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Overhaul the Judicial System
by H.N. Bali Bookmark and Share
 

... Before it Collapses, and with it the Polity 

Continued from “Legal System in a Shambles”

Achilles’ Heel of Our Polity – Part III

A 26-year-old self-employed Tunisian youth called Tarek Mohamed Bouazizi self-immolated to death in front of the local governor’s office in the town of Sidi Bouzid in December 2010. What forced Bouazizi to this desperate and drastic step, was that an hour before that a policewoman, backed by two municipal officers, had expropriated his fruit stock for day’s sale along with a second-hand electronic weighing scale worth around $180. Those scales were his only capital. His self-immolation sparked a wide-spread revolution all through the Arab world. That the upsurge didn’t, besides giving a shake-up, produced a long-lasting impact, is a matter of serious reflection. Why did, what seemed to be a conflagration suddenly subside, why did the momentum that at one stage appeared unstoppable, peter out?

Such police harassments are a daily phenomenon that we in our society have after centuries of oppression, learnt to take in our stride. Will it go on like this for ever or will its victims say one day – loud and clear – enough is enough is enough?

The brutal gang rape of a 23-year old paramedic led to lots of protests. But today, after over three months, the state of the affairs is as bad as ever, if not distinctly worse. Despite the so-called fast-track court and its day-to-day hearings of the case, the legal system is still pushing the mighty heavy, rusted wheels of justice which seem to have moved a few millimeters, if at all. Meanwhile, young women continue to be harassed and raped day after day in our highly unsafe metropolis which has acquired the well-deserved appellation of Rape Capital of India, where there is no semblance of rule of law.

How oppressive practices manage to continue – in fact, flourish – in certain societies while in others there are serious efforts to control and eliminate them, are issues that have exercised thinking people over the years. A provocatively instructive answer to this centuries-old problem has been attempted by Daron Acemoglu and James Robinson in their profound study entitled Why Nations Fail, which every Indian who cares for the future of this polity must read and ponder over.

We, supposedly, became independent in 1947. But did we shift – or even make a serious attempt – from an extractive to an inclusive state, from the arbitrary power of rent-seeking agricultural and industrial elites to the rule of law applicable to all in equal measure? My answer is No with a capital N.

In his 2012 Reith Lectures, Niall Ferguson, the eminent (though controversial) Harvard historian, dealt with the vital theme of rule of law and its enemies. Every society has its own quota of enemies of rule of law. Ferguson dealt primarily with the western world to which we owe the concept and practice of rule of law in its present shape and form. In our case, the enemies of rule of law are formidable indeed, and ever ready to undermine the foundations of the democratic polity which our Constitution makers laid the foundation of. Before identifying them, may I deal with some basic presuppositions – presuppositions which we tend to gloss over – but which alone ensure that a society prizes and upholds rule of law.

Some Presuppositions

The first and foremost of such presuppositions is that there must obtain a near unanimity in favor of rule of law over rule of men (however charismatic like Nehru). Does such unanimity exist in our society even after a bitter taste of rule of a woman who clamped an Emergency to ensure her power grip? My answer is equivocal. If we really prize rule of law what explains the alacrity to vote Indira Gandhi back to power in 1980.

Secondly, the laws passed in a State where rule of law obtains, must not only be enforced but seen to be enforced without any exception. If the task of their enforcement is undertaken half-heartedly or, worse, selectively, it will boomerang in so far as the State so enforcing the laws, is held in contempt by the citizenry, and worse, openly flouted. Take a recent case making rounds in social circles. Poor ‘little’ Sanju Baba (he was 34 when the 1993 terror attacks in Bombay took place) deserves pardon on humanitarian grounds, it’s being argued, because he is now a ‘reformed’ citizen who has spread ‘Gandhigiri’ and has already served 18 months in prison. Has anyone pleaded the case of poor Zebunissa Qazi, a 70-year-old Muslim woman, who was convicted in the same case under the TADA while Dutt was held guilty under the Arms Act even though the nature of their involvement was identical? As a matter of fact, Zebunissa’s plea that she was unaware of the arms consignment being kept in her house sounded convincing while Dutt confessed to taking the weapons for ‘self-defence’. Should one be forgiven because of his social status and the other, convicted because she is poor?

In the last installment of this essay I dealt with how delays in delivering justice make a mockery of rule of law. Justice, if not meted out speedily, loses its meaning. Take a few well known examples: the case of Harshad Mehta, the rogue trader in Dalal Street and the Union Carbide case of Bhopal. Both of them have taken so long that many key witnesses and the accused have passed away.

An FIR was registered on December 27, 1988, i.e., more than two decades ago alleging that N S Sidhu and Bhupinder Singh Sandhu hit one Gurnam Singh after dragging him out of his car and he died. Public prosecutor Vinod Ghai said that Sidhu had admitted to the crime at the time of occurrence. Today, NS Sidhu is an hon’ble BJP MP operating freely with a pending case in the Supreme Court, which is likely to remain pending for another two decades.

This is a sad commentary on the Indian judicial system which by no stretch of imagination, follows the dictum that justice delayed is justice denied – so sacrosanct in English law and jurisprudence which our own system swears by in theory but turns a blind eye in practice. The appalling system of appeals and adjournments has eaten into the vitals of the judicial system, with the result that over 2 crore cases are pending in Indian courts.

Laws Aren’t Just for Lesser Mortals

Take law enforcement. Possibly, the gravest failing of our polity has been in the area of law enforcement. The enforcers of law believe that they have discharged their functions after passing the law and that is the end of their responsibility. Far from that! No State should ever enact a law that it cannot enforce. If still does – as in our case – it does more harm than good. When a law is flouted with impunity – and our well-heeled middle class specializes in that – the entire apparatus of State is held in contempt by people at large. And this, precisely, is happening today. The common man has an undisguised disgust for the Government of the day because of its inability to enforce its own laws.

Take a simple provision enshrined in the Constitution that provides for an upper chamber known as the Rajya Sabha which was supposed to be the Council of States. The Founding Fathers of the Republic were keen that the Rajya Sabha, which has an ever-continuing existence, should truly represent the States that are the constituents of the federal structure of the polity. And for this they provided that only persons who are “ordinarily resident” of a state are qualified to be elected as members of the upper house. The underlying idea (though not specifically so put) was that someone living in Bihar, for instance, alone would represent the state, and not someone from Kerala.

To fulfill the basic requirement of ordinary residence to contest a seat in the indirectly elected Rajya Sabha, all that a candidate has to do is to swear an affidavit of residence in a given town of the State. Over the years The Upper Chamber has become a Club of the Rich and its membership, much-prized because the incumbents don’t have to face the rough and tumble of electioneering and if elected, they are assured of a six-year term with every likelihood of manipulating another term by influence-peddling.

Most of new entrants of Rajya Sabha, for example, gleefully breach the law of the land by filing false affidavits. Those who have lived all their lives in Delhi are registered voters in the town swear to be ordinarily residents of Patna or Guwahati or Hyderabad. This is a culpable offence both under the Indian Penal Code and Section 31 of the much-abused Representation of People’s Act. The sharp deterioration of standards of public life (and personal probity) is evidenced by the fact that some of the country’s leading practitioners of law are guilty of having sworn such false affidavits to enter the new-found profession of money-making called politics. What can be more ominous for the future of the polity that its law-makers start their political career on the basis of a blatant lie that is condoned?

One of the guilty of this blatantly unlawful indulgence is Manmohan Singh, the Prime Minister of India. Having lived most of his working life in Delhi, he has sworn an affidavit to be normally a resident of Guwahati. The ripple effects of such practice are all too well-known.

Everyone knows how well-heeled representatives of the middle class manage their escape from breach of law through bribery and all the new tools and techniques of escaping from the supposedly long arm of law. The result is no traffic constable dare haul up a VIP jumping the traffic light. He can always get in touch with the Police Commissioner on his cellular phone to complain about the inconvenience caused to him. Hard core criminals operate, under the copious umbrella of political patronage, without the slightest fear of law enforcers. If anything, they flout their authority openly, and day after day. What respect can the public have for the Government apparatus whose authority is defied so brazenly?

The widespread defiance of the law of the land has other manifestations too. Hardly anyone called upon to pay taxes on his earnings is willing to do so. He is prepared to resort to all possible stratagems of escaping or evading taxes. The explanation offered is simple. “Why should I support a corrupt Government? All what I pay as taxes is going to be siphoned off by the crooked politicians we have. Why not, therefore, keep my hard-earned money for myself?”, runs the line of thinking.

Defying laws is also, perhaps, a fall-out of our Independence movement when it was supposed to be the duty of the every patriotic Indian to flout the laws of the land. The mind-set continues even when we have driven the colonial rulers out. Most importantly, rule of law presupposes self-discipline on the part of citizenry, and that most regrettably, it is conspicuous by its absence. The day-to-day actions of self-disciplined people are guided by the principle: It is not done. Whether there is a traffic constable around or not, rules of road are not to be breached. Any self-imposed code of social conduct is, all said and done, is a product of values of life one imbibes from his immediate environment and the educational system one is exposed to. It is heart-rending to see sharp deterioration in both.

Another presupposition is that there is among all concerned a respect for laws and law enforcement. And that respect is inculcated by educating all citizens that the laws exist for their welfare and that process is continuous and ongoing. Children are taught in the civic courses in school that it is the duty of everyone to obey law of the land, and that the rule of law is something far superior to rule of men who choose to rule by their whim and fancy.

May I cite a personal example of how children living in societies where rule of law really obtains are taught to respect law. It happened several years ago in Toronto where I spend most of my time in summers. I was planning to go on my evening cycling trip. There is a municipal regulation in the township we live that riders of bicycles must wear helmets. One day, not readily finding the helmet around I decided to take a short quick round without helmet. After cycling some hundred odd meters I found my seven-year grandson riding feverishly to catch up with me. He came to hand me over the helmet. I told him I’ll back in ten minutes. No, he admonished me, “law is law, grand-pa. For ten minutes as much as for ten hours.” I’ll never ever forget that. He had been taught in School that law cannot be infringed for a minute.

Now go to Indira Gandhi International Airport to catch an early morning flight. As you drive you soon discover that you’re the only fool stopping at red-light signals. Traffic signals are obeyed only if a traffic constable is around and he happens to care to do what he is paid for.

If the above-discussed pre-conditions don’t obtain, so-called rule of law is a farce and a sure recipe for anarchy of sorts at some stage.

To be continued

6-Apr-2013
More by :  H.N. Bali
 
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