Harish Khare

The bottom line of the South Asian approach is that the law is to be obeyed according to our convenience. This fashionable disdain can only beget disorder and lawlessness.

NOT SURPRISINGLY, the Indian cricket establishment has made sufficient noises to suggest that its sympathies are with the Pakistani skipper, Inzamam-ul-Haq, in his stand-off with international umpire Darrell Hair in the ball tampering controversy at the Oval and thereafter. The Indian cricket establishment's stance may well have been determined by some vague realpolitik calculations, but it is also a fact that similar sentiments have been voiced in the rest of South Asia. The charge of racism (against Mr. Hair) has been made rather loosely, and, what is more, those suggesting a racist bias feel themselves justified in doing so, given the current global atmosphere of distrust and fear. But the Darrell Hair controversy has only brought out the collective attitude and approach to law, to requirements of the rule of law, and to lawful authority as also the reasons we invent to defy the law in our region.

There is much more to the Oval controversy than just the enforcement of cricket rules by an uncompromising umpire. After all, sports arenas are one of the few places on this planet where the rules of civilised engagement are still well-defined, reasonably observed, and generally well-enforced. And despite all the aggression and occasional violence witnessed in modern sport, the engagement still takes places within the four corners of mutually agreed upon rules and laws. It is a different matter that sportspersons still find ways to cheat or otherwise cut corners. Cricket has probably the most elaborate rule book. Cricket, more than other sports, is the antithesis of lawlessness. Hence the need to look at the Oval stand-off beyond a disciplinarian referee and the right to "protest" claimed by the Pakistani team.

Pakistan, of course, has sought to convert the Inzamam-Darrell Hair controversy into a matter of national pride and izzat. The Pakistan President, that good general who has run out of public approval, conveniently allowed himself to be seen as backing the cricket captain. The Pakistani media, too, have pitched in with shrill comments and shriller charges against the umpire.

Mr. Hair's leaked offer to step down from the International Cricket Council's elite panel of umpires and maintain silence on condition that $500,000 was paid to him has been seized upon as a perfect opportunity to introduce extraneous arguments in the basic and fundamental issue at stake: can those who are obliged to obey the law choose to disobey the law without inviting a penalty for their defiance?

The problem is not confined to Pakistan nor is it a new phenomenon. From Thomas Hobbes in the 17th century to John Rawls in our times, philosophers and princes have struggled to strike a balance between the demands of order and the human inclination to disorder: how to protect society from becoming a lawless state of nature in which there is "war of every man against every man." Political theorists have debated the nature of law and obligations to lawful authority. There is reasonable agreement on three counts: (1) rules are needed and someone has to frame and issue rules and laws; (2) there is an expectation that these rules and laws will be uniformly complied with; and (3) those who will not obey the law run the risk of being punished by a lawful authority. The state becomes the embodiment of legitimate political authority, armed with coercive force to ensure compliance with laws.

This runs somewhat against the civilisational grain of South Asian countries. Being historically a latecomer to the idea of written constitutions and the attendant culture of rule of law, the region has at best an ambiguous approach to law, national and international; everyone tries, without qualms, to try to get away with short-changing the law. The bottom line of the South Asian approach is that the law is to be obeyed according to our convenience. In the subcontinent, our recent history of non-cooperation against imperial rulers has induced an approach that a citizen can withhold his or her consent to the obligation to obey the law.

This Gandhian legacy was taken to a precipice during the so-called J.P. movement when a section of the political class decided one fine morning that the lawfully elected government had lost its legitimacy and it was in perfect order to incite the citizens and the constabulary to disobey lawfully constituted authority. In the rest of South Asia, the most organised group, the army, periodically decides to chuck the entire arrangement of lawful government and takes over the show.

Political bitterness and disputes aside, this region, by and large, chooses to remain untutored in the demands of the rule of law. Having a long history of civilisational comfort with unequal social orders and autocratic rule, modern South Asian countries have ingeniously devised a million ways and means of denying the egalitarian spirit of the rule of law; in each country can be found an entire regime of privileges and immunities to ensure that the obligations of compliance with the law are felt and rendered differently.

However, this cultivated indifference to the rigours of the law becomes a problem when the scene shifts to the international arena where the rules are enforced differently uniformly and impersonally. The South Asian tendency is to quarrel with the law-enforcer, especially if the law-enforcer has given an unfavourable ruling. In this age of globalisation, the encounter with international laws and regulations becomes a painful experience. Recall the outrage in India in late-2001 when ICC match referee Mike Denness disciplined Sachin Tendulkar for cleaning the ball without informing the umpire; and penalised five others as well, including the captain Sourav Ganguly. Virtually every sports writer and every television anchor in the country denounced Denness, accusing him of a bias against the Little Master; we were simply unprepared to accept that even a great icon like Tendulkar could be cited for an infringement of law.

Applause for coercion

It is curious that in the South Asian region where laws are indifferently observed, many citizens applaud their governments when they use the coercive instruments at their disposal armies, police, paramilitary, covert agencies, etc. to punish those who defy the ultimate lawful authority, the state. The Pakistani Government claims a right to use helicopter gunships against Nawab Akbar Khan Bugti and his fellow-Baloch rebels; the Sri Lankan government exercises its right to fix the LTTE and other Tamil "rebels"; and the Indian Government regularly flexes its very potent muscles to take care of difficult customers, from the insurgents in Kashmir or the Northeast or Punjab to the Naxalites.

Darrell Hair had not invented Law 21.3 (under which Pakistan forfeited the match when Inzamam-ul-Haq failed to lead his side on to the cricket field); he was merely enforcing a law on the statute book. The umpires could be swayed by neither commercial considerations (of unused advertising time) nor by any imaginary international protocol among cricketing nations. Nor could they be faulted for invoking a law that had never been used since Test cricket began. It would be like criticising President A.P.J. Abdul Kalam for taking recourse to Article 111 of the Constitution because no other President before had invoked the constitutional stipulation.

Of course, there are good law and bad laws. Laws that are deemed unreasonable and unjust will and do invite questioning, resistance, even defiance. And good laws can be badly enforced or partially enforced, but every system of laws ideally provides for a corrective mechanism against the abuse of laws. Just as President Kalam was rightly criticised for stretching the second part of Article 111 by delaying his assent to the Office of Profit bill. In the global arena, the Americans, for instance, are forever trying to re-define the international laws to suit their narrow national interests. The rest of global society feels itself duty bound to resist American lawlessness.

Admittedly we live in an imperfect world, and that precisely is the reason why we should applaud any movement forward towards a lawful order be it on a cricket field or in international trade or in domestic governance. Our internal discourse unfortunately tends to encourage cynicism and disrespect towards the institutions of lawful authority. This fashionable disdain can only beget disorder and lawlessness.