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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The Story of Nirbhaya, Rape and the Indian Culture (Part – I)

Once upon a time, in a time not so long ago, there was a colossal empire ranging from snowy mountains to tropical oceans, upon which there lay a curse. It said that every third daughter born into the empire would be sexually assaulted, but no one would care. Sure enough, women were raped and abused for centuries, and matters just seemed to keep on getting worse. But, no one in the empire did anything because, well it was their curse, what were they supposed to do? Things got so bleak that mothers started killing their baby girls as soon as they were born either smothering them with pillows, or letting them starve to death; because such a death was preferable to the life that awaited them. With every decade, the crimes grew bolder, and the victims, younger. And, every time the victim’s families would cry for justice, the empire would turn a deaf ear towards them, reiterating how going against their culture was a definite way to get raped.

Well, I stand here, today, before all of you, to testify that rape doesn’t happen despite Indian culture; it happens due to it. Maybe our culture isn’t the only reason, but it’s the main thrusting force, as I will show in my next post.

Anyhow, nothing seemed to change. From the apathy of the government, the people despaired, and criminals drew hope. From the corrupt, inefficient police force, the political class took what they wanted. And, when they could afford it, the public learned to try and buy its justice. But, justice is a shy bedfellow, and she doesn’t sleep with filth.

She took birth within this empire, Justice did. In the form of a little girl whose parents sold off everything to educate her. So that they could save up money for higher education, they ate meals of Rotis and salt. They sent her off to the mountains to study, because she would be “safe” there. And, she grew up determined to help other poor girls and boys like herself, studying hard to make her parents proud. And, they were. They were so proud that they let her live a normal life, unlike many other families in this empire who breed their daughters with the sole purpose of “catching” a good husband for them. Unfortunately, the curse of the third girl fell on her. And, as she was returning home with her friend one night, three hours before even 16 year old Cinderella’s curfew, four ugly ogres decided to stop her and assault her.

Now, the rule of the empire was that the curse had been earned, and had to be “respected”. For some fucked up, perverted reason, IMHO. If you were born a girl, and a male from the empire wanted to have sexual intercourse with you, if you valued your life, you would let him rape you. But, if you were raped, the empire deemed you dead anyway. And, your relatives would lament the fact that since your seal was broken, they would have so much more trouble getting a “good husband” for you. Courts and lawyers demanded raped women to prove that they had tried to fight off their attackers. “Where are your injuries?” “Why didn’t you fight back?” Politicians demanded to know why the raped woman had dared to set her unmarried foot outside the house. And, if there was a boy involved, well, according to the Empire, she might as well have been wearing a sign on her forehead that said “Open”.

Does it disgust you? Yes, it disgusts me too. Yet, the funny thing is, the vast majority of the Empire actually believed that if women behaved in a certain way, they deserved to have a random bloke shoving themselves into their bodies. This bizarre notion seems completely insane when seen objectively, but the Indian culture actually encourages and promotes the mentality of a rapist, as I will clearly show in my next post.

For now, I want to tell you what happened to that girl, born of justice. “Where are your injuries?”, they would ask. Well, she chose her dignity over her life, a personal choice, and one that I am so sorry to believe our society forced her into making. “Where are your injuries?”, asks our *legal* system.

Plastered on every front page  of every newspaper across the world, your honor.

So brutal that she could not speak, Mr. Counsel. So horrific that to just say that she was sodomized with an iron rod, and her entrails literally ripped out is an injustice to what our country’s culture put her through, your lordship.

Don’t stop with the four accused (one of whom played a nice relaxing game of tennis before hanging himself to death). Find that politician who dared to ask all those victims of rape why they were out so late. Find all those policemen who turned away sobbing girls from their stations, saying that an FIR would only damage their reputation. Find the cops who beat up a minor rape victim. Find the cops who handed Rs. 2000 to the father of a five year old girl who was sexually assaulted by two men, who once again proved their insecurities by seeing the need to penetrate the child’s body with multiple objects. Another three year old suffered brain damage during a rape. Three sisters aged 5, 9 and 11 were raped and murdered in Maharashtra last month.

Is this not our culture? It is! These men that you call brutes, you have fed them their parathas and milk. You have shown them how the women of your house are treated. How the women of your empire are treated. Don’t throw away all responsibility now. These are your children. Your children who raped, tortured and brutally murdered a young girl who was only trying to help this worthless empire of filth.

Somehow, though hundreds of women were being brutalized across the country it was this girl, who fought back until she lost consciousness; kicking until two of the men restrained her legs, punching and scratching until one of them restrained her arms, biting three of the accused as they raped her, presumably screaming for one deaf ear in this entire empire to stop this disgusting invasion of her self; it was this girl that woke up the individuals sleeping across this great empire.

But the Indian culture doesn’t care for the individual.

And, after she had been literally torn apart by our fellow-men, they tossed her bleeding body out of their vehicle, where she lay for over an hour until one of the gawking citizens decided to call the police. The police took another hour to get there. By that time, the girl had been bleeding all over the Capital’s cold roads, in the middle of December, for over two hours. The State police took one look at her, and refused to touch her. She was naked, you see. And her intestines had been torn apart with a rusted iron rod. As her injured friend carried her into the police vehicle, they drove to a far-off hospital because God only knows what their priorities are. And, by the time she got to the hospital, her internal organs were infected, and her brain shutting down.

Did you resist?
Can you prove that you resisted?
Where are the injuries?

This Court is now adjourned.

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?!

Friends, Indians, Countrymen

Neither the government, nor the police, nor any other paid force is ever going to wake up and go “aww, lets protect our citizens better”. It’s like this, 

Example 1: This guy comes to you and gives you thousands of dollars. Says that he gambles, but doesn’t trust himself to not lose the money or get robbed, so he just wants to stash it in one of your unused cupboards. You say okay, and everything is fine at first, until you notice that he never really bothers counting the money, and is forever throwing in bundles, and pulling them out. How tempted will you be to take that money? Now, suppose there are three of you in that house. If one guy says “Fuck it, man. He’s never gonna notice, lemme take some.”, how long will it be before the others follow suit?

Example 2: You’ve employed a lady to cook your food and clean your kitchen. At first, she’s amazingly efficient, and tidy. The food tastes great, and the kitchen is all sparkly. But, suppose you never ask her to do anything, never insist that she dust something or cleans something else, are you really going to be surprised when it all comes to a bare essentials kind of set-up?

What I’m trying to say is, don’t you think it’s kinda crazy to hand over all those individual rights and liberties (which we do, by the way, in exchange for certain securities while being citizens of the State) to an unrelated, external oligarchic system, and just expect them to always do what’s best for us? Even if we’ve shown ourselves to be a sentimental, easily swayed, fanatical mob with no interest or need of long term solutions to any of our problems?

Why do you think the concept of these “Apartment complexes” is so popular in India?? With their own security guards, and their own little pools, and gardens for the children, and gyms for the women? Why, why, why? It’s because, instinctively, everyone knows, everyone is aware that India is in a state of acute lawlessness. Your only hope is private defense. Our only defense is to hole ourselves up in forts and behind barricades to protect ourselves, never once insisting that the State to whom we gave that responsibility live up to it. Never once even bothering to engage in any sort of intelligent debate, because “how does it matter?”, right?

Well, it *does* matter. It matters because unless this country, or any country for that matter, has a responsive, educated and aware civil society, the atrocities will continue.

And we shall have nothing to blame but our own apathy.

Quis custodiet ipsos custodes?