April 14, 2011

Quantifying rule of law

The Universal Declaration of Human Rights states:

“…so that people are not compelled to rebellion against tyranny, human rights should be protected by rule of law…”

The ancient concept of “rule of law” is distinct from rule by law. Under the “rule of law” the law is preeminent and serves as a check against the abuse of power by the executive. Under “rule by law”, the law can serve as a mere tool for a government that suppresses rights in a legalistic fashion. Nazi Germany acted as per laws enacted by the German Reichstag in conducting the Holocaust of Jews. South Africa’s apartheid laws were promulgated by its legislature. Just and good laws are therefore a prerequisite for “rule of law”.

Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” Indeed “rule of law” and per capita income have a direct and strong correlation.

The World Justice Project (WJP), a Washington-based think tank, recently published its third “Rule of Law Index”. Thirty five countries are bench marked with regard to nine factors illustrating “rule of law” in their respective jurisdictions. The WJP’s index is the only such instrument addressing this subject.

The WJP index for India gives the opportunity to interested persons to use it as a diagnostic tool. Even a cursory study of the India’s ranking globally and within its income group suggests some conclusions.

First, India scores high on “Limited Government Powers”, “Clear, Publicized and Stable Laws” and “Open Government”, being ranked number one on these factors in its income group ranking. This is more a tribute to the founding fathers of the Indian Republic who framed the Constitution, than to their successors. Of course, on these factors, India just about makes the top ten globally, which points to scope for improvement, for India to create a community of real equity and opportunity for its citizens.

Second, India’s poor showing in “Absence of Corruption” is insightful into why a country with such an enlightened and sophisticated system of governance has performed indifferently in delivering to its citizens. Indeed the great strain under which Indian society labours can be linked not to the lack of democratic institutions, but to their abuse by the persons who are their stewards.

More troubling are the rest of the factors, which deal with the Indian citizen’s daily experience of rule of law.

Poor show on “Order and Security” and “Regulatory Enforcement” point to serious malaise in governance and threat to internal security. Coupled with the subversion of India’s democratic institutions by rent-seeking, one feels that, in the absence of upright and clear leadership the enforcers of the rule of law are handicapped in their functioning. Also it possibly is that interested parties have conspired to keep the enforcers of the law moribund and enfeebled.

No doubt the low score on “Fundamental Rights” is an outcome of the above situation.

Low scores on “Access to Civil Justice” and “Effective Criminal Justice” are matters of grave concern. The first purpose of the state is to deliver justice—India is faltering in that aspect.

Current laws and regulations themselves give rise to doubt regarding their justness and relevance, given that the main bodies of legislation and procedures governing civil and criminal justice systems are hand-me-downs from the mid-19th century British colonial era!

Since independence, law-makers seemed to have had little time to craft just and good laws relevant to the requirements of a free people. This indeed makes the Constitution of 1950 the exotic icing on a cake whose crust comprises of the musty Indian Penal Code of 1860, the Indian Police Act of 1861, the Criminal Procedure Code of 1898 (amended piecemeal since then), the Indian Evidence Act of 1872 and the Civil Procedure Code of circa 1908. These pieces of legislation surely were good laws in their times for colonial rulers and local elites, but have outlived their relevance and scope in changed times and circumstances.

For instance, sentences for crimes are relatively severe. The accused therefore naturally fights tooth and nail to avoid indictment, and the weakest sections of society have a greater chance of being convicted and going to jail. Sentencing needs to become light and fast, with the intention of correction and not retribution.

The police infrastructure of India remains as it was designed by colonial rulers in the nineteenth century to control large native populations. By accident or design this infrastructure’s capabilities have not been substantially augmented.

Even without the WJP’s index, much of this was known. Now there is a quantitative tool available to validate intuitive hypotheses. The urgency of the tasks at hand have not been matched by their salience in the public discourse. If the Index can help focus public attention and the need for reform, it would serve its purpose.

Photo: Michael Siegel

Photo: Michael Siegel

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