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The Exceptions to the Rules

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India is ranked as one of the least happy nations in the world. India’s rank was 136 out of 146 nations in 2022. We are behind Nepal, China, Bangladesh and Sri Lanka. And why is this, one might ask. Well, there are several reasons and the premise of this article is that all of this comes down to not following the rules

By Shaan Katari Libby  

A rule: “A prescribed guide for conduct or action; a principle or condition that customarily governs behaviour; something regarded as a normative example; dominance or po­wer through legal authority” Why have them? So that we all know where the boundaries lie—and what is and is not acceptable in a particular society/organisation.

Dicey’s Rule of Law (the first principle) was that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”.

When India gave itself the Constitution, what were the goals set out by the writers? The Preamble States: “We, The People Of India, Having Solemnly Resolved To Constitute India Into A Sovereign Socialist Secular Democratic Republic And To Secure To All Its Citizens: Justice, Social, Economic And Political; Liberty Of Thought, Expression, Belief, Faith And Worship; Equality Of Status And Of Opportunity; And To Promote Among Them All Fraternity Assuring The Dignity Of The Individual And The Unity And Integrity Of The Nation; In Our Constituent Assembly This 26th Day Of November, 1949, Do Hereby Adopt, Enact And Give To Ourselves This Constitution.” We are proud to have the longest Constitution of any nation in the world.

Given all of the above, all citizens should be living happy secure lives. Yet, India is ranked as one of the least happy nations in the world. India’s rank was 136 out of 146 nations in 2022. We are behind Nepal, China, Bangladesh, and Sri Lanka. And why is this, one might ask. Well, there are several reasons, and the premise of this article is that all of this comes down to not following the rules.

We have given ourselves this democracy. The premise is that laws are made by voting on Bills, taking them apart, multiple readings, debating them thoroughly and finally passing them after amendments have been made to the liking of the majority. Of late, as we know we have done away with these niceties and merely pass Bills via a “voice vote” (loudest voices win) with no debate whatsoever. This is not filling anyone with confidence—he who shouts loudest may not have the best strategic capabilities— and it leaves educated Indians disgruntled.

We have traffic rules which are well established, we have lanes for driving, pedestrian crossings for those needing to cross the road, and we have traffic lights. Yet, who are the ones first to cut every single crossing, cross over to the wrong side of the road and zip past cutting up everyone in their wake and setting a terrible example to everyone else? Yes—government vehicles. We were taught in school/university leadership roles and later on in offices that when one got promoted, one had to set the example—not break all the rules because one could! Actions speak louder than words. Behaving poorly is not playing it by the rules and leaves educated Indians disgruntled.

The judicial system has certain rules regarding adjournments: CPC Order XVII – Adjournments Rule 1: Court may grant time and adjourn hearing— (1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit. The number of adjournments permitted is limited to three, the exception being circumstances beyond the control of the party. Yet, these rules are not followed—the total number of pending cases of all types and at all levels rose above 50 million or 5 crores, including over 1,69,000 court cases pending for more than 30 years in district and High Courts. This is not justice—and no wonder educated Indians are disgruntled. If tomorrow all our courts enforced these rules, the pendency would soon disappear. Lawyers would have to turn up prepared—taking on only what they can manage—secure in the knowledge that the case would finish soon and they could then take on fresh work.

The Constitution has divided the power to make law via Union lists, State lists, and Concurrent lists. As per our Constitution, the government is one that compromises. It considers the opinion of the ruling party as well as the other parties. It adjusts. Yet, states governed by Opposition parties have had to struggle to get state bills passed by hostile governors. The latter appear to have been coached to cause maximum delay and disruption. This makes one wonder if having that role in existence at all is really necessary or helpful as it appears to just serve as a puppet placed by an under-confident centre, tasked with slowing down any potential improvement in people’s lives at the hands of the state government. The Supreme court said in November 2023 that the indefinite withholding of bills lets the governor, an unelected head of the state, veto the functioning of the duly elected legislature—and this is in contravention of constitutional democratic principles. This certainly leaves educated Indians disgruntled.

Agriculture comes under the state list of Schedule 7 of the Indian Constitution and to initiate reforms in the agricultural sector, in 2017, the central government had released model farming acts. However, the states chose not to implement these. The centre then promulgated three ordinances in June 2020. Agitations by farmers against these Acts which were seen to be corporate-friendly began and persisted across northern states from August 2020 through to November/December 2021 when the central government finally repealed them. (in September 2020, the president had given assent to the three farm acts). Instead of allowing millions of poor farmers to suffer in the streets, away from their crops, and receiving handouts from kitchens and volunteers, the government could have shown empathy with an immediate response, taking on board concerns and trying to assuage them or else deal with them. This is the whole concept of a democracy. The government is there to serve the people—not to rule over them and ignore them. They are not maharajas, but ministers—serving the people at the people’s pleasure! Yet, our leaders are surrounded by a posse of “yes men” and are clearly unable to articulate their reasons for promulgating something hence tried to stamp it out by ignoring the poor farmers—hoping the problem would go away. This is not playing it by the rules and leaves educated (and uneducated) Indians disgruntled.

Moving to the common man, woman and child…their lives are poor, unfulfilled and pathetic. We have poverty that is indescribable—residing next door to eye watering wealth. This is the land of extremes. So, when our star wrestlers—Olympic gold winners no less—took to the streets in protest against Brij Bhushan Sharan Singh who had allegedly been sexually molesting young wrestlers, whose poor parents did not have the strength or wherewithal to complain. Seven female wrestlers, including a minor, had filed police complaints against him, accusing him of stalking, touching them with sexual intent, making sexual remarks and “outraging their modesty”. Unfortunately it took months of protesting in the streets of Delhi—even sleeping there overnight—until finally after the ad hoc committee was put in place and the Internal Committee Report was released, recommending that Bhushan and his family not be permitted to stand again to be head of the Wrestling Federation of India (WFI). Still, the ICC report was not followed, and in December 2023, WFI elections were held with former president Sharan’s loyalist, Sanjay Singh, and his panel winning the polls by big margins. Singh’s appointment was opposed by wrestlers Vinesh Phogat, Sakshi Malik and Bajrang Punia. While Malik announced her retirement in protest, Punia returned his Padma Shri award. Playing it by the rules? Certainly not.

The WFI has since been suspended and the Indian Olympic Association (IOA) has been asked to constitute an ad-hoc committee to manage and control the affairs of the wrestling federation’s governing body. One could go on—but you get the idea. All these so-called rules, pronouncements, diktats, laws—are simply being ignored or shelved. So, who is meant to follow them? Why the great Indian public of course. Is this truly a level playing field? 

We all roll our eyes as selfish drivers try to overtake and cut in at the last minute, or people waiting in a queue suddenly decide to make a dash for the front because they are more important than everybody else…or when you see people chuck their rubbish on the roads while a country like Sri Lanka can be spotless… we shrug and say that this is India. And do you blame the uneducated for behaving like this? This is what they see from those they consider superior to them. Would we not be happier if rules were enforced, and there was certainty instead of last minute overnight badly planned decisions? (demonetization springs to mind) Whatever happened to long term planning for the good of the common man and woman?

Circling back to Dicey…what is it we have here at the moment in India (also known as Bharat)? Do we have a clear rule of law that is equally applicable to all, and people can have faith that the system works, and rest assured that the government is looking out for them regardless of gender, colour, creed, status or religious/political affiliation, that all men and women are truly equal in the eyes of the law—or do we have the exact opposite—“a system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”? The jury is out. 

Having said that, the recent Supreme Court verdict restoring life prison sentences for 11 convicts who were granted remission by the Gujarat government in the Bilkis Bano case is again an optimistic reminder that there is still hope for the rule of law in India.

—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai

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