In 1832, John Austin lectures were published under the title – “The Province of Jurisprudence determined” where it denied Law, properly so called, as a command of sovereign backed by the sanction.
There are four basic elements of Austin theory of positive law- Sovereign, Command, Duty and sanction. His theory is been criticized on various outcomes such as customs, judge made law, International law, command theory, relation of law and morals over-looked.
In spite of the above mentioned criticism, the author would throw some light upon the sanction element and opined its linkage to the present pandemic situation in India and try to justify the said theory considering the casual behavior of citizens.
The Austin theory is largely criticized for the reason being that the sanction is not the only means to induce the obedience and law is obeyed because of its acceptance by the community. In furtherance of same, law is nothing but a will of the public and thus cannot be said as mere command of sovereign. Keeping this argument into consideration, there are few facet which need to be consider. Firstly, if law is reflection of will of people, then who would justify the ill-effects of one community of those people on another community of people. This argument gets more balance in this covid-19 situation where Hon’ble Prime minister has requested the public to maintain Jantacurfew. It is nothing but a classic example to criticize the critics of sanction element. The Hon’ble Prime minister has given public an occasion to express its will to govern itself in a particular day for a particular situation. The same stands followed by one community however at the same time the other community of the public couldn’t followed the general will of the public. This is exactly a situation where poses a question as who will justify the ill-effects of one community over another where the general will of public is not adhered. This, creates a need of sanction element to the public will. The sanction serve twin purposes, firstly a fear to comply and secondly to control the ill-effects created by contrary community of the Public.
Janta-curfew and lockdown could have ignored the ill-effect of contrary community if same was backed by the sanction element. Hence, in this manner, the john Austin theory of sanction justifies under present case the punishment as ,out of many, solution and is a need to control the ill-effect created by contrary community of public who believe themselves to be exception to the binding rule of will of public and therefore sanction is the only way to deal with this pandemic covid-19.
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any agency of the Indian government. Examples of analysis performed within this article are only examples. They should not be utilized in real-world analytic products as they are based only on very limited and dated open source information. Assumptions made within the analysis are not reflective of the position of any Indian government State.
The author is a Practicing company secretary and founder of Budhiraja & co. Further, he is a Second Year Law student at faculty of law, University of Delhi and a Para Legal volunteer with Delhi State Legal Service authority and is an active Participant in Moot Court society of his college.
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