India must remove systemic discrepancies to wipe out lack of faith in justice system, failures of State machinery to enhance rule of law

By 11 September 2018, Bihar had seen six lynchings in five days, only adding to the number of lynchings which have come to the forefront of national issues.

Speaking to Asian News International (ANI), a kin of one of the victims from Bihar said, “What kind of law is it to beat someone to death just because you think he is [a] criminal? People are being killed on roads now, people are losing faith in [the] judiciary.”

In India, procedural justice isn’t always the favoured route and a part of the reason is the lack of faith in civil and criminal justice systems.

 India must remove systemic discrepancies to wipe out lack of faith in justice system, failures of State machinery to enhance rule of law

File image of the Supreme Court of India. AP

“The resolution of disputes in a fair, efficient and reasonably quick manner and through an open process is critical to the functioning of a society,” says Harish Narasappa, the founding partner of the law firm, Samvad Partners, headquartered in Bengaluru.

But the lack of faith in the justice system is just one side of the argument. Such instances of lynching also point directly at the failure of the State in enforcing the rule of law and noting the same. Narasappa says, “The core of the law is in ensuring that liberties are protected and those who violate such liberties are punished and the State, either by keeping quiet or by tacitly encouraging certain groups, is causing an erosion of the rule of law.”

Narasappa also wrote a book titled Rule of Law in India - A Quest for Reason which traverses topics of society and politics and addresses the dichotomy in the rule of law in India where the framework of law and institutions exist on paper but suffers from dysfunction owing to lack of efficient systems and processes.

What is ‘the rule of law’ and how does it figure in the Indian context?

Many believe that the fundamental role of the State is to administer the rule of law -- the principle that laws, and not people, should govern a society. In India, however, the rule of law is marred by systematic inefficiencies.

On 31 January, 2018 the World Justice Project (WJP), an independent organisation which works towards advancing the rule of law across the globe, published the Rule of law Index 2017-18. Factoring in eight components: constraints on government powers, the absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice, the index measured country-wise adherence to the law of the land.

Overall, India ranked midway at 62, on the list of 113 countries.

On analysing each of the factors listed on the rule of law Index individually, we see that the ranks which drag down the average and highlight causes for concern are on scales of ‘order and security’ and ‘civil justice’ where India stands at 98 and 97, respectively. The scale of ‘order and security’ measures the prevalence of civil conflict and common crimes and tracks “the realisation of the rights and freedoms that the rule of law seeks to advance”; ‘civil justice’ refers to the reach of civil courts and the access to legal representation.

“The system exists but it doesn’t function well, so I suppose we could say that our country is middling on the scale of rule of law since we are neither a completely lawless country nor are we a shining example of the rule of law,” Harish says.

The extrajudicial status of the Indian economy is also evident in the manner in which businesses function in India.

Bharadwaj Sheshadri, a practising chartered accountant and a student of law, says, “India largely operates extra-legally. Even in business circles, the sanctity of contracts depends not on the strength of the contract itself, but on the strength of the relationship between the contracting parties.”

"Trust and comfort between contracting parties definitely play a significant role while entering into transactions with each other," says Priyadarshini, a former partner of a law firm and an independent legal consultant.

"Obviously, the goal is to draft contracts carefully, clearly lay out rights and liabilities of parties in order to reduce dispute situations as much as possible," she adds.

Judicial reforms to tackle delays and more clarity in laws and policies are definitely the need of the hour, she continues, referring to the cases of Vodafone and Tata Docomo and the controversy surrounding certain provisions of the Civil Liability for Nuclear Damage Act as examples. While certain steps have been taken, she stresses a lot more needs be done to improve the faith of contracting parties in the ability of our legal system to enforce contracts and deliver timely judgments.

“Indian law, in its present form, is a relatively new phenomenon. While ties such as religion, community and language have been in place for ages. Loyalty to Indian law, therefore, is overshadowed by loyalty to traditional ties. Even an officer of the law is first examined for his or her origins rather than the rank accorded by law,” says Aparna Krishna, a lawyer and a presently a student at NMIMS, Mumbai.

The reasoning which draws from values — or lack thereof — of interpersonal relationships also holds good when seen in light of the traction which mediation processes have been gaining of late and the legislative impetus provided to the same by including mediations processes in the Companies Act, the Consumer Protection Bill and the Real Estate (Regulation and Development) Act.

“The flip-side of that coin is that even as India climbs up the ease of doing business ranking, the one sub-index on which its performance is poor, is the enforcement of contracts index where it is ranked 164,” Sheshadri adds.

“India for the first time moved into the top 100 in the World Bank’s Ease of Doing Business global rankings on the back of sustained business reforms over the past several years” the World Bank noted in a report titled India Jumps Doing Business Rankings with Sustained Reform Focus. The report, however, went on to add “While there has been substantial progress, India still lags in areas such as Starting a Business, Enforcing Contracts, and Dealing with Construction Permits. In fact, the time taken to enforce a contract is longer today, at 1,445 days, than it was 15 years ago (1,420 days), placing the country in 164th place in the global ranking on the Enforcing Contracts indicator.”

The report by the World Bank on ease of doing business is a sign that businesses in India are not stifled by red tape. However, it also shows that while the economy is doing well, it is probably doing so by working outside the law and this again corroborates the low-ranking on the ‘civil justice’ sub-index detailed in the Rule of Law Index 2017-18.

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Updated Date: Sep 12, 2018 15:40:07 IST