Mumbai: India’s Rule of Law is facing a crisis, says Harish Narasappa.

The gap between the role of our institutions on paper and how they operate in reality is widening. ‘Structural violence’ in the form of corruption, police brutality and exploitation of the poor (among others) is displacing reason in public discourse and violence has been accepted as “the primary instrument of governance”, he writes in a new book.

India currently ranks 62nd out of 113 countries (trailing Nepal (58), Sri Lanka (59) and other lower middle income countries such as Tunisia (54), Mongolia (51) and Ghana (43)), ranked according to several factors relating to corruption, open government, order and security and more by the WJP Rule of Law Index 2017-18.

Instances of delayed justice and corruption amidst our public institutions are not uncommon, while inconsistent attitudes towards constitutional values are regularly spouted by elected politicians and those in public office--only this month Arun Jaitley, Finance Minister, called into question the Supreme Court’s verdict on women entering the Sabrimala temple in Kerala, calling the judgement “selective” and seemingly fuelling a rift between “constitutionalists” and “devotees”.

“We are facing an existential moment. Every institution is failing when you compare it to its goals and essential role,” Narasappa told IndiaSpend.

“There’s been an increase in fundamental discourse, a decrease in the quality of debate, rising attacks on human rights and all of this has one underlying factor--failures according to the rule of law. The Constitution presumed that institutions would function in a way that would transform society, but that’s not happening.”

In his new book, ‘Rule of Law in India: A Quest for Reason’, Narasappa explains why India suffers from an extreme dichotomy between the theory and practice of the rule of law and how this impacts its citizens.

“Of course, this dichotomy--between paper and practice--exists in every society, but what marks India is the failure to challenge this dichotomy. You need to work on complying to the rule of law every day,” Narasappa told us.

“How is the judiciary functioning, is it functioning well? Do we need to improve it? We don’t ask these questions enough--that is where we are struggling”.

As co-founder of Daksh, a Bengaluru-based NGO, Narasappa has long been occupied with institutional accountability. Initially focussed on elective representatives and ensuring citizens can hold them accountable, more recently the organisation has been concentrating on the judiciary--something which he says helped him realise how law works in practice and influenced his thinking about the issues the book addresses.

He is also a partner at Samvad Partners, involved with a number of social interest litigations before the Karnataka High Court and the Supreme Court and is closely associated with National Election Watch.

At the heart of the troubling dichotomy lies threats to democracy, equality and fundamental rights--all foundational tenets of the Constitution--when the Rule of Law fails to be upheld.

Yet while there is no dissenting voice in India that rallies against the Rule of Law, often it’s the lack of processes, systems and effective people to act in accordance with the law that is lacking and causes “severe problems at the very core of India’s governance superstructure”, says Narasappa.

We have the choice to call ourselves a functional anarchy or a dysfunctional democracy…we have miles to go before we can call ourselves a civil society under the Rule of Law,” said former cabinet minister P. Chidambaram and is how Narasappa ends his book.

In an interview with IndiaSpend, Narasappa reflects on why the rule of law must be protected and discusses examples where institutions and public systems are failing to uphold our constitutional values.

Edited excerpts.

You’ve said before that a lack of reasoned debate by legislators on most politics is hurting law making in the country. Equally you have said you would like to see more MLAs and MPs campaign on specific issues and provide you the opportunity to hear their opinion and views. At what point do you believe debate disappeared from public discourse? How did that happen and how do we get it back?

It has been a gradual occurrence. The main contributing factors include the death of internal democracy in political parties, the rise of strong leaders who believe they are above the party and an increase in both the cost of elections and corruption in elections. All these factors essentially kill reasoned debate because none of them require or tolerate debate.

To bring it [debate] back, we need to encourage democracy in political parties and reduce corruption in elections. Both are difficult tasks. A small step could be to allow free debate on issues in parliament without the threat of disqualification. Second could be the election commission deregistering parties who do not have internal democracy.

“We are only hanging on to the rule of law dream by the tiniest edges of our fingertips. We have to lift ourselves up and stand before we can begin walking the miles towards civil society,” is how you describe our current situation. In your view, how can the Rule of Law be protected? Should there be laws on how laws should be made for example?

Establishing and protecting the Rule of Law is not easy. It is quite arduous and requires all institutions to perform their tasks in accordance with the laws laid down. Equally, people need to respect laws and develop a rule of law culture. If nobody stands up for the law, Rule of Law cannot be protected.

Standing up for the law means exercising power within the restraints created by the system and following the law even in the face of difficulties. Currently, that is not happening all the time; our focus is more on who is exercising the power rather than how it is being exercised.

If A exercises the power or does something, it is okay because we like or trust A; if B does it, we oppose it because we do not like B. This is a problem. It is only when people consistently stand up for the law, that the Rule of Law will be protected. I do not think there should be laws on how laws should be made. There are enough rules about how to make laws; it is the increase in unprincipled and unrestrained exercise of power that is the problem.

There are currently 27 million cases pending across Indian courts. The Centre recently proposed to install ‘justice clocks’ that display the number of disposed cases, pending cases and the rank of each court to encourage competition between courts and swifter judgements. What do you make of this and how would you suggest improving the rate at which justice is dispensed in the country?

Justice clocks by themselves are not going to achieve anything! Unless we look at the day-to-day functioning of the courts in detail and bring certainty into every court hearing, there is no way out of the mess we have. Bringing in competition on outcome amongst courts, all of whom are functioning badly, is not the way forward. At best, these clocks will help in bringing judicial delay to the mainstream political consciousness. The rate at which justice is dispensed will only improve if each case is heard efficiently.

In a recent perception poll, 23% of Indians cited corruption as one of their top concerns (behind unemployment (48%)), the highest among the 15 countries surveyed. Amongst our elected leaders, stories of corruption are not uncommon and has become a major election issue. What impact does this have on the Rule of Law and its associated institutions in India, and how can we manage it?

Each act of corruption is a challenge to the Rule of Law! The more corrupt a country, the less robust the Rule of Law. Corruption is the antithesis of law and reason. We cannot manage corruption. If we have to protect the Rule of Law, we have to start a war against corruption.

Corruption is not just about money; it is about impunity and bending the law to your needs and the exercise of power in an improper and arbitrary fashion. We need to adopt a zero tolerance attitude to corruption. This can be done if the system constantly tackles and addresses corruption rather than turning a blind eye. For this to happen, we need all branches of the state to mount a joint offensive on corruption and be persistent in their efforts. Currently, tackling corruption is not a systemic and persistent effort.

The Finance Bill 2017 introduced electoral bonds to bring “substantial improvement in transparency over the present [electoral] system”, yet donors can still remain anonymous. You cite the consistent refusal of political parties to make their functioning and financing transparent as a fundamental threat to democracy. How can citizens demand greater transparency when ultimately parties may not be incentivised to change?

This is a big problem and is at the root of political corruption. Citizens need to be persistent on this issue. A multi-pronged approach is what we need.

First, we need to highlight known issues of opaqueness, continue campaigning for a reform law, vote for candidates who reveal their sources of funding and lastly, seek accountability regularly from political parties by going to the Election Commission and courts.

Given the scale of the problem and the uniform negative attitude of major political parties, this is a tough job and there is no easy way out of this. We have to start reform at the lowest level--at the panchayat and urban local body elections where it is easier to give effect to some of these steps.

“Police and politicians regularly violate civil liberties and justify their actions on the basis of an imagined pubic interest or morality”, you have written. Can you give us a recent example of this and explain the danger it poses?

There are too many of these incidents happening every day. Some of them get publicised and many don’t. Recently, a play in Bengaluru was stopped because members of one group complained that the content of the play was offensive to their feelings. The police said that they will examine the script before providing security!

The point is that the police and politicians invoke public interest and morality too quickly--and too often it’s to hinder speech. All parties are equally guilty of this to various degrees.

(Sanghera is a writer and researcher with IndiaSpend.)

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