India’s Rule of Law Identity: Understanding Economic Injustice and Ethical Prejudices
Rule of law is not a feudal philosophy. Although for different political systems, the rule of law’s orgasm might be different and kinetic, I see the idea of the rule of law in a realist manner, which is important for us to realize now. Often, lawyers and legal formalists or traditional constitutionalists and ethicists worship or regard the concept of rule of law as a formal and moral idea, which is one of the common schools in jurisprudence. In India, the schools of law have been diverse, and that diversity is possible to be seen in many forms. I will provide some incidents for reference only (they are common but not exhaustive):
- Fundamental rights and their choice-based inalienability [Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Navtej Singh Johar & Ors. Vs. Union of India & Ors, AIR 2018 SC 4321; ADM Jabalpur vs Shivkant Shukla, (1976) 2 SCC 521;]
- Constitutionalism and Basic Structure [The Kesavananda Bharati judgement or His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225; Namah vs UOI — Supreme Court Order;]
- Diversity of Spaces and Cultural Pluralism [Indian Young Lawyers’ Association v. State of Kerala, WP(C) 373/2006; M Siddiq v. Mahant Suresh Das, CA 10866–10867/2010; Adi Saiva Sivachariyargal v Tamil Nadu; Church of God v KKR Majestic Welfare Colony Associations & Ors.; Odisha Vikaas Parishad v UOI (2020)]
- And many more….
Before I proceed with my arguments, please refer this beautiful reference from the infamous Minerva Mills Case.
Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual (Minerva Mills V Union of India (1980), Section 4 by Former Judge Yashwant Chandrachud).
Now, constitutional morality (also read this) itself in India has been brutally mismanaged and misrendered by politicians, NGOs, lawyers and judges, which is not just a matter of disregard but concern. The fact of the matter is that there are certain common non-exhaustive aesthetic problems in the legal fraternity in India, which have deeply impacted the constitutional spirit and organism of this legacy we have seen. So, let us assume the Indian Constitution is not a biblical document in a Europeanized or Britishesque way, but consider it a civilizational manifestation of the Indian identity and the diverse post-colonial ideas of secularism and pluralism. Assuming this makes our ground way clearer to understand the deeper problems we are currently facing with the legal fraternity and the instability of the rule of law, and perhaps — not its very idea.
The propositional statements I make are as follows:
- India’s Secularism makes the system of rule of law robust and clearer so that a reasonable system of checks and balances can be assumed. However, despite the fact that the Constituent Assembly wished India’s inherent values of secularism connected with civic nationalism, we cannot deny the very fact that India’s economic, individual, collective, technical, educational, cultural and social plight shows it clearly that the Indian state, and not just the executive alone, is not able to maintain a relevant status quo to furnish the values of secularism. The problem, however, is not about the alteration of the values of rule of law, but more connected with the problems of the post-modern multipolar world, and thus, it is way important for us to understand that soft power implications impact rule of law;
- Although Joseph Nye Jr’s original conception of soft power is often reimposed by Chomsky and Fukuyama as alarmist and described in the lines of authoritarianism, without any detached classification between the Nazi Germany/Fascist Italy’s economic models along with of Joseph Stalin in the USSR and of the United States of America due to its ethnocentric and economic policies that failed to uphold the rule of law therein, the similar paradox is being faced by India. Whether anyone agrees or not, but the socialist model of governance in India, coupled with a mentality of British mercantilism is not going to support the Indian legacy and not the Indian dream;
- Soft power itself is an important concept because it can influence or damage the course and discourse of the rule of law system of a state invariably. The problem with India’s rule of law regime is central to the state itself, but the issue of responsibility cannot be detached from the individual notions of rights and responsibilities of the legal persons who are adjudged and noticed.
- Often, the capitalist potential of India as a multi-aligned nation is being ignored abruptly, and therefore, coupling this with a system that economically cannot uphold the rule of law, is somewhere down the line not good. Various PILs, dysfunctional systems (to a limited but relevant extent) like the Planning Commission, the National Advisory Committee led by INC President Sonia Gandhi in 2004, the Election Commission, the Information Commission and even an extra-leverage on the Indian judiciary to reprimand through an unclear and historical policy of ‘judicial activism’ have not either helped the legal system of India at large, neither have such measures empowered India’s economic robustness and justice system. Despite the fact that the Supreme Court of India surpassed a record of hearing 7,000 cases so far, it is not reasonable that we colour the judicial bodies for ideological imperatives and policy paralysis.
- In the issue of Ethics and its relevance, the concept of precedence always is the orgasm of the judiciary’s relevance. No verdict or injunction or order or any outcome of something pendente lite in a court of law, in a substantive manner, unless the procedure is diverse and internalized on a case-to-case basis, can ever be absolutist. Show me one judgment that may not (thus my argument itself is reflective and not absolutist) approach for reversals or overruling as circumstances are adequately put under adjudication. Similarly, despite the fact that Socialism and its dominant Britishesque ideology is spread among government officials, as Macaulay did since the British Raj, this venom is acerbic and not letting India come out of its absolutist roots to a menacing formalism, which institutionally needs improvements and not a complete overhaul. Like precedents too, the concept of adjudication itself is attributed to the idea that a litigant must uphold the rule of law with some propriety to form an equilibrium between short-term issues and long-term considerations for democracy and its judicial systems.
Sadly, it is a multi-government, multiregional and multiparty issue and there is a brutal lack of consensus to ethicize rule of law by avoiding and ending the philosophical ‘noble savage’ earned and resisted by the Indian state, whether through these ludicrous PILs or RTI requests, or whether through ludicrous propensity of the parliamentarians not to render and expand their responsibilities and cooperative potential. The striking down of the National Judicial Appointments Commission — is one of the unfortunate cacophonies of such realities.
Do watch this interesting account on the incompatibility of Socialism towards India’s Constitution:
Interestingly, the same Dr BR Ambedkar, like Benjamin Franklin in case of the US Constitution, explicitly remarked over the plight of the Constitutional system in India, which must be referred:
It is by placating the sentiments of smaller communities and smaller people who are afraid that the majority may do wrong, that the British Parliament works. Sir, my friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it out. I do not want it. It does not suit anybody. But whatever that may be, if our people want to carry on, they must not forget that there are majorities and there are minorities, and they simply cannot ignore the minorities by saying, “Oh, no. To recognise you is to harm democracy.” I should say that the greatest harm will come by injuring the minorities.
Dr BR Ambedkar in the Rajya Sabha on 2 September 1953
Economics and Ethics drive the relevancy of the rule of law, whether you wish to accept it or not. It is a harsh reality and is all-comprehensive if we understand it deeply.
You cannot resort to Socialism to maintain the rule of law, because of the reason that the driving force of capitalism itself rejuvenates and changes. It is undeniable that the MSMEs in India suffered the most due to China largely, and the government is responsible to handle the situation. For the same, I have referred Nitin Gadkari’s talk with Sanjay Pugalia from TheQuint. He even did interact with Shekhar Gupta of ThePrint and resorted with conciliatory short-term solutions in OffTheCuff, which you must watch.
Three Examples, Three Dimensions, Three Stories.
Here are three impressive examples I would like to discuss to argue further in the same regard. These examples, if I would summarize, are as follows:
- India’s Education Aesthetics and its Problematic Nature
- India’s Environmental Aesthetics and its Dull Behavior
- India’s Strategic Autonomy and the Shadow of NAM
India’s Education Aesthetics and its Problematic Nature
The Aesthetics of learning and schooling in India from Higher Education to University Education is dull. Remember those days when anyone could have the privilege to open an Engineering College in India without AICTE approval? Remember those days in 2005 when the STEM mentality was shared among people, English was popularized as an Elitist cult to gain recognition, while labourers and low-income-ridden people were regarded under a stereotypical frame? Please remember the days when the NLU-non-NLU debate had started and elitism was so at its very peak that legal education had started to cripple. The problem here is deeper. We know that in humanities and social sciences from example, the education system does not provide adequate funding for primary research, and since no such support is rendered, it becomes a fundamental and yet distracting problem also.
India now has the youngest population as of 2020, and nobody should miss this opportunity. Despite the fact that it is a multipartisan and ideological issue as well, nobody ever cares for the fact that India requires an open, opportunity-centric egalitarianism for our startups, researchers, scientists and for that matter — even lawyers. If we do not think the notions of administrative legitimacy and rule of law through an open lense, what will happen is that our administrative systems will neither uphold the rule of law nor will they ever think to change the way these problems exist.
- Invest in skill rejuvenation and focus-centric learning. Do not convert the utilitarian ideals of learning by assuming that earnings matter the most and not learning. MNREGA deskilled Indians and nobody realized this. The same happened with CLAT, and this elite moot court culture in India, where this placement culture and obsession does not foster solutions at a macro level. After all — even lawyering and its lobbying affects the micro and macro sectors in India, believe it or not.
Watch this video and understand how the CLAT culture and obsession towards placement towards deskilling and obscuring legal skills affects the mentality of the fraternity of law students. This is indeed such a deplorable moment for the law fraternity so to say!
Read some of the excerpts from Vishnugupta Chanakya’s Arthashastra as well, as provided and the Mundakopnishada:
A skillful person capable of guessing the mind of others is a fraudulent disciple. Having encouraged such a spy with honour and money rewards, the minister shall tell him, “sworn to the king and myself, thou shalt inform us of whatever wickedness thou findest in others.” [translated, Chapter XI, “The Institution of Spies” in Book I, “Concerning Discipline” of the Arthasástra of Kautilya]
The origins of knowledge, in most ancient traditions, are believed to lie in the very act of creation. Cosmogenesis, the bursting forth of matter into manifestation, is not looked upon as merely a physical phenomenon but rather as the result of a divine will, of pure spirit taking upon itself the burden of matter, of the One deciding to become the Many. [Mundokapnishada, Section I, Chapter I]
India’s Environmental Aesthetics and its Dull Behavior
In the name of so-called expeditious disposals of cases related to environmental damages, or ecological repercussions, the Indian system is deprived of its geological and multi-lithic understanding, and that is a significant reason why India’s diplomatic intentions on international environmental law despite its brilliant work on UNOPS and the South-South Cooperation Initiative do not reflect better. Even the One Grid, One Sun, One World Initiative by PM Narendra Modi will require utilizing of India’s sociological history and heritage, whether natural or intellectual. As of now, not much has happened, and change is necessary. The very basic problem starts with understanding the problems. So in the environmental aesthetics, the issue is that you cannot maintain the rule of law amidst a very simple understanding when you don’t have your politics in order. It is thought that we do not have judgments on in the name of MC Mehta. Neither is it that the Supreme Court of India does not recognize the need for environmental damages and a proper mechanism of environmental law. The larger-than-life question is concerned with understanding the aesthetics and its dull behaviour, because, in terms of foreign policy, India is very clear towards imparting a better environmental law strategy. However, the problem which is beyond the limitation of The UNOPS and the South-South Cooperation initiative and the rest — despite the fact that the current Indian Government recognizes the multi-lithic and cultural roots of nature and environmental justice in India, starting from Ramayana and the Vedas, which is appreciated. The secular foundations of environmental justice are often imposed on the basis of many first-world assumptions. So, when you assume third world issues as first-world problems, and you take the ethos of interpretation from the first world countries such as Israel, the United States, Germany, Luxembourg, and so forth, you do not get a proper solution, because first of all countries actually have their different ethos. There are other first world countries They may be the third world in some cases, like for example, they may be many, but still, that could be another point of discussion. But anyways, the Westosphere’s notions of constitutional morality are interpreted in the name of mere legal formalism, just because we have to do it will never, ever assist the cause for environmental justice and environmental development, because of the very basic goals, which are to be completed by 2030, which the United Nations calls as the Sustainable Development Goals will not be completed. Instead, the situation will be severe. So the severity of the situation always exists due to communitarian problems.
So at a communitarian level, the aesthetics need to arise through certain conservative roots feature gauged through certain liberal mechanisms.
So here, if we understand the simple problem, the rule of law basis also will expand, because the aesthetics itself will not just make us legal formulas. Of course, we should be constitutionalists and formalists, which is not an issue, we must think beyond constitutionalism and secularism, because secularism is a limited phenomenon, and it cannot exist without understanding identities and differences. Otherwise, the secularism which you employ is nothing but communism, or another form of nihilistic or anarchic order, which does not give anything to society, but mere accelerationism only, so that destructive appetite is dangerous and must be avoided. So, in order to take a break or make certain environmental reforms, it is very important to cover up the ecological problems and the utopian first world assumptions and understand that long term problems affect short term consequences as well. So short term solutions are not possible unless some cooperative governance or collaborative governance is happening at a communitarian level, however, to make that happen, and since we know that India is in will be a private intensive country, we can actually start it through some private efforts by mobilizing and forming pressure groups in a reasonable way. Do not misuse our use of pressure groups and bodies and understand that there are always better ways apart from absolutists populists, and maybe collectivist methods, so to endorse the individual transformation with the true essence of individualism, by affirming that nobody represents anybody, but they represent individuals and optimizing the rationale of the presentation and not using them for a theatre of valour or glory, I think much of the environmental aesthetics can be resolved, clearly.
India’s Strategic Autonomy and the Shadow of NAM
Now, the paradox of the non-aligned movement is that, despite the fact that it was a beautiful ideological offspring of the Nehruvian era in India since 1945, it miserably failed, because despite the fact that India’s got some edge to collaborate with the Third World Countries in those times such as Iran to an extent Israel Palestine in those days, and even other countries such as Singapore, which is not a third world country, now, India itself did not grow and the fate of the Alliance did not become crystal clear. I will share a simple example to explain how this affects legal formalism.
So, for example, the National Atlantic Treaty Organization, which was formed amidst the Cold War, and the basis of NATO was not a cold war but was the aftermath of the UN and the Second World War. However, its integral role in the Cold War was the turning point of the relevance of NATO. Now, we know that President Trump of the United States is someone on the line very critical to that This proportionate investments and contributions made by the United States. And so due to his actions in a positive manner, European countries who have been members of NATO for years and getting support from the United States and NATO, and now investing somewhere down the line, because the role of NATO after Ronald Reagan, Barack Obama, Bush Jr. and Bush Senior would not be limited to the concept of European security and the real politic notion of international peace and security will not be unicameral, which means that it will not be limited to European centric security. It means simply that earlier, a stable Europe is what is considered to be the key to a stable international community and the rules-based international order. However, after the fall of the Berlin on the rise in the Syrian Civil War era and the slacktivism. It started with really Eastern countries such as Egypt, Tanzania, and Tunisia.
Things changed rapidly. And now the role of NATO will extend. So, did he find similar changes in other multilateral bodies or special alliances? Well, yes, if we see, there were certain negative changes, which means that there were certain dissipations for example, the Warsaw Pact became irrelevant. The Soviet Union as a body as a nation-state, as a union of various Central Asian and Asian countries, became irrelevant, but there were political and ethical reasons behind which include, introduce the August school and develop To have a particular leader during those times. But beyond that, we have examples like the NAFTA, which was not too much irrelevant.
However, it was too much hyper-globalisation centric, leading to which the US was losing much of it’s basically just also the idea that immigration is the solution to every single problem and creating a ‘white saviour’ or a white privilege identity using immigration politics also affected various crucial multilateral bodies from specific UN agencies to the European Union and the Council of Europe. That is the reason why the Brexit party engagement made Boris Johnson’s election possible.
And that’s what we have seen. However, how does it affect the rule of law?
Well, the answer to that question is very simple. Your foreign policy and the ideological narratives, which are very important in the world of communication and regard for diplomats and administrators, will always direct towards anticipating how the rule of law system will emerge, in this narrow view, and socialism must not be completely blamed for the whole problems that we are facing. However, we cannot ignore that the ideological narratives and the problem of understanding of a society can lead to larger-than-life problems So, the worst your monolithic approaches towards justice and rule of law would be in the name of ideological obscuration/insecurity, the difficulties of the judicial system will increase, which is going to be definitely detrimental to the potential of the Indian society from its anthropological and cultural roots and trust-faith mechanisms.
The whole problem starts with a culmination of events and understanding of the anthropological problems of Indian society. So, the problematic assumptions of India’s secular faith by limiting it to some of the European values coupled with inert alignment towards Soviet socialism led to the assumption of the rule of law to be philosophised. The judicial side of the democracy faced immense problems due to this oversimplification and excess philosophization, leading to which, within the garb of India’s strategic autonomy, the problems of ideological politicization became bigger, uprisings/riots/protests also effectively rendered some incoherent messages of populism and the societies could not develop their ‘rule of law’ identity effectively.
India’s moral virtues could not get to the level of better upliftment and enlightenment. The issue is that the Non-Aligned Movement and the narratives behind did not give something productive for the Indian identity, which always existed in abstract formulations. However, there were certain good nurtured understandings of India which should be credited to NAM specifically, not because of its materialistic failures but certain inherently ascertained successes for India, which led us to the very rationale that NAM helped India get passed through the Cold War safely. And this was the very fate of India being a socialist democracy.
Now, we still live in that Cold War Mentality, and that has affected the Pathology of the Due Process and Rule of Law.
It was the times of the Cold War when judicial overreach or judicial activism was not much weighed down except in some cases. And it’s not that the Supreme Court judges or judges in High Courts did not try have level best to make things happen. But the inherent technical problems of the Indian legal system and perhaps not just the judicial system, where you employ the legal mechanisms to enforce on for something from issues related to reservation identity, demographic shifts, and so on led to the very reality that the rule of law itself became a formalistic philosophy, which is problematic. And people thought that India’s rule of law notions are too much Westernized with the White Savior assumptions coupled with Socialist and other values.
Our Cold War politicians couldn’t understand that the cultural roots of Bharat made India secularism and non-aligned movement relevant in those times.
So it is the governance ethos which made some successes from the non-aligned movement. However, it doesn’t mean that the non-aligned movement was a good idea. However, despite the fact that India had a meeting with its NAM members after two years since Prime Minister Modi did not attend two times. We can still safely assume that the relevancy of the NAM is just a myth now because the rule of law infrastructure in India is changing its face of transparency. There are certain problems of transparency because of the very fact that the politics of proceduralism being played by nefarious NGOs, lawyers and politicians, to a very large extent, is now waning away. Therefore, ethnonationalism may be handy for India. However, the second foundations of India, despite from the Constituent Assembly’s version of constitutional morality, civic nationalism and grotesque methods, we can never forget that secularism itself cannot exist without a balance and it needs to be procedure-centric to render some meaning to the idea of the rule of law, because the pure notions of rule of law are secular, which simply means that India’s assumptions to see the development of a state may be culturally inclined.
However, the secular foundations of India will not be affected despite anything because of the revisionist, protective and reasonable nature of the Indian people, which no one can predict nor deny.
However, reactionary mass humanism can happen in a majority-based country.
Therefore, it is essential that we do not call out anything majoritarian just because it is based on the majority’s common cultures and aesthetics. If we manipulate the majority just because we believe that democracy is based on the majority as an advantage bias because the westernized notions of the majority also face sudden failures due to the inherent issues between the conservative and liberal factions of politics, in India, cultural pluralism and secularism exist together. They can exist easily if we have a moderate and reasonable discourse and environment of development and purpose. The current government can make this happen. And the current judiciary also can make this happen, which, in general, can embrace a better and far beautiful culture or the rule of law.
So, to deprive ourselves from rule of law is somewhere down the line, a big mistake, but mere legal philosophization or I should say the philosophization of legal formalism, in the name of constitutional morality damages the idea of constitutional morality itself because terms like arbitrariness, fairness, reasonability on anything in a substantive and abstract manner will never ever help the philosophical ecosystem of pure law, nor it can help the applied law framework.
Therefore, pure law must avoid ideological obscuration and this neither the applied law mechanisms should act technocratic. Also, when we will understand that these endpoints between your pure law and applied law are properly estimated, then the idea of rule of law in India and the identity of rule of law based on Dharma and the reignited and morphed and transformed secularism in India will never be affected harder and vicious.