//INDIA: Justice implies more than a law

INDIA: Justice implies more than a law

A Statement by the Asian Human Rights Commission
Over the past four months, the Union Law Minister, Mr. M. Veerappa Moily, has been claiming that his ministry wishes to propose a law, on the ‘right’ to justice, which would guarantee justice to every citizen. While the minister’s wish is noble, the country lacks the means and administrative will to assure what the minister has proposed, even at the notional level to the ordinary people. In that, Moily is like Hammurabi, who believed that mere laws would ensure fairness and guarantee welfare of the subjects. In the current Indian context, there is nothing convincing to believe that the proposed law would meet the last commandment postulated by Fuller in his “Principles of Legality” for the proper functioning of a legal regime, since such a regime hardly exist in the country.

The problem with the concept of justice is that, the people would not believe in its existence, unless it is visible. Justice is a tangible impression directly proportional to the diverse means in which it is experienced. None would believe in the existence of justice without having directly or indirectly experiencing it. On that count, a legislation, good or bad, is similar to justice, that its intend could only be met should there be a means for implementation. In the Indian context, even to conceive that an enabling law in itself would deliver constitutional guarantees, which the country has so far failed to fulfil, is in itself a preposterous ambition.

India has a façade of legal and procedural framework that could guarantee justice to a reasonably higher degree. The ‘theoretical framework’, legitimised by the constitution and further by the procedural laws, concerning the fundamentals of fair trail, like the presumption of innocence; right to remain silent; an independent investigative, prosecutorial, and adjudicatory mechanism for civil and criminal proceedings; a reasonably watertight compartmentalisation of legislative, executive and adjudicative functions of the government are all there in the country. India has in theory a free legal assistance programme, not only built-in into the Criminal Procedure Code, 1973 concerning criminal prosecutions but also provided through the National and State Legal Services Authorities. Into this superstructure, that has no support of any functioning foundation, dropping a new legislation like the proposed right to justice law could hardly bring new strength.

For the ordinary citizen justice is not a commodity that she could or would seek at the High Courts or at the Supreme Court, and as it is in most cases, in any of the lower courts. Justice is visible when the postman to the prime minister delivers services without demanding or accepting bribes. Today, India is regarded as one of the most corrupt countries in the world. It has remained in the bottom rankings for the past several years, as if the political parties holding fort in New Delhi are determined to keep the country in this shameful position forever, unfortunately at the detriment of its entire citizenry. Despite having ministers, judges and clerks, throughout the country exposed of engaging in corruption, nothing much have been done since the past three decades to contain it.

It is a barren reality today that even to obtain the free ration a starved and malnourished villager is entitled for, that poor man would have to part with his paltry grains with the public food distribution shop licensee as bribe. The much-lauded rural employment guarantee programme is ridden with corruption, that today, the programme resembles the very same torn ‘dhoti’ the poor Indian wears, which the programme intended to change. India today has the highest number of malnourished people in the world, that agencies like the Asian Human Rights Commission (AHRC) have said more than five years before, that conditions in India is worse than Sub-Saharan Africa and has repeatedly called for change of this unacceptable status quo. When ministers, judges and bureaucrats are corrupt, why should a village officer be different or can he?

The regime of corruption and injustice like the proposed law to guarantee justice cannot survive by itself. It requires an enabling environment. Caste and other prejudices based on religious, tribal, political and regional identities that are determinedly enforced in the country have to be understood in this context. Sectarianism is one of the lead threads with which a social fabric that is vulnerable to destructive ideals is woven. Often poverty forms the strong frame in which the factionalist society is held. In that, forced eviction that leads to distress migration, ruthless exploitation of natural resources to the acute detriment of thousands of villages and myopic implementation of industrial programmes in the ruse of development becomes the tools with which poverty is maintained in rural India. No one should be surprised that if rural poverty in the country has in fact increased within the past two decades. Indeed what is in reference here is not skewed statistics that the government of India has been projecting since the past one year as its indicator to the success story concerning the realisation of the Millennium Development Goals. What is suggested is a reality check, not writing or reading fiction.

The monstrosity of the forces that keep India within this cesspool of unacceptable conditions is most visible in the resistance to the Right to Information Act, 2005. During the past 14 months at least six right to information activists were murdered and at least 11 seriously injured for nothing other than seeking information that would expose corruption at all levels in Maharashtra state alone. It is not a phenomenon exclusive within that state, but is widespread in the country. In other words seeking truth has today become suicidal in India. In such an environment justice is the last one could expect.

Making of complaints and expecting it to be impartially investigated is an equally dangerous task. The country’s police is not only one of the worst in the world, but is the state agency that enjoys almost absolute impunity. Even today, there is no sensible and functioning framework in the country that would require the police to abstain from criminal acts, including the unabated use of torture. It is only in an environment where the use of torture is promoted as a tool for social control, extrajudicial executions could be justified as a legitimate means to reduce crime. Justice or fair trail has no place in a country where torture and extrajudicial executions are widespread. The decade-long delay in adjudication, and the pathetic state of prosecutors who are mostly incapable in discharging their duty only function as catalysts in further deteriorating the environment.

It is into this environment that Moily is proposing a law to guarantee justice. It is impossible to address all of the above, or at least some of the most important issues like corruption and torture, with a law. What is required is an overall change in the nature of debates in the country that could work as a catalyst to bring about essential changes in the existing state of affairs in the running of state institutions, particularly those that are pivotal to the realisation of democracy and the rule of law. It is elementary that in this debate the functioning of the justice institutions would find a prominent place.

The proposed law to guarantee the right to justice, though would not bring any inspiring colour into the present collage, it is expected to provide the vital steam for a dead discussion to revive, concerning a concept that many Indians today find nonexistent in the country, justice. In that Moily can take pride that he has taken the initiative which nobody else have dared to speak about. The attempt could breath life into a dead subject of debate in the region.

The AHRC hope that Moily will not become Fuller’s fictiona
l Rex in the process.