Is filing police complaints, public interest litigations, issuing fatwas and holding demonstrations, with a view to portray threat to law and order, become the latest gimmick for self-anointed civil society activists, NGOs and some not so mainstream groups? Are legal statutes becoming a weapon in the hands of enforcement authorities to quell public opinion? And with the authorities shying away from defending its citizen’s rights, are we really on the brink of a cultural emergency or constitutional crises and facing a threat to our fundamental freedoms? Or is our social and moral fabric strong that it will not allow cheap publicity stunts of a few to erode it? Are our courts not being unnecessarily burdened to decide matters which don’t merit judicial time? Has development and modernization made us more aggressive or have we as a nation just become intolerant? Public discourse is essential in a democracy, but one wonders if this current trend of public discord is helping our democratic institutions? The rule of law is sacrosanct and as a legal practitioner one is pained when the law is used for oblique purposes exceeding its intended objectives. But, it’s happening so often that immediate steps are required to check this rising menace.
Let’s take for example, The Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, under which Prof. Ashis Nandy was recently charged. This special legislation, which overrides other laws, was enacted in 1989 because the Parliament believed that members of Schedule Castes and Schedule Tribes (“SC& ST”) remained vulnerable and a law was necessary to check crimes against them. The statement of reasons, preceding the Act, notes that for various social and historical reasons, SC & ST were subjected to indignities, humiliations and harassment and the Act contains affirmative measures to weed out the root cause of atrocities against them. Atrocity is defined exhaustively and includes matters like parading them naked, wrongfully cultivating their land or dispossessing them from it, forcing them to vote in a particular manner, assaulting or using force against them and matters like corrupting the reservoir from which they draw water. It also covers insults with the intention to humiliate them. It’s important to note use of the word ‘intention’. Whatever else one may say about Prof. Nandy’s comment, but can one really attribute mala-fides to his remarks?
Another example of a law grossly misused is Section 498A of the IPC. Introduced to prevent harassment against dowry it became a weapon in cases of marital breakdown. The Supreme Court noted its misuse and directed the legislature to consider the tendency of falsely implicating the husband and all his immediate family and noted the need to suitably change the Section. The Court observed that frivolous complaints choke the legal system and lead to an enormous social unrest affecting peace, harmony and happiness of society.
The list is long and recent examples include the cartoonist being charged under sedition laws and innocent young girls being charged under the IT Act. And how can one overlook the recurring demand to ban movies, books and art for supposedly offending public sentiments.
Confronted with these issues, Courts have repeatedly asked whether socially beneficial legislations, or any law for that matter, enacted for a particular purpose can be converted into an instrument to blackmail or wreck personal vengeance? In fact, Courts have even asked whether the torch which is lighted to dispel darkness can be used to set on fire innocent surroundings!
Notably, each time Courts are approached to fill-up the deficiency in governance and restore societal equilibrium, it imposes a further burden on them. One acknowledges the need for judicial reforms and overhauling of procedures to reduce judicial pendency. But what does one do when the Courts are burdened with everything from ensuring proper storage and distribution of food grain, to preventing stray cattle from entering our streets and checking our neighbors’ wall becoming too high. Our continued frustrations have driven us to wanting quick resolutions to everything and RTI requests are now regularly followed by court cases to check our local monkey menace or to ensure that our public conveniences are properly functioning. In such a scenario, the judiciary does sometimes trespasses into administrative domain and while all such temptation should be checked, it’s difficult to exercise restraint when the executive and legislature consistently abdicate their responsibilities.
One solution lies in our collective respect for the rule of law being restored. Unfortunately, as Nani Palkiwala said, “let us not pretend that the rule of law is a concept which can be regarded as a part of the Indian psyche.” That may explain why India ranked 78th among 97 countries in the “Rule of Law Index 2012” reported by the World Justice Projects. But we can no longer afford to be indifferent. Rule of law is the basic principle of governance and includes avoiding arbitrariness in all forms of governmental action and guarantees equal protection of laws. It also includes supremacy of the law, equality before law, accountability to the law, legal certainty and procedural and legal transparency. This requires laws to be strictly applied and all forms of legal misuse condemned. As a sequitur, the government must discourage bringing legislation, even if clarificatory in nature, to undo judicial pronouncements. Equally, each one of us needs to start accepting the finality of Court decisions and accept that verdicts are only passed following due process. And if there is a lack of credibility about the due process such that laws are followed more in their violation than in their observance than our judiciary and executive need to re-examine the approach to enforce the rule of law. One can say with reasonable certainty that if the rule of law is not urgently re-established than the integrity of our democracy stands to be destroyed. Can India afford that?
Satvik Varma is an advocate based in New Delhi. He attended Harvard Law School & is an Aspen India Leadership Fellow.
First Published in The Financial Express.