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Law in Text or Law in Context: What we need?

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According to Lon Fuller, the law should not be just read as it is but should be read as what it should be. It should be read with the concept of morality. He states that rules should necessarily be moral for fostering the objectives of mankind. This he called as the ‘external morality’. A law should be fluid enough to adjust to the dynamic nature of society. As per Fuller, law should be framed in such a way which brings people together for serving their best interest.[1]

In this paper I have argued that, with changing time there is an earnest need to adopt the contextual interpretation approach of law in order to hold the rights of the people.The researcher has taken the example of Procedure established by law versus Due process of law and Right to Privacy to substantiate his argument.

Procedure established by Law vs. Due Process of Law

Article 21 reads for the restrictions on personal liberty subject to the procedure established by law. Interpreting this article by textualism or positivism, restrictions can be put upon the rights of any person if any law has been passed by the authority in such respect. Such an approach does not take into account the critical morality of the society as the procedure established decades ago may be anachronistic today. In the case of ADM Jabalpur v Shivkant Shukla,[2]the court adopted the textual interpretation of law and held that right to approach the court under article 14, 21 and 22stands suspended during the emergency. The court took this stance on ground of Article 359(1) which in this case was the ‘procedure established by law’.

However, the phrase ‘procedure established by law’ was read in consonance with the phrase ‘due process of law’ in the case Maneka Gandhi vUnion of India[3]. The court held that the procedure established by law must be just and fair and not arbitrary thereby expanding the scope of article 21. Fundamental rights are not distinct and mutually exclusive rights.The legality test of a law won’t just be limited to Article 21 but can be sufficiently challenged by provisions in Articles 14 and 19 as well.[4] This constituted the golden triangle of Articles 14, 19 and 21.[5]

The majority judgment in the Jabalpur case was overruled in K.S. Puttaswamyv Union of India.[6] The bench held that the right to life and personal liberty was present even before the Constitution of India came into being. It is an erroneous construct to think that these rights are subject to the will of the state who can curtail the liberty of the citizens by making unfair and unjust laws.

Right to Privacy

In the case of Kharak Singh v State of UP,[7]textualism approach was used. The two parts of the judgment contradicted each other in the very essence. Justice Rajagopala Ayyangar submitted that the Art 19(1)(d) doesn’t stand violated by surveillance over an individual’s movement and the article just talks about physical interference with movements and not mental.

The main legal issue was whether clause ‘b’ of Regulation 236 of the UP Police Regulations which allowed domiciliary visits at night, was unconstitutional or not. Interpreting Article 21, the court held that the above-mentioned clause violated the Right to personal liberty. When articles 19 and 21 are read together, article 19 speaks about reasonable restrictions which can be put by the state by enforcing some law. Clause ‘b’ of Regulation 236 of the UP Police Regulations is merely a rule of the police and not some law enforced by the state.[8] So, having not been backed by some law, domiciliary visits at night are violative of Article 21 which reads of ‘personal liberty’ and the clause was struck down. With the given proposition, it can be implied that the court upheld Right to Privacy implicitly.

When the question of keeping a watch on the movements of suspect came to light, the court interpreted Article 19(1)(d)and read it as the freedom to move around without physical impediments. Mere vigilance over the person doesn’t restrict his or her movement. The watch over an individual’s movement was violative of Article 21 and his privacy. But the court held that Right to Privacy wasn’t a right explicitly guaranteed by the Constitution of India and Article 21 also has no say in the argument. Going by the textual interpretation of Article 19(1)(d), the court contradicted its own proposition in the first part of the judgment which implicitly recognised right to privacy.

In Puttaswamy case,the Supreme Court of India observed that right to privacy, though not explicitly written in Article 21, has its origin from right to life and personal liberty, thereby supporting the dissenting statement of Justice K Subba Rao in the Kharak Singh case. It also arises from various other fundamental rights enumerated in the Constitution. Going beyond the text of the Constitution and bringing in the concept of critical morality, the court broadened the purview of Article 21. The court overruled the majority judgment in Kharak Singh case on the grounds of infringing the Right to privacy.

Prof. Hart supports constitutionalism in some instances because according to him, words as written in the law are not sufficient to give a proper meaning. He termed this as ‘penumbra of doubts.’ Hart says that these problems can be easily solved by judicial interpretation. He talks about intersection of law and morals while dealing with such problems. Morals are an influential factor in deciding cases which fall in this penumbra.[9]  This theory buttresses the contextualism approach.

Conclusion

With changing times, there is a need to change the perspective of how law is to be understood. One such way is to adopt the ‘living tree’ doctrine of reading the Constitution. In this approach, it doesn’t matter what was the intent behind the formation of law. The thing which matter the most is how the Constitution can be read to contain rights in their broadest realm. Dworkin says in Freedom’s Law that “according to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power.”[10] This proposition by Dworkin buttresses the ‘living tree’ doctrine of interpretation.

It has been observed through a range of studies that in the coming 20-30 years, the world will certainly become more urban, better educated and connected to each other as well as to information about their rights and more empowered.[11]In the current scenarios of law making by the legislators, courts and others, the law makers must keep in account the social changes that are taking place in the society, if regulating the social order is of paramount importance to them.[12]

The courts, with the change in social scenarios, have felt the need to change the view of how law should be seen. In the case of Navtej Singh Johar v Union of India,[13]the court followed this approach and recognised the rights of the LGBTQ community. CJI Dipak Misra took the approach of transformative Constitutionalism and dynamic acknowledgment of rights to hold that the Constitution must guide the general public’s change from a bygone to modern approach society where fundamental rights are strictly protected. He also said that, “Constitutional morality would prevail over social morality”.[14] The recent judgments are reflective of the above-mentioned change.This approach according to me will help people exercise their liberty and give them rights which they are entitled to.


[1] Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd 2000 at p. 95-118 & 187-225 127.

[2]ADM Jabalpur v Shivkant Shukla [1976] 2 SCC 521. (hereinafter Jabalpur case)(Supreme Court of India)

[3]Maneka Gandhi v Union of India,AIR 1978 SC 597. (Supreme Court of India)

[4]¶ 48, Maneka Gandhi,AIR 1978 SC 597.

[5]¶ 74, Minerva Mills Ltd. And Othersv Union of India[1980] 3 SCC 625. (Supreme Court of India)

[6]Justice K.S. Puttaswamy v Union of India [2017] 10 SCC 1. (hereinafter Puttaswamy case) (Supreme Court of India)

[7]Kharak Singh vState of UP AIR 1963 SC 1295. (hereinafter Kharak Singh Case) (Supreme Court of India)

[8]¶ 18, Kharak Singh, AIR 1963 SC 1295.

[9] HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71[4] HARVARD LAW REVIEW, 593- 629.

[10]Thulasi K. Raj, ‘Ways to read the Constitution’ (The Hindu28 August 2018) <https://www.thehindu.com/opinion/op-ed/ways-to-read-the-Constitution/article24794977.ece>accessed 13 August 2019.

[11]David Petrasek, ‘Global Trends and The Future of Human Rights Advocacy’ [2014] 11(20) SUR- INTERNATIONAL JOURNAL ON HUMAN RIGHTS, 2.

[12]Wolfgang Friedmann, Law in a Changing Society (first published 1972, Columbia University Press) 3.

[13]Navtej Singh Johar v Union of India [2018] 1 SCC 791. (Supreme Court of India)

[14]¶121, Navtej Singh Johar [2018] 1 SCC 791.

I am a 1st year student at National Law School of India University, Bangalore. I was also recommended for the Army cadre under NDA-II, 2016 exam. I am passionate about writing articles on pressing issues. My areas of interest is Constitutional Law.

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International Law

Upholding Dharma by Mob lynching?

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Label any Muslim a cow smuggler, accuse him of carrying beef and then lynch in the name of protecting religion. These premeditated barbaric acts seem to have become the order of the day. According to “Hate Crime Watch”, around 90% of religious hate crimes have occurred after the change of Central government in India in 2014. Although Muslims are victims in 60% of incidents, people from all religious faiths have suffered hate crimes.

India’s constitution promises its citizens justice, liberty and equality, but the shattering of social life through mob violence triggers an inescapable sense of powerlessness among its citizens. After the 2015 gruesome Dadri lynching, Mohammad Azam was lynched in July 2018 by a mob in Karnataka after a series of WhatsApp messages had warned locals that child kidnappers were on the loose. The mob assumed that Azam, who worked for Google, and his friends were co-conspirators and lynched him. In 2019, Tabrej Ansari became the first victim of the gruesome hate crime in the second term of the current regime led by proponents of Hindutva. He was lynched by a mob that forced him to chant Hindu religious slogans. In June this year, three people were lynched on suspicion of cattle smuggling in Tripura.

It needs to be recalled that lynching was used to terrorize black community for generations in the United States; blacks were lynched on dubious and false criminal accusations but this was put to an end through NAACP (National Association for the Advancement of Coloured People). In a similar fashion today, there is a growing perception that mob lynching happens with disturbing regularity in India to terrorize not only minorities but also dissenters in the name of religion and culture.

Violence against those who dissent is sought to be rationalized as nationalistic. The killings of Mohammad Akhlaq, Govind Pansare, M M Kalburgi, Narendra Dabolkar and Gauri Lankesh were masterminded by religious bigots masquerading as nationalists. In fact, the recent murder of George Floyd at the hand of a racially bigoted policeman in the United States, and custodial torture and death of a father-son duo in Tamil Nadu are hate crimes which are blots on the conscience of democratic societies.

Contemporary India has witnessed a surge in right-wing Hindu extremism, and crimes committed in the name of Love Jihad, beef eating, child kidnapping, cow slaughter and anti-Muslim fake news are aimed at normalizing this disturbing phenomenon. This right-wing propaganda usually spreads like a wildfire on the internet, particularly on the so-called Whatsapp University where it has become quite common to see pictures and videos of dead cows lying in a puddle of blood. It has been noticed that such videos and images on social media platforms are always of questionable veracity whose primary purpose is to incite fear, anger and violence. Very often, the text accompanying the videos appeals that everyone should spread it as much as possible in order for it to reach at the highest political executives. When this damaging and dangerous content is continuously circulated, the resulting fear in the minds of majority community gets converted into hatred toward the minority community.

These are nothing but politically motivated polarizing tactics and diatribes which only feed off pre-existing demeaning stereotypes of minorities. Technology has become an enabler of violence for various political and cultural reasons. There are many parties and stakeholders involved in these hate crimes but victims are only innocent people and invariably from vulnerable socio-economic groups. But the most shameful is the attitude of India’s politicians and police officials who justify these crimes, garland the lynchers, deny it ever happened or shrug off their responsibility by preferring to watch as mute spectators. Even delayed or muted condemnation of communal violence, by those in positions of power, only signal tolerance of such activity. Unfortunately, both the mob violence and the official response to it are symbolic of the Indian state’s rising incompetence in countering religious intolerance.

In recent years, the alarming idea that the ‘nation’ belongs only to the majoritarian community has made global strides as many countries like Poland, Hungary, Brazil and Turkey have come under its sway. Even many long-established democracies, including the United States, are feeling the pressure of this authoritarian tendency. The emergence of Hindu nationalist ideology in India, which is seen as replacing Indian civic nationalism, promotes the notion of a unique national culture grounded in Hindu cultural supremacy. The proponents of Hindu right-wing extremism are trying to radicalize their children and youth with ultra-conservative and fictional thoughts which often re-assert historical prejudices and ungrounded hatred toward Muslims.  

One may be wrong, but cynical indifference shown by the middle class citizens tends to breed servitude and perpetuate complacency. When the victim of mob violence dies a death, shockingly there is no remorse from the crowd. Only the victim’s family remembers the event even as the societal silence is spine chilling. Actually, one should not ignore the performance aspect to mob lynching. Those indulging in mob lynching or public beatings ensure that their acts are recorded and then the potential circulation of such videos is targeted to send a strong message of the majoritarian men terrorizing minority men into humiliation and subjugation.

The dominant mainstream assumptions that cattle slaughter and beef trade directly concerns only Muslims, Dalits, Adivasis and Christians is also far from reality. Unfortunately, framing of the debates around bovine trade along communal lines has been sustained by provincial media which acts as an echo chamber to propagate Islamophobia. It has also been observed that the messages of hate get intensified after any terror attack, and instigate people to act against specific communities, primarily Muslims.

In July 2018, a landmark judgment given by the Supreme Court had condemned the incidents of mob lynching and cow vigilantism as ‘horrendous act of mobocracy’, asking the government to enact strict law to counter them. Nevertheless, in spite of comprehensive guidelines and anti-lynching laws in some states such as Rajasthan, Manipur and West Bengal, the mob violence continues unabated. In many states where the right-wings groups feel emboldened such as Assam, Uttar Pradesh and Karnataka, there is widespread feeling that the enactment of stringent cattle preservation legislation has further exacerbated such crimes. Those who think that the lynch squad is a thing of the past are wrong.

Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) do not have specific provision dealing with the mob lynching because this was never seen as a crime in India. It is similar to terrorism for which we have the most stringent laws. But mob lynching causes more than just a death; it kills the spirit and substance of democracy. We are told that Hindus and Muslims share the same DNA in India. How can the cold-blooded lynching of one’s brethren make one a hero rather than a murderer? How can a policeman’s lynching and alleged cattle lifter’s lynching possess different form of bestiality? In fact, the time has come to brand mob lynching as ‘domestic terrorism’ and a serious threat to India’s internal security.

Does glory to Lord Rama be restored through unruly mob justice? Does the path to righteousness come through killing innocent people in the name of Cow? Does circulation of derogatory and hateful projection of Muslims bring glory to Hindus? Are those calling publicly for violence against Muslims and Christians are real friends of the Indian State and government? Is not hate crime the prelude to genocide? These uncomfortable questions shake the core of India’s multi-religious and pluralist democracy. India’s timeless civilization has unflinchingly celebrated the foundational principles of humanity such as non-violence, tolerance, peaceful-coexistence and ‘Vasudhaiva Kutumbakam’ which is one of the most important moral values engraved in the heart of every Indian. These eternal principles come under violent assault whenever a mob kills an innocent Indian.

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International Law

International Criminal Court and thousands of ignored complaints

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©ICC-CPI

The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.

Correspondent of the French newspaper L’Humanité Vadim Kamenka, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”

Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.

The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.

The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).

Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.

The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.

Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.

The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.

The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”

Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”

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International Law

Crime of Ecocide: Greening the International Criminal Law

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In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

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