Independence of judiciary

This article is written by Shraddha Jain, a law student at the Institute of Law, Nirma University Ahmedabad, and Anushka Singhal, a student at Symbiosis Law School, NOIDA. This article discusses the concept of draconian law. It explains how it originated, what were its consequences and the reason for its decline, etc. 

It has been published by Rachit Garg.

Introduction

Have you ever noticed why a severe policy is referred to as ‘draconian?’ The expression ‘draconian’ is derived from a remarkable person’s name, Draco. Draco, sometimes known as Dracon, was an Athenian politician. He was involved in the effort to establish pre-existing Athenian customary law. His work first appeared in 621 BCE.

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Although most of his legal code has been lost, the tiny surviving portion on involuntary homicide, along with what Aristotle and Plutarch reported about it, suggests that the death sentence was imposed for even minor acts. When questioned about why he believed it was essential to penalise petty offences with the death sentence, Dracon stated, “We need the death penalty to stop minor offences, and for major ones, I can’t conceive of any worse punishment.” Solon, an archon in 594 B.C.E., significantly altered the draconian code. The draconian law is historically noteworthy because it created the notion that murder should be avenged by the state rather than by the victim’s family. His fellow citizens appreciated Draco very much. The term Draconian is derived from Draco’s name. This term has a significant negative connotation and is used to characterise any extremely harsh legislation or other tough actions devoid of kindness.

Draconian laws also mark their presence in Indian law. Some laws in India are stricter than others and are considered to be draconian. These laws impose more stringent penalties, and the procedure to try people under these laws is different than that given under the criminal justice system. There has been a demand among the masses to repeal these laws as they are used as a political tool to suppress opinions. Fundamental and human rights are being curbed, and it is the need of the hour to either repeal or dilute these laws.

What are draconian laws 

According to the Cambridge dictionary, “draconian laws, government acts, etc., are excessively harsh or go beyond what is reasonable or necessary.”

As it has been discussed, Draconian law was introduced by Draco, an Athenian lawmaker who developed a documented legal system in the seventh century B.C. The purpose of Draco’s code was to explain existing regulations, but its harshness is what made it noteworthy. Under the law, even minor transgressions were punishable by death, and failure to pay one’s obligations could result in enslavement. As a result, the term ‘draconian’ has come to be linked with very authoritative activities that are perceived as brutal or severe.

Aristotle, the most authoritative source on Draco, asserts that he was the first to have documented Athenian laws and that Draco built a constitution that enfranchised hoplites, the lower-class troops. The severity of the draconian rules was notable; they were supposed to be inscribed in blood rather than ink. Almost all criminal acts were punishable by death.

Historical background of draconian law

Around the 8th century BCE, when city-states were established in Greece, sovereigns in large cities such as Athens began to lose authority. The manipulation of their system by the aristocrats started in the mid-seventh century BC, and rules were frequently altered to suit the elite. Eventually, the Athenians found themselves in a city where just a few people possessed political influence, wealth, territory, and, most significantly, authority over the (unwritten) law. It has made it difficult for the victims to claim justice because, in ancient times, there were no clearly defined statutory sentencing guidelines or legal precedents from which to draw. Rather, it was up to the victims to seek revenge or restitution for any wrongdoing. If the victim had died, the relatives were left to seek revenge or restitution. This growing aristocracy caused problems for the people of Athens, especially the poor. Therefore, they demanded that there should be some rules and regulations written somewhere that could govern society without any biases. 

Need for draconian law

Because laws were unwritten in ancient Greece, the societal pyramid’s aristocracy of nobles and wealthy men misinterpreted and manipulated the aforementioned rules for their own personal gain. As a result, the ordinary people desired a single, documented, and structured legal system that was fair and practicable for all socioeconomic classes.

Furthermore, lending and borrowing were permitted in ancient Athens, and it was “authorised that one might borrow from another with a guarantee of his property and his individual liberty,” according to Aristotle (from the Athenian Constitution). So the fundamental issue was not just who owned the property or who had political power, but also that many small landowners progressively became indebted and began losing their land, eventually becoming servants to the wealthy. The main issue was that no rules regarding the above were actually written, and the poor were unable to stand before a court in which only aristocrats judged, and there were no written laws to safeguard them.

Around 632 BCE, an aristocrat named Kylon attempted to seize the trend of the poor people (mainly farm owners and small landholders) who had lost their property to wealthy landlords due to loans and the fact that no legislation had ever been written in Athens at the time, and therefore, the property was retained by a few aristocrats and justice was nowhere to be found. 

If we combine the two preceding events, the Kylon uprising and the farmers’ and small landowners’ response to all of this, we may conclude that laws had to be drafted at some point. Thus, the demand for written laws arose from the aristocracy’s uneven accessibility to legal knowledge in comparison to the ordinary public. To reduce the frequency of these feuds, Athens’ ruling aristocratic families decided to abandon their secret method of making law proposals and revisions in favour of writing them down and making them public to Athenian society. They commissioned Draco, an aristocratic legislator, to compose the written constitution, which he began in 621 BC. The wording of the new Constitution was written on display devices to promote it. As a result of the overwhelming demand from the people of Athens, Draco was given the authority to create a code of law. 

The legal system that was born out of the draconian legal code 

Draco’s fellow Athenian citizens hired him to draft Athens’ Code of Law in 624 BC. He provided a full and detailed judicial system by 621 BC, printed on plates and stones to be shown publicly in the Athenian agora. Rather than being randomly implemented and understood or recognised only by a small number of residents from the top social group, all rules were now publicly documented and therefore known to all literate individuals. Since these rules were written in stone, they were lost through weathering over time. And some of these laws were preserved by Aristotle.

Below are some of the aspects of the legal system derived from draconian law:

  1. Though essentially fair and accessible to all citizens regardless of origin, social position, or money, these regulations proved to be extraordinarily severe. Minor offences were punished harshly. For example, stealing a piece of fruit or sleeping in a public location was punished by death. Minor infractions may quickly transform an individual from a free person to a slave.
  2. Draco coined the terms ‘intentional’ and ‘unintentional’ homicide, with both offences being judged in the Areopagus. Feuds as a form of justice became banned once murder cases were tried by the state.
  3. Draco’s rules were famous for their brutality and favouritism toward wealthy landowners instead of those who found themselves in debt. His series of harsh punishments (the origin of the name ‘draconian’) for a range of offences did not last long and surely did not achieve their goal.
  4. Those who were supplied with arms were granted political privileges. They chose the nine archons and financial officers from among those giving armaments.
  5. Anyone who murders another Athenian, whether on purpose or by accident, shall be expelled from Athens for good. If the murderer apologises to the deceased man’s family and the family approves the apology, the murderer may remain in Athens.

Draconian Constitution

The rules that Draco established were Athens’ first written Constitution. They were put on wooden slabs (axones) and stones so that nobody would miss them, and they were kept for over two centuries on inscriptions in the form of four-sided pyramids (kyrbeis). The tablets were known as axones, possibly because they could be turned along the axis of the pyramid to be read from either side.

Several key improvements were included in the Constitution:

  • Instead of verbal laws known only to a small group of people, which were randomly implemented and misinterpreted, all laws were written down and made public to all educated citizens (who could then appeal to the Areopagus for social injustice): “the constitution established under Draco, when the first code of laws was drawn up.” (Aristotle, Part 5, Section 41 of the Athenian Constitution)
  • The laws differentiated between murder and involuntary homicide.

The rules were quite tough. For example, any debtor with a lesser position than his creditor was put into slavery. Those who owed a loan to a person of a lower social class faced a more lenient penalty. Even simple offences, like stealing a vegetable, were punishable by death.

How and why did draconian law come to an end 

Draco’s legal code was eventually deemed intolerably severe, particularly in terms of capital punishment for minor offences; it was unpleasant to contemporary rulers as well. The brutality of the regulations may have been the only way to maintain control within the aristocratic party while also eradicating centuries-old blood feuds. Aside from their actual political authority, the aristocracy discovered means to acquire land by officially seizing it from the poor in accordance with established rules. The rulers were in power under Draco’s law code, in accordance with the law and as they understood it.

As a result of the severity and inhumanity of the draconian laws, there was much dispute and discontent throughout various sectors of Athenian society. Draco’s contribution to Athenian law and society, however, was insufficient to sustain his rigorous written system of rules for long. Only after thirty years the majority of the draconian laws were repealed and effectively replaced by Solon’s reforms and new rules. In 594 BCE, Solon, the archon (magistrate), revoked Draco’s code and established new laws, maintaining only Draco’s homicide laws. Solon, usually regarded as the founder of modern Western law, could not completely pass legislation against his era’s moral and political decline. Nonetheless, he brought Athenian society out of the dark and brutal Draconian era, and most historians credit him with laying the groundwork for the city-subsequent state’s perfect democracy.

Modern scholarship is sceptical of the draconian legacy. The hoplite Constitution was almost definitely an afterthought. There is very little known about the rules, although even homicide laws were likely changed by the 4th century BCE.

Draconian laws in India

Dracos’ laws imposed exorbitantly strict punishments even for trivial crimes like stealing an apple. Similarly, there are specific laws in India that are stricter than ordinary laws and thus considered to be draconian. Laws on Sedition (section 124-A of the Indian Penal Code, 1860), the Unlawful Activities (Prevention) Act, 1967, the National Security Act, 1980, the Armed Forces (Special Powers) Act, 1958, the Safety Act of Jammu & Kashmir, 1978, etc. are considered to be draconian laws, and often people ask for repealing them. While in other laws, human rights are kept on a higher pedestal, in these laws, they take a backseat. These laws are said to be made for the nation’s security; thus, the punishment and procedure prescribed in them are different. 

Need to repeal the draconian laws

The rampant misuse of these laws has led to a demand to repeal them. Section 124-A of the Indian Penal Code, 1860, the law against sedition, has been put on hold by the Supreme Court of India in the recent judgement of SG Vombatkere v. UOI (2022), due to the objections raised against its misuse. No new convictions would happen under this law until it is re-examined by the central government. Even legitimate criticisms of the government were prosecuted under this section. Therefore, the Supreme Court decided to put this law into abeyance. The Unlawful Activities (Prevention) Act, 1967, commonly known as UAPA, is one such act that has often been criticised by the masses. This law reduces the burden of proof for establishing ‘mens rea.’ This law is also being used to curb dissent in the present times. Human and constitutional rights are being violated on the pretext of this law. Data released by the Rajya Sabha on UAPA revealed that 97.5% of people arrested under the Unlawful Activities (Prevention) Act between 2016 and 2020 are languishing in jails, waiting for their trials to be concluded. Similarly, the Armed Forces (Special Powers) Act of 1958, popularly known as AFSPA, has been criticised for violating the fundamental rights of residents of North-East India. The Central government has reduced the number of disturbed areas under this law after certain civilians were killed in the area in 2022. Due to these tragic happenings with innocent civilians and the curbing of fundamental rights, there is a need to repeal these draconian laws. The Public Safety Act of Jammu & Kashmir, 1978, known as PSA, also needs to be abolished due to its draconian nature. It is being used as an alternative to criminal justice, and people are being detained to curb dissent.

Sedition law

Section 124-A of the Indian Penal Code, 1860, penalises a person who brings disaffection towards the government through words, signs, or representation. This law has been in effect since the colonial era. It was originally Section 1138 of Macaulay’s Draft Penal Code of 1837, but later, when the IPC was framed in 1860, Section 124-A did not find space therein. Later, the need for it arose in 1870, and the Indian Penal Code (Amendment) Act 1870 (Act XXVII of 1870) was added. Its validity was challenged in the landmark judgement of Kedar Nath v. State of Bihar (1962), but the Hon’ble Supreme Court upheld this law. It was held that this law is a reasonable restriction as prescribed under Article 19 of the Indian Constitution. The figures supplied by the National Crime Records Bureau for the years 2014–2016 demonstrate the law’s inefficiency in the criminal justice system. In August 2018, the Law Commission of India issued a consultation document urging that Section 124A of the Indian Penal Code, which deals with sedition, be reconsidered or repealed. Following that, the Supreme Court heard the case of SG Vombatkere v. UOI (2021). The Court further barred the police from registering a new first information report (hereafter “FIR”), failing which the aggrieved party might seek proper remedies through the competent courts. The Supreme Court’s preceding orders will remain in effect until new orders are passed.

Unlawful Activities (Prevention) Act, 1967

UAPA is considered to be a draconian law because of the ‘very strict’ punishment and prosecution provisions provided under this Act. It penalizes the thoughts and opinions that are in disagreement with the state. It punishes both violent as well as non-violent political protests that cause hatred for the government among the people. Special courts and special procedures for prosecution and indoor hearings have been provided under this Act. The government has been given extensive discretionary power under this court, thus making it a very draconian law in nature. The human rights of citizens can be violated under the pretext of curbing dissent against the government. Under general laws, bail is the norm and jail is an exception, but here, the reverse happens. Bail can only be granted after hearing from the government. However, to decrease the draconian nature of the law, the Hon’ble Supreme Court held that “a violation of the fundamental right to a speedy trial is a ground for the constitutional court to grant bail in UAPA.” It has inspired other state-level laws such as the Jammu and Kashmir Public Safety Act, 1978; the Andhra Pradesh Public Security Act, 1992; the Maharashtra Control of Organised Crime Act, 1999; and the Chhattisgarh Special Public Security Act, 2005. These local laws are sometimes even more draconian than the UAPA and are used by the state prosecution agencies in addition to the UAPA. Even international organisations like Amnesty International have deemed this law to be highly draconian, resulting in violations of both fundamental and human rights as defined by international conventions. 

Armed Forces (Special Powers) Act,1958

Under the list of Indian draconian laws, this law occupies a prominent position. It is applicable in the northeastern states of India. This Act aims to prevent Maoist activities in the area and establish peace. It gives the armed forces broad authority to arrest, shoot, and search anyone they suspect of disrupting the peace in the area. Its continued application has led to numerous protests, notably the longstanding hunger strike by Ms. Irom Chanu Sharmila in Manipur. This legislation is sought to be justified by the Government of India on the plea that it is required to stop the North Eastern states from seceding from the Union of India. There have been issues with this act for a long time. In Indrajit Barua v. State of Assam (1983), the definition of the term ‘disturbed area’ in the provision was challenged. But the Delhi High Court held that the government had the requisite knowledge of which area should be considered disturbed and that there was no need for the court to interfere. The Delhi High Court found the AFSPA to be constitutional in the case. This law has also been widely criticised on a global scale. The law was questioned in 1991, when India gave its second periodic report to the United Nations Human Rights Committee. Members of the UNHRC challenged the AFSPA’s constitutionality, asking how the AFSPA could be judged constitutional under Indian law and how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights. AFSPA violates several international laws and conventions, like the Universal Declaration of Human Rights (hereinafter referred to as the UDHR), the International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It violates rights such as the right to life, the right to equality, the right to property, etc. Due to its draconian nature, it has also been dubbed as the licence to kill.

National Security Act, 1980

This draconian law allows the police to arrest any person if they feel that he is a threat to national security. The basic rights for the protection of the accused that have been provided under the Code of Criminal Procedure, 1973, that the person should be informed of the grounds of arrest, he should be released on bail if there is no reason to keep him in custody, legal aid by a lawyer, etc., are absent under the National Security Act. The popular phrase “no vakil, no appeal, no daleel” (no lawyer, no appeal, no argument) is used to describe this law. The law is prone to misuse, and any person can be detained for up to 10 days without even being informed about the reasons for the detention. Therefore, a plethora of fundamental rights and human rights are being violated under this law. 

 Conclusion

Draco’s rules were notorious for their brutality and favouritism toward wealthy landowners over those who found themselves in debt. His series of harsh punishments (the origin of the name “draconian”) for a range of offences did not last long and surely did not achieve their goal. According to history and mythology, the laws for homicide in this basic law code were written in blood because of their apparent brutality. Finally, Draco’s narrative and his notoriously draconian laws provide us with much food for contemplation and give us many political lessons. Draco, although appointed by the majority of his fellow citizens rather than the gods like his predecessors, still needs to create a people-friendly legal system. Rather, he became renowned for enacting one of the world’s most brutal and punitive legal regimes. Nonetheless, from the ashes of that disaster came a revolutionary system that would eventually lay the groundwork for a substantial percentage of modern law and government in the Western world. In modern times, governments have been inspired by Draco’s law and have enacted laws leading to blatant human rights violations. India has several such laws, which are used to curb dissent against the government whenever needed. These laws need to be repealed as they are against the basic concept of humanity. These laws can easily curtail the fundamental rights that our Constitution has provided. It is high time for these laws to be completely repealed or for amendments to be made to allow for the exercise of fundamental and human rights. Draco’s era has passed, but we have still not been able to move forward. 

Frequently Asked Questions (FAQs) 

What was the concept of council and assembly in draconian law?

One of the notions brought to the Athenian administration by Draco in his Constitution was the council. The ‘council’ was referred to as a magistracy in Aristotle’s Constitution of the Athenians. The ‘assembly’ was another Athenian magistrature that Aristotle documented in depth. Members of the council or assembly who were not present at a meeting were penalised according to their social standing.

What was Draco’s position?

Draco was not regarded as a political reformer until the publication of Aristotle’s Constitution of the Athenians. Although the draconian Constitution is barely referenced by modern historians, Aristotle highlighted his status as a constitutional and political innovator and lawmaker (despite the repeal of most of his laws, except those governing homicide).

How did Draco of Athens die?

According to a 10th-century Suda document and a series of Greek historians, Draco was killed on the stage of the Aegina theatre in approximately 600 B.C., when his followers threw so many caps and cloaks over him that they choked him to death.

What are the draconian laws in India?

Laws on Sedition (Section 124-A of the Indian Penal Code, 1860), Unlawful Activities (Prevention) Act, 1967, the National Security Act, 1980, the Armed Forces (Special Powers) Act, 1958, the Public Safety Act of Jammu & Kashmir, 1978, etc. are some of the draconian laws in India.

Why is there a need to repeal the draconian laws in India?

These laws provide for stringent penalties as well as procedures. They lead to the violation of fundamental and human rights, and thus, there is a need to repeal them. 

References 

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