Democracy and the rule of law in India

C. Raj Kumar
The Hindu, 21 September

Democracy and the rule of law are inextricably connected with each other. Urgent steps are needed to establish a rule of law society in India, without which our fundamental credentials as a democracy will be seriously undermined.

Recently, India celebrated its 60th year of independence — a momentous journey in realising its constitutional goals and democratic aspirations. While the strength of Indian democracy has withstood the last six decades of social, economic and political developments, there are numerous challenges to democratic governance. The rule of law is still not sufficiently protected in the Indian society.

The social and economic progress achieved by the deepening of democracy in many societies has been shaped by their efforts to successfully protect the rule of law. In this regard, a number of challenges to the rule of law continue to undermine Indian democracy and pose grave threats to governance.

Social expectations and unfulfilled promises by institutions: Since independence, various attempts to enforce and institutionalise the rule of law in the Indian society have not achieved the intended results. While the normative framework of constitutional governance is established through the Constitution of India and the various institutions established under it, deeply embedded values of constitutionalism have not taken roots in the Indian society.

While six decades of governance may not be long enough to assess the situation, huge social expectations have been generated by institutions that are responsible for checking abuse of power. But given that the capacity for dealing with abuse of power is disproportionate to the demands imposed upon them by the sheer size and magnitude of the country, there have been numerous unfulfilled promises.

The Indian judiciary is well regarded domestically and internationally for its progressive role in interpreting various provisions of the Constitution with a view to promoting social justice. Expanding the interpretation of the fundamental rights enshrined in the Constitution, overcoming restrictions based on rules relating to locus standi, creating new avenues for seeking remedies for human rights violations through public interest litigation pleas and promoting genuine judicial interventions in the areas of child labour, bonded labour, clean and healthy environment, and women’s rights are a few examples of successful judicial intervention to uphold the rule of law and ensure justice.

But to exaggerate these achievements in the Indian context, given the scale of inequalities and injustices, would be completely missing the point. The Indian legal system is faced with numerous crises starting with the fundamental challenge of enforcing the rule of law. While the system of governance in India is based on law, this does not necessarily translate into the behaviour of those who govern and the governed to have respect for the law. This lack of respect translates into serious threats to democracy as the legal system may not be able to respond to the growing sense of lack of trust and faith in the institutions.

Enforcement of the rule of law and efforts to protect the rule of law ought to be shaped by a number of factors that will improve the capacity of the legal system to respond to injustices. Passing more laws and the establishment of more institutions credited with responding to injustices may not be the right approach. There needs to be a fundamental re-examination of the approaches that we have adopted to enforce the rule of law. There is need to critically examine the effectiveness of Indian democracy, given the fact that corruption is institutionalised in all spheres of governance.

In this regard, a report of the National Commission to Review the Working of the Constitution in India noted: “The paradox of India, however, is that in spite of a vigilant press and public opinion, the level of corruption is exceptionally high. This may be attributed to the utter insensitivity, lack of shame and the absence of any sense of public morality among the bribe-takers. Indeed, they wear their badge of corruption and shamelessness with equal élan and brazenness.” The laws that are constantly violated for creating a vicious cycle of bribery have resulted in a cynical attitude towards law-enforcement. Even anti-corruption laws that are occasionally enforced become political ploys to settle scores with the opposition. This has further accentuated the twin problems of ‘criminalisation of politics’ and ‘politicisation of crime.’

The development of the Indian legal system ought to focus on three major reform initiatives which will help in establishing a rule of law society, leading to the strengthening of democracy:

Law schools and legal education: Law schools have played an important role in shaping the role and function of law in societies which have established the rule of law as the basic framework for governance. The academics in law schools have shaped the understanding of law and legal processes along with imparting legal education with a view to ensuring excellence in promoting legal knowledge and advocacy skills. It helps students with legal training to occupy positions of responsibility in government and outside government and to engage in policy-making. The role of law schools in helping the legal system establish a rule of law society may not be obvious but its importance should not be underestimated, given the ability of law schools to promote new and innovative ideas in shaping the minds of lawyers in preparing themselves to solve the problems of the country and the legal system at large.

Lawyers and social change: While the last decade has witnessed a substantial increase in the quality and number of students desiring to pursue law as a professional career, it has not translated into any greater respect for the law or the legal profession within the Indian society. Lawyers in India have a responsibility to recognise the problems of the legal system, the yawning gap between the law in the books and the law that is practised, and in particular, to appreciate that the fragility of the rule of law in India cannot be taken for granted. In fact, the respect for the rule of law ought to be institutionalised among the legal fraternity. This can help lawyers fulfil the role of law as an instrument of social change.

Judiciary and the justice delivery system: The Indian judiciary has acquired enormous faith and trust from the people. The judiciary as an institution — particularly the High Courts and the Supreme Court of India — has performed admirably well in upholding the Constitution and protecting the rights of the people. However, the justice delivery system in India is marred by lack of access to justice. The impact of the judiciary’s efforts in providing justice to the victims of various forms of injustice is still minimal, although profoundly significant.

The working of the lower courts in India has to be significantly improved. The establishment of the National Judiciary Academy in Bhopal was a step in the right direction but there is need for substantially improving the working of state judicial academies. These institutions should play an important role in identifying the problem of justice delivery systems, and how far the judiciary can help in establishing a rule of law society.

Democracy and the rule of law are inextricably connected with each other. Urgent steps are needed to establish a rule of law society in India, without which our fundamental credentials as a democracy will be seriously undermined.

(C. Raj Kumar is Associate Professor of Law at the School of Law, City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)