The torrent of anger that erupted all over the country after the 23-year-old physiotherapy student in Delhi — whom the media named ‘Nirbhaya’ — was raped and thrown out of a moving bus has obscured a profoundly disturbing anomaly: the rape was a criminal act committed by individuals. But most of the anger of the public has been directed at the government. Barring a few lapses, the Central and State governments acted promptly, and with commendable efficiency. The Delhi police captured the alleged rapists within hours and the government spared no expense in its attempt to save her life.
The police also showed an uncharacteristic restraint in dealing with the protesters. To control the crowds with a minimum of violence, policemen put themselves repeatedly in harm’s way. A constable, P.C. Tomar, laid down his life doing his duty. Many others were injured.
The Delhi High Court and the State government took the pent up grievances of women’s associations and other human rights groups to heart and acted speedily to meet their demands. The former set up five special courts to hear the backlog of rape cases. The Lt. Governor made it mandatory for police stations to register all complaints of rape and other crimes against women. So why did the media and the public spare no effort to shift as much of the blame as possible on to the shoulders of the state?
Smouldering anger
The answer is that the rape acted as the trigger for an older, and deeper, anger in people — one that has been smouldering for years in their hearts. This stems from a profound sense of betrayal. Democracy was meant to empower them. Instead, in a way that few of them understand even today, it has done the exact opposite.
Empowerment requires the rule of law. People feel empowered only when they know that they have rights, and that the institutions of government exist, first and foremost, to enforce them. The rule of law is, however, only another name for justice. Empowerment therefore requires justice. The bedrock from which the anger that erupted on December 17 sprang is the denial of justice. In spite of being a democracy for 65 years, the Indian state has not been able to create something that people value even more than material benefits: a just society. It has achieved this unique feat by making both its elected legislators and its bureaucracy, not to mention its lower judiciary, immune to accountability. It has therefore become a predatory state that the people have learned to fear.
The hallmark of the predatory state is the universality of extortion. In India, we regularly lump extortion together with bribery under the generic title of corruption. In doing so, even the most ardent of reformers inadvertently conspire with the predators to hide the true, ugly, face of our democracy. Bribery and extortion are, in fact, two entirely different forms of predatory behaviour, and have markedly different effects upon the relationship of state with society.
Bribery is voluntary. The bribe giver chooses to give money or favours to influence a choice, steal a march over rivals, or hasten (sometimes delay) a decision. Bribery harms the economy and society cumulatively over a period of time by preventing optimal choice, increasing cost and lowering the quality of the product or the service rendered. But it has limited political impact because it is a voluntary transaction between consenting adults and the injustice it does is confined to a small circle of rivals.
Extortion is an entirely different form of predation. It requires no contract; no negotiation; and therefore no element of consent. It is a simple exercise of brute power by an employee or representative of the state over the citizen. Its commonest form is to deny the citizen the services to which he is entitled until he agrees to make a ‘private’ payment to the functionary in whom the power of the state is vested. Every act of extortion is a fresh reminder to the citizen of his or her impotence. This becomes complete if he or she is denied redress for the abuse of power.
In India this has been all-but-denied not simply by law but by the Constitution itself. Article 311 of the Constitution reads: “No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.” It makes it clear that this injunction applies to not only civil but criminal cases as well. For the Central services, the empowered Authority is the President of India; for the State civil services, it is the Governor. This has meant that no prosecution can by initiated without the permission of the Central or State government. As the dismal experience of the Central Vigilance Commission has shown, in civil cases this permission is rarely given.
Complaints against police
One set of figures illustrates the impunity with which civil servants can break the law. According to the National Crime Records Bureau’s annual report Crime in India 2007 , between 2003 and 2007 citizens filed 282, 384 complaints of human rights abuses against the police. Of these only 79,000 were investigated; only 1,070 policemen were brought to trial and only 264 — less than one in a thousand — were convicted. All but a handful stayed on at their posts, free to wreak vengeance on those who had dared to complain against them. It is therefore a safe bet that the actual number of such abuses is at least 10 times the number reported. It helps to explain why a girl who filed a complaint of rape with the police in Lucknow about two months ago was raped by the Station House Officer, then repeatedly by the investigating officer, but could not muster the courage to get the latter caught, and report the former till she felt empowered by the protests in Delhi.
The Constituent Assembly lifted Article 311 almost verbatim from a clause in the Government of India Act 1935 whose purpose was to protect British civil servants, notably the police, from incessant harassment by sharp-witted Congress lawyers. But the 1935 Act did not put the civil servant above the law. This was because he could be held accountable, as Edmund Burke had shown, by the British Parliament. In independent India, however, this restraint was destroyed by the progressive corruption, and criminalisation, of the political class that it now serves.
The root cause of both is the lack of any provision in the Constitution for the financing of elections. In Britain where the average constituency covers 380 square kilometres and has around 60,000 voters this is a nuisance. In India where the parliamentary constituency covers 6,000 sq km and holds 1.3 million voters it has proved a catastrophe.
In the 1950s, the need for funds was met to a large extent by the rising industrial class and by the Princes. But when these two began to desert the Congress in favour of the Swatantra Party and the Jana Sangh in the 1960s, Indira Gandhi banned company donations to political parties and abolished the privy purses. After that the only way in which political parties could stay in the game was to break the law.
Over the ensuing decades, two sets of predatory networks have developed to finance, or otherwise influence, elections. The first is of criminals who provide the muscle to intimidate voters; the second is of local money-bags and power-brokers who rally support for candidates belonging to one or the other party in exchange for favours when it comes to power.
As these have become more entrenched, they have virtually eliminated intra-party democracy at the grass roots and progressively reduced the number of constituencies in which State and Central party leaders can bring in fresh candidates chosen on the basis of merit. In the current Parliament, for instance, at the last count 159 MPs had criminal charges pending against them. Another 156 are second generation ‘princelings’ whose parents established the clientelist networks that now serve them. The State Assemblies are even more closed to new aspirants: 44 per cent of the MLAs in Bihar, 35 per cent in West Bengal and 30 per cent in Gujarat face criminal charges. The proportion of ‘pocket boroughs’ is also higher in the States than at the Centre.
Predatory state
The perennial need for money lies at the roots of the predatory state that India has become. Today, its ruling class consists of corrupt politicians who are served by an extortionate bureaucracy and police that are shielded from public wrath by nothing less than the Constitution of India.
In earlier decades, people’s anger was held in check by their faith in the democratic system. They therefore gave vent to their demand for accountability in the state by turning out to vote in ever larger numbers and regularly overthrowing incumbent governments. Only in recent years has it begun to dawn on them that democracy has become a part of the problem and cannot therefore be part of the solution. The protest is therefore moving closer to the borders of revolt. This has been apparent in the Maoist uprising that began in 2005, and has driven the state out of large parts of 83 districts in the country.
The Anna movement last year was another turning point because it was the first time that the urban middle class took to the streets. December’s mass protests in Delhi were the second time. History teaches us that this is the point at which the state usually begins to crumble. Were this to happen in India, it would not lead to the emergence of a more just and accountable Indian state but to its disintegration.
There is still time for our Central and State leaders to remember that no society that has lost its sense of justice, and, therefore, its moral legitimacy, has survived for long. But they are beginning to run out of it.
(The writer is a senior journalist)
