Requiem for the Rule of Law: The Indian Scenario

A steadily declining political morality coupled with a consistent increase in moral policing is suffocating the rule of law, shrinking spaces available for free civil dialogue, narrowing accountability, diminishing freedoms, and even costing lives in the Indian State. At the time of the adoption of the Indian Constitution, its architect himself, Bhimrao Ambedkar, spoke of the dangers of persisting socio-economic inequality within a framework of formal political equality, warning of the tendency of the same to be unsustainable. Sure enough, the unraveling of that equality has led to a situation whereby the ability of the Indian state and civil society institutions to meet some of the most profound challenges to constitutional democracy since Independence shall be tested to its limits.[1] A view held by authors as early as late 2010, two years later, the truth of these statements can be felt.

An odd state of affairs is taking place in India today. The unfortunate incident of the Delhi Gang Rape witnessed a national outpouring of understandable grief, but it also demonstrated something else; the rage of the people at the State. This is interesting because, apart from a few lapses, in this case at least, the Central and State governments acted promptly, spared no expense in its attempt to save her life, and the police did not only capture the rapists within hours, it also showed uncharacteristic restraint when dealing with the protestors. The judiciary too, both the Delhi High Court, and the Supreme Court took immediate cognizance of the pent up grievances of women’s associations and human rights groups. Then, what is the reason behind the rage of the people?

Authors, Scholars and Professors across the country believe that this is because the incident triggered something in the minds of the people that has been smouldering in resentment for years.

The Betrayal of Democracy.

Democracy was meant to empower the people, but has instead betrayed them in the profoundest sense. And, the reason behind this is simply thus: Empowerment requires the Rule of Law. People feel empowered only when they know that they have certain rights, and that the institutions of government that exist, do so, first and foremost to enforce these rights. But, the Rule of Law is simply another name for justice. Empowerment requires justice. However, justice, and even access to the same, has been denied to the majority of the citizens of India since the beginning of the Indian democracy 65 years ago. And, in spite of all the time that has gone by, the Indian State has failed in creating something that people value more than material benefits: a just society. It has achieved this by making both its elected legislators and bureaucracy immune to accountability, along with the lower judiciary, thus becoming a predatory state that the people have learned to fear.[2]

The Hallmark of a predatory state is extortion. In India, bribery and extortion are seen together under the generic heading of corruption. However these are two entirely different concepts, with entirely distinctive effects upon the relationship of State with Society. While Bribery is voluntary, and eventually harms the economy and society by a variety of means, it has limited political impact.[3] On the other hand, extortion requires no contract, no negotiation, and hence contains no element of consent. Simply put, it is an exercise of brute power by an employee or representative of the State over the citizen. Its commonest form is to deny the citizens of the State the services to which he is entitled, until he has agreed to make a private payment to a functionary in whom this power of state is vested. Every act of extortion is a fresh reminder to the citizen of his or her impotence. This sense of impotence achieves completion if or when this citizen is denied redress for the abuse of power.

The Indian State not only denies this redressal by law, but by the Constitution itself. Article 311 of the Constitution states: “No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.” It is clear that this injunction applies not only to civil cases, but criminal ones as well. For the Central services, the empowered Authority is the President of India; for the State civil services, it is the Governor. This has meant that no prosecution can by initiated without the permission of the Central or State government. As the dismal experience of the Central Vigilance Commission has shown, in civil cases this permission is rarely given.[4]

A recent article by Prof. Zia Akhtar on the development of the rule of law in China and its comparison with the Indian Judicial model, the author concludes with a chilling analysis of the Indian democratic set-up: ‘The Indian constitution is an example of a modern nation state that has striven to commend itself to a democratic framework. It has an elaborate, written constitution with most liberal strands of Western jurisprudence interwoven into the fabric of the legal system. There is an elaborate due process mechanism and the judiciary acts to review the validity of administrative action, which has led to precedence based law that has managed to safeguard the civil liberties by recourse to Article 21 of the constitution. However, the state has not been able to redeem the ethnic or caste divisions, relieve poverty or erase the bureaucratic corrosion that has been part of the framework of the Indian state. The upshot has been the misgovernance that has caused long delays in cases coming before the courts, the bureaucratic back logs and the abuse of power by those wielding the instruments of state authority. This shows that while India has achieved a balanced constitution with substantive fundamental rights guarantees it has not managed, like China, to alter the life of the masses. The circumstances in which they can exercise those natural rights in their gift are not of real benefit because of their material conditions. The anti discriminatory laws set out in the Indian constitution have not been able to circumvent the social and economic inequalities that have been ingrained, and there is a bias inherent in a country with a huge gap between the urban literate and the rural communities.’[5]

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. Hopeful scholars believe that 2013 has potential to be the year the Nation becomes conscious of what a republican rule of law entails. Correctly held, ‘the law should now reflect the aspirations of free and equal citizens, not the whims of colonial masters, democratic hucksters or baying mobs.’[6]

For a Nation that achieved “independence” over six decades ago, the absence of the rule of law is a shameful allegation to have levelled against us, and even a more embarrassing claim, but it is a necessary one. For decades, the people of India have responded to their need for accountability by turning up in larger and larger numbers to vote and overthrow inefficient governmental regimes one after the other.

And, slowly, they have begun to realize the depth of their impotence. Their rage is directed towards the State, because the people are awakening to the fact that their police is no longer for them, but is instead only a tool of the political class, keeping them safe from the ire of the people.

In other words, the people are beginning to realize that their government isn’t theirs anymore. No society that doesn’t at least strive to be a just society can last for very long. And, unless the ruling class of India accepts this fact, India faces the very real threat of collapse.

The fact that the lower judiciary allows enjoys an extreme freedom from any sort of accountability has lead to the breakdown of the last, and most important, resort of those seeking justice: Redressal. The atrocities committed under the protection of the AFSPA, the rampant corruption in all ranks of the bureaucracy, the Maoist uprising of 2005; these are all symptoms of a State without the Rule of Law. And, unless this changes, the State of India is headed towards intense internal struggles bordering on full-scale revolts.

 And, without the guidance of an educated, aware and responsive civil society, such revolution shall not result in a more just and accountable Indian society, but only a disintegrating one.


[1] Vijay Nagaraj, Indian Constitutional Democracy: A Freedom in Crisis, OpenIndia, 25th Jan 2011, available at http://www.opendemocracy.net/openindia/vijay-nagaraj/indian-constitutional-democracy-freedom-in-crisis last visited on 19th Jan 2013.

[2] Prem Shankar Jha, “Overcome by a Sense of Betrayal” The Hindu available at http://www.thehindu.com/opinion/lead/overcome-by-a-sense-of-betrayal/article4307678.ece last visited on 18th January 2013.

[3] Id. Bribery is voluntary. The bribe giver chooses to give money or favours to influence a choice, steal a march over rivals, or hasten (sometimes delay) a decision. Bribery harms the economy and society cumulatively over a period of time by preventing optimal choice, increasing cost and lowering the quality of the product or the service rendered. But it has limited political impact because it is a voluntary transaction between consenting adults and the injustice it does is confined to a small circle of rivals.

[4] Id.

[5] Zia Akhtar, “The Development of the Rule of Law in China and a Comparison with the Indian Judicial Model” India Law Journal available at http://www.indialawjournal.com/volume3/issue_3/article_by_zia.html last visited on 18th Jan 2013.

[6] What should have been the site of our liberation became the symbol of our subjugation; the source of our safety became a source of insecurity, and the protector of our dignity often a source of humiliation. Pratap Bhanu Mehta, “The Year of Law” The Indian Express available at http://www.indianexpress.com/news/the-year-of-law/1052590 last visited on 18th Jan 2013.

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RIP Sudipto Gupta

22 year old, arrested and beaten up by the police so bad, one of his eyes was knocked out of its socket. Was denied immediate medical aid. Is dead.

His crime? Protesting.

“Mr Gupta was among hundreds of students who were protesting against the government’s decision to postpone college union elections. They were forced by the police on to a bus that was meant to take them to jail. Mr Gupta’s friends say he was battered by the police till he was unrecognisable.”

Read the entire sad, horrifying tale here.

They’re all my age. The educated youth of India, determined to brighten the bleak future of this appallingly unapologetic nation.

And, what is their reward? Rape and Murder.

Forget about “anti-social” elements; the villain here is the State itself.

Fuck Police Brutality. Do we really have no value or regard for human life whatsoever?

But, then, going by Hindu philosophy, it’s all karma, right? If not in this lifetime, then in the next, you must be sure your sins will find you out. Like the Buddhists say. Anyhow, the point being, maybe we’ve all been these horrible people who are the horrible people now, and this is all just atonement.

But, that’s not fair.

Not that that’s relevant. What is relevant is that another one of us has been murdered, and the illiterate government couldn’t give less of a fuck.

I don’t understand it. We have an overpopulation problem. We have an unemployment problem. Both our police force, as well as the judiciary, is horribly understaffed.

Why doesn’t someone do something?

Yes, if you look, you can always find the ones who are trying.

But, why is their reward only brutality?

Why are we killing our young?

And, for a country that considers age so supremely important, why won’t middle aged frustrated dudes stop raping and murdering teenagers?! And toddlers too, now.

What the hell is wrong with this country?!

The Importance of Aaron Swartz: The perspective of a layman

The SOPA – PIPA bill was not about piracy, but about control. As was ACTA. This short video puts across the difference between physical stealing and using ‘Intellectual Property’ quite nicely:http://www.youtube.com/watch?v=dmQN93NqqDM. ‘SOPA itself was worded in a way that would send you “to prison for 5 years for uploading a Michael Jackson song to Youtube. That’s one more year jail than the doctor who killed him!!!” This is what Zuckerberg has to say about SOPA/PIPA: http://readwrite.com/2012/01/18/mark_zuckerbergs_not-so-surprising_view_on_sopapip

The whole thing about Aaron Swartz is that he was a long-respected genius in circles that have been fighting such instances of legislation that threaten to impede upon rights that the govt has no right impeding upon. The problem is that the MPAA, and the RIAA have enough money to “buy” whichever ‘representative’ they want to, and the entire copyright industry in America is full of these ex-Policymakers who now conveniently work as Directors or the like in these companies. 

Between our paranoid governments and greedy corporations, it is these mutually supported ideas of censorship and copyright that meet and threaten to punish citizens for literally victim-less crimes in a manner that shows nothing but the intent to control a population, and what they ‘dare say to each other’ over the internet.

The changes that the US govt. has tried to bring about with SOPA and PIPA, their underhanded threatening letters to different countries across the World telling them to enforce similar legislative standards when it comes to copyright, the relentless persecution of both children and grandmothers by the great RIAA, the unimaginable “losses” and “damages” often claimed by these agencies, the sneaking in of similar provisions along with anti-pornography laws, and their outdated, cheap, easily broken, completely *ineffective* technological measures used to ‘protect’ copyright – this is why people are angry that Aaron had to go off himself. Because, believe me, he was one of the good guys. A very intelligent and smart good guy, whose loss will definitely be felt as this War is carried forward.

This is very important. Yes, the issue is a whole lot more complex.. But, while it’s true that democracy is meant to guard against these wrongs, and third-party mediators can play a huge role in maintaining standards, the current publishing houses, and recording agencies, these are all archaic third-parties that once had an important role to play in information dissemination, got really rich and powerful doing it, and now cannot accept the fact that we’ve reached an age where they are more or less obsolete. Knowing this, and having a lot of money, these corporations are then using their resources to convince the government to hold back the inevitable technological advance that the internet has been bringing to the World since its advent.


But, that’s the general problem with our copyright laws today. However, it’s relevant in this instance, because what is protested against is the unfair bargaining position of the middlemen, and the damage this is doing to both the public as well as the authors. As you said, it seems like the assumption made is that all authors are willing/eager to have their content circulated. Well, in most cases, isn’t that a fair assumption? And, in cases where that isn’t true, wouldn’t it be better if the author had more direct control over who could and could not access that content? 

At one point of time, this was as inconvenient as it was impossible. Very. But processes which took months and months, now take place in minutes. These industries must evolve, or perish. But, the problem is that civil society must force this change upon the said corporations. The case of Grooveshark would be one such example of an external shove. <http://en.wikipedia.org/wiki/Grooveshark> On the other hand, in the world of gaming, an internal initiative can be seen with the Valve Corporation, who’ve been making games and distributing them since 1996, and who launched their social distribution network Steam, allowing users access to an insane number of games, with offers ranging from free-to-play to holiday discounts and games from new-developers that you can give them direct feedback on. 

I’m not very sure how much differently things work when it comes to Scientific and Cultural content, but, when music and games make so much of a difference, and it’s only because their users are more likely to engage in civil disobedience, isn’t it unfair to assume that the existing state of affairs, when it comes to academic content, is okay simply because the vast majority of the world appears to be okay with it? When the truth is that it is blissfully unaware, would like to remain so, and the only people who may have a problem (Students of Universities) are given access to these worlds to keep us feeling privileged, and some highly intelligent people outside the system who can see it for what it is.

A better system will come into place. But, as it stands, it is unfair. And it is most benefiting people who have no right to be so benefited. At everybody’s cost. Information is Power, and if we want to live in a World that is even slightly equal, slightly fair, then this imbalance must not be tolerated.

When the World changes, I think everyone has their own role to play. And each move forces someone else’s hand. There are academicians and scientists already arguing for change from the inside, and there are surely parts of the government resisting this effort by the corporations, and there is Anonymous, dispensing vigilante justice and drawing society’s attention to both the dangers of a Free internet and those of a closed one (and the corresponding realization that the latter is usually worse). Aaron Swartz had his own role to play. And, it’s a damn shame that he killed himself, but he did it all in the name of something bigger than himself. 

The Zapista movement in Mexico (which is really interesting) has a slogan that comes to my mind: “For everyone, everything, for us, nothing.” 

Aaron Swartz didn’t get anything for his efforts, and his efforts were made in the name of information. Access to information. That’s sort of noble, isn’t it?

Here’s a link to his manifesto:

http://archive.org/stream/GuerillaOpenAccessManifesto/Goamjuly2008_djvu.txt.

Requiescat in pace, brother.

~ May the Rage be Relentless ~