The Concept Of Victor’s Justice And Indian Law

Author: LawSphereX

Category: General Law

Published: 2026-08-23T21:15:33.597193+00:00

Updated: 2026-08-26T17:05:57.157+00:00

THE CONCEPT OF VICTOR’S JUSTICE AND INDIAN LAW

Siddhant Mukherjee, BBA LLB, OP Jindal Global University British influence in Indian law is undeniable but as Rohit De argues “Constitutionalism is based on the desirability of the rule of law rather than the arbitrary rule of men. ”1 This paper sets out to delve into the concept of ‘Victor’s justice’ and how the arbitrary rules of the British have affected Indian laws that are still applicable to date. Victor’s justice, a term that is self-explanatory, means that justice is in a form, that the ‘victors’ of the war narrate. This theory in reality means that the victors of any war frame legal systems in a way that only calls for one sided accountability and exempts them from any scrutiny and accountability.

The Nuremberg trials2 which took place after World War 2 were inherently a product of allied victory; this suggests that justice was served not on the principles of natural justice and morals, but rather on power. As Gary Bass puts it “all legal systems are based on a degree of force 3“ and what can be a bigger force than the ‘victors of the war’. These trials completely focused on nazi aggression rather than war crimes of the victors; the design of this system was to perpetuate a very ‘American’ form of justice. These trials were also severely criticized on morals and political justifications, the crimes committed by the Nazi’s were inhumane and as Hannah Arendth puts it “for these crimes, no punishment is severe enough” which highlights the power the victors had, that they tried to serve justice on acts that shatter any and all legal systems.

4 The harsh reality is that this concept has not evolved yet from the Nuremberg trials which is an 80 year old phenomenon. This concept has well continued into the forms of justice delivered by the International criminal tribunal Yugoslavia5 and International criminal tribunal Rwanda 6where, in both instances there were selective trials of

1 Rohit De, People’s Constitution (2018) 3.

2 ‘Archives of the Nuremberg Trials Transferred to the Registry of the Court at The Hague for Custody’ (Archives of the Nuremberg trials transferred to the Registry of the Court at The Hague for custody | INTERNATIONAL COURT OF JUSTICE accessed 27 March 2025 .

3 Gary Bass, ‘Victor’s Justice, Selfish Justice’ (2002) 69(4) Social Research 1035

http://www.jstor.org/stable/40971591 accessed 26 March 2025. 4 Hannah Arendt, Correspondence, 1926-1969 (Lotte Kohler and Hans Saner eds, Harcourt Brace 1992) 54. 5 International Criminal Tribunal for the former Yugoslavia (ICTY), ‘home’https://www.icty.org/en/about accessed 27 th March 2024. 6 International Criminal Tribunal for Rwanda, 'Home' (United Nations International Residual Mechanism for Criminal Tribunals) https://unictr.irmct.org/ accessed 27 March 2025.

people only from the losing side, as Willam A Schabas puts it “Political choices are also made in terms of which parties to a conflict are to be targeted for prosecution. ”7 The British, a word almost unanimous with colonisation, had India as one of its biggest colonies for almost 350 years. The period of British ‘raj’ in the subcontinent, the colonisers felt the people of the region were inferior to them, they were primitive and needed to be ‘reformed’ by the british. 8 The British therefore established the laws of the ‘crown’ in a systematic manner till they gained dominion. Followed by this, they established legal structures that particularly consolidated their authority and served colonial interests.

As Radhika Singha argues that, the British aimed to establish a monopoly over legitimate violence and punishment, thereby displacing pre-existing legal authorities and asserting direct control over the Indian populace9. The example of ‘The Rowlatt Act’ (1919) which was brought in action by the british to imprison individuals suspected of terrorism without trial for up to two years10, was an oppressive law that was used to curb the rising movements by freedom fighters. The ‘raj’ with the Indian Penal Code of 1862 11established other regressive laws which came from British ideals; a prime example is Section 377 which states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life”12.

This law was made to criminalise homosexuality, stipulated on the ideals of christianity which the British felt was the only ‘ideal’ religion. Homosexuality was accepted in Indian vedic texts (kamasutra, cave paintings)13 yet criminalised by this backward law. The British left the subcontinent 78 years ago leaving it in a state of abhorrent violence, not just in the physical sense by the partition, but also of minds in trying to frame the laws and rights of a ‘free country’. The insecurities of the law makers were evident, the initial law minister BR Ambedkar said “We can remove the British from India, but we cannot remove 7 William A Schabas, ‘Victor’s Justice: Selecting "Situations" at the International Criminal Court’ (2010) 43(3) J Marshall L Rev 535 https://repository. law. uic. edu/lawreview/vol43/iss3/3 accessed 26 March 2025.

8 Robbie Shilliam, ‘Discovery, Conquest and Colonialism’ in Stephen McGlinchey (ed), Foundations of

International Relations (Bloomsbury 2022) https://www.e-ir.info/2022/03/27/discovery-conquest-andcolonialism/ accessed 26 March 2025. 9 Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Oxford University Press 1998). 10 Rowlatt Acts’ Encyclopaedia Britannica (Britannica, 2025) https://www.britannica.com/topic/Indian- Independence-Movement accessed 26 March 2025.

11 Indian Penal Code 1860 .

12 Indian Penal Code 1860, s 377.

13 Lawctopus, 'History of Homosexuality in India' (Academike, 9 July 2015)

https://www.lawctopus.com/academike/history-of-homosexuality-in-india/ accessed 27 March 2025.

British influence from our institutions"14. The implications of the laws set forth by the company affect people till date. A prime example of this is Section 377 of the IPC15 which criminalised homosexuality between consenting adults. This law was still in force post-independence which affected the lives of the LGBTQ+16 community, they were subjected to harassment by police, abuse, oppression etc on a daily basis. Police and authorities frequently used Section 377 as a pretext to harass, intimidate, and blackmail LGBTQ+ individuals, depriving them of their fundamental rights. 17 This community wasn’t able to gain equal access to justice as they were stereotyped and discriminated against on the basis of their sexual orientation. This violated article 1418, 1519 and 2120 of the Indian constitution.

The battle of this community to gain equal rights was a long and tumultuous one starting with a social cause of preventing AIDS in the Tihar jail; Naz foundation vs Union of India21 questioned the constitutionality of this section. Even though The Naz foundation succeeded in their mission in 2009, decriminalizing same sex relationships, various religious and conservative groups appealed to the ruling in Suresh Kumar Koushal vs Naz foundation22 which eventually led to the Supreme Court overturning their previous decision calling the LGBTQ+ community a ‘miniscule minority’. The anachronistic nature of this decision showcased how a law that was brought upon the subcontinent to promote their own ideology was internalised by the citizens.

The notion of homosexuality being ‘wrong’ or against the course of nature being instilled in the minds of these groups is a great example of how 'victor justice’, a concept of colonisation still affects our lives. Another example of this concept is how sections of the Rowlatt Act (1919)23 which violated human rights of various freedom fighters and the Martial law24 which the british imposed that led to the death of many innocent individuals in the Jallianwala Bagh massacre 25are very 14 Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (HarperCollins 2007) 6.

15 Ibid.

16 LGBTQ+’ (Britannica encyclopaedia ) https://www.britannica.com/browse/LGBTQ-Issues accessed 26

March 2025.

17 Sanjana Ramesh, A Legacy of Colonialism: The Criminalization of Homosexuality in India (2019).

18 Constitution of India 1950, art 14.

19Constitution of India 1950, art 15.

20 Constitution of India 1950, art 21.

21 Naz Foundation v Government of NCT of Delhi [2009] 160 DLT 277 (Del HC).

22 Suresh Kumar Koushal v Naz Foundation [2013] (1) SCC 1 (SC).

23 Ibid

24 Martial Law' (Britannica, encyclopaedia ) https://www.britannica.com/topic/martial-law accessed 27 March 2025. 25 Jallianwala Bagh Massacre' (Britannica encyclopaedia ) https://www.britannica.com/event/Jallianwala-Bagh- Massacreaccessed 27 March 2025.

similar to sections to the Armed forces special powers act (1958) 26. These laws were designed under different historical circumstances but within the same framework: the suppression of civil liberties; unchecked state power; and a grant of absolute immunity to security forces. The AFSPA27 acts as a colonial relic, a means by which state control may diminish fundamental rights and liberties in areas it is enforced like Northeast India and Jammu & Kashmir. The AFSPA28 provides wide-ranging powers to the armed forces by allowing them to arrest a person without a warrant, enter any premises without the consent of the occupant, or use lethal force on the sole basis of "reason to believe that it is absolutely necessary" in order to maintain ‘law and order’.

Just as the Rowlatt Act denied Indians a fair trial, the AFSPA29 directly serves to grant legal immunity to security forces who commit human rights violations: they may not be prosecuted by the human rights commission unless approved by the central government. As Dolly Kilkon argues “AFSPA is not just a law; it is a systematic means to justify human rights abuses under the pretext of national security. "30 The government is making active efforts to ‘decolonize’ the Indian laws by replacing the Indian penal code31 with the Bharatiya Nayay Sanhita32, but I feel that these new laws are just ‘old vines served in a new bottle’. Which is resemblant in how IPC section. 124A33 ‘sedition’ which according to various legal academics is the most oppressive colonial law has now just been rephrased into section 152 of the BNS34.

I believe ,the laws of the ‘Raj’ were established to gain dominion over the subcontinent and

as Rohit De also argues Laws established to dominate people cannot be the laws of a free, democratic country. Judicial activism that emerged in 1980’s fought this very colonial notion, yet today with no criminalisation of marital rape, ban on same sex marriage and application of AFSPA in the Northeast show that these laws which were broadly made to prefer the ‘Victor’ are still deeply entrenched in our laws and showcases the inability to actually dismantle them. This marks the depth of British influence on the legal system of India. I believe , the

26 Armed Forces (Special Powers) Act 1958.

27 Ibid

28 Ibid

29 Ibid

30 Dolly Kikon, ‘The Predicament of Justice: Fifty Years of Armed Forces Special Powers Act in India’ (2009) 17(3) Contemporary South Asia 271.

31 Ibid.

32 Bharatiya Nyaya Sanhita Act No. 45 of 2023.

33 Indian Penal Code 1860, s 124A.

34 Bharatiya Nyaya Sanhita 2023, s 152.

internalisation of these laws is the reason why in the modern times stand-up comedians using comedy as a form of political dissent are harassed by political groups and why as an Indian when I look through the laws of my country I don't find the rich and diverse state practices that should have governed the heterogeneous groups of minorities but ,rather find generalised laws that once used by the British to oppress us now used by elected governments to oppress its own citizens. A country driven by the motto ‘Unity in diversity’ doesn’t showcase this diversity in it’s own laws. ‘Decolonization’ doesn’t just happen by renaming roads or cities but by trying to address the ‘cognitive’ colonisation that has taken place and ,STILL intertwined into the fabric of our daily lives.

Addressing this internalization and concentrating laws on the philosophy and ideals of the concept of India—the same concept that initially enticed the colonizers to colonize India—is the only way to alter this idea.