Achilles’ Heel of Our Polity – Part I
I tried to explain in the last essay of this series – Fault Lines of The Polity – how for a variety of reasons – all of them entirely our own making – our parliamentary institutions – the bedrock of our democratic polity – are distressingly dysfunctional. It is indeed a cause of grave worry for those who still care to think about the future of our polity. Simultaneously, over the years there has been taking place what we may call an alarming erosion of the rule of law which, at least conceptually, is the corner stone of our British legacy.
What exactly is rule of law and what do we associate it with? Allow me to quote from a very celebrated (and authoritative) work of that name by the late Lord Chief Justice, Tom Bingham, Baron Bingham of Cornhill. Based on his vast experience and great erudition, he specified the following seven criteria by which one should assess a legal system: (I’ve described the existing version in our legal system with regard to these seven attributes in parentheses.)
1. The law must be accessible and so far as possible intelligible, clear and predictable.
(First, swallow the blatant insolence of the local thana, grease several palms to register which is grandiloquently called FIR; then beg or borrow money to hire a lawyer and file a case, attend court for scores of times, and if Gods in their benign mercy add at least a couple of decades to your allotted life span, you may live to hear the court verdict.)
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion.
(In our case the line is too thin to be seen by the human eye with or without spectacles. Other well-known means must be resorted to for that.)
3. The laws of the land should apply equally to all, save to the extent that objective differences [such as mental incapacity] justify differentiation.
(Won’t law be a Dickensian ass to treat equally that rustic Ram Prasad from Ballia and that sophisticate Robert Vadra, son-in-law of none other than the life President of the Indian National Congress, Sonia Gandhi.)
4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers.
(This Western nonsense is not meant for our land. Our joint family system enjoins on us first and foremost to look after our near and dear ones whose number increases manifold once you hold an elevated public office.)
5. The law must afford adequate protection of fundamental human rights.
(We enumerated such rights in our Constitution but in all wisdom and for all intents and purposes treat them to Section called Guiding Principles of State Policy.)
6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; and
(We have wisely divided costs in two parts: declared and undeclared. Advocates of the eminence of I U Khan and R K Anand (of the famous Nanda BMW case) can advise you about that.)
7. Adjudicative procedures provided by the state should be fair.
(Fairness and unfairness vary from culture to culture.)
If, dear readers, you don’t concur with my (self-declaredly) subjective version of the seven attributes of rule of law as I see them, could you take the trouble of drawing your own list. If Charles Dickens who gave in Bleak House his own assessment of the working of the British legal system as it obtained in his day was around today, he would blush reading the description of how our courts function.
The operation of law (as it should) is underpinned by two things: the integrity of judges and, to quote, Ronald Dworkin, perhaps the greatest living theorist of law in the English-speaking world, “legislation …flowing from the community’s present commitment to a background scheme of political morality.” Need I comment on either of these two?
According to the Nobel Laureate American economist, Douglass North: “The inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary under-development.” But usually, in North’s words: ‘’Third-party enforcement [means] … the development of the state as a coercive force able to monitor property rights and enforce contracts effectively.’’
Our Legal Past
Our Anglophile pseudo-secularists – may the Lord Almighty increase their tribe by leaps and bounds – unfailingly tell us that the very concept of the rule of law and our present legal system as it obtains today, are a gift of the British Raj. Had Lord Clive and his ilk not landed on our shores, we would still be wallowing in some sort of Hobbesian state of nature.
This is horrendously mistaken view. Indian society has had since time immemorial a distinguished tradition of rule of law. A historically independent school of legal theory and practice flourished in Indian society. The Arthashastra dating from 400 BC and the Manusmriti, from 100 AD, were influential legal treatises in India. What held Hindu society together was the indefinable law called Dharma, various strands of which from Sva-Dharma to Samaj Dharma to Raj Dharma kept society together.
Kautilya on Law and Justice
Kautilya, for instance, maintained that it is essential duty of government to maintain order which in common parlance is known as ‘law and order.’ He defines ‘order’ broadly to include both social as well as order in the sense of preventing and punishing criminal activity. Arthashastra thus contains both the civil law and criminal law. Kautilya ascribed a lot of importance to ‘dharma’. According to him, ‘the ultimate source of all law is dharma’. He appealed in the name of ‘dharma’ to the sense of honour and duty and to human dignity, to moral responsibility and to enlightened patriotism. It’s it eminently sensible that the judge in the Arthashastra was called ‘dharmashta’ or upholder of dharma? He maintained that so long every citizen follows his ‘svadharma’ having due regard to his ‘varna’ and ‘ashrama’ and the king follows his ‘rajdharma’, social order will be stable and prosperous.
Kautilya emphasized, in particular, on duties of King in maintaining law and order in the society. This is “because the King is the guardian of right conduct of this world….” The King was looked upon an embodiment of virtue, a protector of dharma. He too was governed by his dharma as any other citizen was. Thus if any actions of the King went against the prevailing notion of dharma, associations and/or the individual citizens were free to question him. He repeatedly highlighted the key role of ‘dharma’ in maintenance of peace and stability.
According to Kautilya, laws were derived from four sources – dharma (scared law), vyavhara (behavior), charita (history and custom), and rajasasana (edicts of the King). Kautilya prescribe that any matter of dispute shall be judged according to four bases of justice. These in order of increasing importance, were:
- ‘Dharma’, which is based on truth
- ‘Evidence’, which is based on witnesses
- ‘Custom’, i.e. tradition accepted by the people
- ‘Royal Edicts’, i.e. law as promulgated.
In case of conflict amongst the various laws, dharma was supreme. The ordering of the other laws was case specific. Rajasasana ordered the relationship between the three major social groupings – the citizen, the association, and the state. The constitutional rules at the state level were specified in the rajasasana but the constitutional rules at the level of the association were to be decided by the members of the association. The collective choice and the operational level rules of the association were also decided by the members of the association though the state did promulgate laws to safeguard the individual member from the tyranny of the majority in the association. Arthashastra outlines a system of civil, criminal, and mercantile law (now known as business laws).
We see in Arthashastra that law was not viewed just as code of prohibition, nor was it limited to corrective justice of law courts. Its range was wider than morality itself and institutions were creation of law while traditions and customs rested on its sanctions. All ideas of society were moulded by it and law was blended with religion, with morality and with public opinion and by its subtle operations subjected the society to its will. The role of law in the society was to bring a just order in society and the tremendous task was to be shouldered by the King along with his subordinates. A famous verse of Arthshastra says:
In the happiness of his subjects lies the King’s happiness;
In their welfare his welfare.
He shall not consider as good only that which pleases him but,
Treat as beneficial to him whatever pleases his subjects
During the Muslim rule came Sharia and its various interpretation. The retrogressive role it played in India’s judicial system is a story itself, but beyond the pale of this essay.
Law in British-ruled India
The common law system in a real systematic form – a system of law based on recorded judicial precedents – came to India with the East India Company. The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta – (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after the Battle of Plassey. Gradually, the Company Bahadur replaced the Mughal legal system.
After the failure of 1857 Revolt, the control of company territories in India accrued to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Coding of law began in earnest with the forming of the first Law Commission. Under the stewardship of its famous chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes were enacted like Evidence Act (1872) and Contracts Act (1872). The Indian Penal Code formulated by the British during the British Raj in 1860, forms the backbone of criminal law in India. The Code of Criminal Procedure, 1973 governs the procedural aspects of the criminal law.
The Constitution of India after Independence turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. India supposedly has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has, theoretically, been fine-tuned for Indian conditions. The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.
From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.
But things awry – horribly awry. How and why can perhaps be best summed up by the following.
More with a view to pacifying public anger than anything else the Government appointed the Justice JS Verma Committee to recommend amendments to the criminal law to provide for quicker trial and enhanced punishment for those accused of committing sexual crimes. On the day the committee submitted its report without asking for an extension of time to the government – something all such committees unfailingly ask for – the press carried another report about the work of those who uphold rule of law. At the end of 2012, there were 59,816 cases pending in the Supreme Court.
The number of cases awaiting adjudication in the country’s 21 high courts and about 17,000 subordinate courts are 43.27 lakh and 2.69 crore respectively. And this mind-boggling number excludes – repeat excludes – lakhs of cases pending in consumer courts and tribunals.
What has landed us in this disgraceful mess?
Continued to “Legal System in a Shambles”