1.13 Nonviolence in Legal Perspective

Chennai 2009: Non-violence, Compassion and Instrumentality - A Jaina Perspective

Non-violence, Compassion and Instrumentality A Jaina Perspective Seminar organized by the Department of Jainology of the University of Madras, 13 and 14 February 2009 Chennai, India

 13.02.2009

Nonviolence in Legal Perspective

1. Introduction

1. Violence & nonviolence: To define and explain nonviolence one must surely see the meaning of violence - that has been told to me since I started to study Jainism. Is nonviolence so handicapped that we need support of violence to understand it? Probably it is just a way of explaining, which one thinks is better to make others understand the topic. Hopefully this is not the best way. But what I feel is, that nonviolence is the term which seems to signify that you have to do noting, “Just to be in yourself for yourself is nonviolence” and noting else, surely not selfishness.

2. Legal System: Ah! Here is the term where I say there is a system to impose the rules and regulations on others, called the Legal System, divided in three parts for better implication of the law and enforcement by making it punishable, namely Legislation, Enforcement Authority and Judiciary.

3. Nonviolence and legal system (relation): These are two different concepts; how dare I say “relation between nonviolence and the legal system? This reflects the general opinion concerning legal systems and nonviolence. But this is not true, though the legal system has some drawbacks, as everything has. It is very helpful to impose nonviolence by making rules, enforcing them on the society and punish the wrongdoer so that others can live peacefully. I agree that punishing the offender would also be violence, but one must consider what the intention behind it is.
   
   

2. How the legal system is related to nonviolence (Provision in the legal system in relation to nonviolence).

   Here I give some of provisions and acts given in the legal system to prevent violence throughout the country as follows:

1. Related to environment

i. The Environment (Protection) Act, 1986

ii. The Water (Prevention and Control of Pollution) Act, 1974

iii. The Air (Prevention and Control of Pollution) Act, 1981

iv. The Chemical Weapons Convention Act, 2000

2. Related to human beings:

   i. The Narcotic Drugs and Psychotropic Substances Act, 1985

ii. The Child Labour (Prohibition and Regulation) Act, 1986

iii. The Juvenile Justice (Care and Protection of Children) Act, 2000iv.

iv. The Dowry Prohibition Act, 1961

v. The Protection of Women from Domestic violence Act, 2005

vi. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

vii. The Prevention of Terrorism Act (POTA), 2002, Repeal 2004

3. Related to other living beings:

i. The Prevention of Cruelty to Animals Act, 1960

ii. The Wild Life (Protection) Act, 1972

iii. The Forest (Conservation) Act, 1980

iv. The Protection of Plant Varieties and Farmers’ Rights Act, 2001

4. Even the intellectual property act provides the prevention of violence and supports nonviolence:

Two places in the law are given as:

i. Patent

ii. Design

5. Foreign Laws: Most countries have adopted a law strengthening the prevention and punishment of domestic violence or violence committed against minors. This kind of law fights against forced marriages, facts of committing domestic violence and sometimes aligns the legal age of marriage for women and men. Also, many countries adopted a law against sports violence, racism and xenophobia. For instance, France had many laws against violence and is provided with laws strengthening the fight against road violence or violence against articles, animals. Some of the laws in France, the Republic of Venezuela and Spain are as follows:

i. Law No 2003-495 of 12 June 2003 Strengthening The Fight Against Road violence (French).

ii. Law of 4 April 2006 Strengthening the Prevention and Punishment of Domestic Violence or Committed against Minors. (French)

iii. Act of Violence against Women and the Family (Republic Of Venezuela) 3 September 1998

iv. Law against Sports Violence, Racism, Xenophobia (Spain 4th September 2007)

3. Need of the legal system for nonviolence and to prevent violence

1. Binding Capacity: As we know that laws and rules imposed by the system and its authority have the capacity to bind each and every citizen of the territory and jurisdiction. It is imposed with the certainty that everyone follows that, and failure to do so would be punishable.

2. Compulsion to follow the rules and laws: For nonviolence it is required that the law must be compulsory for every one to follow. If there will not be a system and law, which is common for every one, it will create problem on follow-up as everyone shall have its own way of thinking.

3. Technical, modern and practical: It has technicality to deal with things and to explain or interpret the terms so that it becomes easy to understand and follow. As the time changes people want modernity and practicality, especially the young generation, which the legal system giving them a practical and modern law which includes behavior, activity and thoughts of the society as a whole.

4. Protection of Human Rights: Any law made by the legislation shall not violate the human rights, as it is mandatory. Protection of human rights also is the nonviolence that is what we need the legal system in preventing violence and promoting Nonviolence practices.

5. Public Interest Litigation: For public interest against any governmental wrongs only the judiciary is the platform to raise the question and deliver the justice. This is very helpful for protecting the violation of public interest.
   
   

4. Role of the Legal System for Nonviolence

1. Legislation: Legislation is law, which has been enacted by a legislature or other governing body. Before an item of legislation becomes law it is known as a bill, which is typically also known as “legislation” while it remains under active consideration. Legislation is usually proposed by a member of the legislature, e.g. a Member of Parliament, or by the executive, whereupon it is debated by members of the legislature and is often amended before passage. When a bill is proposed and enters into force, it becomes a law. This is the body to make the law, which is enforced by authority by order. Law made by the body shall always be passed so as to no human rights shall be violated; it implies that there shall not be any violence with anyone.

2. Enforcement Authority: Range of procedures and actions taken by a State and its competent authorities to ensure that persons or organizations failing to comply with laws or regulations are brought back into compliance or punished through appropriate action. The authority could be violent, but that is to prevent the social and moral violence and to restrain the wrong doer.

3. Judiciary: In law, the judiciary is the system of courts, which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. It usually consists of a court of a final appeal called the “supreme court” or “constitutional court” and other, lower, courts. Under the doctrine of the separation of powers, “the judiciary is the branch of government primarily responsible for interpreting the law” with the citation needed. It construes the laws enacted by the legislature.
   
   

5. Reason of Failure of the Legal System to Implement Nonviolent Practice

1. Public Support: Any law or rule made is always for the benefit of human beings and to provide them safety, security, independence and to secure their common rights. Where the law and whole legal system is there for their benefits, they must also be respectful and responsible towards the law made for them. Disrespecting or irresponsibility will cause them loosing their own rights and independence. So, because of less public support to follow up the law, or because of their opposition to make a public benefit, laws, due to some or other self-benefit, cause violence, and that is where the legal system fails to achieve the goal of providing nonviolence and peace.

2. Political Parties: The worst reason of failure of the legal system to achieve its goal is the political parties. Except a few cases, wherever the ruling party wants to make or made some beneficiary rule and laws, the opposition party opposes it, even though it affects the social security or prevention of violence. Entrance of criminals and goondas in politics is also a reason of failure of the nonviolence system as they are themselves of a criminal background and would not support laws affecting their activities.

3. Non-Responsibility: Not only the legal system but the citizens also must understand their responsibility towards law and orders for good implications of a nonviolent system. Each and every individual including but not limited the legal system - political parties, politicians must respectfully and responsibly follow the law so that we can stabilize a non-violent practice.

4. Violence on Rule Making for Nonviolence: Even demanding nonviolence while we perform violent activities, how then is it possible to stabilize a nonviolent system? E.g. for demanding rights for Sri Lanka based Tamilians, we are performing violence here and harass our own people. We are violating rules to demand justice. Is it good to clean the cloth with blood? Would it be cleaned? Need to think on it.

5. Poverty & Unemployment: Other reasons for failure of the legal system to achieve the success in establishing full proof nonviolence system are poverty and unemployment. This is one of the important causes in India for violence, unlike other states in world such as the UK and the US, where the state government provides unemployment benefits so that people can survive during the period having no earnings from employment. Obliviously when one has sufficient to feed, one would generally not move to any wrong activity.

6. Less Social Security Measures: We are having a good force to fight with any kind of terror or criminal activists. But do we have a strong enough security system to prevent that activities of this kind would take place anywhere, and stop them in time? We see other parts of world where except one or two cases nothing of the kind took place. Everywhere they have CCTV cameras, free public telephone booths, and modern technology to trace out and stop criminal activities. So this is one reason among others for the failure of the legal system to provide a strong nonviolent system to our society.
   
   

6. Nonviolence in day-to-day life and problems faced by the legal system in dealing with it:

1. By legislation: To create any law there is a legislation system wherein a bill to be produced in the parliament, and after passing the bill in parliament could by the legislative authority be passed, after which it is called a law. It is not as easy as stated here, but for making any law the proposal to be supported by the ruling and opposite parties too. It must be with the human rights protection aim and lot of other things, but most of time it takes long arguments and days or months to pass.

2. By enforcement authority:

i. Powers and rights: The Enforcement Authority is the authority to enforce law and orders in the area or limitation given, but do not have full powers and rights to operate the system. Someway it is good that they are bound in limitation, but sometimes it is felt that if it would have some kind of systematic power and rights they could function actively, and operate the system with good results.

ii. Political interference: There is a lot of political interference in the functioning of the enforcement authorities. They sometimes feel handicapped in their functioning because they have to function according to the ruling party government, even if they are wrong. They have to follow them because of fear of sacrificing their employment.

iii. Corruption: This is the worst obstruction in any field to follow the nonviolence system. It is the power of money spreading everywhere, which leads people to go against the rules and ultimately the violence resulting there from.

3. By judiciary and advocates:

i. Only followers, not rule makers: What this part of the legal system can best do for society, is just to make people understand what the laws and orders are, but they can not modify if something really violating the rights in day to day life. They are the real problem facers in practical life, and can very deeply understand and think of better solutions for a particular rule, law or order to establishing the best possible nonviolent system.

ii. Limitation of functioning area: Their functional area is limited only to the court premises. Outside the court there knowledge of law, rule and regulation cannot stop the violence, as the in the society enforcement authority is the one who covers the functional area, and they only can maintain it. For e.g., when on the road any authorized person is bribing and a lawyer sees it, he is unable to stop it because it is not within his functional area.

iii. Measurement of seniority: Measurement of seniority and experience are the years one spends in the field - not the actual knowledge and hold on the subject. So this limits a young functionary to stop violence as no one listens to him.

iv. Due to boycott: Boycott by one or all of the lawyers’ association also does not allow the Judiciary to function properly, where if it becomes (most of the time) violent, functioning of nonviolent system is not possible at all.

7. Conclusion:

1. Remedies

i. Public Support: Where the whole system is for public and protection of their rights, the system requires their support in maintaining law and order. What we can do is, just to follow the rules and regulations given to us for our rights and protection.

ii. Honesty: Honesty in following the rules must be there towards law and order. One must have belief that law and order and the whole legal system is for their benefits and not for violating their rights.

iii. Faith in System: One must have faith in the system and its activities, and its role in providing peace and a nonviolent system so that we could follow the law without hesitation.

iv. Selective Election: The ruling party is having power to maintain and operate the law and order through the enforcement authority. If we have a good leader, law and order will be maintained properly, so it is our duty to select a good one for election.

2. Our Responsibilities

i. Knowledge of basic law and order: We should aware of the laws and orders of the nation, state or part of the world we are living in, so that we can follow them properly. One cannot escape by denying that one was not aware of the law.

ii. Report of abuse: Any abuse, wrong or criminal activities if we see such, we must responsibly report to the concerned authority.