The Year of the Law

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The Year of Law - Indian Express

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The Year of Law 0
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Pratap Bhanu Mehta : Tue Jan 01 2013, 21:42 hrs G+

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If one were to hazard a summary characterisation of the year gone by, and the promise of the year to come, it would be this: India’s citizens are waking up to claim possession of that vital idea, the rule of law. India has been an anomaly: A republic without the rule of law. In a republic, the rule of law is not founded just on populism, the need for deterrence, or some vague idea of the welfare of the people. It is meant to give full expression to the idea that we are free and equal as citizens, that law protects each of us as individuals, grants us the respect and secures our dignity. But this is one experience our republic did not give us. What should have been the site of our liberation became the symbol of our subjugation; the source of our safety became a source of insecurity, and the protector of our dignity often a source of humiliation. The law, even in the best of circumstances, carries an aura of theological mystery, of the kind Kafka depicted. Or worse, it can represent the corrupt and manipulable system still so resonantly portrayed in Dickens’ Bleak House. But Indian law did not even aspire to fulfil its republican promise. Instead, it took a structure crafted by a colonial state to reproduce the very arbitrariness that colonial law was designed to secure. Despite some reform in areas ranging from police to land, from personal laws to criminal procedure, a we have not been able to shake off the overweening colonial shadow cast on us. In the colonial state, this structure was held together by a unity of purpose and superb formalist legal craft. The democratic state, in its use of the police, for example, simply wielded that instrument as a tool for subjugation and manipulation. But more insidiously, its practice enshrined all the inequalities that rule of law was meant to overcome. The state deliberately made sure that law remained a scarce resource, since its scarcity was itself a source of discretionary power. Protecting rights is not cheap, and a republic unwilling to pay up will suffer. Second, while there has been enormous progressive reform in the law, the sediments of caste, patriarchy, hierarchy and political deference to inherited social structure continue to deeply inflect the daily life of law. As many scholars have shown, these practices silenced and marginalised victims rather than protected them. Third, in the legal culture, the rule of law was replaced by all kinds of inchoate functions: from grandstanding populism to conflict management. What got lost Christmas Shopping

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The Year of Law - Indian Express

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