It is a huge paradox. We are extremely poor in observance of laws, but we have plenty of them. laws in our country are hydra-headed, controlling, regulating, stifling, stunting and impeding most entrepreneurial energies, responsive governance and reforms. If the State decides to intervene in any act of the citizen, it can find a perfectly legal method to do it because there are multiple laws on every aspect of our life. On the other hand, if a person decides not to follow certain law or many laws, he/she can do it with equal ease and remarkable circumvention in India. So, laws are everywhere and intrusive, but they are hardly effective. And since inefficiency breeds contempt they are not respected either.
This is a very unenviable spectacle for an acclaimed democracy. So, where is the inherent contradiction and why cannot it be detected and fixedIJ Some are underlined here for rightful appreciation of what has gone wrong.
First, in an overtly legal regime as that of India, the populace should have been and ought to be legally more literate. Just because general (language) literacy is low does not mean that there is no need of legal literacy — in any case literate (but ‘law illiterate’) more routinely commit a law violation than illiterate. Neither the IT revolution nor the IIMs/IITs have been held back until the attainment of literacy, so legal literacy should not wait for general literacy, rather should go along with that. This is more about awareness of law and not about remembering their finer nuances, court rulings or citations because we must remember that there are several medical professionals who are smokers, i.e. literate but not aware or awakened.
Secondly, but extending the same logic slightly differently, if ‘ignorance of law is no excuse’, then should not the ordinary citizen have the basic understanding of the law of the country before she/he is expected to follow them, or charged of some violation on account of his ‘indefensible’ ignorance. It has been said that “to force a man to pay for the violation of his own liberty is indeed adding insult to injury”. It is unfair on the part of the State to hold an unwary person responsible for an offence unless he has been foretold about the consequences of that action. Just keeping that warning in a statute book does not make it available to the citizen — he needs to be made aware of it through education.
Thirdly, those who lead the Government must be the first to show the way. The Government is looked at as the ideal employer; it is because of this that the Government servants have certainty of job conditions and various safeguards, including predetermined wages even for ordinary labour. Being so, it is the political and bureaucratic structure that should in the vanguard of showing deep respect for law and caring to enforce it. But that is easier said than done because of deep political divisions in the ranks of political executives that form the establishment.
This show and commitment has to begin by total prohibition on anybody from holding the position of a public servant in case a criminal case is registered against him, provided the charge sheet is filed in a court of law within the prescribed time, until he is cleared by the court of law from that charge. This is going beyond a jail term or even conviction.
Fourthly, our institutions must be made fully answerable and strong. This includes statutory and oversight bodies, regulatory entities and commissions. They should all be seen as important lawful wings of the governance machinery that is capable of delivering and taking action. How the Ganga would be cleaned if the authority responsible for it has no authority to enforce its writIJ This is not like making ourselves overregulated but just to ensure that if we have an institution for a purpose it should be legally effective. Unfortunately the Commissions of Inquiry in our country have been a huge waste of time and public money.
When the findings are finally arrived at, these are sent to some hidden shelf of the Government archives without disclosure and/or follow-up action. There should be some amendment in law to make its recommendations enforceable in a time bound manner, and as a safeguard the commission should not comprise less than three persons of legal eminence. The idea is to convey to the general public through these exemplary methods that the giver of law (practically) is as serious in its observance as it expects them to be.
Fifthly, having set the house in order we must undertake a comprehensive review of all laws, both Central and State. Many of these are in dire need of being scrapped — more law, more violation. Many are archaic and redundant and lead to confusion, evasion and corruption, making the legal regime vulnerable to unscrupulous exploitation. It was George Washington who said, “laws or ordinances unobserved, or partially attended to, had better never have been made”, and Edmund Burke, “Bad laws are the worst sort of tyranny”. let us make the ‘law our public conscience’ as suggested by Thomas Hobbes.