The law, even in the best of circumstances, carries an aura of theological mystery, of the kind Kafka depicted. Or worse, it can represent the corrupt and manipulable system still so resonantly portrayed in Dickens’ Bleak House. But Indian law did not even aspire to fulfil its republican promise. Instead, it took a structure crafted by a colonial state to reproduce the very arbitrariness that colonial law was designed to secure. Despite some reform in areas ranging from police to land, from personal laws to criminal procedure, a we have not been able to shake off the overweening colonial shadow cast on us. In the colonial state, this structure was held together by a unity of purpose and superb formalist legal craft. The democratic state, in its use of the police, for example, simply wielded that instrument as a tool for subjugation and manipulation. But more insidiously, its practice enshrined all the inequalities that rule of law was meant to overcome.
The state deliberately made sure that law remained a scarce resource, since its scarcity was itself a source of discretionary power. Protecting rights is not cheap, and a republic unwilling to pay up will suffer. Second, while there has been enormous progressive reform in the law, the sediments of caste, patriarchy, hierarchy and political deference to inherited social structure continue to deeply inflect the daily life of law. As many scholars have shown, these practices silenced and marginalised victims rather than protected them. Third, in the legal culture, the rule of law was replaced by all kinds of inchoate functions: from grandstanding populism to conflict management. What got lost in these legal innovations was the idea that law secures our liberty and equality by being a norm grounded in public reason; it is undermined if it is tethered to the capacious whims of judges who devoted enormous energies to problems they could not solve while ignoring ones they could. Fourth, there was differential access to justice. In the field of criminal law in particular, the disproportionate burden of the legal system fell on the poor. In some ways, India’s elites protected themselves or worked outside the ambit of law.
The rude awakening of the past year has been that these elites will not be able to protect themselves anymore. It is easy to dismiss both the anti-corruption movement and the movement against gender violence as urban, middle class movements. After all, both violence and corruption have always been inflicted on the poor in even more horrendous forms. But this is exactly a silver lining. India’s elites are recognising that their interests cannot now be protected simply through exit or creating enclaves: corruption will slow down their aspiration to growth, ineffective rule of law will bring violence close to them and resistance to unjust expropriation of land will make India’s economic transformation more difficult. While as a coping mechanism, exit is still a strong and inevitable reality, there is finally a movement to exercise voice. But the common thread has been to, at least, begin thinking about what would it mean to craft law in areas still governed by an old colonial hangover.
But the process is not going to be easy. The sense of psychological alienation and helplessness in the face of law is, in the first instance, likely to produce a more punitive rather than intelligent engagement. In some areas, like reforming colonial era land laws, there are genuine disagreements about the likely consequences of legal rules. The habits and sensibilities of the state are notoriously entrenched and path dependent, and there are still few effective mechanisms for re-educating the state at the pace required by social change. And the temptation in democratic politics to buy the peace by being seen to be doing things, rather than doing what is going to be effective, can channel reforms into illusory gains.
But the rule of law cannot just be an idea. It has to be embodied in a social practice in the state. In some ways, the police has become the symbol of the most regressive aspects of the relationship between state and law. But police reform is not going to be achieved simply by legal reform or protection from political interference or more training under the existing system. The brutal truth is that the command and control structures of the police have broken down because it is the site of immense class conflict. Just ask this: What does it mean to say to a lower level police officer, “Please be the embodiment of the rule of law, understand that the law is about protecting individuals, respecting citizens, and recognising their equality?” Is there any way in which his or her experience in the police force will dispose them to think of dignity and respect as foundational ideals of the law? The hierarchical structure of something like the police force, with its deep disjunction between the IPS sahibs and the rest of the force, is a psychological reality which we deeply gloss over. How is a state going to project the idea of respect when its own members do not experience it as a source of self-esteem?
If we want the law to be anything more than an arbitrary instrument of domination and manipulation, it will require reorientation of the practices of citizenship towards the idea of mutual respect. Perhaps 2013 will be the year we become conscious of what a republican rule of law entails. The law should now reflect the aspirations of free and equal citizens, not the whims of colonial masters, democratic hucksters or baying mobs.
The writer, president of the Centre for Policy Research, is contributing editor, ‘The Indian Express’