1. Intolerance, for the rule of law

Intolerance, for the rule of law

Until tolerance becomes a habit, we cannot claim India functions on the principle of rule of law

By: | Published: March 5, 2016 12:59 AM

“I disapprove of what you say, but I will defend to the death your right to say it.” —SG Tallentyre

The Merriam-Webster Dictionary defines tolerance as “willingness to accept feelings, habits or beliefs that are different from your own.” A related definition is “the ability to accept, experience or survive something harmful or unpleasant.” Acceptance is the word common to both definitions: this implies accommodation by the individual of the acts or thoughts of another, even though they may conflict with his deepest convictions, indeed with his very way of life.

The limits of such tolerance are set by the legal framework; the Constitution, while enunciating the inalienable freedoms available to every resident of India, has also circumscribed these to the extent necessary to protect the rights of other individuals and to preserve the essential social fabric of the country. All other laws are subordinate to the Constitution; over the past almost seven decades the superior courts have struck down a number of legislative enactments which were deemed to violate the basic structure of the Constitution. Implicit in this process is the recognition that a democracy is run by the rule of law and the final arbiter of any act, whether by word or deed, is the judiciary.

So, it is with a sinking feeling that one observes the growing tendency of different groups to ignore and often show their contempt for the rule of law. Indian society, like any other, has displayed strains of intolerance towards socially-disadvantaged sections, based on caste, religion and gender, to name just three. The shabby treatment of MF Hussain and the politically motivated attacks in Maharashtra on newspaper editors and academic institutions that were deemed to have insulted the memory of Shivaji were instances of intolerance. What is disturbing is the resort to violence against helpless individuals and the perceived failure of the law and order machinery to protect them or bring the perpetrators to book. The mob violence in Muzaffarnagar in 2013 and the lynching of a man in Dadri, UP, in 2015 for allegedly consuming beef have been followed by the execrable act of lawyers indulging in violence against a student leader accused of the crime of sedition. What these three incidents bring out is the brazen disregard for the operation of the rule of law. In all three cases, apologists belonging to the ruling dispensation have sought to ex post facto justify perpetration of violence. More dangerous is the contempt for the rule of law that these actions reveal.

Democracy is believed to rest on four pillars: executive, legislature, judiciary and the press. With the spread of representative democracy and the growth of the internet, commentators add a fifth pillar in the form of civil society. The 2011 Arab Spring is a vivid reminder of the power of public opinion and social media in shaping the course of events in a country. How has India fared in terms of the performance of these pillars and what are the lessons to be learnt if the tender plant of democracy is to take firm root in Indian soil?

Organs of the government, especially the police, have often displayed distressing levels of partisanship in handling conflicts between different communities. Indira Gandhi’s “committed bureaucracy” has been a spectator to, if not a participant in, India’s worst communal conflagrations—Delhi (1984), Mumbai (1993) and Gujarat (2002). The executive arm of the state is generally intolerant of criticism and the Indian executive is no exception. But what marked out the latest incident in the public eye, the JNU case, is the extraordinary interest shown by the highest levels of the government in what were statements by youth in its usual phase of excited fervour. What could have been handled as a local incident and dealt with as a disciplinary matter by the university has been allowed to blow up into a major controversy. Having committed one error of judgment, the executive compounded its problems by failing to act firmly against those who interfered with the course of justice.

The second arm, the legislature, exemplified by Parliament at the national level, has, in recent years, often generated more heat than light. It has dragged its feet on crucial legislation over the past decade, with parliamentarians more interested in winning battles of lung power than contributing to legislation that will promote economic growth and development. Over the years, legislations on a unified indirect tax system for the entire country, rationalisation of archaic land laws and establishment of anti-corruption watchdogs have languished. A colonial-era sedition provision, introduced after the 1857 mutiny, is still extant, although the mother country, the UK, dispensed with this statute five years ago. Although no less a person than Jawaharlal Nehru espoused the sentiment (as far back as 1950) that this obnoxious provision should vanish from the statute books, independent India still retains this pernicious law that is available for abuse by insecure governments.

One bright spot in the firmament of democratic institutions has been the legal system, though there is the issue of judicial delays which frustrate the delivery of justice and tend to make the ordinary citizen cynical about the rule of law. This has to be qualified by the caveat that, while the judiciary, especially the higher judiciary, has been the one beacon of hope for the common man, the fraternity of lawyers has sometimes conducted itself with an appalling lack of dignity. Jokes about lawyers’ habits are commonplace in all democracies but the legal fraternity in India has besmirched its reputation with behaviour that is more suited to a beer hall than to a bar association. In the recent case involving the production of the student leader arrested for sedition in the magistrate’s court, the nation and the world were witness to ugly scenes of alleged assault by “lawyers” on the student leader (a matter still under investigation), with the police apparently standing by as mute witnesses. Surely, lawyers, if the assailants were indeed lawyers, ought to be aware that the law must take its course.

The fourth pillar, the press, has been an increasing cause of concern. The print media, under threat from the electronic media and now social media, has tended to focus on avenues like advertising revenue, with lesser concern for factual reporting and issues of social concern. The electronic media, with almost no exceptions, is engrossed with sensationalism and “breaking news”. Even more disturbing is the tendency for news channels to act as adjudicators of legal issues, especially cases currently under investigation by law enforcement authorities. Judgments have virtually been passed on most news channels in the high profile Indrani Mukerjea case. In the JNU student leader case, unverified audiovisual evidence has been casually bandied about by certain news channels. Value judgments on the patriotism of individuals and their actions have been passed without leaving the matter to be decided by the appropriate judicial forum. If the press was felt to be compliant during the Emergency (1975-77), there is now reason to worry whether it is complicit today with certain segments of society that seek to impose their narrow sectarian, nationalistic view on the country.

The biggest hope for a healthy, flourishing democracy lies in a questioning, independent civil society that accommodates a diversity of views and encourages discussion and dissent. No less a person than Raghuram Rajan, the RBI Governor, observed in a lecture in October 2015 at IIT Bombay that societal self-interest lies in the protection of the right to question and challenge, for only through encouraging the challenge of innovative rebels does society develop. The growing partisan shrillness of discourse and the recourse to vituperative, often libellous language in the social media is a sad reflection on the deteriorating standards of public debate in a country that has produced outstanding thinkers like Ambedkar, Nehru and Rajaji. It should occasion no surprise when we have commentators in recent days opining that students should go to universities to study, forgetting the important role of universities and other institutions of higher learning in fostering the spirit of questioning in individuals and equipping them to contribute to political and social development in their future lives. While it has been heartening to see the large number of those who have taken a stand against the attempts to straitjacket thinking and debate, there is no denying the growing numbers who refuse to use hard facts to bolster their viewpoint, relying instead on emotion and unverified information to push their worldview as the only acceptable one. When they lose out in the battle of words, as is bound to happen when reason does not inform argument, they descend to the use of swords.

Democracy in India, like the nation state, is a concept that has been put together since 1947 and has (despite various gloomy prognostications) lasted over nearly 70 years, in contrast to most other countries that achieved independence around the middle of the 20th century. The people of India have chosen their governments at the national level 16 times since Independence and have ushered out the incumbents on eight of these occasions. But the right to bloodlessly change governments (Karl Popper’s fundamental classification of a democracy) is hardly the only characteristic of a democracy. It is the rule of law which guides the functioning of a democracy in the interregnum between elections. Seen from this viewpoint, the “five pillars” of Indian democracy can be said to have secured barely passing grades. Nor, regretfully, do most Indians show tolerance for the words and actions of their fellow humans. The rule of law apparently applies only when one is wronged, not when one wrongs one’s fellow human. Two examples will suffice: progressive writers in Bangalore choosing to boycott the Literature Festival because one of the organisers had differing views on the Award Wapsi controversy and the intolerance shown by Left parties to political dissent in Bengal over their 34-year rule. Respect for the individual’s right to freedom of expression, consumption and decision (three freedoms which are being questioned at various levels today) is still to be ingrained in the Indian democratic psyche. Till tolerance becomes a matter of habit, we cannot claim that India functions on the principle of the rule of law.

The author is partner, Access Advisory

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