TeaThe Government of India started celebrating Constitution Day on 26 November from 2015. Seven years later, public confusion remains about the purpose and significance of the day. India already celebrates the beginning of the 1950 Constitution as Republic Day on 26 January 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 Constitution Day should serve as a non-partisan endorsement of our national commitment to achieve a ‘rule of law’ society.
There are few advocates of the rule of law in India. Governments around the world see the call for the rule of law as a proxy for human rights. In India’s Universal Periodic Review before the United Nations Human Rights Council (UNHRC) last week, India’s reports received sharp comments and questions from allies and opponents. India’s excessive use of anti-terror legislation and strong regulatory pressure from civil society organizations have been criticized. India’s official response was both harsh and defensive and, ironically, relied on a number of Supreme Court rulings that the government initially opposed. Earlier in 2022, economist Among others highlighted the decline of non-electoral democracy in India and criticized the government of “majoritarianism”.
release of World Justice Project (WJP) Rule of Law Index 2022 There is one small bright spot in this gloomy landscape. Amazingly, this went unnoticed by the Indian government or the country’s media. India has moved up two places to rank 77 out of 140 countries. Notably, our two South Asian neighbours, Nepal (69) and Sri Lanka (74), are doing better than us despite continuing crises. Afghanistan (138) and Pakistan (129) lag behind in South Asia because deep-rooted political and economic instability undermines the quality of their institutions. Despite significant economic and social progress, Bangladesh (127) ranks closer to Pakistan than its other South Asian neighbors. 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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The rule of law applies equally to all nations
Before we celebrate, we must better understand what the rule of law is. While the concept can be traced to ancient Greece, a more complex version arose in common law legal theory and political practice in England in the 1600s. A contemporary definition, adopted by the WJP Index, identifies the rule of law as ‘a sustainable system of laws, institutions, norms and community commitment’ that ensures accountability of government and private actors; clear, publicized and stable laws; open and fair government regulated by law; And finally accessible and fair justice.
Stated this way, the rule of law is no longer a Eurocentric imposition on the postcolonial world. It does not commit either country to any particular institutional form – both China and India can be countries under the rule of law, despite fundamental differences in constitutional and political governance. Instead, it measures the empirical consequences on the lives of ordinary people of institutions and practices in any given country. By being result-oriented and not emphasizing institutional design features, the rule of law can be universalised.
A second common argument against the international rule of law is that it allows powerful Western nations to pick up on, magnify, and magnify individual instances of abuse to embarrass and embarrass developing nations. To avoid cherry picking, it is essential to move away from narratives that rely on anecdotal examples and measure system-wide experiences and outcomes. The Rule of Law Index does exactly this by developing a survey-based methodology that polls various experts as well as public opinion in 140 countries.
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Not a tool of the elite, does not rely on economic prosperity
A third argument is that the rule of law assessment is a conversation among elites—academics, lawyers, judges, and journalists—who are alienated from their societies. It is argued that the political biases of these elites—a liberal consensus—distract from a rule-of-law assessment of what the general public is concerned about. In other words, long-term detention of political opponents may be less important to the general public than whether ordinary people are able to hold police and frontline bureaucracy to account for everyday accountability. The WJP Rule of Law Index moves away from an exclusive focus on human rights to focus on eight factors: a comprehensive assessment of the ‘absence of corruption’, the qualities of ‘open government’ including effective grievance redressal mechanisms, and fair and efficient ‘Regulatory enforcement.’ The Rule of Law Index balances these opposing concerns by ensuring that we give as much importance to the protection of ‘order and security’ as we do to ‘fundamental rights’ and fair ‘criminal justice’. As political polarization typically sets these goals against each other, the Rule of Law Index attempts to develop a measure that can find support across common political divisions.
Finally, it is argued that the rule of law is essentially a dependent variable on the level of economic development in a country. So it would be better if we focus 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 achieve the highest ranks in the WJP index. However, a high-income country like the US only secures a rank of 26. A high-income country like Hungary secures a rank of 73, just a few places above a lower-middle-income country like India. Therefore, while the rule of law index may improve with higher levels of income, it is not a given. India ranks ninth out of 38 countries in the lower middle-income countries. Simply put, we can become a high-grade law country at the middle-income level and the index effectively measures social and individual well-being independently of measures of GDP growth.
India’s overall score on the eight factor index is 0.5 out of 1. Of the eight factors, we score lowest for preventing corruption and for related weaknesses in our civil and criminal justice systems. We work best in providing order and security, ensuring reasonable restrictions 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 toward that goal. Constitution Day should become an annual ritual to measure India’s progress towards the non-partisan goal of building a rule of law society.
Sudhir Krishnaswamy is the Vice-Chancellor of the National Law School of India University, Bangalore and the Managing Trustee of the Center for Law and Policy Research, Bangalore. Thoughts are personal.
(Edited by Ratan Priya)