We first need a uniform criminal code

Four recent incidents highlight a major crisis in Indian society. First, the stunning defiance of a parliamentarian soon after thrashing an airline employee. Second, the hounding of young men and women by ‘anti-Romeo police squads’. Third, the merciless killing of Pehlu Khan, by an unruly mob. And finally, the brutal assault on a Nigerian student by a murderous crowd.

To be sure, such incidents have happened before but they have now come together in such quick succession that one wonders if we are witnessing an attack on the entire legal system. This is not just random lawlessness or occasional appropriation of law in one’s own hands but signals a breakdown of the rule of law.

What is this rule of law? To begin with, the mere existence of laws is not the rule of law. A society governed by laws enacted arbitrarily, merely on the caprice of a single individual or group, changing frequently on the whim of political authority, is not based on the rule of law. A key feature of the rule of law then is that it excludes arbitrariness in the exercise of power. For example, a policeman must not question or detain me without identifying who he is or specifying the grounds for suspicion. If he fails to do so, I should resist him as I would any ordinary person who grabs me unlawfully. The so-called anti-Romeo police squads have frequently acted in clear violation of the rule of law when arbitrarily questioning ordinary citizens. The rule of law implies that the police, the most visible agents of state, are not above the law.

Equality before the law

Nor indeed are legislators or government executives! It is this legitimate expectation that our criminal law is the same for everyone, for state officials and citizens alike, that was belied in the capitulation of the government before the Shiv Sena MP. The rule of law exists only if the law applies equally to all. Politicians and ministers must follow the same law, along with all other citizens. Nor can there be one law for one group and a different one for others. If heavy penalties are imposed on ‘lower castes’ for the same crime over which the upper castes get off lightly or, as in some countries, the evidence of two or more women is required where the evidence of one man is deemed sufficient, then a fundamental egalitarian principle — the equal worth of all individuals — is violated. Nothing can be more repulsive for followers of the rule of law; legal discrimination based on attributes such as racial, religious or linguistic identity is simply unacceptable. People cannot get away with murder because they belong to a majority religion, or are linguistically dominant, or worse, still have a certain racial profile. The crowd that assaulted Nigerians must be dealt with exemplarily. Likewise, the killers of Pehlu Khan. It was bad enough that cow vigilantes killed an innocent man, but if they are treated lightly because of their tacit claim that, as cow protectors, they act in Hindu interests, and therefore must be treated differently, then this marks the collapse of the rule of law.

Rights and the rule of law

It can hardly be overemphasised that a breakdown of the rule of law affects everyone. Today, a Muslim dairy farmer is targeted; tomorrow, it can be Hindu peasants or pastoralists who routinely transport cows and other animals from one place to another. Angry crowds or ill-motivated killers often fail to distinguish persons of one religion from another, as we gathered painfully from the ghastly murder of Sikhs mistaken in America for Muslims.

More importantly, in our country, a rule of law that meets formal criteria of non-arbitrariness and impartiality is not enough. Lots of carefully designed laws that apply equally to all permit the state to invade our privacy, or society to discriminate against women, but can be constitutionally challenged because substantive justice is part of the meaning of the rule of law. In India, as Justices Bhagwati and Chandrachud, among others, have pointed out, the rule of law means the rule of a rights-sensitive constitutional law. Laws must respect the rights of individuals and groups both against each other and against the state. This has the further implication that both individuals and groups can make demands on the courts to enforce their rights. It follows that a judiciary indifferent to the violation of rights by vigilante groups or government is failing the Constitution and the rule of law.

We desperately need to restore the rule of law. And while a common and just civil code would be a nice achievement indeed, can the Indian state please implement a common criminal code first!

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