This morning, an interesting question was posed, which I learn is also a point of start in first year of law degree programs in India. It is- What is law in our social world? A related question that I was grappling with earlier was if we have an obligation to always obey the law. Both of these have bothered me for quite some time now. And here are some quick thoughts on it which relates to my experience of riding around the city on a motorbike, dealing with government offices for various services and some larger national issues that the country faces in the modern times.
Montesquieu proposed that a state could function and govern better by the way of three wings or special purpose units, each charged with a specific responsibility. These he proposed should be- legislature, executive and judiciary. Many democratic governments worldwide have designed their process of law making, enforcement and safeguarding public interest on this design that Montesquieu proposed. Each of these – legislature, executive and judiciary are in turn set up around a set of institutions through which they discharge their functions. The legislature is responsible for identifying, deliberating and developing new issues of concern to the people and form a body of knowledge and discourse on the issue. The executive’s role is to bring about that issue as a bill and see it into realization as a law if the issue warrants so. The judiciary enforces the new law and settles violations, disputes and contests arising in the course of new law that is enacted.
Now, this system assumes that the institutions at every level will act in public interest and will exhibit absolute levels of fairness and justice. In such a scenario one would argue that a citizen must obey the law and in fact should have an obligation to do so. The citizen’s experience as a subject under the social contract with the state that he may or may not consciously realize, however, is a key determinant of whether he will or will not obey the law always. If his experience of living and interacting with these institutions has been fair and just, he would have a clear rationale to obey the laws of whatever nature they are.
For instance, stopping at a traffic signal glowing red at a late night hour with little or no traffic. A citizen will certainly do so in his own interest reflecting upon his experience engaging with the state. The experience would have made him appreciate and also realize that the entire machinery of the state exist to make his life better as a citizen. So the decision to stop at the signal will probably be made not on the basis of how dangerous it is to jump the signal but on the basis that ‘these rules are for me’ and ‘they exist in my interest’.
By the above example I have attempted to illustrate how a seemingly minor law is obeyed or not obeyed depending on the citizen’s view of the institutions and his past experience with respect to the quality of engagement that he as had. If at any time he would have been stopped by a traffic policeman for an unintentional act like not noticing the signal (doesn’t that happen on a busy, tiring day in a city?) and if the policeman would have let him go without booking a violation ticket against him and taking a bribe instead, then the way in which this individual would engage with the institutions will change significantly. This experience and similar such experiences in various aspects of civic life shape people’s view and respect for the law.
In context of modern India, I therefore argue that it is not an obligation on the citizen to obey the law always. This is because the very institutions that he engages with in his everyday life do not act in a way that exhibits their obligation to safeguard citizens’ interest and in spirit of the social contract that exists. When the institutions fail to do so the citizens must act in a relative manner because in practice the state – although enabled and set up by the people – ends up being much more powerful than the people. And a powerful state which is also corrupt in its morality leaves no recourse for the larger masses. In such situations citizens either suffer incalculable harm brought about by this very state and by the individual’s belief that if he obeys the law he will sure be right in doing so.
Indian institutions suffer from a severe crisis of reputation and trust in the current times. Acts like the Armed Forces Special Powers Act (AFSPA), Prevention of Terrorism Act (POTA) and more recently the Section 66 (A) of the Information Technology Act have only strengthened the state against the citizens. In this landscape when the state institutions themselves blur out the distinction between use and abuse of these acts in practice then how relevant does it remain to assert that one is obligated to obey the law always?
Individual behaviour is an important determinant of an ideal civic system and for a just and mature society. But this must not be seen in isolation to the institutions. They are a necessary part of the equation. Under the democratic arrangement institutions come first. If they do not set a standard of conduct for the citizens then it cannot be expected of the citizens to have the same blindfolding as that Statue of Justice in the Indian courtrooms has. What happens then are negotiations. Instead of obeying the laws always citizens enter into a transactional relationship with the state. The resultant picture is indeed chaotic. But strangely enough, it is less gory than a picture that a reckless, corrupt and violent state paints.
Modern India except for a few institutions of judiciary, (some believe that this too is falling in its standards and role) has seen appalling levels of subversion. Not a single institution – from the country’s parliament to the states’ police forces are untouched by the collusion of elites, misuse of powers and plunder of capital and natural resources. This, when over 300 million people of this country still struggle with poverty and oscillate between having just enough to survive and in other seasons not even managing that.
If the country’s institutions cannot ensure a fair opportunity to all, back its people’s claim for their rights and safeguard it against those who are crowding them out then obeying and respecting laws by them is a sure stretch of expectations. Because the question is not moral or ideal behaviour of the individuals but a more fundamental – that of the kind of institutions which ask for such behaviour!