on a carefully planned program of Genocide. It is done in stages, with the stages growing progressively more severe. What is interesting from our point of view is the fact that the Nazi’s called their commands ‘Law’. It was the law that Jews have to wear a visible emblem of their being Jews at all times. What was this emblem? It was a blue Star of David on a white background. It was also the ‘law’ that the star must measure eight centimeters from point to point, and the thickness of the lines must be one centimeter. This was the law. Passed by a competant person. Notified in the proper manner. And enforced.Promptly and brutally. It is of course possible to claim that the authority passing the law was not competent. What does authority mean? It means, among other things, ” the power or right to give commands, enforce obedience, take action, or make final decisions; jurisdiction the position of one having such power” It would be sophistry to claim that since the Nazi’s were invaders, the authority they had was not proper. The fact remains that for half a million Jews in Poland, they were the Law. The ‘laws’ kept coming. Soon Jews were not allowed to sit on public benches, walk in a public park, eat in a public restaurant, walk on a public pavement. Law. And if it was not followed, it was brutally, very brutally enforced. The cumulative result of all these ‘laws’ and what followed, was the death of 6 million Jews. Yes, 6 million. In lakhs that is 60 Lakhs. 60,000,000 human beings, killed because they were different.
Of course, we know today that Hitler was a crackpot dictator who was defeated by the combined might of the free world. Those days can never happen again. We have laws to stop people like that, right? Democracy is the rule of the people, by the people, for the people. The general will ensures the freedom of all. Yes, of course. How could one forget all these ‘facts’. Look at the world today. Isn’t it just the perfect place with peace on earth and good will towards all men? No? Godhra. Bombay. Kashmir. And these are just the major happenings, the ones that get reported by our myriad news channels. What about the little ones, which get a few columns of space in some local daily. Like the one about a Dalit getting beaten up and forced to eat human excrement. What did he do? Well, he committed the heinous crime of actually daring to ask for money for the work that he had done. How dare he.
And meanwhile the laws keep getting passed. Gujarat passed the Anti-Conversion Bill. What does this mean? Well, nothing much, simply that if you wish to convert your religion, you have to inform the local magistrate. That’s all. Whoever said that religion is a private affair? Between me and my God, whoever that happens to be? The enforcement of law is course is a separate matter. It depends on who is doing the enforcing, and who is the person whom such enforcement will benefit. The police are the people in charge of enforcing the law. But how they go about enforcing the law is their own business.
“Meherunnissa Mohamad Yakub Ansari (Exh.577) also says that from about 1930 hours on 8th January 1993, till about 1330 hours on 9th January 1993, there were continuous attacks on their chawl No.12. The attackers were all Hindus from BIT Chawls who kept shouting “Landyabai ka ghar kidar hai” and knocking on her door. They were carrying choppers and other weapons. She is emphatic about what the police told her when she complained to them. Says, the witness, “I cannot forget during my entire life the words used by the police – ‘Pakistan chale jao; yahan kyon ate ho marneke liye’”. After the Muslim residents had moved away to safety locking their houses, their houses were systematically ransacked and looted.”
Quoted verbatim from the Justice Sri Krishna Committee Report, Part II Paragraph 1.11. This committee investigated the Bombay Riots of 1992-3
We are all aware of such incidents. What is alarming is the way we react. The question is not whether Hindus are attacking Muslims or vice versa. At different times in history, both have been true, to varying degrees. The only difference is one of temporal separation. The question is one of Humanity. Law is uniquely a human creation. Even animals have rules. Even animals have punishment. Even animals have authority figures. Only Humans have laws. The problem arises when people’s humanity is denied. Once that is done, it becomes easy to persecute those people. This has happened throughout human history. When you deny someone his humanity, when you reduce him to the level of an animal, it does not seem a crime to punish, torture, or kill him. The Romans did it. The Greeks did it. The nobility in the Dark and Middle Ages did it. The Nazi’s did it. Are we doing it? To each other? Are humans all over the world actively denying other people’s humanity? Unfortunately, the evidence seems to point to this.
The fundamental assumption that law works on is that it will be applied to humans. Parliament does not make laws for animals. Rules are made for animals. Law is for human beings, Homo sapiens and human activity. This basic assumption is the bedrock of law. It is so obvious that is is often overlooked. And this very assumption creates a big loophole in the law. For example, Section 299 and 300 of the Indian Penal Code define the offense of culpable homicide and murder respectively. S.299 reads “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”. It reads “causing death”, “cause death”. It does not anywhere specify death of a human being. The only indication is the chapter title. “Of offences affecting the human body”. But if you kill a bird in your garden, is it murder? You have taken willfully, let us assume, the life of a living being. Does it make a difference if you step on an ant and crush it. Of course it does not. You cannot haul someone up for swatting a fly. Precisely. If someone who is human is defined as less than an ant, does it matter that you kill him? No. Did the life of a slave matter in the Greek and Roman eras? Did it matter in the Cotton Plantations in America, the land of the free, and the home of the brave? Was a black man equal to a white man? Is a Dalit equal to a Brahmin?
Who defines humanity? Is it a dictionary? Is it Government? Is it people in power? Is it Parliament? The answer is, of course, obvious. None of the above. You and I define humanity. In our minds, we define humanity. We determine the meaning and qualifications required to be considered human. Some of us define humanity in terms of Caste. The lower castes do not quite come within this definition of humanity. Some define it is terms of color. Darker people do not quite fit this definition. Some define it in terms of religion. Some in terms of intelligence. Some in terms of sexual preference. There are as many definitions of humanity as there are human beings. At this juncture it might be instructive to look up the meaning in a dictionary.
1. the fact or quality of being human; human nature
2 [pl.] human qualities or characteristics, esp. those considered desirable
3 the human race; mankind; people
4 the fact or quality of being humane; kindness, mercy, sympathy, etc.
But what is the fact of quality of being human? What is human nature? What are human qualities or characteristics? Humanity is what you say it is. If Hitler said that Jews were not human, they were not. And since he had the power to back up what he said, it was truth. Conquerors have a habit of denying the conquered people’s humanity. Perhaps it helps them sleep better at night.
Is it even possible to have a definition which encompasses all of humanity. Religion believes that God created Man in his own image. Well, if God is infinite, is Man any less so? Maybe it’s a good thing that there is no all-encompassing definition of humanity. Think how limiting that would be.
Law and lawmakers must at all times keep in mind that the law is meant for all humans, whoever they may be. It must not be limited by the lawmaker’s personal definition of humanity. Or by society’s defintion of humanity. Or by any defintion of humanity.
We all have our own definitions of humans and humanity. You do and I do. It is not possible to be human and not have these definitions. But it is less than human to be limited by these definitions. We must rise above these personal definitions. We must strive every day to break the chains which shackle us to hidebound notions. We must move forward. And perhaps someday we will not need law anymore.
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