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Do Lawyers Have The Right To Threaten And Punish In India?

By Shubhda Chaudhary

18 February, 2016

In a democratic state, who has the Right to threaten and the Right to Punish? Is it the Court, the lawyers, the journalists rampantly going on a media trial or even citizens? The egregious manner in which Kanhaiya, JNUSU President was assaulted by the lawyers within the premises of Patiala High Court on 17th February makes us question, whether the lawyers have this Right to Punish. Can this episode be shunned, as it is currently being, under the garb of ‘Right to Protect’? In this case, the protection of the so-called Idea of Nationalism or India is debatable.

There are basically four forms of punishment. The first is physical punishment followed by verbal punishment and then withholding rewards and penalties. Ronald J. Rychlak from University of Mississippi states ‘The commonly identified theories of punishment for lawbreakers are either utilitarian, in that punishment is justified because it leads to a better society by reducing crime, or they are retributive, in that punishment is justified because the convicted criminal is morally deserving of punishment. Neither of these schools of thought presents a completely compelling argument for society's right to inflict punishment on a specific individual. If society does have such a right, however, it should be possible to identify the source of that right.’ Especially in the case of Kanhaiya, the threats like ‘Let Kanhaiya come, we will burn him alive’ sound obnoxious as he, till date has not been judicially proved as a ‘criminal.’

Rychlak further questions, by what authority or for what reason can society bring its weight to bear on an individual who has violated that society’s rules? For centuries, philosophers have sought to identify society’s moral right to fine, incarcerate, or even execute a convicted criminal. Punishment requires that we do evil to a person, and evil in any form is difficult to justify. Yet, few serious scholars would advocate stopping all punishment. After all, ‘an eye for an eye’ would turn the whole world blind.

Quoting ‘The Right to Punish in Thomas Hobbes’s Leviathan’, Arthur Yates states that ‘There is an apparent ambiguity in Thomas Hobbes’s account in Leviathan of the source of the sovereign’s right to punish. Hobbes appears to both claim and deny that the prospective sovereign is granted the right to punish by prospective subjects. In claiming that the sovereign is granted the right to punish, we understand Hobbes to hold that the acquisition of the right follows from authorization—a process by which a representative is commissioned to act on the behalf of another person. In denying that the sovereign is granted the right to punish, we understand Hobbes to hold that the possession of the right is merely the product of the mass relinquishment of natural rights; the prospective sovereign alone does not relinquish any natural rights. The tradition has called attention to this apparent ambiguity in Hobbes’s account of the right to punish.’

Foucault seeks to analyze punishment in its social context, and to examine how changing power relations affected punishment. He begins by analyzing the situation before the eighteenth century, when public execution and corporal punishment were key punishments, and torture was part of most criminal investigations. Punishment was ceremonial and directed at the prisoner’s body. It was a ritual in which the audience was important. Public execution reestablished the authority and power of the King. Popular literature reported the details of executions, and the public was heavily involved in them.

In the case of Kanhaiya, “our black coats were meant to signify that we are an educated class, but some of the lawyers have tainted the image of the bar. What’s so civil about a war anyway?”

Shubhda Chaudhary is a doctoral student at JNU. She can be reached at shubhda.chaudhary@gmail.com



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