The rule of law through ‘thick’ and ‘thin’

“We are only hanging on to the rule of law by the tiniest edges of our fingertips. We have to lift ourselves up and stand before we can begin walking the miles towards civil society,” is how Harish Narasappa ends his book, Rule of Law in India. Rarely a truer word written, you might say, in the context of what's happening in Indian society.

From the theoretical foundations of the rule of law in the Western liberal tradition to the codification of text and manifestation in practice, the book outlines what the esoteric concept actually means. The first point is that there is no clear agreed-on definition of rule of law. The Constituent Assembly debates, Parliament and the courts add further dimensions to its interpretation. This judiciously written treatise offers a clear and thought-provoking understanding of the concept of the rule of law and how it operates in the Indian milieu.

The first three parts of the book deal with the concept of the rule of law, and rule of law in theory and practice in India.

Liberal political thinkers like Aristotle, A V Dicey, the constitutional theorist, and Friedrich Hayek, the economist and social philosopher, were the first to give a semblance to rule of law, he writes. The works of Roberto Unger, a BrazilianAmerican politician, philosopher and writer, and Brian Tamanaha, a renowned scholar of jurisprudence, whom the author quotes repeatedly in the book, add a dimension of contemporary understanding to the concept.

The rights of an individual, the role of the state, the extent of intervention and the freedom of choice could be termed the basic parameters that interact with each other to form the hazy and intangible substance called the rule of law, the author suggests.

In a novel way, the author defines rule of law through a Venn diagram. He calls the intersection of four overlapping circles representing choices — social, political, economic and moral — the “legal system”. The rule of law is a bigger concentric circle encompassing the legal system: Something more than just legality, something that engulfs everyday life from the individual to the political and the legal.

A “thin” rule of law, Mr Narasappa writes, results in the establishment of procedures that are free and fair, reducing the role of the state. A “thick” rule of law assumes a greater role. It advocates substantive justice, promotes social welfare and is proactive in terms of human rights, making the state an important entity in human life.

In this respect, the author says that rule of law embodied in Indian Constitution is of the “thick” variant. The Constitution negated the injustices of the past and struck a balance between individual rights, state and society. Some Supreme Court judgements like the Kesavananda Bharati (1973) and Maneka Gandhi (1978) turned out to be watershed moments in India’s history, protecting the “basic structure” of the Constitution and the right to life and liberty.

The school of thought led by Hayek, however, says that purposive reasoning, substantive justice and social welfare are an interference to the rule of law. By saying this, Mr Narasappa suggests that the rule of law in India is very different from its theoretical foundations.

In this respect, he highlights the view of eminent law expert Upendra Baxi: The rule of law in India is not just a sword against state domination, but also a shield empowering state intervention for improving social equality.

Saying that it strikes a balance between fundamental rights and directive principles of state policy, that it gathers “might” from judicial independence and judicial review, and that it advocates reasonableness, the author calls the rule of law a “political ideal”. In a later twist, he goes a step further to call it a “convenient ideal” when it comes to rule of law in practice.

The second half of the book deals with lawmaking, people’s representation and enforcement. Referring to the works of political scientists Devesh Kapur and Pratap Bhanu Mehta, he points out that despite the strong intent on paper, social, political and legal institutions in India fall short of their responsibilities.

He provides the well-known data to show that the Parliament and legislature now spend less time on debates and discussions, governments and elected representatives have reduced the effective sittings of legislative sessions, and that ad-hoc legislation has increased. All this, writes Mr Narasappa, has had a “cascading impact” on rule of law in India. “The lack of compliance with law at the time of enforcement is astonishing,” he says.

The book does not offer real-life examples, bar the odd reference to individual cases, which makes it somewhat academic to the lay reader. But the author takes meticulous care to avoid any exclusion errors. He touches on a variety of connected streams of social science and helps form an understanding that enables the reader to connect the dots.

His prognosis is worrying. Describing the rule of law in India as a “hollow, motheaten system”, this book highlights one of the deepest systemic crisis India is facing. The time for self-correction, this book suggests, is long overdue.