Mahatma Gandhi is reported to have said "[A] nation's culture resides in the hearts and in the soul of its people". India has many deep and rooted cultures (some good, some bad), often evoking pride. There is one culture, however, that appears to be in short supply: the culture of rule of law.
This thought first occurred when I was witnessing a panel debate a couple of years ago on whether India is a rule of law state. Arguing for the motion, a Member of Parliament and an advocate relied largely on the existence of the Constitution of India, 1950 - with its myriad checks and balances on governmental action; recognition and protection of civil liberties and fundamental rights. They also argued, with noticeably lesser conviction, that instances of failures of rule of law were mere aberrations (asserted in response to arguments on large-scale violation of fundamental rights, or failures to uphold them). Are they?
Failure of adherence to rule of law - an aberration or the normal?
Aberration is defined in various dictionaries as a departure from the normal and what is expected – temporary changes from the normal, i.e., something that is not typical. A quick exercise to test whether we are a rule of law people and whether the following of rules is normalcy, is to look at our conduct in public spaces. Are acts of skipping or jumping queues; ignoring traffic lights; going on the wrong side of the road, or riding motorcycles on footpaths rare and abnormal? Does littering on roads and public spaces shock our conscience? Let us test this qua authorities and those identified with state and government. If one was to do a word association with 'politics', 'politician', would the words 'honest', 'transparent', or 'dedicated' ever be used (despite some, who surely fit the description)? Does the thought of a policeman inspire security or evoke fear of arbitrariness among those without power or privilege?
Even if one is to wrongly brush these aside as de minimis, the recent past has seen too many incidents of a failure of adherence to rule of law for it to be considered an aberration. The riots that erupted in December and January during the Anti-CAA protests; the open use of firearms by civilians on each other, and the unfortunate incidences of police complacency (to put it mildly) demonstrated the willingness of entire sections of our population to take law into their own hands. What made matters worse was political figures were seen to encourage the lawlessness, with little or no accountability (as the recent Delhi Police Chargesheet(s) have demonstrated). Closer to the current crisis, we saw many people congregate in large numbers, in complete ignorance of social distancing norms, whether in "Go Corona, Go" rallies; religious gatherings, or weddings. Political and executive leadership were also seen involved.
Humans, like every other animal, are creatures of habit and convenience. Instinctively, self-interest Trumps all. But living in a society, we subscribe to a set of laws with the understanding that these laws are for universal benefit – for an orderly and secure life. We accept these rules despite intrusions into what would otherwise be our absolute rights or liberties. A 2004 Report of the United Nations Secretary General, Kofi Anan, in the Security Council, defined rule of law as "a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."
(a) supremacy of law,
(b) equality before the law,
(c) accountability to the law,
(d) fairness in the application of the law,
(e) separation of powers, and
(f) participation in decision-making.
Culture of rule of law in India
The MP and the advocate (who were in the panel discussion mentioned above) were right in arguing that structurally the Constitution and the various laws of India impose legal restraints on government from acting arbitrarily, and provide for maintenance of order and they coordinate behaviour and transactions amongst citizens. There is adjudication and judicial review of transgressions of the Constitution and other laws. Most importantly, these systems have robust frameworks that incorporate fairness, transparency, and accountability. This is supported by the fact that in the Global Rule of law Index (carried out by the World Justice Project) finds India ranked between 20-50 (out of 128 countries) on factors such as constraint on government powers by legislature and judiciary; open government; due process in administrative procedure; and civil and criminal justice systems free of improper governmental influence.
So, structurally or at least facially, we are a rule of law state. But why, then, are 'aberrations' as normal as the normal? Why is it that India had abysmal rankings of 111 of 128 in a discrimination-free civil justice system; 89 in impartiality in the criminal system; 84 in respect of fundamental rights; 105 in terms of equal treatment and absence of discrimination; ranked 99 for government officials in police and military not using public office for private gain? If you've lived in northern India, you'd have surely heard the refrain "Tu jaanta hai mera baap kaun hai?", necessarily implying that chip and the old block are either beyond the reach of any arm of law, long or short, or that they can manipulate its application. It is not surprising, then, that India ranks at 113 for people not resorting to violence to redress personal grievances. Notably, we are outranked either by Nepal or Sri Lanka or both, in most of these factors. The usual 'developing nation' or 'population' excuses, won't fly. What have they got that we don't? Whilst I can't speak for our neighbours, I believe that generally, Indians lack an overarching culture of rule of law (and I was naïve enough to believe that I had a novel thought in arriving at this conclusion).
Brian Tamanaha, a renowned American academic, in 'A Concise Guide to Rule of Law' (which ought to be a basic civics reading), says that that for rule of law to exist, people must believe in and be committed to the rule of law. They must take it for granted as a necessary, proper, and existing part of their political-legal system. This attitude is not itself a legal rule. It is a shared political ideal that amounts to a cultural belief. When this cultural belief is pervasive, the rule of law can be resilient, spanning generations, surviving episodes in which the rule of law is flouted by government officials. Therefore, it becomes clear that a system of laws can effectively contribute to a strengthened rule of law only when most members of society believe in, respect, and generally abide by the agreed-on laws. This is the culture of rule of law. Tamanaha also notes that in virtually all social arenas, social norms largely shape and govern daily existence; legal norms may be largely irrelevant to the bulk of routine social conduct – again pointing towards the significance of a pervasive culture of respect for laws.
This is intuitive. Many countries that rank significantly above India in the Rule of Law Index are those which have risen from utter ruin – economic, infrastructural, and social – caused by World War II. Such societal and economic growth would not be possible without an abiding cultural inclination towards law. Northern European countries are a prime example. Kiyotaka Akasaka, a former Undersecretary to the United Nations, has said that the Japanese have an ingrained respect for and are generally taught to obey laws, even if they don't agree with them, which has allowed them have to rebound quickly after any disaster as also have greater enforcement of laws. This, he says, translates to people waiting for the right of way at traffic lights even if no vehicles are approaching from other sides. This, in fact, would be an aberration in India.
Adherence of rule of law necessary for progress
Basic criminal laws; laws governing probity (i.e., lack of corruption) in governance; basic civic rules and laws (in the current context – laws requiring social distancing etc.), and laws protecting certain inviolable fundamental rights are laws that nobody should derogate from, because they are at the foundations of societal cohesion. Having said this, one has to address the important question of content-independent adherence of laws – i.e., obedience because it is law, and not because of what the law states. Akasaka deals with this issue in line with legal theory (and practice) accepted in all societies where civic participation in governance is essential – changing 'bad' or 'disliked' laws through parliament.
Whilst the legislative cogs can be slow, social outcries, protests, civil disobedience etc. have often sped up the parliamentarian's hand. If (for all his flaws) Gandhi hadn't led the satyagraha movements; if women across the world didn't march for suffrage; if Rosa Parks didn't refuse to move from her seat and Martin Luther King Jr. didn't have a dream; if Sunderlal Bahuguna and his wife didn't inspire the Chipko Movement; if Medha Patkar and many others in the Naramda Bachao Andholan hadn't unrelentingly and tirelessly lent their voices to the destitute and displaced farmers, many social and political rights that are taken granted would still have been on the battlegrounds. Sadly, many still are. John F. Kennedy's warning - "[t]hose who make peaceful revolution impossible, will make violent revolution inevitable" - is not out of place here. But at the root of each of these movements, is the belief that laws – just and fair – should govern, and that everyone should be equal before, and be equally bound by just and fair laws.
The benefit of global hindsight has shown us that where public officials are seen as corrupt and self-serving; or where law has a history of authoritarian flavours; or where the content of laws are perceived to be unfair or unduly favour some social or economic sections, there is distrust in the government, and fear of the state. This problem is aggravated when the society is diverse (ethnically, economically, socially etc.), and where a common set of social values and belief systems do not exist, and finding or conjuring a set of agreed on laws is hard. Arguably, some of these problems are prevalent in India.
In Leanne Mackay's "Towards a Rule of Law" published under the aegis of the United States Institute of Peace, it is noted that a rights-respecting, rule of law abiding government does not materialise on its own. It requires the active engagement of all members of society to uphold these principles and to assist the government in creating a social and institutional rule of law culture. Tamanaha usefully observes that for this cultural belief to be viable, people must identify with the law and perceive it as worthy of ruling. General trust in law must be earned, and it takes time to become what is tantamount to a cultural view about 'law' passed on through socialisation.
This socialisation will be no easy task especially when those in power - whether political, or in public offices, or in law enforcement – set examples that one can get away with disobeying law and disrespecting the basic values of the Constitution. This will not be easy when institutions that are required to impartially apply and uphold the law, tacitly or directly approve transgressions despite their conscience and their sworn duty to do otherwise. And finally, this will not be easy unless those who inform our personal and social conscience and value systems as they form – i.e., parents – are the best versions of themselves and set the right examples for their children.
This piece is intended to impress upon the reader the critical importance of having a widespread culture of rule of law. For only through such a pervasive culture, can we witness true progress, unhindered by those who would flout the law. This is neither meant to be an academic work nor is it meant to be an ode of despair, but rather, a call for action. Justice M.N. Venkatachaliah, one of the most respected Jurist-Chief Justices in the recent past, whilst quoting another great jurist-judge from the United States, had this to say in his essay "Constitutional Ideals and Justice in Plural Societies":
"'Values', said Learned Hand, 'are ultimate; they admit of no reduction below themselves'. So too are certain irreducible constitutional values which underpin the survival and success of constitutional order and a concordial society. What are these values? What are the tools for effectuating them? The basic values of the Constitution are reflected in the Preamble, the fundamental rights and the directive principles which along with the charter of fundamental duties may be said to constitute the conscience of the Constitution. … The emotive words "Justice, Liberty, Equality, Fraternity" open up a vast music of hope. They are words of passion and power and may be said to be the spiritual pillars of the Constitution. …"
Duty to inculcate constitutional values in our lives
We have, in the form of Part IVA (Article 51A) of the highest law of our land - the Constitution – a sombre and inspirational reminder of the Fundamental Duties of each citizen. It is useful to remember that the word duties in Part IVA is prefixed with the same word that is prefixed to the word 'rights' in Part III, i.e., "Fundamental" (as also noted by the Supreme Court of India in AIIMS Students' Union v. AIIMS & Ors., (2002) 1 SCC 428 (at para 58)).
Some of these fundamental duties include :
(a) abide by principles and ideals of our constitution;
(e) promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(g) protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) safeguard public property and to abjure violence, and
(j) strive towards excellence in all spheres of individual and collective activity.
It is time we remind ourselves or these fundamental duties, repeatedly, till it becomes part of who we are. We have no other option than to actively inculcate in our individual and collective psyche that constitutional values and laws of the land should be followed because it is the right thing to do, whether it is in our individual lives, or it is in the public sphere of legislative and executive action. We need to re-inform our human tendencies that adherence to laws is for the greater self and societal interest – that everyone benefits when you follow the laws, and that you benefit when everyone follows the laws. I refuse to believe that the heart and soul of India is incapable of a culture of harmony and rule of law. I started with Gandhi, and will end with the full quote that is (wrongly or rightly) paraphrased as "[B]e the change you want to see in this world":
"We but mirror the world. All the tendencies present in the outer world are to be found in the world of our body. If we could change ourselves, the tendencies in the world would also change. As a man changes his own nature, so does the attitude of the world change towards him. This is the divine mystery supreme. A wonderful thing it is and the source of our happiness. We need not wait to see what others do."
(The author is an Advocate practicing in Courts in Delhi and can be e-mailed at [email protected])