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Summary: Chair: Upendra Baxi (University of Warwick/University of Delhi)
Title:Rule of Law: The Question at the Grassroots
Panelist:Kanak Mani Dixit (Himal Magazine)
Abstract:How do you take the various elements that build towards rule of law, including enforcement, accountability, independent media and civil society oversight, to the level of district and village? The goal of course is to provide governance and legal recourse at the grassroots, but capital- and metropolis-based observers are not always sufficiently empathetic. In all countries, and especially the larger ones where the ‘national’ is more layers removed from the ‘local’, the expectation that the quality of democracy extends beyond the capital, the provincial capitals and large metropolis, to the rural hamlets is belied by the reality. The quality and penetration of journalism and civil society activism at the grassroots of Southasia is not able to support rule of law, nor democracy and accountability. What are the challenges to the growth of civil society activism and independent journalism so that they help all the people rather than a few. How do you ensure that the middle class and the rich also go to jail.
Title:Rule of Law vs. Rule by Law
Panelist:G. Haragopal (Centre for Human Rights, University of Hyderabad)
Abstract:Rule of Law is, in a larger view, an objective normative and, in a way, ethical standard reflecting the stage of civilizational progress. It is, of course, a prod- uct of industrial revolution which in turn a result of blossoming of human reason, advancement of relation of human being with the nature and an attempt to universalize the normative reference point in dealing and negotiating the adversarial relation which are intrinsic to the capitalistic mode of production. The critiques of Rule of Law, particularly Marx maintains that equality before the law, the essence of Rule of Law, is a juridical illusion as equality before the law does not ensure nor preceded by real equality in the social relations. Notwithstanding the Marxist criti- cism, it has to be acknowledged that law represents certainly one step forward from feudal social relation which are hierarchical arbitrary and totally unequal. This is not only the reality but rationalized and justi- fied on all possible grounds. Since the origin of rela- tions is traced to the divine, who is believed to be the creator, there was neither enough of scope nor pos- sibility to question the relations without somewhere either questioning the omnipotent power or redefining the relation of human with the divine.
The midway of interpreting the Rule of Law is to look at it as `historic compromise` between the owners of means of production and the members of working class who are the natural owners of the productive labour. The struggles between the capital and the labour let to something like “live and let live” understanding. In a way, Rule of Law is as much an achievement of the labouring class as that of concession from capitalist class. Therefore, leaving the entire space for capitalist class to appropriate amounts to ignoring the struggles of the laboring class. The origin of Rule of Law or modern constitutional governance owes a lot to the European civilization, which conceded the Rule of Law to its people and colonized a huge part of the world for ruthless exploitation. The subjects in the colonies and their freedom movements saw their own future in the European mirror and demanded the rights that their counterparts enjoyed as citizens of the Nation State. In a way, the aspiration for Rule of Law was built into the freedom movement itself.
India is one country which heavily borrowed from the western juridical traditions, while drafting its constitution. The Indian Constitution in retrospect appears as a radical document with freedom and justice as its main foundations. The crisis arises from the fact that the anti-colonial freedom movement was not simultaneously anti-feudal. Therefore, the freedom movement remained incomplete and the task of emancipation unaccomplished. The constitutional governance is superimposed on an economy and society not objectively conducive for such a form of governance. This lead to a rupture in the Rule of Law which has come to be increasingly replaced by “Rule by Law”, which is contingent and arbitrary.
There are several repressive laws starting with Armed Forces Special Powers Act to TADA, POTA and several such state legislations, which are negation of individual liberty and societal freedoms. Most of the repressive laws were enacted with a promise that they were temporary measures and would be repealed once their purpose is served. It is true that some of these laws either lapsed or repealed, but the draconian provisions of the law got incorporated into Unlawful Activities (Prevention) Act involving changes in the criminal justice system. It is paradoxical while civil rights and democratic movements have been demanding further refinement of the standards of Human Rights Laws, the rulers are gradually abandoning or lowering the existing standards under one pretext or the other. The spirit of Rule of Law is being increasingly undermined by Rule by Law, which is reversal of democratic progress of the Indian society.