People and the rule of law

Then, as now, there were three underlying and basic principles of the Rule of Law: firstly, representation; secondly, liberty; and thirdly, equality. You will immediately notice that all fundamental constitutional rights have arisen out of these three basic principles. The right to free and fair elections, the right to vote, the right to recall, and the right to information about the candidates are built on the basic principle of ‘‘representation’’. The right to freedom of speech and expression, the right to move freely throughout the country and the right to settle in any part of country are extensions of the principle of liberty. Likewise, the prohibition against discrimination, the right to profess any religion, the right to practice any profession or trade, the right to education and the right to information spring from the principle of equality.

Modern society has discovered new rights, e.g. the right to an environment without pollution, the right to preserve forests, the right to preserve wildlife, and the right to protect historical monuments and heritage sites. A close examination will reveal that these rights are also the result of the interplay of the right to liberty and the right to equality. If you take away the right to liberty or the right to equality, the edifice of a democratic society will crumble in no time. And if you destroy the right to elect the people’s representative in a free and fair election, the very concept of a civil society will be destroyed forever.

3 When people lose faith in government, they tend to lose faith in political parties as well. What faith can people have in a system where the government cannot provide good schools or deliver basic health care? What faith can there be in a system where 35 million children in the age group 6-12 years do not go to school? What trust can be inspired by a system where detainees or undertrial prisoners are shot dead in police encounters?

As the distance between the political parties and the people grows, the catchment area of political parties continues to shrink. Political parties then attract ‘‘talent’’ of the wrong kind. The prospect that anyone can become a legislator as long as he or she is 25 years of age and is registered as a voter is frightening enough. When history-sheeters, accused, undertrials and convicted persons actually become legislators and parliamentarians the horror story is complete. Given the compulsions of coalition politics, any legislator can become a minister too. So far as the political parties are concerned, the oft-repeated mantra is the ‘‘winnability’’ of the candidate. If ‘‘winnability’’ means that it will bring in its wake criminal gangs, most political leaders will shrug their shoulders and say, ‘‘so be it.’’

4 The educated, affluent urban voter harbours the impression that his vote, in the ultimate analysis, ‘‘does not count’’. Besides, he does not think that voting for a representative is important in his scheme of things. He has other means of influencing the organs of government. Even without a representative who is grateful to him for his vote, he thinks he can bribe his way through the system or operate the levers of power through a network of friends and relatives. It is the poor and the uneducated who feel the dire need of a representative. They need a representative to plead for them before the tehsildar or in a police station. They need a representative to find them a bed in a government hospital or get them an old age pension or a bank loan. Hence, they go out and vote. As it turns out, however, the elected representative, or most of them, pay lip service to the interests of the poor and tend to work for the interests of the affluent sections.

5 Politicians and civil servants have forfeited the trust of the people. They are no longer regarded as the fence that protects; they are seen as the fence that eats the crop. They are seen as a class apart and as a law unto themselves. No one extends any sympathy when a civil servant is arrested and thrown into jail, albeit for a few days, on a charge of corruption. No one sheds a tear when a politician passes away. Just as talent shies away from politics, talented young men and women no longer regard a career in the civil service as an opportunity that must rate above other professions or occupations. Government is seen as a necessary evil, and politicians and civil servants are regarded as the praetorian guards of an evil and oppressive system.

6 We think, without understanding the crucial difference, that Rule by Law is the Rule of Law. Under the Rule of Law, ‘‘howsoever high you may be, the law is above you.’’ On the contrary, under Rule by Law, a small section of the people arrogates to itself the power to rule. That section remains above the law, bends the law to suit its needs or brazenly breaks the law if it is necessary to achieve its own ends. There is a compact among select politicians, civil servants, judges, businessmen, brokers and criminals, and we live under the shadow of this unholy alliance.

7 We have the choice to call ourselves a functional anarchy or a dysfunctional democracy. Of one thing I am certain, we have miles to go before we can call ourselves a civil society under the Rule of Law.

(This piece is excerpted from a lecture delivered at the Nehru Centre, Mumbai, on Feb 21, 2004)