JUSTICE – LAWS – STATE from Jainism

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http://groups.yahoo.com/group/jainpushp/message/1834

http://en.wikipedia.org/wiki/Jainism

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JUSTICE – LAWS – STATE

It is high time that the inter se relationship, the order of priority and the

effect on people’s lives of three different concepts – Justice, Laws and

State is seriously considered.

Under the structures gifted to the world by the ancient saints and sages of

this country, justice was considered synonym of religion and was placed

on top of the structure. Today, Justice and Law are considered the

alternates of each other, which is a misconception. Both are different.

Justice can exist even without laws, but laws cannot exist without justice.

How the concept of laws came into being? According to historians who

believe in the theory of evolution of mankind, the history of laws can be

stated thus – In the initial days, man was alone in this universe. He used

to stay anywhere, eat anything and wander from place to place. With

passage of time, man learnt to live in groups. Several such small small

groups came into being and formed a Community. Hence certain rules

governing the behaviour and interaction with each other came into being.

Morality was the basis of these rules and hence they can be termed as

moral laws. With further passage of time, the population grew to such an

extent and their interaction became so widespread that it was felt that

some authority is needed for implementing the laws (moral laws/values).

Hence mankind established a centre of power. This centre of power which

evolved into a structure called State was entrusted both implementation

of existing laws and making of new laws. Thus laws and the State

became interdependent. However, the origin of the powers to make laws

is still untraceable.

The modern day State has created a jungle of laws. The democratic

systems of governance has created a weird structure of law making.

Majority - and that too a manipulatable majority - entrusted to itself the

power to make laws; and to uphold these laws is made the highest duty

of the judicial system. In this transformation justice lost its top position

and is thrown to the bottom.

If a person functioning as a Judge is a gentleman, is impartial, has the

sense of right and wrong, submits to the sovereignty of religion (not in the

narrow sense of the term), has the vision to balance the cause and effect;

he can dispense justice even without the modern day codified laws. On

the other hand, even if there are thousands of codified laws (as is the

situation now), but if they lack the element of Justice, then justice cannot

be done. Justice and laws are two different things.

If we visualize Justice, Law and State as a triangle, three situations are

possible;

a) At the top angle of the triangle is Justice and at the two base angles

of the triangle are Law and State.

b) At the top angle of the triangle is Law and at the two base angles of

the triangle are Justice and State.

c) At the top angle of the triangle is State and at the two base angles

of the triangle are Law and Justice.

The correct situation should be as per the first alternate. Justice should be

sovereign and at top and Law and State should be its subordinate helpers.

However, presently, in the judicial system laws are at top and laws mean

codified laws only (made either by the present State or the predecessor

British State). The State bows to the laws and Justice of course is at the

bottom. However, Law which is at the top position in this second situation,

is made by the State. Thus, in reality, it is the State which is supreme and

both Law and Justice are subservient to the power of State. The situation

which prevails today is the third situation.

In our country the Supreme Court is at the apex position in the judiciary.

However, there are innumerable instances where the judgements of the

Supreme Court are reversed by the State by subsequently enacting laws

to the contrary in the Parliament. Thus there is no doubt that in the

present day structures the State alone is sovereign.

From where did the State get the right to make laws? The State makes

laws in Parliament and State legislatures and the Constitution is cited as

the source of power to make laws. Who made the Constitution and

wherefrom the power for it came? Constitution was made by the

Constituent Assembly and Constituent Assembly was constituted under a

law enacted by the British Parliament. Wherefrom the British Parliament

got the power to make such laws? It may perhaps be answered that India

was under the British domination and hence Britain could enact laws for

India. But how did India become a British dominion?. And this question

can be raised in the context of all the nations which were under British

dominion at one time or the other, and even today the Commonwealth

countries are British dominions and latently still slaves of Britain. The

source of Britain’s power lies in the Papal Bull of 1493. That is a long

history and going into it will be a deviation from the present subject.

We revert back to the triangle of Justice, Law and State. The powers of

State to make laws are limited or unlimited? The Constitution has three

lists of subjects on which exclusively the Centre, exclusively the States,

and both Centre and States can make laws. However, by `residual

powers’, subjects which are not specifically mentioned in the lists are also

covered. It means the State has retained unlimited powers for itself to

make laws on any subject under the Sun. The State can make laws to

control each and every sphere of the lives of its citizens. It can consider

the natural resources as its own property and make laws for them. The

State can make laws on all issues – religious, social, economic and political

and impose any regulations that it deems fit.

There is no system to put these laws to the test of Justice. What is a just

rate of income tax – 10%, 20%, 50%, 70%, 90%? Whatever the State

feels like ! If a criminal absconds after committing a crime, can the State

arrest his/her innocent family members – his/her son, father, brother,

husband, wife? Yes it can ! It is the State’s will ! Can there be different

sets of rules for prosecuting a common citizen and a politician/

bureaucrat? Yes, there can be ! Which transactions and who can be

taxed – Withdrawal by a person of his own money from his own Bank

account? Facilities extended by a generous employer to his employees?

Vegetarian citizens for allotting funds for production of meat? Making

laws/entering into agreements for raising mountainous debts – external or

internal, without the concurrence of the citizens? Can laws be made to hold

to ransom the religious sector? Can the State acquire at its own free will,

whenever it wants, by extending whatever reasons, Teerthas and

religious places? Can the label of `Public Interest’ justify any step of the

State?

Innumerable arms/institutions of the State, the Government departments

issue notifications in hundreds and thousands every year, enact scores of

new laws, promulgate ordinances, which are not known to the people at

large. Still each citizen is bound by them. Ignorance of Law is no

excuse ! Not only this, he carries on his shoulders the huge burden of

sustaining the administration created for all these. Even after shouldering

this burden, does the common man ever get justice? All these are

illusions then? For what purpose? To what end?

The power of State considers the whole nation as its fiefdom. It can

ransack the entire country and its people like a mad bull. The only factor –

that of Justice – which can exercise control on the power of State has

become non-existent. From where this demon like power of State came

into being? What it means? Who gave power to whom? Or who

appropriated power from whom? Who is entitled to this power? Whether it

is Law which determines the ambit of State? Or it is the power of State

which uses Law as extension of its authority? All these questions demand

answers today, more than ever. Justice which was an element to find

answers for differences of opinions and disputes, is surrounded itself in

differences of opinions and disputes !

A Constitution enacted unconstitutionally has bestowed constitutionality on

the laws! What a contradiction ! The people are bound to follow these

laws ! What a helplessness ! The only element which can save the people

from this situation is that of pure Justice. Where to find it?
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“When men yield up the privilege of thinking, the last shadow of liberty quits the horizon.” - Thomas Paine