Law will take its own course!

In public conversations, 'law will take its own course' tag has almost become a cliche. Law taking its own course is the most favorable course any case can take for the benefit of the accused. Corrupt politicians often take refuge under this umbrella to lengthen the courtroom proceedings, buy time and bailout culprits. This terminology in blame game politics implies that who ever is guilty of an offence will get punished as per law. Law will take its own course is meant for the educated people who are afraid of the law, which is not to be crossed over under any circumstances. Upholding the majesty of law and the principle of equality of all before the law, however high or mighty the persons may be, is the bounden duty of the government. In India, we have the best drafted laws but the problem is that the law enforcing agencies doesn't work effectively and the common people are the worst hit. The law almost never takes its own course in India. The state is always up to mischief against the citizen and the judiciary usually does not resist it. The conduct of democracy rests on three core ideas – representation, rule of law and freedoms. A substantive idea of representation goes beyond the minimalist protocol of electing representatives. It includes an idea of representation of voiceless people who do not know how to speak to power, or who do not know how to use existing laws to protect their lands and forests from rapacious loot by crony capitalists. The second feature of democracy is the rule of law and the accountability of those who implement and use law. The rule of law aims to protect and preserve the rights of people, and if these rights are being infringed, to provide recourse and remedies. And finally, democracy functions through a range of freedoms – to speak, express, form associations, dissent, basically through a mobilization and institutionalization of demands, and a competition of ideas and agendas. Dissent is the safety valve of democracy. If not allowed, the safety valve will burst. This is not part of some revolutionary ethic but comes out of a standard understanding of the mechanics of liberal democracy. Truth is self-effulgent. If truth requires evidence, what will evidence that evidence? - Swami Vivekananda

Economic freedom, informal economy, ethics and corruption

 

Austrian-British economist Frederick Hayek foresaw more than 60 years ago, economic freedom is required in all aspects of economic life in order for countries to improve their economic efficiency and the living standards of their people. 

• Corruption is a symptom of over regulation, lack of rule of law, a large public sector and not the root of the problem. 
• Morality and ethics are hard to measure. Economic freedom removes opportunities for corruption and promotes ethics not just for its moral implications, but also because of its economic value.
• Ethics is defined as 'rules of behavior based on ideas about what is morally good and bad'. In general, we call unethical those actions for which there is a social consensus that they are a bad thing. 
• Corruption has several meanings and for most people corruption is something unethical, something considered a wrongdoing. A closer look at human behavior in economic life suggests that corruption does not reflect lack of ethics as it reflects a lack of economic freedom.
• Economic freedom is defined as “the absence of government constraint or coercion on the production, distribution, or consumption of goods and services beyond the extent necessary for citizens to protect and maintain liberty itself.”
• The Index of economic freedom provides a framework for understanding how open countries are to competition; the degree of state intervention in the economy, whether through taxation, spending or over regulation; and the strength and independence of a country’s judiciary to enforce rules and protect private property. 
• Corruption does not always reflect inherent unethical behavior especially for those who are forced out of the formal economy into the informal economy through burdensome regulations, taxation, and weak property rights.
• As economic freedom vanishes, the informal economy takes a larger share of GDP. The size of the informal economy in economically unfree and repressed economies is almost three times the size of the informal economy in free economies.
• The economic repression has its perverse effects on the ethics of ordinary people and on the perpetuation of their poverty conditions. 
• In most developed countries, people have a better standard of living due to credit access.  In USA, without credit, most people would not have a house, a car, a TV, a vacation, or many of the products that add comfort and convenience to my life. Credit makes it possible for middle-class people, to improve standard of living in many ways.
• To have access to credit, you need to have income or property. To prove that you have income, you need a formal job, and to prove that you have property, you need a property title.
• The availability of formal jobs depends on ease for people to invest and do business. The friendlier the business environment, the more formal jobs will be available. In most low to middle income countries, it is extremely difficult for small and medium investors to operate, both because of the regulatory environment and because of the lack of a strong rule of law. 
• In developing economies, the problem with the legislation is that it assumes that all employees are equally good, equally responsible, and equally productive, which is not true. The burden of regulations compels small and medium businesses to create jobs in the informal sector, where the benefits are negotiable and tied to performance, and not forced by law.
• The rules of the state creates perceived unethical behavior by private employers and employees when what is really in question is the ethics of such a regulatory burden.
• If they do not have a formal job, poor people can still get access to credit if they have a property title to use as collateral. The poor own many things that they could use as collateral, but it is bureaucratically impossible for them to validate their property rights. As a result, they are unable to raise credit and their standard of living.
• In the developing world many of the poor people have property but the bureaucracy they have to go through in order to get a property title is huge. The poor own many things that they could use as collateral, but it is bureaucratically impossible for them to validate their property rights. As a result, they are unable to convert what they own into capital and, therefore, raise their standard of living. For example, in Peru, “to obtain legal authorization to build a house on state-owned land took six years and eleven months, requiring 207 administrative steps in 52 government offices. To obtain a legal title for that piece of land took 728 steps.”
• Informality is a response to economic repression, not to something inherently unethical in those who circumvent legislation. What is most unethical about informality is the condition in which the  government forces the poor to live. Informally employed people are condemned to a standard of living that is significantly lower than that of formally employed people, who have credit access. Informality creates a culture of contempt for the law and fosters corruption and bribery in the public sector as a necessary means to navigate the bureaucracy.
• As economic freedom vanishes, corruption flourishes. The level of perceived morality in economically free countries is almost four times the level of perceived morality in the public sector in most unfree or repressed economies.
• Weak rule of law adds to the level of corruption in the public sector as well as the amount of informal activity. A weak judiciary is a 'blind eye' on anything done outside the law. With a weak judiciary, corruption goes unpunished and informality flourishes.
• In 2003, 108 of the 161 countries received bad scores in both regulation and property rights, undermining the efforts to improve the living standards of the poorest.
• The unethical behavior stems from the environment and convoluted regulations and weak rule of law foster a culture of corruption and informality both in the private and public sectors.
• In the public sector, convoluted regulations and weak rule of law provide ample opportunities for public officials to accept bribes without punishment. In the private sector, those two factors push some people to do business informally as a means to survive and others to profit far more than they would if the possibility of bribery did not exist. Both result is an increasingly unequal society, in terms of the opportunity to create wealth and improve living standards.
• To fight corruption and informality, it is essential to understand that corruption is a symptom--of over regulation, lack of rule of law. A large public sector is not the root of the problem. The real problem is the government action/regulations causing undesired behavior of the private sector. The unethical/corrupt behavior of the private sector, leads to the government to press more on private-sector activities. The solution is to eliminate burdensome regulations so that unethical behavior does not occur.

Countries must advance economic freedom in all possible areas of the economy, with particular emphasis on regulations affecting small and medium business, in order for corruption and informality to decrease. Countries must also preserve the independence and effectiveness of the judiciary to punish corrupt actions. Economic freedom with a strong rule of law will foster a culture of investment, job creation, and institutional respect in massively improving the living standards of ordinary people.

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Let no young man, choosing the law for a calling, for a moment 

yield to the popular belief  that lawyers are necessarily dishonest. 

Resolve to be honest at all events; and if, in your own judgment, you 

cannot be an honest lawyer, resolve to be honest without being a lawyer. 

Choose some other occupation, rather than one of which you do, 

in advance, consent to be a knave ... Abraham Lincoln

The observations in the article are highly theoretical but the reality in India is some what different. The most unethical, corrupt and tax evading people are rich, highly educated, well placed & well connected.  The poor people are ethical and law abiding. The middle classes are torch bearers of traditions although corrupt & unethical. The small bribe paid by a poor man for obtaining birth certificate etc is understandable, the corruption by businessmen in collusion with politicians & bureaucrats, escalating project costs siphoning of funds to tax havens etc burdening the whole nation is a criminal act and deserves harshest punishment. Corruption & lack of ethics is so rampant that today it hard to find and ideal person.

Corporate hospitals killing small hospitals and exploiting patients

No matter how compelling the reasons, governments cannot be guided by emotions of moral outrage and of right and wrong. A democratic society is founded on the basis of the rule of law that must guide government actions. This is so in order to avoid governments misusing their power, resorting to arbitrary action and ensuring fair play and natural justice. This then implies casting a special responsibility on the governments who are charged with the duty of providing good governance to its people. 

• Having declared health as an industry working on the principle of return on investment and making profits over the welfare and well being of the patients, governments have a special duty to lay down laws, rules and regulations to stop providers and hospital establishments from getting away with predatory behavior or malpractice.
• During the past twenty years, following liberalisation policies, the growth of the IT industry and other factors, as well as disposable incomes among certain classes, have increased – though this is not the case across the social spectrum. 
• As one doctor has said, Pune city, which should have fifty Sassoon Hospitals (public hospitals), has only one, although new corporate and multi-speciality hospitals are coming up daily.
• These corpotrate hospitals are bright and glittering. In some ways, they are like shopping malls. Some have even been registered as charity hospitals, but their only objective is profit. Partly because of their state-of-the-art equipment, but also because of a growing lack of choice, as older hospitals run by trusts or individuals close down, people are going to these hospitals. Such hospitals foster the impression that they provide high-quality services, which justifies their high costs of care.
• There is another important aspect of such “hospital-malls”. New technology costs lakhs and crores of rupees. If these machines are now indispensable for diagnosis, hospitals run by individual doctors are less able to compete. If the medical sector is left to the mercy of the market, and if the foundation of the whole business is profit, where will this take us?
• Government health services have been weakened due to government indifference, and that is why there is scope for corporate hospitals to prosper. Due to the entry of corporates, the order of priorities has changed. Now the doctors’ priority is no longer the best interests of the patients, but the profit earned by the shareholders of the company.
• In corporate hospitals, each patient may be seen by multiple specialists. An orthopaedic is called because the hands and feet are aching; a neurologist for numbness in the hands. They come and look at the patient and their charges are added to the bill. Is it useful for multiple specialists to examine a patient? This question is never even asked. Investigations are not based on what the patient’s illness is, and whether there is a need for specific investigations. Given any complaint, they produce a list of investigations that must be done. 
• Totally unnecessary surgeries are being performed in corporate hospitals. During investigations, they may see a small stone in the gall bladder. It is not causing the patient any problems. But they scare the patient into going in for a surgery.
• Public relations officers of many corporate hospitals keep roaming around to visit doctors; they entice doctors to send patients (to their hospitals) by tempting them with cuts. Nearly everybody indulges in this practice. It must be legally banned.
• These corporate hospitals charge bills of Rs 1 lakh and more, while the surgeon gets only Rs 4000 to 5000.
• Some corporate and large hospitals admit bogus patients under the Rajiv Gandhi Health Scheme (a publicly funded health insurance scheme). They give the admitted person money, and plenty to eat and drink. They prepare records showing that an angioplasty or angiography has been done on that person, when actually nothing has been done. How the government comes out with such schemes, without first regulating private hospitals is a mystery? Without regulation, the basic objectives of such schemes are lost, and they become mechanisms for corporate hospitals to loot public funds.
• There is no humanism to be found in corporate hospitals. Small hospitals are being destroyed due to these corporates. In small hospitals, there is at least the possibility that the doctor has not lost his basic sense of humanism. They wait for the patient to make the payment. They give concessions. None of this happens in corporate hospitals. This must stop.
• A corporate ophthalmology hospital maintain everything five-star style, but forget about the patient. When the patient comes, they give him lemonade or tea. They advertise that they have the latest hi-tech optics shop. The patient melts because of the free lemonade, and he buys a pair of spectacles that have an actual value of Rs 200 or so, for Rs 3000–5000! The in-house optician is the main income avenue of corporate hospitals. Sometimes they offer a free check-up. The scheme has a 20-per-cent-off offer, just like in a mall. The whole atmosphere is designed to tempt.
• Corporates can implement government schemes and insurance schemes. For small private hospitals when reimbursements are delayed they don’t have the time to keep making trips back and forth to get payment from the insurance company.
• Corporate hospitals vie for tie-ups with large public sector companies. These public enterprises give exorbitant reimbursement to their employees. The big corporates draw in cases from all over the state. But junior trainee doctors operate on those cases! Further, often the quality of these corporate hospitals is not as good as they claim in their advertisements. When they do a cataract operation, they even charge a high amount of money for an expensive lens, but implant an average-quality lens.
• If a patient goes with my referral note, he gets 30 to 40 per cent off on an MRI (because I do not take any commission). One patient forgot to take my note. He was charged the full amount, and a cut went to some third party - says a practising paediatrician.
• Nowadays people want glamour and marketing. They have become used to the mall culture. The concept of ‘master check- up’ (packages of large number of tests, of which many may be unnecessary) has gotten into their heads. Now doctors who practise ethically and scientifically are looked upon with contempt, because they obviously can’t afford this glitter. But people often don’t know what they are getting into by going to corporate hospitals.

The current obsession to privatise health, as if it is a commercial enterprise like Air India or a ITDC hotel, is not founded on the belief that patients will gain access to good quality of health care. Instead it smacks more of an admission of governments’ inability to govern and enforce laws in order to ensure that in the name of quality, private hospitals do not play havoc with the vulnerable patients. If truly committed to patients well being, then it is incumbent on the government to come up with stringent laws that will not provide any scope to private players to be negligent, callous or exploitative.

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Truth about how some doctors exploit their patients

Fighting the rot in India's private healthcare feat. 

Dr Arun Gadre & Dr. Abhay Shukla

The corporate hospitals provide employment to almost 90% of graduate doctors, 95% of PG doctors .These corporate hospitals have numbed people’s sensitivities. These hospitals are like malls. Our society does not need them. Instead, all tertiary health care should be provided by the government. And corporate hospitals must also be compelled to provide mandatory treatment of emergency cases, whether paid or otherwise. This would enable people go to any of the nearest hospitals for emergency treatment, even if they don't have money or coverage.

Rule of the law essential for corruption elimination

• American civil society is 90% law and 10% politics. Indian civil society is 90% politics and 10% law. 
• India has chosen this political model that makes politics profitable to politicians. Indian politicians in power are among the richest in the category anywhere in the world. 
• In a dynamic society everything should be provided for by law and only a few things are left to politicians. The law should govern a nation where the judge, the police and the civil servant dispense justice to the citizen.
• Indian politics took enormous power in its hands in order to promote economic growth. But prosperity evolves by the laws of nature. 
• India has no legal vision that is why a million cases are pending in courts. Law and franchise are two sides of the same coin called democracy, one representing truth and the other popular will.  
• A government must be small. Then only rule of law can be implemented by the judiciary, the police and civil service.
• India is yet to write any document to keep the greedy politicians in check.
• Mass literacy will make the voter cast his vote to the right candidate. 
• Progress is indigenous; it cannot be imported from abroad.
• The main reason for India’s pervasive corruption is material greed. Some 15 million Indians have left India to seek monetary gains abroad. This basic moral defect can be kept under leash only by law. 
• Indian politics, instead of standing on the legal high ground, opted for huge state power. All-powerful ministers, MPs, MLAs and IAS officers amass wealth without any let or hindrance. Can India take a U-turn from politics to law, from money to moral rectitude? 
• Political change has always been difficult to effect. The true dimensions of the task of creating an ethical society must be borne in mind.
• Economic progress must have a firm legal and democratic foundation. The West too is suffering because of the excessive pursuit of wealth. The West ignored its policies and many are predicting even the demise of liberalism. If the West cannot afford immoral affluence, how can India afford it? 
• To seek to pursue growth on a shaky legal foundation is dangerous. The Indian polity is morally weak without any legal restraint. Economic growth in the absence of law has created the present corruption levels. 
• India must strengthen its judiciary. Then, without any fuss and public outcry corruption can be eliminated. The same judiciary and police will put an end to black money.
• The job of a minister is glamorous with power and pomp, whereas a judge and a police officer have to do their jobs in relative obscurity. A minister's job is largely decorative and that the job of the judge is constructive. Realising his true contribution, the politician must be humble. By a political awakening and a legal illumination corruption can be put to an end. 
• Citizens must become alert and create the right atmosphere for a lofty political leadership to emerge. A highly politicised society has to become a highly legalised society. Politics is partisan, law is unitary. Moving from politics to law is evolutionary progress.
• Politics is deep-rooted in the moral character of a society. Any politician who is willing to live on bread and water will not need any bribe. Economics is a zero-sum came. When the rich live in palaces the poor have to live on the streets. A voluntary tendency to lead a simple life by all will create the right atmosphere for economic probity.
• We cannot create a draconian state and end corruption. The moral transformation of civil society must be natural and based on persuasive leadership. A clear definition of a sustainable lifestyle must be voluntarily accepted. Only then the competitive urge to make more and more money will end. Money should become meaningful, moral and deeply satisfying. If true wealth is found in a rich heart, no one will want to touch money even with a barge pole.
• Law is the fulcrum of democracy and democracy is what holds the people together without force. Law and democracy can combine to form the life of politics to cleanse the country of corruption. Cheap politics has done enough damage to India. India needs Newtons and Einsteins in its politics to make it clean, pure and inspiring. Then the best and the brightest will come to politics to make it a haven of virtue and science.

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Two things form the bedrock of any open society.

Freedom of expression and rule of law ...  Salman Rushdie

If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, 

they can be said to live under the rule of men corrupted by the law ... Dale Carpenter

Corruption arises out of discretionary powers vested upon politicians, civil servants and judiciary, without any accountability, which are being misused for amassing ill-gotten wealth. These must be replaced with robust merit based algorithms. Transparency & accountability must be established at all levels. All government expenditure must have prior legislative sanction. Executive sanctioning of schemes, expenditure or anything must be prohibited. Every process of law administration must have legislative approval prior to implementation. Citizen rights must be respected under all circumstances by every one. Courts must deliver judgments within six months. VIP culture must be abandoned. These are few things which must be adopted immediately and refined continuously for establishing a happy society.

Privacy is a fundamental right - annotations

The Supreme Court’s landmark judgment elevating the right to privacy as a fundamental right is a significant reminder of India’s republican values and their relevance to all classes of people.

• After 70 years of Independence, it would have been highly unpopular for India’s Supreme Court, and any of its judges, to subscribe to a proposition that ran counter to the liberal ethos of the times. 
• Any judge expressing a dissenting view could have run the risk of being seen on the wrong side of history.
• The right to privacy was demanded by only those who had something to hide, said Rakesh Dwivedi, senior counsel for Gujarat. 
• The right to privacy had no relevance for the hungry millions, said the Attorney General, K.K. Venugopal. Privacy was just a facet of liberty, and being amorphous, it could not be elevated to the status of a fundamental right, was the refrain of many respondents before the court.
• Justice Chandrachud - the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom.
• In a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.
• The invasion of a fundamental right was not rendered tolerable when a few were subjected to hostile treatment.
• The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.
• It is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government.
• The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected by this court.
• The right to privacy is too amorphous to be defined in specific terms and that it should be left to evolve from case to case. 
• A restrictive definition of the right to privacy specifying what it included could hamper its growth in the future. 
• The right to privacy was a fundamental right, without specifying its contours, could limit the state’s pursuit of its development agenda.
• Justice Chandrachud, while agreeing that privacy must be left to evolve case to case, laid down three grounds to justify an invasion of privacy. They are existence of a law, a legitimate state aim suffering from no arbitrariness, and proportionality of the means to the object . 
• The sharing of biometric data, which the Aadhaar scheme entails, involves many facets of the right to privacy.

Petitions challenging the Aadhaar Act will now be heard and decided by regular benches of the Supreme Court in the light of the privacy judgment.

It would have been nice if centre had recognised privacy is a fundamental right made laws attenuating Aadhaar and treated citizens with respect. But it is too much to expect such good things from autocratic Modi. Now privacy has become a fundamental right not by virtue of a constitutional provision nor by an act of parliament but by a judgement of a Supreme Court constitutional bench. This is not the best way. And if centre instead of respecting judgement gracefully searches ways and methods to surreptitiously push Aadhaar for citizen's surveillance and undermine citizens rights they would meet waterloo again and again. BJP & NDA and all parties must realize that they are in power for the citizens welfare and not other way round. But Modi & BJP are notorious for not learning lessons but will attempt to bulldoze on people with their stupid thinking.

Modi, the greatest liar

• Modi's claim of 56 lakh new IT payers is not necessarily the result of demonetization and more over 90% of new IT payers are in the  income range of Rs.2.50-Rs.2.70 lakhs/annum yielding revenue of just over Rs.100 crores. Where as demonetization costed the nation over Rs.150,000 crores, at the least.
• Modi announced Rs.80,000 crore Kashmir package in Nov 2015 and so far nothing has been spent in Kashmir except on army expenses. The voter response dwindling from 64% in 2014 elections to less than 7% in recent Srinagar bye poll (and 2% in re-poll in some parts) speaks volumes about Modi's failure in Kashmir so far.
• Modi must realize that Kashmir problem is not just law & order problem which can be solved by army nor an economic package will buy peace there. But the solution lies in removing the alienation of people in Kashmir through political engagement and deliberation.
• The fact that LS & RS with combined strength of 790 and 14.23% Muslim population their representation should have been 112. The present strength is just 23 (under 3%). 
• As on date, BJP Muslim MP's in LS are NIL and in RS are just 2.
• The appearance of schoolgirls on the streets joining the teenage boys throwing stones at the security forces shows that the familial and social norms have broke down.
• Even after SC ended armed forces immunity under AFSP Act in 2016, to day in Kashmir in every 8th household an able bodied youth is missing (presumed killed by security forces in fake encounters) and in every 5th household a woman is raped by security forces (mostly unreported due to social pressures) and not a single case has been filed against the security personnel and expecting people of Kashmir trust our law enforcers is height of insanity. 
• Today half of our military totaling 7.50 lakhs is enagaged in Kashmir with a population of under 10 million (96% Muslims) and reported number foreign militants are less than 150.
• Without initiating establishment of 'rule of law' and engaging people politically how Modi will resolve Kashmir issue and make it a 'paradise once again' is shallow and his speech a blatant lie. 
• If nothing is done to resolve Kashmir's burning problem except application of brute military might which will not solve the problem and in due course of time we may end up loosing Kashmir forever.

Power is domination, control, and therefore any selective form of truth is a lie.
పామరజనొచితమగు ఫ్రల్లదనములు పలుకుటకు ప్రాఘ్నులంగీకరింపరు.

Modi with his oratory skills, rhetoric, hammering out selective truths and publicizing failures as successes is virtually destroying India economically & politically. First two years he spent time touring the world delivering mesmerizing speeches. In third year he unleashed war on people by quack advised demonetization which hurt the poor most and resulted in destruction of agriculture, construction and informal sector while stated objectives eluded. Then he found GST which would project him as bold financial reformer and rolling it out hurriedly in mangled form without sufficient preparation had impacted small businesses greatly. GST, a novel reform, is expected to impact economy for about two years and there after benefits starts accruing. Both these must have costed nation about Rs.300,000 crores, the exact figures will never be known. All his independence day speech contents are selective truths and blatant lies. Among all politicians, at least Prime Minister should be truthful to nation. All his Red Fort speeches are either selective truths or blatant lies. India belongs to all Indians not just majority Indians.

Hamid Ansari, Vice President's speech at NLSIU convocation

Hamid Ansari, Vice-President's speech at the 25th annual convocation of the
National Law School of India University in Bengaluru on August 7, 2017

In his final address as vice-president, Hamid Ansari spoke at the 25th annual convocation of the National Law School of India University in Bengaluru. In his speech, he said the challenge was to reiterate and rejuvenate secularism's basic principles, including freedom of religion and tolerance. The function was presided over by Chief Justice of India, Jagdish Singh Khehar. 

Here is the full text of the speech Ansari gave on 6 August, 2017:

It is a privilege to be invited to this most prestigious of law schools in the country, more so for someone not formally lettered in the discipline of law. I thank the Director and the faculty for this honour.

The nebulous universe of law and legal procedures is well known to this audience and there is precariously little that I can say of relevance to them. And, for reasons of prudence and much else, I dare not repeat here either Mr. Bumble’s remark that ‘the law is an ass’ or the suggestion of a Shakespearean character who outrageously proposed in Henry VI to ‘kill all lawyers.’ Instead, my effort today would be to explore the practical implications that some constitutional principles, legal dicta and judicial pronouncements have for the lives of citizens.

An interest in political philosophy has been a lifelong pursuit. I recall John Locke’s dictum that ‘wherever law ends, tyranny begins.’ Also in my mind is John Rawl’s assertion that ‘justice is the first virtue of social institutions’ and that ‘in a just society the liberties of equal citizenship are taken as settled and the rights secured by justice and are not subject to political bargaining or to the calculus of social interest.’ To Rawls, the first task of political philosophy is its practical role to see, whether despite appearances on deeply disputed questions, some philosophical or moral grounds can be located to further social cooperation on a footing of mutual respect among citizens.

The Constitution of India and its Preamble is an embodiment of the ideals and principles that I hold dear.

The People of India gave themselves a Republic that is Sovereign, Socialist, Secular and Democratic and a constitutional system with its focus on Justice, Liberty, Equality and Fraternity. These have been embodied in a set of institutions and laws, conventions and practices.

Our founding fathers took cognizance of an existential reality. Ours is a plural society and a culture imbued with considerable doses of syncretism. Our population of 1.3 billion comprises of over 4,635 communities, 78 percent of whom are not only linguistic and cultural but social categories. Religious minorities constitute 19.4 percent of the total. The human diversities are both hierarchical and spatial.

It is this plurality that the Constitution endowed with a democratic polity and a secular state structure. Pluralism as a moral value seeks to ‘transpose social plurality to the level of politics, and to suggest arrangements which articulate plurality with a single political order in which all duly constituted groups and all individuals are actors on an equal footing, reflected in the uniformity of legal capacity. Pluralism in this modern sense presupposes citizenship.’

Citizenship as the basic unit is conceptualized as “national-civic rather than national-ethnic” ‘even as national identity remained a rather fragile construct, a complex and increasingly fraught ‘national-civic-plural-ethnic’ combinations.’ In the same vein, Indianness came to be defined not as a singular or exhaustive identity but as embodying the idea of layered Indianness, an accretion of identities.

'Modern democracy offers the prospect of the most inclusive politics of human history. By the same logic, there is a thrust for exclusion that is a byproduct of the need for cohesion in democratic societies; hence the resultant need for dealing with exclusion ‘creatively’ through sharing of identity space by ‘negotiating a commonly acceptable political identity between the different personal and group identities which want to/have to live in the polity.’ Democracy ‘has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard.’ Its ‘raison d’etre is the recognition of the other.’

Secularism as a concept and as a political instrumentality has been debated extensively. A definitive pronouncement pertaining to it for purposes of statecraft in India was made by the Supreme Court in the Bommai case and bears reiteration:

‘Secularism has both positive and negative contents. The Constitution struck a balance between temporal parts confining it to the person professing a particular religious faith or belief and allows him to practice profess and propagate his religion, subject to public order, morality and health. The positive part of secularism has been entrusted to the State to regulate by law or by an executive order. The State is prohibited to patronise any particular religion as State religion and is enjoined to observe neutrality. The State strikes a balance to ensue an atmosphere of full faith and confidence among its people to realise full growth of personality and to make him a rational being on secular lines, to improve individual excellence, regional growth, progress and national integrity… Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amount to recognizing religion as a part of the political governance which the Constitution expressly prohibits. It violates the basic features of the Constitution. Positive secularism negates such a policy and any action in furtherance thereof would be violative of the basic features of the Constitution.’

Despite its clarity, various attempts, judicial and political, have been made to dilute its import and to read new meaning into it. Credible critics have opined that the December 11, 1995 judgment of the Supreme Court Bench ‘are highly derogatory of the principle of secular democracy’ and that a larger Bench should reconsider them ‘and undo the great harm caused by them' This remains to be done; ‘instead, a regression of consciousness (has) set in’ and ‘the slide is now sought to be accelerated and is threatening to wipe out even the gains of the national movement summed up in sarvadharma sambhav.’

It has been observed, with much justice, that ‘the relationship between identity and inequality lies at the heart of secularism and democracy in India.’ The challenge today then is to reiterate and rejuvenate secularism’s basic principles: equality, freedom of religion and tolerance, and to emphasize that equality has to be substantive, that freedom of religion be re-infused with its collectivist dimensions, and that toleration should be reflective of the realities of Indian society and lead to acceptance.

Experience of almost seven decades sheds light on the extent of our success, and of limitations, on the actualizations of these values and objectives. The optimistic narrative is of deepening; the grim narrative of decline or crisis.

Three questions thus come to mind:

• How has the inherent plurality of our polity reflected itself in the functioning of Indian democracy?
• How has democracy contributed to the various dimensions of Indian pluralism?
• How consistent are we in adherence to secularism?

Our democratic polity is pluralist because it recognizes and endorses this plurality in (a) its federal structure, (b) linguistic and religious rights to minorities, and (c) a set of individual rights. The first has sought to contain, with varying degrees of success, regional pressures, the second has ensured space for religious and linguistic minorities, and the third protects freedom of opinion and the right to dissent.

A question is often raised about national integration. Conceptually and practically, integration is not synonymous with assimilation or homogenization. Some years back, a political scientist had amplified the nuances:

‘In the semantics of functional politics the term national integration means, and ought to mean, cohesion and not fusion, unity and not uniformity, reconciliation and not merger, accommodation and not annihilation, synthesis and not dissolution, solidarity and not regimentation of the several discrete segments of the people constituting the larger political community…Obviously, then, Integration is not a process of conversion of diversities into a uniformity but a congruence of diversities leading to a unity in which both the varieties and similarities are maintained.’

How and to what extent has this worked in the case of Indian democracy with its ground reality of exclusions arising from stratification, heterogeneity and hierarchy that often ‘operate conjointly and create intersectionality’? 

Given the pervasive inequalities and social diversities, the choice of a system committed to political inclusiveness was itself ‘a leap of faith.’ The Constitution instituted universal adult suffrage and a system of representation on the First-Past-The-Post (Westminster) model. An underlying premise was the Rule of Law that is reflective of the desire of people ‘to make power accountable, governance just, and state ethical.’

Much earlier, Gandhi ji had predicted that democracy would be safeguarded if people ‘have a keen sense of independence, self respect and their oneness and should insist upon choosing as their representatives only persons as are good and true.’ This, when read alongside Ambedkar’s apprehension that absence of equality and fraternity could bring forth ‘a life of contradictions’ if the ideal of ‘one person, one vote, one value’ was not achieved, framed the challenge posed by democracy.

Any assessment of the functioning of our democracy has to be both procedural and substantive. On procedural count the system has developed roots with regularity of elections, efficacy of the electoral machinery, an ever increasing percentage of voter participation in the electoral process and the formal functioning of legislatures thus elected. The record gives cause for much satisfaction.

The score is less emphatic on the substantive aspects. Five of these bear closer scrutiny – (a) the gap between ‘equality before the law’ and ‘equal protection of the law’, (b) representativeness of the elected representative, (c) functioning of legislatures, (d) gender and diversity imbalance and (e) secularism in practice:

• Equality before the law and equal protection of the law: ‘The effort to pursue equality has been made at two levels. At one level was the constitutional effort to change the very structure of social relations: practicing caste and untouchability was made illegal, and allowing religious considerations to influence state activity was not permitted. At the second level the effort was to bring about economic equality although in this endeavour the right to property and class inequality was not seriously curbed…Thus the reference to economic equality in the Constitution, in the courts or from political platforms remained basically rhetorical.’ 
• Representativeness of the elected representative: In the 2014 general election, 61% of the elected MPs obtained less than 50% of the votes polled. This can be attributed in some measure to the First-Past-the-Post system in a fragmented polity and multiplicity of parties and contestants. The fact nevertheless remains that representation obtained on non-majority basis does impact on the overall approach in which politics of identity prevails over common interest.
• Functioning of legislatures, accountability and responsiveness: The primary tasks of legislators are legislation, seeking accountability of the executive, articulation of grievances and discussion of matters of public concern. The three often overlap; all require sufficient time being made available. It is the latter that is now a matter of concern. The number of sittings of the Lok Sabha and the Rajya Sabha which stood at 137 and 100 respectively in 1953 declined to 49 and 52 in 2016. The paucity of time thus created results in shrinkage of space made available to each of these with resultant impact on quality and productivity and a corresponding lessening of executive’s accountability. According to one assessment some years back, ‘over 40 percent of the Bills were passed in Lok Sabha with less than one hour of debate. The situation is marginally better in the Rajya Sabha.’ Substantive debates on public policy issues are few and far in between. More recently, the efficacy of the Standing Committee mechanism has been dented by resort to tactics of evasion by critical witnesses. A study on 'Indian Parliament as an Instrument of Accountability' concluded that the institution is ‘increasingly becoming ineffective in providing surveillance of the executive branch of the government.
• The picture with regard to the functioning of the Sate Assemblies is generally much worse.
• Thus while public participation in the electoral exercise has noticeably improved, public satisfaction with the functioning of the elected bodies is breeding cynicism with the democratic process itself. It has also been argued that ‘the time has come to further commit ourselves to a deeper and more participatory and decentralized democracy - a democracy with greater congruence between people’s interests and public policy.’
• Gender and diversity imbalance: Women MPs constituted 12.15% of the total in 2014. This compares unfavourably globally as well as within SAARC and is reflective of pervasive neo-patriarchal attitudes. The Women’s Reservation Bill of 2009 was passed by the Rajya Sabha, was not taken up in Lok Sabha, and lapsed when Parliament was dissolve before the 2014 general elections. It has not been resurrected. Much the same (for other reasons of perception and prejudice) holds for Minority representation. Muslims constitute 14.23 percent of the population of India. The total strength of the two Houses of Parliament is 790; the number of Muslim MPs stood at 49 in 1980, ranged between 30 and 35 in the 1999 to 2009 period, but declined to 23 in 2014.
• An Expert Committee report to the Government some years back had urged the need for a Diversity Index to indentify ‘inequality traps’ which prevent the marginalized and work in favour of the dominant groups in society and result in unequal access to political power that in turn determines the nature and functioning of institutions and policies.
• Secularism in actual practice: Experience shows that secularism has become a site for political and legal contestation. The difficulty lies in delineating, for purposes of public policy and practice, the line that separates them from religion. For this, religion per se, and each individual religion figuring in the discourse, has to be defined in terms of its stated tenets. The ‘way of life’ argument, used in philosophical texts and some judicial pronouncements, does not help the process of identifying common principles of equity in a multi-religious society in which religious majority is not synonymous with totality of the citizen body. Since a wall of separation is not possible under Indian conditions, the challenge is to develop and implement a formula for equidistance and minimum involvement. For this purpose, principles of faith need to be segregated from contours of culture since a conflation of the two obfuscates the boundaries of both and creates space to equivocalness. Furthermore, such an argument could be availed of by other faiths in the land since all claim a cultural sphere and a historical justification for it.

In life as in law, terminological inexactitude has its implications. In electoral terms, ‘majority’ is numerical majority as reflected in a particular exercise (e.g. election), does not have permanence and is generally time-specific; the same holds for ‘minority’. Both find reflection in value judgments. In socio-political terminology (e.g. demographic data) ‘majority’ and ‘minority’ are terms indicative of settled situations. These too bring forth value judgments. The question then is whether in regard to ‘citizenship’ under our Constitution with its explicit injunctions on rights and duties, any value judgments should emerge from expressions like ‘majority’ and ‘minority’ and the associated adjectives like ‘majoritarian’ and ‘majorityism’ and ‘minoritarian’and ‘minorityism’? Record shows that these have divisive implications and detract from the Preamble’s quest for ‘Fraternity’.

Within the same ambit, but distinct from it, is the constitutional principle of equality of status and opportunity, amplified through Articles 14, 15, and 16. This equality has to be substantive rather than merely formal and has to be given shape through requisite measures of affirmative action needed in each case so that the journey on the path to development has a common starting point. This would be an effective way of giving shape to Prime Minister Narendra Modi’s policy of Sab Ka Saath Sab Ka Vikas.

It is here that the role of the judicial arm of the state comes into play and, as an acknowledged authority on the Constitution put it, ‘unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.’

How then do we go about creating conditions and space for a more comprehensive realization of the twin objectives of pluralism and secularism and in weaving it into the fabric of a comprehensive actualization of the democratic objectives set forth in the Constitution?

The answer would seem to lie, firstly, in the negation of impediments to the accommodation of diversity institutionally and amongst citizens and, secondly, in the rejuvenation of the institutions and practices through which pluralism and secularism cease to be sites for politico-legal contestation in the functioning of Indian democracy. The two approaches are to be parallel, not sequential. Both necessitate avoidance of sophistry in discourse or induction of personal inclinations in State practice. A more diligent promotion of fraternity, and of our composite culture, in terms of Article 51A (e) and (f) is clearly required. It needs to be done in practice by leaders and followers.

A commonplace suggestion is advocacy of tolerance. Tolerance is a virtue. It is freedom from bigotry. It is also a pragmatic formula for the functioning of society without conflict between different religions, political ideologies, nationalities, ethnic groups, or other us-versus-them divisions.

Yet tolerance alone is not a strong enough foundation for building an inclusive and pluralistic society. It must be coupled with understanding and acceptance. We must, said Swami Vivekananda, ‘not only tolerate other religions, but positively embrace them, as truth is the basis of all religions.’

Acceptance goes a step beyond tolerance. Moving from tolerance to acceptance is a journey that starts within ourselves, within our own understanding and compassion for people who are different to us and from our recognition and acceptance of the ‘other’ that is the raison d’etre of democracy. The challenge is to look beyond the stereotypes and preconceptions that prevent us from accepting others. This makes continuous dialogue unavoidable. It has to become an essential national virtue to promote harmony transcending sectional diversities. The urgency of giving this a practical shape at national, state and local levels through various suggestions in the public domain is highlighted by enhanced apprehensions of insecurity amongst segments of our citizen body, particularly Dalits, Muslims and Christians.

The alternative, however unpalatable, also has to be visualized. There is evidence to suggest that we are a polity at war with itself in which the process of emotional integration has faltered and is in dire need of reinvigoration. On one plane is the question of our commitment to Rule of Law that seems to be under serious threat arising out of the noticeable decline in the efficacy of the institutions of the State, lapses into arbitrary decision-making and even ‘ochlocracy’ or mob rule, and the resultant public disillusionment; on another are questions of fragility and cohesion emanating from impulses that have shifted the political discourse from mere growth centric to vociferous demands for affirmative action and militant protest politics. ‘A culture of silence has yielded to protests’ The vocal distress in the farm sector in different States, the persistence of Naxalite insurgencies, the re-emergence of language related identity questions, seeming indifference to excesses pertaining to weaker sections of society, and the as yet unsettled claims of local nationalisms can no longer be ignored or brushed under the carpet. The political immobility in relation to Jammu and Kashmir is disconcerting. Alongside are questions about the functioning of what has been called our ‘asymmetrical federation’ and ‘the felt need for a wider, reinvigorated, perspective on the shape of the Union of India’ to overcome the crisis of ‘moral legitimacy’ in its different manifestations.

I have in the foregoing dwelt on two ‘isms’, two value systems, and the imperative need to invest them with greater commitment in word and deed so that the principles of the Constitution and the structure emanating from it are energized. Allow me now to refer to a third ‘ism’ that is foundational for the modern state, is not of recent origin, but much in vogue in an exaggerated manifestation. I refer here to Nationalism.

Scholars have dwelt on the evolution of the idea. The historical precondition of Indian identity was one element of it; so was regional and anti-colonial patriotism. By 1920s a form of pluralistic nationalism had answered the question of how to integrate within it the divergent aspirations of identities based on regional vernacular cultures and religious communities. A few years earlier, Rabindranath Tagore had expressed his views on the ‘idolatry of Nation’.

For many decades after independence, a pluralist view of nationalism and Indianness reflective of the widest possible circle of inclusiveness and a ‘salad bowl’ approach, characterized our thinking. More recently an alternate viewpoint of ‘purifying exclusivism’ has tended to intrude into and take over the political and cultural landscape. One manifestation of it is ‘an increasingly fragile national ego’ that threatens to rule out any dissent however innocent. Hyper-nationalism and the closing of the mind is also ‘a manifestation of insecurity about one’s place in the world.’

While ensuring external and domestic security is an essential duty of the state, there seems to be a trend towards sanctification of military might overlooking George Washington’s caution to his countrymen over two centuries earlier about ‘overgrown military establishments which, under any form of government, are inauspicious to liberty.’

Citizenship does imply national obligations. It necessitates adherence to and affection for the nation in all its rich diversity. This is what nationalism means, and should mean, in a global community of nations. The Israeli scholar Yael Tamir has dwelt on this at some length. Liberal nationalism, she opines, ‘requires a state of mind characterized by tolerance and respect of diversity for members of one’s own group and for others;’ hence it is ‘polycentric by definition’ and ‘celebrates the particularity of culture with the universality of human rights, the social and cultural embeddedness of individuals together with their personal autonomy.’ On the other hand, ‘the version of nationalism that places cultural commitments at its core is usually perceived as the most conservative and illiberal form of nationalism. It promotes intolerance and arrogant patriotism’.

What are, or could be, the implications of the latter for pluralism and secularism? It is evident that both would be abridged since both require for their sustenance a climate of opinion and a state practice that eschews intolerance, distances itself from extremist and illiberal nationalism, subscribes in word and deed to the Constitution and its Preamble, and ensures that citizenship irrespective of caste, creed or ideological affiliation is the sole determinant of Indianness.

In our plural secular democracy, therefore, the ‘other’ is to be none other than the ‘self’. Any derogation from it would be detrimental to its core values.

Jai Hind.

Rule of the Law

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.

Definition of the 'rule of law' comprises the following four principles:

1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Factors of the rule of the law index:

1. Constraints on Governments Powers is the extent to which those who govern are bound by the (a) fundamental law, (b) limited by the legislature, judiciary and audit, (c) sanction for misconduct and (d) transition of power is subject to the law 
2. Absence of Corruption in government agencies i.e. legislature, executive, judiciary, military & police. Bribery, improper influence by public or private interests, and misappropriation of public funds or other resources.
3. Open Government is that (a) shares information, (b) empowers people to hold the government accountable, (c) fosters citizen participation in public policy deliberations. Publicizing of basic laws & legal rights, information properly published by the government, requests for information are properly granted, effective civic participation mechanisms and bringing specific complaints to the government 
4. Fundamental Rights protects human rights. It is a system of positive law and is at best “rule by law”. It encompasses adherence to (a) enforcement of laws that ensure equal protection (b) right to life and security of the person (c) due process of law and the rights of the accused (d), freedom of opinion and expression (e) freedom of belief and religion (f) the right to privacy (g) freedom of assembly and association (h) fundamental labor rights of collective bargaining, prohibition of forced & child labor and elimination of discrimination.
5. Order and Security is how well the society assures the security of persons and property. Security is one of the defining aspects of any rule of law of society that is a fundamental function of the state. It is also a precondition for the realization of the rights and freedoms that the rule of law seeks. This includes various threats i.e. crime, political violence, and violence to redress personal grievances.
6. Regulatory Enforcement is the extent to which regulations are fairly and effectively implemented and enforced. Strong rule of law requires that these regulations and administrative provisions are enforced effectively, are applied and enforced without improper influence by public officials or private interests, administrative proceedings are conducted timely, without delays, due process is respected in administrative proceedings, and that there is no expropriation of private property without adequate compensation. This does not assess what government chooses to regulate and to what extent but examines how regulations are implemented and enforced. To regulate such as public health, workplace safety, environmental protection and commercial activity.
7. Civil Justice measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system. The civil justice system should be accessible and affordable, free of discrimination, free of corruption, and without improper influence by public officials.  This also necessitates that court proceedings are conducted in a timely manner and not subject to delays. Recognizing the value of Alternative Dispute Resolution mechanisms, this also measures the accessibility, impartiality, and efficiency of mediation and arbitration systems that enable parties to resolve civil disputes. 
8. Criminal Justice is a key aspect of the rule of law, constituting mechanism to redress grievances and bring action against individuals for offenses against society. Criminal justice systems are capable of investigating and adjudicating criminal offenses successfully and in a timely manner, through a system that is impartial and non-discriminatory, and is free of corruption and improper government influence, all while ensuring that the rights of both victims and the accused are effectively protected.  The delivery of effective criminal justice also necessitates correctional systems that effectively reduce criminal behavior. The delivery of criminal justice should take into consideration the entire system including the police, lawyers, prosecutors, judges, and prison officers. 

Informal Justice concerns the role played by customary and ‘informal’ systems of justice including traditional, tribal, and religious courts, and community-based systems in resolving disputes. These complex systems often play a large role in cultures in which formal legal institutions fail to provide effective remedies for large segments of the population, or when formal institutions are perceived as remote, corrupt, or ineffective. The dispute resolution systems are timely and effective, they are impartial and free of improper influence, and these systems respect and protect fundamental rights. 

Seven deadly sins are:

Wealth without work, Pleasure without conscience,
Science without humanity, Knowledge without character,
Politics without principle, Commerce without morality,
Worship without sacrifice. – Mahatma Gandhi

My View:

In every aspect of 'rule of law', our country India stands abysmal. With information, awareness, transparency and education it is improving rather slowly. The irony is that while people at low end are uneducated, unskilled, poor but are good; people at high end are educated, skilled, rich but are bad. It is a catch 22 situation; unless politics change - people won't change and unless people change - politics wont change. In past 70 years after independence there is significant improvement but far less compared many advanced countries.