Friday, August 02, 2013

The State and its Citizens

If citizens are not allowed to harm each other, then the responsibility of justice, punishment, prevention of crime, forceful resistance to disorder, are the moral responsibility of the state.

If guns are taken away from the citizens, then those guns must point at any aggressor who threatens to harm the now defenseless citizen.

The citizen gives up a lot of power in a modern state.  In return, the state promises him something.  This contract must continue to uphold if the citizen is to have faith in the state.  The alternative is a citizen having scant regard for law, and a state which has scant regard for its citizens.

I believe that in India, this contract between the state and its citizenry has broken down.  In the absence of this contract, what we have is the appearance of democracy, justice and rights.  If we take away this thin veil of high-sounding words, what we have is a plutocracy or dynastic rule in India.

The constitution, and the various laws, prescribe what the citizens and the state must do.  The citizens pay taxes, they agree to not indulge in acts which the state thinks are criminal, they agree to hand over the power of defining personal relationships, property rights, penalties for offenses, how their taxes are used, to the state.  By any reasonable measure, a large majority of people in a modern democracy have absolutely no say in these "state subjects".

The state decrees that you may not marry two people at the same time.  Even if all three are ready and willing.

The state decrees that you may not buy someone's property without paying a percentage (fixed by the state) to the state.

The state decrees that the value of legal tender will be fixed by it, in measures opaque or semi-opaque.  Or that the value of legal tender is only the state responsibility to replace it with legal tender of lesser denomination.

These are rather strong liberties that a citizen gives up.  And there is no exception to these laws.  If you indulge in bigamy, buy property without paying taxes, or try to print currency at home, there will be consequences.

These consequences continue to exist in India.  When a citizen violates the charter, the state comes after him sooner or later.  Or at least he lives in the fear of the state.

So, a citizen then expects the state to fulfill some duties in exchange for giving up these rights.  Whatever those duties might be is immaterial.  The first premise is that the state be answerable to the citizen if those duties are not fulfilled.

The citizen is answerable to the state via the police and the judiciary.  The state must be similarly answerable to the citizenry via the police and the judiciary.  Hence, the police and the judiciary must be, by design, independent of the influence of the state executive, if not also the state legislature.

The judiciary in India was designed to have autonomy, and to some extent it does.  But the judiciary can only provide words.  The judiciary does not possess guns to enforce its orders.  The responsibility of enforcing the orders of an independent judiciary lies, unfortunately, with state-controlled police in India.

I have noticed in hundreds of cases that the court expresses its "displeasure" at some act of the government.  That it passes an order and then wails about its non-enforcement.

In a rather dramatic incident, the prime accused in the assassination of Chief Minister Beant Singh, Mr Balwant Singh Rajoana, was sentenced to death by hanging by a court of law.  The date for hanging was set.

The jail warden refused to comply with the court order.  The court sent him a contempt notice and set another date.  Interestingly, the accused wanted to be hanged and did not want to plead for mercy.  Apprehending a political fallout of this situation, the government filed an appeal on the prisoner's behalf.

I don't think such an incident has happened anywhere else in the world.  The government was the one which prosecuted him, and the government now wants to be merciful on him.

But much more interesting is the conduct of the jail warden.  He wanted to please his political masters rather than follow the order of the judiciary.  He was not afraid of the contempt notice, but he was obviously afraid of going against his bosses.

Once I was privy to a certain conversation in a judge's chamber in India.   It was related to a property dispute where the plaintiff wanted the judge to pass an order of rent collection.  The judge said, and I quote: "It is easy for me to pass the order.  The difficulty is for you to get that order enforced and to get the rent in your pocket. You don't understand how things work.  Better settle it out of court."

So, for all practical purposes, even in with the supposedly independent judiciary, the citizen has to rely on the police for enforcement of law and order.

This is where the situation has not changed in India since the time the British left.  Now we have an elected government, but that government continues to be unaccountable for its failure to keep its side of the state-citizen contract.  It will be unaccountable as long as the police department is designed to be in the service of the state, instead of its citizens.

The constitution can contain any number of laws, the citizen will remain a begging slave of the state as long as he has little recourse when he sees injustice happen.  The state has no incentive to take away its own control of the police.  The only opportunity for that was when the constitution was framed in 1940s.  Now, after indirectly (through the police) giving guns only to the state, it is no wonder that the state of India is not interested in giving power back to the citizens.

The citizens are not fools.  They recognize this remarkable state of affairs.  They know that they have, at least in theory, the power to choose their state representatives.  But if they do not agree with the amount of power these representatives wield, what should they do?  Become Naxalites, perhaps?

In the absence of a working contract between the citizen and the state, not only will there be corruption, but corruption becomes the only valid process of getting things done.  If there are no laws, then discretion, favors, dynasty, quid-pro-quo, become the incentives in a community.

The citizens spit at the laws because they know that they get little in return for following the laws.  That only an idealist should follow laws in a lawless land.  That in such a land, as long as one can get away with bending laws to one's advantage, it becomes not only customary, but a selfish duty.

To be otherwise is to affirm kinship with the Struthio camelus (*).

* Struthio Camelus: The Ostrich.

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