//INDIA: Critique institutions not the law

INDIA: Critique institutions not the law

21 oct 2011

A Statement from the Asian Human Rights Commission

The Prime Minister of India, Dr Manmohan Singh, addressing the sixth annual convention of Information Commissioners in New Delhi has said that the government will be critically reviewing the Right to Information Act, 2005 so that the legislation does not “affect the deliberative process in the government”. In his speech delivered on 14 October, addressing the conference the Prime Minister indicated some areas where the law should be recalibrated according to the government, so that genuine public interests can be upheld, whereas vexatious demands that could clog the system with sheer volume in numbers can be prevented.

The Prime Minister further said that the proposed legislation to protect whistleblowers would be enacted soon. He expected that the new law would help better implementation of the Right to Information Act and reiterated the government’s commitment to control corruption and improve administration through legal, executive and technology initiatives.

The Asian Human Rights Commission (AHRC) appreciates the government’s honesty in admitting, that whistleblowers and human rights defenders in India are at risk due to the absence of a protection framework. The AHRC also congratulates the government for its openness to acknowledge that improvement in administration – translate into governance – and prevention of corruption can only be realised through legal and administrative reforms aided by technology. However, such reforms to materialise, what is required is a functioning framework of the rule of law, a concept that is impossible to achieve without drastic reforms of the justice-rendering framework of the country.

One example could be the proposed legislation to provide protection to whistleblowers. Even though legislation could bring a framework to provide protection, it cannot function without implementing organs, in this case, the police. The country’s police today is a far cry of what police should be in a democracy. The institution suffers from wide-ranging negative public perceptions, from being generally conceived as a corrupt entity; worthy of no trust by the people; a persecutor of the poor and a minion of the influential and wealthy; and inept to discharge duties, both physically and intellectually. All of this and perhaps many more of such negative impressions are based on at least six decades of the people’s experience with their police; sans states, regions, politics and periods. So far, no government, state or central, has tried to rescue the police from the deep moral as well as intellectual turpitude the institution has plummeted into. Expecting these officers who suffer from a state of deep demoralisation to provide protection and for those who are at threat to approach the police seeking help just because there is a new law, is nothing more than a fallacy, worse, a belief based on self-deceit.

The public have similar perception based on experiences, concerning other justice delivery institutions in the country, for example the judiciary. Today the Indian judiciary is overburdened and ill-equipped to cater the demands of a rapidly changing and legitimately demanding society. It is like this since the past two decades. Twenty-two out of the past thirty seven chief justices of the country have, in unambiguous terms, said that the country’s judiciary is incapable to deal with the overwhelming pendency of cases. The twenty-two judges include every one who has served the country in the capacity of the Chief Justice of the Supreme Court of India since 22 February 1978, the day on which Justice Mr Y V Chandrachud took office.

The current Chief Justice of India, Justice Mr H S Kapadia has reaffirmed the reality stated by twenty-two of his predecessors, immediately after he assuming office in May 2010. Yet, neither the judiciary, nor the government has made it a realistic priority to address the backlog of cases. The judges, driven by targets self-imposed and more often super-imposed by administrative orders of higher judges, find disposing cases ‘somehow’ and not often on merits as a means to dislodge themselves from this grinding deadlock. It might help reduce the numbers, but everyone know that the practice would serve the least to meet the ends of justice, perhaps it is in fact more delivering injustice. In essence, the judiciary is incapable of delivering justice anymore.

When the investigative limb of the state suffers from low morale, inefficiency and the lack of public appreciation and the adjudicative limb suffers from enormous amounts of delay and incapacitated to deal with the sheer volume of work; chaos, confusion and inefficiency is a natural consequence. Translating this into the context of maintaining the rule of law implies that injustice is the norm and justice an exception in the society. Widespread corruption is a natural corollary of this quagmire. It is understandable thus for a citizen to use legislations like the Right to Information Act, 2005 to seek justice, which otherwise should have been achieved through normal means. That the Act often becomes a window of information, and through seeking information attaining remedies, should have been an anticipated result of the legislation. It is reality, that despite the extent of corruption and ineptitude the information sought under the Act has brought to attention of the public, and the debate it generated from villages to cities, the government has done nothing to bring about the change that is required to bring an end to this ‘organised lawlessness’ which is what today India is.

Any government honest and serious in addressing this situation will require constructing architecture of governance intended to build a society based on the principles of the rule of law. This requires institutions, of the very minimum, the prosecution, police and the judiciary that are nurtured to accept and investigate complaints and deliver justice, in accordance with the basic laws that the society has decided to follow and the parliament legislated to implement.

What is lacking in India is a discussion on these fundamental issues and the wrongly placed emphasis is on drafting new laws, which have no appropriate means to implement. Even the civil society, including the country’s media are victim to this maya or fallacy where it is believed that legislations without implementing infrastructure could deliver results. It is for the civil society to lobby the government to redefine its restructuring priorities so that the eroded foundations to form a democratic state are reconstructed and strengthened.

Perhaps the civil society in the country, along with its government, should spend time to seek and attain clarity in their understanding of what are the essential tools required to constitute a society where justice, equality and dignity guaranteed by the rule of law is the norm. In such an India, extrajudicial executions, caste based discrimination, corruption, malnutrition, starvation deaths and custodial torture will be an exception. The task is enormous, so is the change that Indians disserve.
October 18, 2011