Legal system relies on the concept of rationality and selfishness of human being. Human beings, compared to other animals, is more rational. At the same time his concept of self-preservation goes beyond that of animals’. Rather, the self-preservation concept of human beings extends to self-improvement. This self-improvement is usually based on selfishness and the legal system aims at controlling this selfishness. The legal system lays down the guidelines that need to be followed by humans, and since human beings are rational the ramifications of his pursuit of selfishness is understood. Logically the probability of that legal retaliation, for the selfishness in pursued act, works as the deterrence factor.
So, a human being who is taking a path considered as unwelcoming and/or undesirable by a legal system usually is taking the same for his selfish interests. The legal retaliation to such act based on, the above narrated, concepts of rationality and selfishness yields an expected result. Thus the legal system is capable of controlling it. However when one is taking a path that is unwelcoming and/or undesirable not because of any selfish reason, logically speaking, the usual response of the legal system cannot be considered as a befitting one. The reason being that the legal system is not trying to control a selfish action.
The above narration shows the lack of legal logic when conventional legal retaliation is made in relation to certain deviant behaviours. Thus, a person who is motivated by a zeal to reform the system to which he is belonging and when in that process he is relinquishing his petty comforts, such a person is not at all deterred by the might of law. The said person’s deviance is motivated by the retaliation urge against the selfishness of those who are using law as a tool which has resulted in the present state of affairs of the system which they want to change. Thus, one can identify a change in role-play in the given scenarios. Here, selfishness of the system is attempted to be corrected by the unselfish deviance. Supposing that the legal system considers it to be a luxury to accommodate such a deviance and is using all its might to ensure silence, it is actually reverse use of the said logic. Further, by such an action the state is clearly sending the message that ‘the state does not want anyone to be unselfish’, or ‘the state does not want anyone to be concerned about the plight of others’ or ‘the sate do not want anyone to think differently from the state’ or ‘no one can question the quality of the system’ or ‘’law is perfect’ and no one need to question it’.
The author would like to rely on the facts with respect to Dr. Binayak Sen, as available from various means of media, to link the above aspects to a realistic level. Dr. Binayak Sen, a service oriented medical doctor with superlative academic record opts to work with the rural population instead of a comfortable urban career. When he finds recurring/relapse of diseases in the treated patients he tries to find out the reason and identifies their miserable living conditions as the reason for the same. He works for bettering their lives and eventually ends up in jail. After a long legal battle, causing the loss of service of a quality medical doctor to the society for a long term, he is given temporary reprieve by the Supreme Court. The good news is that he is still in the system. Whether he was a deviant or not, whether his deviance was criminal or not, whether the legal retaliation was correct or not are open questions. Anyhow, it is difficult to paint him as selfish.
The author wishes to end the note by narrating a recent incident. Person(s) were gunned down by police authorities of Kerala in an operation in Nilambur forest. Going by the facts gathered from various forms of media one can identify that the said person(s) had good academic background and initiation into a career that is considered better by conventional standards and with high prospects. However, again going by media input, there is relinquishment of such prospects. Materialistically speaking such relinquishment is indicative of unselfishness. Again the earlier question resurfaces whether they were deviant or not, whether their deviance was criminal or not, whether the legal retaliation was correct or not? Unlike the narration with respect to Dr. Binayak Sen, there can be a strong reliance on the argument that their actions were highly overt on many respects and satisfying all the substantive ingredients of general principles of criminal law. But nevertheless the underlying issue of lack of selfish interest is still holding good hence the logic of conventional retaliation is also fallible. Without doubt there are perpetrators (rather class of perpetrators) in whom one may not find the elements of selfishness but their deeds creating trouble for the system. The reaction from the system then is as expected but it is still leaving open the larger question of how far the relied legal logic of such retaliation is correct?
At the same time selfish people like us, using all the comforts of the system, is moving without any deviance and ensuring the said comforts forever. The message is simple and hard – continue to be selfish, never think of others, then the system will protect you.
Shanmugham D. Jayan is an Advocate and a Visiting Faculty of Law at The National University of Advanced Legal Studies (NUALS) and School of Legal Studies, Cochin University of Science and Technology (CUSAT).
Image from here.