Failing the law

In the last four years, the legal process has been turned into an instrument of oppression, threatening the principles of our republic.

Written by Kapil Sibal | Updated: April 5, 2018 1:11:21 am

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In the last four years, the two essential elements of our constitutional republic are in decline. The supremacy of the law is under attack. (Representational Image)

There are two essential elements of a constitutional republic. First, the law and not men are supreme. Second, the sovereignty of each individual expressed through elected representatives, replaces unelected sovereign authority.

In a constitutional democracy, the supremacy of the law is enshrined in the basic tenets of the constitution. No act of the legislature can infringe those tenets. If it does, courts intervene to establish the primacy of law. Elected bodies function within the framework of the constitution and are answerable to the people from time to time.

In the last four years, the two essential elements of our constitutional republic are in decline. The supremacy of the law is under attack. The processes of law are being used to serve political outcomes. Established procedures are sidelined. Representatives of the people have become the voice of agendas seeking to diminish what our Republic stands for. Some of our legislators and others of a particular mindset encourage violence and, at times, espouse its cause. The rights recognised by the Constitution are being muffled: Freedom of speech is a victim. The institutions of representative democracy are paralysed.

The recent announcement by the chief minister of Uttar Pradesh, that 131 registered cases involving the commission of heinous crimes including murder and attempt to murder are to be withdrawn, epitomises the supremacy of men over the law. One can understand if a public prosecutor in an individual case finds that the prosecution launched be withdrawn for cogent reasons acceptable to the court. But a blanket withdrawal of 131 cases on the ground that they were politically motivated is unthinkable in a democracy. Motives for murder or attempt to murder, if established, may well be political but the act of murder cannot ever be political. Trials involving state functionaries accused of having committed serious crimes are being subverted even under the watchful eye of the prosecution. Those accused are well-known in the corridors of power and their proximity with public functionaries cannot be denied. At the same time, political opponents are being targeted on flimsy grounds through the misuse of investigative agencies. Witness after witness turning hostile is a disturbing phenomenon jeopardising the rule of law. The truth is falling by the wayside as investigative agencies are doing the establishment’s bidding. The fate of criminals charged with heinous offences should not be dependent on the regime in power. Nor should motivated prosecutions be launched. Legal processes have become instruments of oppression.

Another frightening aspect is the biased nature of legal processes when crimes committed in broad daylight are either not investigated or if investigated, seek to protect the accused. The lynching of Dalits, recent hacking of a Dalit youth to death for riding a horse, using religious processions as opportunities to foster violence, with police participation on occasions are examples of how the law is being subverted with impunity. Recent incidents in Asansol, West Bengal, where a minister of the Union government intemperately talked of skinning people alive is symptomatic of the rot setting in.

The cult of violence is being spread in Bihar, Rajasthan and other places, including UP. Encouraging encounters, which are deeply suspect, reflects the arrogance of power and open disregard for the law. This augurs ill for a land known for its spirituality and tolerance. The Dandi March was an act of defiance against authoritarianism. Our authoritarian state defies constitutionalism on a daily basis.

When the law itself becomes an instrument of oppression, its efficacy is devalued. Harsh laws misused by enforcement agencies are like a sword in the hands of a king. One can decapitate the reputation of an individual by misusing such laws. We have seen their rampant misuse in the last four years. Laws are meant to serve the cause of justice, not to be used as instruments to perpetuate injustice. Individuals and agencies show helplessness while laws are being misused. This is why recent judicial pronouncements in motivated prosecutions have come to nought. If a person is falsely implicated and suffers incarceration for 8-10 years before acquittal, his life is destroyed and there is no one to compensate for the loss. The state, however, moves on unconcerned. Our Republic must not allow its men and women to be waylaid in this fashion.

There is yet another aspect which is even more worrisome. The judiciary is the sentinel which represents law’s majesty. It is a misfortune that today the purity of its processes are being publicly questioned. The judiciary must collectively ensure that there is no cause for suspicion. If it does not do so, it will have failed our Republic. There are serious concerns which have been expressed within the judiciary and continue to be so expressed. Yet, no corrective measures have been attempted to restore faith in its processes. Any act by those in power at diminishing the independence of the judiciary is an attack on the fundamental premise on which our constitutional framework rests. The judiciary must be allowed to function without fear or favour, as per Lord Denning’s adage “Be you ever so high, the law is above you”. Some in this Republic believe that they are above the law. The law must disabuse them of this misconception.

Yet, there is hope. Hope because we should see this as a phase in the evolution of our Republic, which will be history in the time to come. As long as we, as citizens of this country, do not fail our Republic, the Republic will never fail us. The law must ensure that those who attack our Republic’s essential elements are dwarfed by it.

The writer, a senior Congress leader, is a former Union minister

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