Two Democracies and Their Vigilance Problem

In the world’s largest democracy, the word ‘vigilant’ evokes inane images of? Goons stop cattle trucks and lynching drivers, or making videos of himself attacking men accused of love jihad, or beating up couples celebrating Valentine’s Day. A caution in India is both bad news and a bad word. Vigilantes are anti-democratic. They lack the values ​​of constitutional democracy. There has been a general consensus in India to demand that the law and order machinery may overshadow such cautious behaviour.

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So, imagine my shock when I found that in the world’s oldest democracy, the word ‘vigilant’ gets only half the opposition in India. The other half is suppressed by a law that makes vigilantism respectable. A form of vigilante in the United States is a ‘civil prisoner’ who enjoys legal status and whose actions are protected by a law that allows them to pursue and arrest a person accused of breaking the law. Drawing on a legal convention coming from the common law tradition in England, dating from the 12th century, a civil arrestor could physically arrest a person on behalf of the monarch (now the state), who has been accused of breaking the law by them. or regarded as stealing. . There are procedures to be followed, and risks for wrongful arrest are involved, but assuming these are followed for a civilian arrester, regarded as aiding in the consolidation of a political system based on the rule of law goes. Because of its potential for abuse, there is debate in US legal circles over the need to limit the scope and qualifications of who can hold a civil captive.

‘Heartbeat Bill’

But instead of reducing the location of civil captives, recent decisions by the Texas legislature are actually encouraging the practice. Two cases are particularly noteworthy. The first is the latest innovation introduced in Texas in Senate Bill 8 (SB8), known as the ‘Heartbeat Bill’, which was signed into law in May 2021 by Texas Governor Greg Abbott, which seeks to register embryos Attempts to ban abortions after six weeks. a heartbeat. The passage of this law has produced an active debate among pro-abortion and pro-life groups in the US to refine various elements of the depiction on medical science, legislation, bioethics and women’s rights. Roe vs. Wade 1973 verdict

There are five aspects worth noting. The first is that it deprives women of authority over their bodies by making abortion illegal after six weeks when many women do not even know they are pregnant. This means that abortions, when necessary, are unavailable. Second, the applicability of the law also covers women who are victims of rape and incest. Thus the victims are harassed a second time as they will now be forced to carry the pregnancy to full term or seek termination in the dark alleys beyond the law. The third is to convict anyone associated with a miscarriage after six weeks and this can include the Uber driver who escorts the pregnant woman to the clinic, receptionists, nurses and doctors. Fourth, the United States Supreme Court declines to hear an injunction challenging the Texas anti-abortion law, in a five versus four vote.

In her dissenting note, Justice Sonia Sotomayor wrote: ‘Presented with an application to enforce an unconstitutional law to allow women to exercise their constitutional rights and avoid judicial scrutiny, most judges sand their heads. … the Court should not be so satisfied as to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and the rule of law.’

This sandy area from where the court retired is, unfortunately, very familiar to us in India. And fifth, the one I want to comment on here is a legal tool that prevents state officials from enforcing the law, but outsources enforcement to private citizens who can sue abortion providers for performing abortions and Citizens are entitled to collect $10,000 as payment. In addition to their legal fees. Such a person can also be a person from outside the state who can show any connection with abortion. Enter ‘Bounty Hunter’ or ‘Citizen Captive’.

While each of the five aspects raises important ethical and legal issues, I want to highlight only the fifth because Republicans in Texas have used the legal tool — calling it a clever innovation — to make civil arrests the work of state officials. To empower and encourage people to do what they are supposed to do so as to avoid being sued. The effect of this innovation is to deprive women of the rights given to them. Roe vs. Wade. This case shows how many partisan groups in a democracy, even in a mature one as America, have been redesigning both public discourse and institutional systems to align with their religious ideology. will do. Linda is commenting on the greenhouse law his article the new York Times (September 9, 2021) angrily asked: ‘Who let God into the legislative chamber?’ This is the same question that we often get asked in India.

Voting ‘Reform’

The second case in Texas pertains to a Texas voting law reform that seeks to reverse the gains of earlier years. SB1, a bill recently signed by the governor, bans drive-through voting, 24-hour voting, and the distribution of mail-in applications. It requires new ID requirements for voting by mail, creates new rules for voter support, establishes monthly checks, and more. To block passage of the bill, minority Democrats, who felt the change as voter suppression and would harm minority voters, moved out of state to Washington DC so that the House could not convene in the absence of a quorum. Republicans responded by relying on legislation to force the vote and thus Speaker Dade Phelan signed a warrant authorizing the arrest of Sergeant-at-Arms and the presenting of the missing delegates. The lengths to which the speaker has gone are shocking to our democratic sensibilities. Some delegates said they were concerned less by officers being arrested and more by civilian arrests.

In an overview article titled ‘Wilifying the Vigilante: A Narrower Scope of Citizens’ Arrest’, Professor Ira P. Robbins discusses its historical origins, pitfalls, good applications and improvements. They argue that the scope of civilian arrestees is limited to only a small category of people, such as shopkeepers, outside jurisdictional police and private police forces, and is being abolished in all other cases. The trend, unfortunately, as shown by the Texan laws, SB1 and SB8, is moving to the other side. Because of the plethora of vigilantes in India, I was hesitant to compare him to a civilian arrester until I read the phrase in a letter on SB8 to the US House Judiciary Committee chairman, Gerold Nadler, Attorney General , Merrick B. Garland, to prosecute ‘will be a vigilante attempting to exercise a private right of action established by that clearly unconstitutional law’. The oldest and largest democracies seem to have a vigilance problem today.

Peter Ronald D’Souza is the DD Kosambi Visiting Professor at Goa University. He is a co-editor of the book co-edited with Rukmini Bhaya Nair, ‘Keywords for India’ (2020). . Views expressed are personal