Sunday, April 08, 2012

The government is not above the rule of law

It takes a lot of doing to make the economy fall from a 9 per cent growth rate two and half years ago to 6.1 per cent in the quarter ending December. A fall of one per cent means the loss of almost 15 lakh jobs and so there is a lot of pain, mostly inflicted by the UPA government. Corruption scandals also refuse to cease. But the real tragedy is that the rule of law, one of India’s strengths, is crumbling.

This government undermined the rule of law when it overruled the Supreme Court in Vodafone’s tax case. It decided to change the law retroactively and tax similar deals going back to 1962. It was unfair when it announced in this Budget to make Cairn, India’s largest producer of petroleum, pay $90 a ton in tax suddenly when other private companies are paying $18. As it is, India’s reputation has suffered ever sinceenvironmental permissions were re-opened after they had been granted officially. But when Maharashtra Hybrid Seeds Company was arbitrarily denied a license in 2010 when it had had toiled for a decade to develop Bt Brinjal, the world’s scientific community was aghast. The company had completed 25 environmental bio safety studies through independent agencies, rigorous field trials by two Indian agricultural universities, and all protocols to the government’s satisfaction. Finally, there is much sympathy for Norway’s Telenor, which became the unwitting victim of the Supreme Court decision to cancel licenses given out corruptly--no wonder Telenor is claiming $14 billion in damages from India.

Citizens look to the state to reduce uncertainty in their lives. The state does this through a robust rule of law. As it is, there is great uncertainty in an entrepreneur’s life, which is why three out of four businesses fail. But the UPA government, instead of making life predictable is the main source of uncertainty. It has weakened the rule of law; corruption is a symptom of this weakness. Some think it was inevitable: the rule of law was a foreign import of the British; after they left it began to wither. When officials began to think they were above the rule of law, it collapsed.

The rule of law is based on a moral consensus, expressed daily in the ‘habits of the heart’. People obey the law not only because they fear punishment but because they think it is fair and it becomes a habit and a form of self restraint. While Indian habits may not be quite as liberal as English habits, India always had a rule of law expressed as ‘dharma’, which gave coherence to people’s lives, reduced uncertainty and provided self-restraint. For this reason the founding fathers of our Constitution often invoked dharma in their speeches. The great P.V. Kane, who won the Bharat Ratna, called the Constitution a ‘dharma text’. In pre-modern times, dharma restrained the power of the state via raja-dharma—it was higher than the king whose duty was to uphold it. Some of the UPA’s ministers would do well to ponder this thought.

It may seem bizarre to invoke tradition when that tradition was responsible for so much unjust hierarchy and social injustice. But the rule of law originated in religion almost everywhere. In the West, it emerged from Christianity. Long before modern European states, Pope Gregory I established laws for marriage and inheritance. The Church also discovered the old Justinian code, which became the basis of civil law in continental Europe. Frederic Maitland says the rule of law gained higher legitimacy because it emerged from religion; thus, no English king ever believed that he was above the law. Indian kings had the same conviction about dharma. In the same way, the rule of law is central to Muslim civilization.

The ideal of a ruler guided by ‘dharma’ exists in the Indian imagination even today, thanks to the extraordinary continuity of our civilization. When the vast majority on the sub-continent is deeply religious, it is not inappropriate to turn to tradition to seek that moral core that can restrain public officials and citizens. Fusing tradition with modernity could help restore the moral core in a meaningful way in support of the modern rule of law to re-invigorate India’s democracy.

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Anonymous said...

Agreed. Law enforcement is central to India's success and future. ALL other problems stem out of this and can be fixed or mitigated considerably if we fix law enforcement. Simple 2 prong strategy 1. Prioritise cases against people taking a high public office 2. Prevent individual legislators from transferring police officers, requiring the signtature of atleast X% of the legislature before transferring a police official (where X can be any sizeable number, 10, 20 , 30 etc.)

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windwheel said...

This is quite dreadful. Bad English, bad Economics, bad Politics, bad rhetoric.
Gurcharan Das wrote an almost engaging book a couple of decades ago. Almost. Not quite.
Self regarding little man, what explains his shamelessness?

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Prabir Sengupta said...

I have read your earlier books and follow your blogs frequently; what amazes me of this country is the complete failure of 'Rule of Law'. The Dharma is wiped out of our psyche of the politicians. The day we make the bureaucrats accountable - a couple of them taken to task, this pathetic approach shall continue.
Do keep up your wonderful work.
Aye

Bungee said...

Very thought provoking. However, when it comes to enforcing law, unfortunately the cause starts with the law makers who are the first ones to break/mend laws to suit their convenience. Where do we then start the enforcement? Lots of clean up to be done Mr. Gurcharan Das. Nevertheless, I really enjoyed your write up and I pray that some people higher up notice and act on it.

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