Law and its Limits


Posted: 2010-08-06

Where would humanity be if justice was all about physically retribution proportionate to gravity of crimes committed? Indeed if an eye for an eye and a tooth for a tooth were to be the defining criterion for justice, modern civilisation would be thrown back into the medieval ages or as M.K. Gandhi said, left blind and toothless. Can we for instance today condone cruelties such as chopping off of hands as punishment for thefts, stoning to death of women guilty of adultery etc. that we every now and then get to hear with horror being reported from places such as Iran and Afghanistan? There seems no two ways about where the answer should be in these cases, but often the debate can be a lot more difficult to arbitrate. What for instance would be just punishment for manic mass murderers guilty of genocide? Should they be shown any mercy? Should they be given the benefit to be heard and defended for their crimes? Although in his typical irreverence for established norms, none other than Winston Churchill pointed out why the matter is nothing to be treated lightly. The war time Prime Minister of Britain, and a tall statesman voted the greatest Briton ever by the British public, and one who had called for the summary execution without trial of Adolf Hitler and some other Nazi war criminals at the end of the World War-II, had once ridiculed the notion of prisoners of war, POWs, saying that “a prisoner of war is a man who tries to kill you and fails, and then asks you not to kill him”.

The irony of the situation is, if this prisoner of war had succeeded in killing you, he possibly would not have been a prisoner of war and would still be killing more of you, until one day he failed in his mission and becomes a prisoner of war, and then asks not to be killed. The civilized answer is obvious. It would say that the civilized world should not sink to the level of the killers, and instead even such prisoners should be treated humanely though firmly. In most cases, the prescription would be, he should be locked away until such a time that the compulsions of the war that made him a killer is resolved. All the same, Churchill’s brash statement will continue to haunt law makers and law practitioners alike, as indeed it has even in Manipur whenever the issue of draconian legislations such as the Armed Forces Special Powers Act, AFSPA, and the National Security Act, NSA, etc comes up for discussion. The inadequately answered question remains, is a military response to a military challenge justified?

But in lawless Manipur, the question acquires added significance. In a situation where the prolonged revolution is burdened by excessive adipose, and the ideological core has now come to be effectively cloaked by the multiplying number of criminalised fringes, there would today be many who would tend to see from Churchill’s vantage. The weakness of the law and the corruption of the establishment have also together complicated the matter considerably. Take for instance a hypothetical situation, although many would vouch it is the reality and no longer a hypothesis. A criminal element posing as a revolutionary threatens, kidnaps, extorts, mentally and perhaps even physically tortures somebody but eventually gets arrested. A few weeks later he is released on bail and not long after he jumps bail and goes back to his old ways. Supposing he again commits a grave crime, not excluding the possibility of homicide, who should be held responsible? Armchair intellectuals and legal luminaries may have a different explanation, but ask the victims and answer would be hurled back at the face of the one making the query. From their standpoint, the criminal certainly would not be just the person directly responsible for the crime, but also the system which failed to prevent it from happening although it was very much in its power to do so. In most of these cases, it does not have to be even by the resort to draconian Acts that such eventualities are prevented. On the other hand, all that would have done the job was the firm application of the rule of law as well as ensuring corruption does not mess up the cases. But this would probably be asking for too much from a system which has consistently even turned a blind eye to reports of extortion crime syndicates being run from inside state maintained jails. The point is, the normal democratic laws if applied in earnest and with commitment is in 90 percent of the cases tough enough. It is only when the normal laws are made to appear weak by corruption and incompetence that the call for draconian legislations gets louder.


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