When the rule of law disappears, we are ruled by the whims of men.
~ Tiffany Maddison
What if the ‘rule of law’ is made an instrument for satisfying the whims of men? In every breach of a traffic signal, in every omitted beneficiary of any number of government schemes, in every bribe paid to fast track a passport, in every pending challan, and in every ‘negotiation’ with a police officer, the ‘rule of law’ is bent, negotiated with, and contorted, so as to be where every Indian wants to go: on with their life. Despite the state being central to our lives, we see its sovereignty and the rule of law being continually undone. This is a phenomenon unique to India, birthed by our long history of decentralized political processes, which were morphed into something unique by our colonizers, and which took their own form post-Independence. Through this essay, I seek to trace the structural and historical processes that have caused this to happen.
Highlighting the increasing lawlessness and breakdown of the rule of law, alongside a crisis of governability, Chandavarkar (2007) asserts that in modern India, ‘government’ and ‘rule of law’ have become guises for dominant groups to work towards their sectarian interests; he argues that increasingly fewer people now subscribe to the rule of law. This, according to him, has meant an arbitrary exertion of power by dominant groups on the “powerless” (ibid).
The lingering effect of the colonial state’s habits & customs of governance
The important arms of the modern state all find their roots in the colonial era, the western conception of ‘liberty’, and their historical confrontation with the long-developed institutions of local power that formed India’s fragmented polity in the pre-colonial era. Police and judiciary, two prime agents in the functioning of the modern state then find their ideological roots in their conception by the British. Furthermore, today, the political class and the state at the lowest levels struggle between codified rules that bind them from the top, and the very real and pressing demands from their supporters and the citizens, which often contradict the former.
The colonizers’ attempts to uniformize, codify, and bring the entirety of ‘India’ under the colonial state’s ambit, were driven by their prime aim to mobilize and extract resources from India. To do this effectively, there was a pressing need to maintain public peace, for which the police was crucial. The social, ideological, and resource constraints on the police of the colonial state, however, necessitated not just selective-policing, but also a heavy reliance on local bosses and their networks. Since the colonial state couldn’t wield its threat of physical force casually, local power brokers were given considerable leeway to maintain local peace. This principle of ‘salutary neglect’ gave birth to social arenas that were immune to the rule of law. This, inevitably, resulted in the criminalizing of the marginalized, as is evident with the creation of ‘criminal’ tribes and castes, further removing them from access to the ‘rule of law’, limited as it was. This contributed to a magnification of the extent of lawlessness surrounding the lives of the poor and the marginalized. With independence, these domains of power were incorporated into higher political networks, without being accompanied by any change in their logic.
In addition to the habit of salutary neglect, the government situated itself at a level removed from the society and promulgated its decisions as the most beneficial to citizen’s interests, while assuming its own autonomy. The unlimited force wielded by the state was, and continues to be, justified by its supposedly benevolent, benign purposes. Alongside, the means of violence controlled by the state have expanded since the late 19th century. Earlier, this was, of course, done to tighten the Crown’s control over India. With independence, however, the same authoritarian legislation and infrastructure has been handed over to ‘democratically’ elected Indian politicians.
The colonial state imagined India’s poor to at once be in need of saving and upliftment, and also as a group averse to rationality, organization and discipline. So, the notion of maintaining public order entailed an attitude of the state’s suspicion towards its citizens, which has continued post-independence. This is evident with the expanding role of the police, army, and paramilitary forces even as India has professedly progressed as a democracy. So persists the contradiction that undergirded the colonial rule in India: other than partially in the economic sphere, liberalism, in the sense of substantive equality for all, remains a pipe-dream. Further, this pattern has diluted citizens’ ability to place obligations of reciprocity on their ‘patrons’.
The view of the state as being quintessential to pull India into the modern world placed prime import on executive action, and made visible its inherent contrast with democratic choice. The view of the poor as being in need of the state’s help combined their ‘innocence’ with their capacity for extreme volatility and violence. So, the citizens, largely, have continued to be at the mercy of politicians. The lingering attitude of suspicion and condescension has meant that little is done for their civil liberties, but state force is wielded at the slightest signs of disturbances, as is evident with rampant military action in recent years.
Rule of law and the Indians’ everyday
The rule of law has failed to penetrate deep into the social fabric of the country as almost every individual subverts and negotiates with it in their own spheres of interaction with it. This is explained through the social and political segmentation discussed by Price (1999). There is an omnipresent tension between the state’s language of universal law codes and the legal pluralism enshrined in informal institutions of local societies. The latter derive their strength from well-developed, unwritten codes of conduct. Thus, competing codes have resulted in a broad-based, ubiquitous contestation of bureaucratic norms in India. Further, in the pre-colonial era, the segmentary state relied on local lordships and kingships, resulting in unstable polities that are mirrored by political segmentation today. This has birthed a culture of political negotiation and drives for protection of unstable ranks and statuses, which inevitably work in the gray i.e. outside the ‘rule of law’.
Galanter (1966) talks about the displacement and dissolution of indigenous law systems with the coming of the British. These weakened institutions persisted even as local power brokers were elevated to formal positions of power. So, the long history of decentralized political processes in India (from pre-colonial times) and the short history of our regional bureaucratic centralization have resulted in the existence of parallel systems of codes and norms which continually engage with, contest, and shape each other.
Sarkar vs. polity
I contextualize Hansen’s assertion of a paradoxical position of law and state in light of the above discussion. It is clear then that rule of law in India has been structured by a hierarchical, violent, and complex social order; it has never been liberal, as was the intention of the British from the time of Hastings to that of Colebrook. Additionally, the force of law has been applied unequally. Secondly, as discussed by Price (ibid) the Indian state has been constituted by, and continues to work through, numerous parallel regulatory regimes. Thirdly, the deep-rooted vernacular ideas of democracy and popular sovereignty have culminated in vernacular sovereignties being the most powerful socio-political force in India today. So, India finds herself in the midst of an increasingly non-liberal democracy where collective violence is no longer illegitimate. In fact, its most vicious form - anti-minority violence - is legitimized through processes and language of the state through techniques like documentation, proceduralism, and temporality (Chatterjee, 2019).
The state’s operation at a “level removed from society” (ibid), and the existence of multiple politico-legal orders, has further engendered several processes and practices through which the rule of law is undone in our everyday state.
Through this essay, I have highlighted the continuities in the customs of governance adopted by the colonial state and the modern state in independent India. I have brought forth the gaps between the formal and informal to contextualize the persistent lawlessness and failure of governance today. I believe no meaningful change can be achieved unless one recognizes, understands, and engages with these coexisting dissonances in the Indian state, which proliferate through our judiciary, police, the law, and other arms of the state.
Chandavarkar, Rajnarayan. "Customs of governance: Colonialism and democracy in twentieth century India." Modern Asian Studies 41.3 (2007): 441-470.
Price, Pamela. "Cosmologies and corruption in (South) India—Thinking aloud." Forum for development studies. Vol. 26. No. 2. Taylor & Francis Group, 1999.
Galanter, Marc. "The modernization of law." Modernization: The dynamics of growth (1966): 153-165.
Hansen, TB. “On law, violence, and jouissance”, culanth.org accessed: https://culanth.org/fieldsights/on-law-violence-and-jouissance-in-india on 15.03.2023
Chatterjee, Moyukh. "Against the witness: Hindu nationalism and the law in India." Law, Culture and the Humanities 15.1 (2019): 172-189.