On paper, India is a shining example of a society governed by the rule of law. We are a democracy with a separate and independent parliament, executive and judiciary, a functioning permanent executive, as well as many other institutions that have been set up to discharge constitutional mandates and the laws of the land. On paper, again, breaches of the law are punished through due processes, the law is applied to everyone equally, and no one is above it.
In practice, however, our society is characterised by an inefficient and crumbling legal system, policy making shrouded in secrecy, a bureaucracy mired in corruption, a society where inequality rules, violence in all forms is pervasive, threats to fundamental rights are commonplace and an inability to enforce even the most basic of laws is the defining characteristic of our legal system. Individual freedom and rights are not only constantly threatened by various organised groups, but also by the state. We appear to be an example of organised chaos rather than an orderly society where most of the governing institutions do not function properly and lack the processes, systems, values and people to function efficiently, and more importantly, in accordance with law.
How do we understand and explain the near permanent dichotomy that exists in India’s rule of law architecture? This is the question I set out to answer in the pages of “Rule of Law in India - A Quest for Reason”. This dichotomy indicates severe problems at the very core of India's governance superstructure:
- in its principal democratic institutions, namely the parliament and legislatures, along with the political parties;
- in its commitment to its constitutional values and the objectives driving those values;
- in its resolve to ensure effective performance of the institutions that support and protect democratic and constitutional values, mainly the judiciary; and
- in the social and political acceptance of the law.
I examined each of these issues from three perspectives - as a law student, a legal practitioner and a citizen. The rule of law is not something that only lawyers and judges deal with. It is the essential fabric that holds our republic together and guides all our institutions and socio-political activities. Therefore, I felt, it is important to be able to think of it without a legal hat on as well, as much as I may understand it professionally also.
The one thread that appears repeatedly in examining the rule of law, and its exploration by judges and scholars over the years, is reason. Repeatedly, the judiciary has insisted (starting from EP Royappa v State of Tamil Nadu, 1973 Supreme Court) that no action of the state is sustainable if it is not accordance with reason. Given the central role of the state in our society and the enormous power and discretion state institutions enjoy, it is imperative that they function according to reason and not in an arbitrary and dictatorial fashion. Equally, in society too, reason provides a basis for balanced views.
And so I began with reason. I examined whether our institutions function in a manner that meets the test of reason. I have focussed on the three primary roles of the state - in legislatures, the executive and the judiciary. All three need to function properly for the rule of law to be effective.
What struck me quickly and forcefully is that reason is by and large missing from this canvas, and where it exists, it is marked by inconsistencies and differences. For the legislature, one would presume that reasoning is necessary to debate new laws and policies in the houses of the people, and thereafter for the MLAs and MPs to convince people about those that are passed. Unfortunately, in practice, there is none of this. Legislatures meet less and less these days, and when they do meet, they do not indulge in reasoned debate about laws and policies.
The political leaders of parties are more than happy with this situation, as it has allowed a handful of individuals to capture policy making processes and legislate in an opaque, secretive fashion. Violence has also become common in the political process, further reducing the possibility of reasoned choices. This derailment of process has dealt a body blow to the rule of law, taking away the citizens' sense of stakeholding in the enactment of laws; when many legislators themselves are incidental to law-making, it is only logical that citizens would feel even more remote from it.
If law-making does not inspire confidence, then enforcement of the laws and respect for citizens’ rights is even less so. Equality, certainty and predictability in the enforcement of laws, all of which are hallmarks of the rule of law, have gone missing. Here too, reason has been replaced by violence and corruption, legality and illegality converge on a daily basis. No one, it seems, wants to follow the law by choice - the rich believe they are above the law, and the poor think that they do not have a choice but to follow the law. The executive, both permanent and political, is always happy to look the other way when laws are breached, and in fact even actively tries to convert illegality into legality if there is incentive to do so.
The judiciary is weighed down by long delays in deciding cases and is not efficient enough to safeguard the rule of law. Its pronouncements come far too late thereby not only failing to quickly redress a wrong or punish illegal actions, but also in fact making it profitable for people violating the law. The judiciary has also not been successful in reigning an errant executive in a proper manner. When governments do questionable things, the judges have by and large adopted a method of gentle persuasion to correct them, rather than strict enforcement of the laws or the rights of citizens.
No wonder, then, that citizens do not feel empowered enough to insist on their rights being respected by the state. It is as if the rights we hold are no more than concessions granted by the state, rather than something that inhere in the citizens. This outcome undermines the faith people have in the rule of law.
Clearly, there is much ground to be covered between where we are and where we need to be. But we must keep the faith. In every democracy, society and institutions have reached within themselves to bring nations back to the path of reason, and the rule of law has gained from each such turn. We must do the same - asking again and again what course of reason we must choose for the future, and then directing our energies to doing so.