Editor's Note: As the Indian Republic turns 70, Tufail Ahmad begins a journey through the country to examine the working of democracy at the grassroots level. Inspired by the French author Alexis de Tocqueville, who toured America and wrote Democracy in America, the author—a former BBC journalist and now senior fellow at the Washington-based Middle East Media Research Institute—will examine how sociological realities of India and the promise of democracy interact with each other in shaping the lives of the Indian citizen. This report is the fourth in a series called "Democracy in India".
In the Indian democracy, politicians in power are the new 'kings' and above the law. The principle of rule of law – that the state is governed not by rulers but by the law, no one is above the law and the law must prevail irrespective of which political party comes to power – is routinely trampled upon by our rulers.
The principled view of the rule of law was expressed by Shwetambri Sharma, the only female member of the special investigation team (SIT) which probed the Kathua rape case when she said: "as an officer… I had no religion and my only religion was my police uniform."
Such instances when the rule of law, or at least a certain stage of it in some cases, prevails are rare. Politicians, once in power, consider themselves as kings.
On 10 April, it emerged that the Yogi Adityanath government has decided to withdraw a rape and abduction case against the former minister Swami Chinamayanand, filed by a girl who had sent many years at his ashram in Haridwar.
In December 2017, the Yogi government also withdrew several cases against the chief minister as well as other others including a Union minister. Clearly, the new kings of India – ministers, chief ministers and other peddlers of power – view themselves as above the law.
The problem is not about the BJP governments only. Almost any political party in power does the same thing. Sometimes, the rule of law is flouted by the party in power to please the presumed vote-banks. In 2012, when the Congress government was in power in Rajasthan, noted author Salman Rushdie was not allowed to attend the Jaipur Literature Festival after some Muslim groups threatened him. His trip, though kept secret, was revealed by someone. He was not even permitted by the police to address the festival audience via video conference. The Congress party in power felt Rushdie's video address could have displeased its Muslim voters in Rajasthan.
The police, the judiciary and the executive act under the influence of the parties in power, and also under the ideological influence of religious and caste stripes.
In the lynching and murder of Pehlu Khan by cow vigilantes in Alwar's Behror area on 1 April, 2017, almost all the accused are out on bail. Such instances send a signal that to get arrested for a religious cause is just a minor nuisance, as the party in power will ultimately help the accused. This effectively means that a political-and-governance culture, originating from ruling parties, shelters criminals at the cost of the country's rule of the law.
Maulana Mohammad Anas Qasmi and Maulana Muhammad Amjad Qasmi, respectively the imam of Jama Masjid and the principal of Jamia Ashraful Uloom madrassa, both in Alwar, note that Vasundhara Raje enjoys reputation as an impartial chief minister even among Muslim voters in Rajasthan, but Hindu organisations like Hindu Shakti Vahini which became active in recent years in Mewat region are undermining her. Barkat Ali, a contractor in Alwar, says that competitive politics has increased in the country and parties are using caste and religion to the maximum to get votes. In such a political culture, religious organisations tie the hands of chief ministers.
During the Jat protests for reservation in jobs and the violence in Haryana over the arrest of Gurmeet Ram Rahim, the rule of law machinery was badly mauled by protesters because they found protection in the political culture of the party in power. "Why is it that these protesters caused much damage mainly in Haryana, and not in Punjab?" asks Shailendra Singh, a professor at RD Girls College at Bharatpur.
His point is that somewhere the elected political leaders are at fault. In the case of violent protests by Karni Sena, which demanded a ban on the movie Padmaavat, it was the BJP government of Madhya Pradesh and Rajasthan which sent a signal to the protesters that they were behind them by going to the Supreme Court in their support. In both Kathua and Unnao rape cases, the complicity of parties in power was visible to the people.
Interviewed in Jaipur, a senior officer of the Rajasthan police service, says that the hastakshep – intervention or interference – in the nation's rule of law occurs in all branches of government such as judiciary, police and executive. He points out that the Central Bureau of Investigation (CBI) is being used for revengeful purposes by political parties in power.
This is the message also reaching the masses. In 2013, the Supreme Court observed that the CBI is a caged parrot. However, the officer also says that policemen live by their own code of ethics and while they might help someone at the behest of political authority, they would not save a murderer.
A fundamental issue with the rule of law is the culture of governance that has evolved over many years. The police officer says that every official in the police, judiciary or executive is busy saving his pratistha (dignity) and does not want to make decisions.
For example, in the recent Black Buck poaching case, he points out that the judge could have freed or granted bail to the Bollywood actor Salman Khan, but it is almost certain that the lower court judge would pass the buck, leaving the issue to be decided by a higher court. Similarly, officials in government and police departments, instead of making decisions on merit, simply leave the matter for senior officials to decide.
A senior IPS officer in Jaipur, speaking on the condition of anonymity, says that the three main agencies which enforce the rule of law – police, prosecution and defence, and judiciary – are under pressures of a different kind. He says that in 1972, police and prosecution were separated as per international norms. But ever since, there is no feeling of pride in prosecution and good people do not join. With regard to defence teams, most of the defence lawyers believe in managing the court and go dead slow until a manageable judge comes along.
The officer is of the view that even as per our existing, shoddy and low standards of investigation, the prosecution of cases is possible. However, both the prosecution and defence lawyers have developed a culture of managing the case or the court. The police's perspective is that despite the rise in pay and perks of judges, the corruption and nepotism in the judiciary have risen to unimaginably highly levels, adversely affecting the rule of law in the country. An associated issue is also the promotion of such judges who have not decided a criminal case.
"Unless advocates who have practised criminal cases are promoted to become judges, how can courts be expected to decide on the intricacies of the law?" the police officer wonders, adding that there is a high ratio of advocates who deal with income tax and service rules cases becoming judges in high courts.
This leads to declining expertise in high courts. Many times, judges are not deciding appeals in criminal cases due to lack of knowledge and experience, he says, and for the fear that their judgements will be struck down by the Supreme Court. Similarly, a judge with no experience of the trial stage cannot be expected to deliver good judgements in high courts.
The health of the Indian democracy in next few decades will get better or further damaged depending on whether or not reforms are introduced. As of now, the police officer's views indicate that there is a need for systemic reforms in police and judiciary. These are achievable in short-term and in a time-bound manner. However, the rule of law will remain under pressure insofar as the role of political parties is concerned.
There is an urgent need to introduce a comprehensive constitutional amendment regarding the role of parties. Such an amendment should form the basic framework of the Constitution of India. Until then, is there hope for change? Professor Singh is of the view that for now the Supreme Court and the Election Commission of India are the only institutions that can affect some change in a positive direction.
The author is touring India to write a series on the workings of democracy. He is a senior fellow at the Middle East Media Research Institute, Washington DC. He tweets @tufailelif
Updated Date: Apr 17, 2018 15:59 PM