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India fares better than China on Rule of Law. Make Constitution Day about measuring progress

Rule of law has few advocates in India. Our overall score in the 8 factor Index is 0.5 out of 1.0. We score lowest in preventing corruption, and for the related weaknesses in our civil and criminal justice systems.

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The Indian government began commemorating Constitution Day on 26 November from 2015. Seven years later, public confusion about the purpose and significance of the day remains. India already celebrates the 1950 commencement of the Constitution on January 26 as Republic Day, and our independence from British colonial rule on 15 August as Independence Day. So, what exactly does Constitution Day signify? In this article, I suggest that the Constitution Day should serve as a non-partisan endorsement of our national commitment to achieve a ‘rule of law’ society.

Rule of law has few advocates in India. Governments around the world view invocations of the rule of law as a proxy for human rights. Last week at the Universal Periodic Review of India, before the United Nations Human Rights Council (UNHRC), India’s reports received sharp commentary and queries from allies and adversaries. India’s overuse of anti-terror legislation and the tight regulatory squeeze of civil society organisations were criticised. India’s official response was both dour and defensive and ironically relied on several Supreme Court judgments that were initially opposed by the government. Earlier in 2022, The Economist among others highlighted the decay of non-electoral democracy in India and criticised the government of “majoritarian chauvinism”.

The release of the World Justice Project (WJP) Rule of Law Index 2022 is a small bright spot in this gloomy outlook. Surprisingly, it received no attention from the Indian government or the country’s media. India climbed two places to rank 77 out of 140 countries. Notably, two of our South Asian neighbours, Nepal (69) and Sri Lanka (74), fare better than us despite persisting crises. Afghanistan (138) and Pakistan (129) are the laggards in South Asia as deep rooted political and economic instability undermine the quality of their institutions. Despite significant economic and social progress, Bangladesh (127) is closer to Pakistan than its other South Asian neighbours. Looking beyond our immediate neighbourhood, the Rule of Law Index is one of the few global indices where India fares better than China (95). So, all things considered, there is reason to take some pride in this achievement.

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Rule of Law applies to all nations the same way

Before we celebrate, we must better understand what the Rule of Law is. While the concept may be traced back to ancient Greece, a more complex version arose in common law legal doctrine and political practice in England in the 1600s. A contemporary definition, adopted by the WJP Index identifies the Rule of Law as ‘a durable system of laws, institutions, norms and community commitment’ that ensures the accountability of government and private actors; clear, publicised and stable law; open and fair government regulated by law; and finally accessible and impartial justice.

Stated in this way, the Rule of Law is no longer a Eurocentric imposition on the postcolonial world. It doesn’t commit any country to a particular institutional form—China and India can both be Rule of Law countries despite fundamental differences in constitutional and political regime. Instead, it simply measures the empirical outcomes on the lives of common people of the institutions and practices in any country. By being outcome-focussed and not emphasising institutional design features, the Rule of Law may be universalised.

A second common argument against international Rule of Law measures is that it allows powerful Western nations to cherry pick isolated instances of abuse, magnify and amplify these instances to embarrass and shame developing nations. To avoid cherry picking, it is necessary to move away from narratives that rely on anecdotal instances and measure system-wide experiences and outcomes. The Rule of Law Index does precisely this by developing a survey-based method that polls public opinion as well as various experts in 140 countries.

Also read: Rule of law and rural tradition – how women judges are walking the tightrope in Rajasthan

Not a tool of elites, doesn’t rely on economic prosperity 

A third argument is that Rule of Law assessment is a conversation among elites—academics, lawyers, judges and journalists—who are disconnected from the societies they inhabit. It is argued that the political biases of these elites—a liberal consensus—distracts a Rule of Law assessment from what the lay public is concerned about. In other words, the prolonged detention of political dissenters may be less important to the general public than whether common people are able to exercise everyday accountability over the police and frontline bureaucracy. The WJP Rule of Law Index moves away from an exclusive focus on human rights to focus on eight factors including: an extensive assessment of the ‘absence of corruption,’ the virtues of ‘open government’ including effective grievance redressal mechanisms, and impartial and efficient ‘regulatory enforcement.’ By ensuring that we give equal weight to the preservation of ‘order and security’ as we give to ‘fundamental rights’ and fair ‘criminal justice,’ the Rule of Law Index balances out these contrasting concerns. As political polarisation usually sets these goals against each other, the Rule of Law index attempts to develop a measure that can achieve support across common political divides.

Finally, it is argued that the Rule of Law is essentially a variable dependent on the level of economic development in a country. Hence, we are better off focusing on economic development and the Rule of Law will take care of itself. There is some truth in this view as high-income countries tend to secure the highest ranks in the WJP Index. However, a very high-income country like the US only secures rank 26. A high-income country like Hungary secures rank 73, only a few places above a lower middle-income country like India. So, while the Rule of Law index can improve with higher levels of income, this is not a given. India is ranked nine out of 38 countries in the lower middle-income countries. Simply put, we can become a high-ranked Rule of Law country at the middle-income level and the index effectively measures social and personal well-being independent of measures of GDP growth.

India’s overall score in the eight factor Index is 0.5 out of 1. Of the eight factors, we score lowest in preventing corruption, and for the related weaknesses in our civil and criminal justice systems. We do best at providing order and security, ensuring reasonable constraints on government and relatively open and transparent government processes. We adopted a Constitution on 26 November 1949 to commit ourselves to a democratic and limited government. However, we have never systematically measured our progress towards that goal. Constitution Day should become an annual ritual of measuring India’s progress to the non-partisan goal of building a Rule of Law society.

Sudhir Krishnaswamy is Vice-Chancellor, National Law School of India University, Bangalore and Managing Trustee, Centre for Law and Policy Research, Bangalore. Views are personal.

(Edited by Ratan Priya)

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