In 1989, I completed my bachelor in law from Calcutta University. It is then when I got to understand more fully the concept of jurisprudence which relates to the theory or philosophy of law. Jurisprudence seeks to understand the nature of law, its purpose, its relationship with society, and the methods used for its interpretation and application.
It explores fundamental questions about the nature of law, such as –What is law and its purpose? How should laws be interpreted and applied? What is the relationship between law and society? How do legal systems differ? What are the ethical and moral dimensions of law?
Said simply, law can be understood as a system of rules and regulations enforced by a governing authority that provides a framework for behaviour, order, and justice within a society. The crucial principle of ‘no man is above the law’ is a crucible of a just and democratic society, aiming to prevent the abuse of power, maintain the rule of law, and protect the rights and interests of all individuals.
Key characteristics of law include Legitimacy: Laws are established and recognized as valid and binding by an authoritative body or institution. Next is Consistency and Predictability. It should be enforceable and used for public interest. It is also continually evolving, being modified, or repealed, with newer legal interpretations. The different branches of law regulate different aspects of human conduct and provide guidelines for interactions between individuals, organisations, and the state. Laws reflect the unique historical, cultural, and political contexts of each society.
Regrettably, law and jurisprudence, which are designed to establish a fair and just framework for society, can indeed be abused to propagate oppression and tyranny.
Here are a few ways this
can happen:
Discriminatory legislation: Laws can be crafted in a way that intentionally targets specific groups based on their race, religion, ethnicity, gender, or other protected characteristics. These discriminatory laws provide legal cover for the oppression and marginalization of certain individuals or communities, undermining the principles of equality and justice.
It is laudable that Section 377 of the Indian Penal Code was decriminalised in 2018, allowing for consensual homosexual acts. This law was used as a tool to target and oppress the LGBTQ+ community, leading to discrimination, harassment, and violation of their fundamental rights.
Selective enforcement: Even if the laws themselves are not discriminatory, they can be selectively enforced to target specific individuals or groups. One clear example is bail laws. Law enforcement agencies or judicial systems may unfairly target and disproportionately punish certain communities, while overlooking or minimizing the offenses committed by others. This unequal application of the law perpetuates systemic oppression. An example, would be anti-conversion laws which while purportedly meant to prevent forced religious conversions, they have been misused to target religious minorities and restrict their freedom of choice and religious expression.
Suppression of dissent: Laws and legal mechanisms can be used to suppress dissent and silence opposition. Authoritarian regimes may pass laws that restrict freedom of speech, assembly, and association, effectively stifling any opposition or criticism. By controlling the legal framework, those in power can maintain their authority and suppress any challenges to their rule. The Sedition law (Section 124A of the Indian Penal Code) has been criticized for its broad and vague language. Activists, journalists, and individuals critical of the government have been charged with sedition, often leading to their harassment or imprisonment.
Manipulation of legal processes: Legal processes can be manipulated to favour the oppressors and disadvantage the oppressed. This can involve biased judicial appointments, corruption, or intimidation of judges and legal professionals. By undermining the independence and integrity of the judiciary, oppressive regimes can ensure favourable outcomes for themselves while denying justice to the marginalized.
Caste-based reservation policies: While reservation policies in India were initially implemented to address historical caste-based discrimination, there have been instances where these policies have been misused or manipulated, leading to the oppression or exclusion of certain groups. Instances of false claims of caste or the dominance of certain privileged castes within reserved categories have been reported.
Creation of arbitrary Laws: Tyrannical regimes may enact arbitrary laws that are vague, broad, or open to interpretation. This ambiguity allows those in power to manipulate and exploit the law to suit their interests, making it difficult for individuals to navigate the legal system or challenge oppressive actions. Arbitrary laws undermine the predictability and fairness of the legal system.
Use of Emergency Powers: In times of crisis or emergencies, governments may invoke emergency powers to suspend certain rights and liberties temporarily. However, these powers can be abused to consolidate authority, suppress dissent, and perpetuate oppression even after the crisis has passed. Emergency measures that infringe upon fundamental rights should have clear limitations and oversight to prevent abuse. Also, during emergencies the Armed Forces (Special Powers) Act (AFSPA): AFSPA grants special powers to the armed forces in designated areas, such as Jammu and Kashmir and parts of Northeast India. This law has faced criticism for providing excessive powers to security forces, leading to allegations of human rights abuses, including extrajudicial killings, and enforced disappearances.
To safeguard against the abuse of law and jurisprudence for oppression and tyranny, it is crucial to uphold the principles of justice, equality, and the rule of law. An independent judiciary, an inclusive legislative process, strong legal safeguards for human rights, and an engaged civil society can help prevent and address such abuses. Additionally, international human rights standards, advocacy, and the scrutiny of oppressive regimes by the international community can play a vital role in exposing and challenging such abuses.
(Steve Correa is an Executive Coach and OD Consultant. He is author of The Indian Boss at Work: Thinking Global Acting Indian)
