Why Is Our Legal System Broken And What Can We Do To Fix It?

Badrinath Rao

7 Oct 2020 2:15 PM GMT

  • Why Is Our Legal System Broken And What Can We Do To Fix It?

    Whatever the frailties of our polity, one of its singular distinctions is the regularity with which it enacts meaningless rituals, sacred and profane. We were outraged by the barbaric rape of Nirbhaya in 2012. Judging by the magnitude of the protests that followed, one would have thought such monstrosities will not happen, at least in the near future. Unfortunately, however, once again,...

    Whatever the frailties of our polity, one of its singular distinctions is the regularity with which it enacts meaningless rituals, sacred and profane. We were outraged by the barbaric rape of Nirbhaya in 2012. Judging by the magnitude of the protests that followed, one would have thought such monstrosities will not happen, at least in the near future. Unfortunately, however, once again, we are back to square one. The savage sexual violence against a hapless 19-year-old dalit girl in Hathras, Uttar Pradesh, has triggered a popular upsurge. As in the past, we are rehashing the arguments about why rapes occur in India. The best antidote to this menace, a BJP legislator from UP tells us, is to teach sanskar to girls. Boys and men are just fine. They are preternaturally cultured. Others have demanded capital punishment for rapists. Some have urged the Chief Minister Yogi Adityanath to resign. Some want the case to be committed to a fast-track court. Minimizing the severity of the crime, the Chief Minister has warned about an international conspiracy to defame India. We have seen all this before. We have endlessly debated legal lacunae, the erosion of values, the inertia of the law enforcement agencies, and dark Western plots to discredit emerging India. The charade goes on.

    Following the Nirbhaya episode, rape laws were made more stringent. The central government set up the Nirbhaya Fund in 2013 with an initial investment of Rs. 1000 crores to promote the safety and dignity of women. For a while there was a strong consensus about ending sexual violence against women. This fervor soon dissipated. Rapes continued unabated. 18 states and union territories used just 15 percent of the allocated Nirbhaya Fund. As of December 2019, ninety percent of the Fund remained unused. While the number of rapes has gone up exponentially, the rate of conviction is just about 27 percent. These distressing statistics prove that affronting the law in the courts, legislatures, police stations, and in our day-to-day activities appears to be a national pastime.

    Paradoxically, though disdainful and despite our fractious disagreements, we are all concerned about the breakdown of the justice system. We believe that our legal system is sclerotic, unaccountable, and oppressive. The reasons people attribute to the breakdown of the law and order machinery are varied. Those on the right posit that Maoists, 'urban naxals', terrorists, insurgents, and liberal dissidents are trying to subvert the system. Progressive thinkers rightly fault growing inequality, the cavalier attitude of the elites, and our feudal ethos. The debate is sterile. Its sheer inanity is mind-numbing.

    What makes our situation particularly tragic is that though we continue to sink in the morass of lawlessness, we want the world to subscribe to superstitious shibboleths: 'the world's largest democracy', 'the world's longest written constitution,' and, 'the world's most powerful judiciary.' What really matters is we still don't understand why the law does not come to our aid when we need it most.

    We decry the justice system, yet we want our courts to solve virtually all our problems from weighty issues such as the 2G scam to trivial matters like how to solve the monkey menace in Delhi. We detest those who dodge the law or manipulate it to enrich themselves. We despise nepotism. We hate authority figures – bureaucrats, politicians, judges, administrators, etc. – when they wield power arbitrarily. We cannot get through a day without excoriating the corrupt: politicians, businessmen, and power brokers. Yet, we think nothing about patronizing these folks in every conceivable way. Hence, we wish to cultivate them. We want to be in their inner circles. We flaunt our proximity to them. We love going to their social events: parties, weddings, and gala events. We have a sneaking admiration for them we can barely conceal. All of which means we have an ambivalent relationship with the law. The only time the law acquires sanctity is when we are treated unjustly. The quotidian miscarriage of justice does not scandalize our sensibilities. Our ethics and morality are warped. We do not see the opportunistic ways in which we relate to the law.

    Two points deserve attention. First, while the vast majority can be forgiven for not having nuanced legal perspectives, given our woeful human development indices, what is more egregious is that even those intimately associated with the law – legislators, lawyers, judges, prosecutors, the police, and the bureaucrats – don't seem to be immune from this malaise. Every day, we find policemen flagrantly violating the law in the course of their work. In sensitive matters, particularly those relating to national security, even lawyers forget that every accused has a right to counsel. Recall that the Mumbai Bar Association passed a resolution forbidding its members from appearing on behalf of Abdul Kasab, the lone Pakistani terrorist arrested in the 26/11 terror attacks in Mumbai. The problem is so deep-rooted that even the Chief Justice of the Supreme Court think nothing about presiding over a case in which he is accused of sexual harassment ! The law, therefore, is not treated as  sacrosanct in India.

    Second, because we don't understand why the law, properly conceptualized, ought to be inviolable, it is observed more in breach than honor. For the powerful and the well-connected, it is a versatile tool. The law can further one's interests; it can be invoked to endlessly torment one's adversaries. Further, it can be deployed to maintain the status quo. The law can be used against the poor to hold them in check, stigmatize them, and exploit their labor. The rest of us are also similarly motivated, except that, bereft of power and privilege, we lack the ability to accomplish these objectives. This also explains why we admire those who hurt our interests.

    There is yet another contradiction that defies explanation. Ironically, though Hindu nationalism is on the upswing and the so-called 'Hindu' worldview and its notions of karma, reincarnation, and so on are deified as the apotheosis of spiritual thought, these ideas have not sensitized us to the consequences – karmic, legal, ethical, and social – of our everyday unlawful behavior. If, for instance, we believe we cannot dodge the consequences of our actions, should that not make us more law-abiding? Can we escape nemesis by consistently violating the law and burdening others with the negative externalities of our actions? These scruples do not assail our conscience.

    The upshot is the law is largely symbolic. We follow it when we can and flout it when we must. The resulting anarchy, chaos, and normlessness have resulted in frightening levels of violence and injustice. Lawless behavior stifles life chances, denies access to legitimate opportunities, diminishes productivity, and blights the lives of millions of people. Though this phenomenon is pervasive, it does not lead to widespread revulsion. Instead, our overarching desire is to join the ranks of those who circumvent the law to their advantage.

    The thrust of our attempts to redress the near-total collapse of the legal system is centered on what is amorphously described as 'judicial reforms.' Included in its rubric are uncomplicated, cosmetic initiatives such as spending more money on the judiciary, recruiting more judges, passing more draconian laws, and strengthening the surveillance and security infrastructure. These measures, though vital, do not focus on the more fundamental causes afflicting our dystopian justice system. Instituting a genuinely fair, people-oriented legal system begins with the rights questions. For instance, why do we poorly understand the centrality of lawful behavior in our lives? Why do we have scant respect for the law? How can we reverse this trend, and what can we do to elicit volitional compliance with the law?

    Consider this. A plethora of commissions have labored to find solutions for reforming everything from the judiciary to the police, prisons, criminal justice, juvenile justice, centre-state relations, and the working of the constitution. In addition, the Law Commission of India, an executive body operating since 1955, was set up to study various aspects of legal reforms. The first 20 law commissions have submitted 262 reports on different aspects of the justice system. Of these, the central government has implemented the findings of 92 reports. This is a mammoth, ongoing project headed by some of the finest legal minds of the country. Though laudable, its efforts have made little difference. The more things change, the more they remain the same. India today is teetering on the brink of an anarchic, fascist precipice. No less than judges of the Supreme Court have often bemoaned this parlous state of affairs.

    Our spectacular failures stem mainly from our unwillingness to reckon with the ineluctable logic of social phenomena. The law functions best when it aligns with and becomes part of the mores of a society. This requires a high degree of consensus on social values, goals, and responsibilities. Emile Durkheim, the 19th century French sociologist, said 'When mores are sufficient, laws are unnecessary; when mores are insufficient, laws are unenforceable.' Since our society is riddled with civilizational imperfections, we have conflicting mores. We cannot gain compliance with the law unless we agree on the norms guiding our collective lives. In a deeply stratified society like ours with myriad social cleavages, forging these norms requires interrogating the unexamined premises of our worldview. Thus, based on fictive caste identities, if we think some segments of the population are morally inferior and that they deserve to be condemned to the lowest stratum, we will be unable to reconcile our personal convictions with our constitutional values. Further, denying the personhood of entire communities and vilifying them interminably fosters a trust deficit. Trust is the mainstay of a law-abiding society. The rule of law is a pipe dream in a deeply riven society where people are not wedded to fairness, inclusion, and equality. What we need is a systematic reappraisal of our foundational values, a task that calls for Promethean courage to confront our demons and to winnow the chaff of ossified traditions from the grain of our common humanity. This gargantuan task, fraught with the risks of reprising old wounds, cannot be avoided. Lacking statesmanship and blighted by moral bankruptcy, most political parties are incapable of leading the charge. What is at stake is our collective survival as a democratic, rule-bound polity. Civil society will have to assume leadership, initiate a dialogue, and lobby for institutional and policy changes.

    Education is one of the critical sites of legal reform. Lawful conduct is learned behavior. It is socially acquired, not biologically inherited. Besides, the law is a moral enterprise. Thus, we must make conscious efforts to inculcate values affirming the sanctity of law. As Greek philosopher Plato said, justice in the polity is possible if it resides in the hearts and souls of men. As things stand, civic virtues, civic education, and the liberal arts are heavily discounted. The New Education Policy has almost completely sidestepped these issues. It conflates civic life with Hindu majoritarianism. The mass media, popular culture, and lately social media glorify vigilantism. Moreover, we do not ostracize law breakers. They rarely get punished, particularly white-collar criminals. Criminal conduct is a legal, not a social, offense. This has to change.

    One reason we ignore the law is because we have a nebulous idea of what it can do for our collective flourishing. We barely realize its transformative potential. The Aristotelean idea of creating a society that enables people to realize their higher selves crucially rests on fostering life-enhancing legal sensibilities. Values such as equality and non-discrimination are among the most potent solvents of artificially created distinctions which calcify over time and become barriers to social solidarity.

    If properly conceptualized and impartially implemented, the law can create a level playing field. The obverse of this is also true. The law thrives only in a context marked by equality of opportunity. There is, thus, a symbiotic relationship between the law and an egalitarian order. One cannot function without the other. Both of them also crucially depend on robust levels of human development. Low human development indices result in unequal bargaining power. Just nine rich Indians own more wealth than 50% of the population. This is an ideal ecosystem for illicit, arbitrary conduct.

    Compliance with the law is premised on the perception of legitimacy and fairness.

    Legitimacy is the residue of a system that refuses to recognize stratification based on ascribed identities and/or extra-legal considerations such as wealth, status, connections, pedigree, or muscle power. A justice system driven by a moth-eaten, feudal ethos, one that perpetuates patron-client relationships and stymies aspirations, cannot elicit obedience.

    Effective law enforcement is possible when legal values are an inalienable part of one's consciousness. If we do not inculcate self-actuating moral and social imaginaries rooted in values of justice, equality, tolerance, and non-discrimination, no amount of legal reforms and no harsh laws will work. What we need today is a sociologically informed rearticulation of basic legal principles, policies, and programs. This ethical metamorphosis can be catalyzed through what legal scholar Scott Shapiro refers to as 'social planning and instituting new social norms.' The ruling elites across the board have little interest in this agenda as it works against their interests. Enlightened sections of civil society, those who can transcend their social conditioning, must shoulder this responsibility.

    Views are personal only.

    (Badrinath Rao is an Associate Professor of Sociology and Asian Studies at Kettering University in Flint, Michigan, in the United States. He is also a practicing attorney in the US.)

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