Arvind
“The greatest contributor to the destruction of any civilization has always been the Structural & Institutional abuse of it to effect Inequality”
“Rights are indeed the Oxygen through which an entity exists in the legal realm, to do away with this rights or oxygen is to effect legal genocide of all those whose rights or oxygen has been done away with”
Introduction
“Genocide” the very terminology induces great wrath or at least repulse in any person who has even been a faint acquaintance to history. While, there does exist international protection against such genocide by virtue of the International Convention of 1951 there is not even recognition of yet another genocide (The legal genocide) which is as deplorable and wrath-inducing as that of genocide itself. But, Can there be Legal genocide? And most significantly- “Will it arose the very repulse and wrath akin to that of Genocide?”
The Truth of the matter is that, the same (legal genocide) has existed since a long time and is coming to light only of late as it is only now that such a section of the human population is targeted that has always been the most protected and privileged (THE MEN).
Legal Genocide: Obliteration of legal rights of a Particular Genus of the Section to which the law Applies
Legal genocide akin to genocide equates to the “killing in large scale often specifically targeted at a Particular group who share commonalities among them”. However, the Killing here is not in the “Physical realm” but rather in the “Legal realm”. Whensoever, “The rights of particular group or a Section of the society to which the law applies is obliterated or reduced to be ineffective, “A Legal genocide takes place for, the most rudimentary reason that it is mounted upon on Large scale and on Particular group or Section”.
Passive Legal Genocide: Non-recognition of the Rights
The same (obliteration) may be said to be passive in its applicability to a particular group or section- “When the obliteration is carried out, simply by not Recognizing the Rights of a Particular group or section despite the need for such recognition being announcing & loud”.
Illustration I: Dred Scott Vs. Sandford 1857 USA
This case may serve aptly as the “Locus Classicus on Passive Genocide” as it related to the “Non-recognition of the rights of a Negro Slave seeking emancipation” (Passive legal genocide) which (the emancipation) was indeed the announcing call of the “Group of Negros” at that time. The facts of this case would certainly cause a sense of outrage in any conscientious person as it aptly brings to light the Passive legal Genocide.
Facts: Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in Missouri court for his freedom, claiming that his residence in free territory made him a free man. After losing, Scott brought a new suit in federal court. Scott’s master maintained that no “negro” or descendant of slaves could be a citizen in the sense of Article III of the Constitution (which conferred on the citizens right to property and Scott was claimed to be a Property of his master Sandberg).
Question: Was Dred Scott entitled to the right of freedom or Was he a slave & Property of his Master Sandberg?
Conclusion: 7–2 decision for Sanford majority opinion by Roger B. Taney. The majority held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds. (This non-recognition = Passive legal genocide of the Negro Group)
Taney further held that the Missouri Compromise of 1820 (which was a compact between few states of the USA which vowed to end slavery) was unconstitutional and prohibits Congress from freeing slaves within Federal territories. The opinion showed deference to the Missouri courts, which held that moving to a free state did not render Scott emancipated. Finally, Taney ruled that slaves were property under the Fifth Amendment, and that any law that would deprive a slave owner of that property was unconstitutional.
Illustration II: Transgenders in India
It was not until the year 2014 that the Transgender as a Third Gender was recognized by virtue of the NALSA V. Union of India (2014) which subsequently led to their legal resuscitation from their legal genocide until 2014 by passages of The Transgender Persons (Protection of Rights) Act, 2019.
Ergo, prior to 2014-2019 there was in essence a “Passive legal genocide of Transgender persons” in India.
Active or Aggravated Legal Genocide: Discriminatory & Arbitrary applicability of the law to the exclusion of a Particular Section or Group
The Legal genocide may be said to be Active or Aggravated when the obliteration of the Particular section or group takes place by virtue of “Discriminatory applicability of the laws to the exclusion of a particular Section or Group which is often unjust and iniquitous”. Such applicability of the law often alienates that particular section from the legal realm (killing their rights) and eventually renders them legally dead from the legal realm and when such death is at a mass scale, A legal genocide is the result.
Illustration I: Men’s Legal Genocide
Currently, the laws in India are applied discriminately so as to exclude the particular section called “MEN”.
It is this discriminatory applicability of the laws to such an extent as to eliminate or obliterate the existence of Men (through elimination their rights) from the legal realm that results in a situation of legal genocide as the existence in legal realm is indeed through rights which are the oxygen to existence in the legal realm.
The evidence of the same may be gathered from the “Law of Maintenance” which is discriminately applied to the Particular group called “MEN” so as to do away with their rights as a group in the legal realm results in their legal genocide from the legal realm.
Law of reverse burden in cases of Rape with respect to Consent, Domestic violence Act, 2005 & Lack of law protecting men against rape are yet other illustrations of the same discriminatory applicability of these laws to the legal genocide of the men from the legal realm as it is indeed the deprivation of the rights (the oxygen) through which sustenance in the legal realm is made impossible for them as a group. The manifest form of these can be viewed from the recent suicide of ATUL SUBHASH whose primary cause was indeed his legal genocide.
Conclusion
Ergo, it is high time that such “Legal genocide” is recognized by law as we have collectively come a far way from mere existence in the “Physical realm” and have come to exist in other realms amongst whom the significant being the legal realm in which Rights are the oxygen through which we exist and deprivation of these rights (oxygen) is indeed legal Genocide. The recognition of this legal genocide becomes crucial as it is as deplorable as genocide per se the mere difference between the former and the latter being only the realms of legal and physical.
“An existence without rights is indeed no existence” and the growing realization of this results in the self-induced non-existences (through Mass suicides which is indeed genocide) by all those who realize the same.
The views and opinions expressed by the author in this article are his personal opinions and do not represent the views of PureSociology. You can contact the author/s at [email protected]. The details of the author:
Mr. Arvind is a Law student (BALLB) at Chandigarh University (CU), Punjab (India).
