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. 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.
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. 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.
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.’
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.’
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.
 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.
 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.