Many Indian students of law have tried
to discover central features of the law received from Common Law (Baxi- 1986; Karst,
Ghai, & Baxi- 21 Cardozo L. Rev.
1183, 2000; Baxi- 2002; Parekh- Baxi ed. 1986; Bilgrami-2014). It is cast in
the language of rights justified by the so called progressive/liberal
philosophy, which forms essential condition for working of a system of market.
The most important features of this phenomenon of law are: one, it is pregnant
with an enormous quantity of coercion and force (Kelsen-1946), two, it
essentially carries away it’s subjects from themselves. The latter point very
often eludes our capacity of comprehension (See,
the concept of structures of Derrida, Bradley-2008). The issue can be understood with imageries of
the structure and character of law re-constructed on the basis of substance of
the rules under Article 21 of the Constitution of India and Section 378 of the
Indian Penal Code. Every person has right to life, ‘life with dignity’. It is
taken to be perfectly legitimate and expected from every one that one may be
dying for lack of food or medicine yet she must abide by prescriptions of rules
in the Penal Code. This structure goes two steps ahead and convinces her
neighbor(s) to continue to be happy in plenty (Cf. Derridean ‘Animal’- Critical Inquiry,
Vol. 28, No. 2, Winter, 2002)). The annihilation of social character of sources of
wellbeing, then, presupposes the total destruction of charismatic appeal transcendental
in the traditional conception of law and institutions, for its subjects.
Commodification of resources can serve hardly purposes determined, in the
absence of a ‘resource’ market comes into existence in human beings themselves
(Agamben-1998, Polanyi-1944). Freedom of will and freedom of action as ends are
forgotten way back, human beings are denied even entitlements originating in
natural animal instincts. The consequent rise of state and state sovereignty
rationalized through idea of liberty then translate into unilateral liberty of Bentham
(Bowring-1843, Vol. I) of the person to submit to the authority and power of the
sovereign and its subordinate symbols (Agamben-1998). Our dying person has
necessarily to renounce his freedom of will and action and to submit to the
standards of the Penal Code. The entire structure works towards accomplishing,
what we can appropriately call, the animalization of human race. Private
tyrannies are established using the very state law (private-public dichotomy)
as an essential outcome/end of the structure to be mediated conveniently. The
tyrannies are operated by the powers and dogmatic rationality co-inhabiting in
oligarchies in the so called free market.
When law, legal institutions or as the
case may be, idea of state is developed on strength of or drawn from liberal
foundations of natural, claim, entitlement, merit or deserts basis of right,
the structure has achieved its formative completion. But the structure keeps
transforming the fundamental categories of the law: equality, institution of
property, and state etc., that are never complete yet directions of progress
are determinate. Instances of general classifications of right into negative
and positive or of belonging to different generations, moves the structure and
the dichotomy from lower to higher level of the ends of oligarchism. For
example, if a notion of right to the basic need, water is traced and found to
be in natural principle, so is the western economic doctrines and notions of
liberty of the bourgeoise and of modern neo-liberal institutions such as
multinational corporations or the theory of invisible hands in the capitalist
free market (Nozick-1971).
The conception of law, we are trying to
challenge, shares unique relationships, if we venture to discover, with the
modern state. Both, in one way or other, is believed to be begetter of the
other, simultaneously becomes the owner and the owned for the other. Such
characterizations would have baffled modern great sociologists such as Weber or
Ehrlich (i.e. Weber-1930; Nelken-Theoretical
Inquiries in Law 9.2 (2008).
It is, thus, sufficiently revealed, that seminal sociological as well as
philosophical studies of law hitherto have not been able to realize that the ‘structures’
and ends operate quite above law, legal categories, and the institution of
state is not integral parts of the former. Bureaucracy, the most vicious creation
of human beings (Chomsky-1977) is not to be seen parts/limbs of state but that
of structure along with the market oligarchism. Specific form of democracy
practiced, in liberal states are, hence, instrumentalist links of the structure
by which it manipulates units (law, institutions, rights etc., through ‘governance’).
Contractorization of governance both,
government posts and public services are merely intended by the structure at,
what Spivak calls, proletarianization of population (Landry & MacLean-1996)
progressively reduce democracy which are found to be inimical to the survival
and smooth functioning of the system. An idea, contrary to the general
constructed public belief, but pivotal to the process is that the frequency of
interface between law and individuals has geometrically increased in last three
decades (the point still awaits an extensive investigation). The increased
ubiquity of this interface is exemplified by new phenomenon of multiplicity of
non-legislative/sovereign laws. By-laws, rules regulation, by virtue of secrecy
inherent in their making and undemocratic character of existence and
implementation, go well with the designs of the market oligarchy. The
credence that we are living in a freer society and governed by a democratic
legal system, need to be re-examined so that our belief does not rest on dogmatic
faith(s) but is rationally supported!
When
we think of dogmatism and rationality in the above context, the most important
section of that structure is the judicial system. The entire object of the
enforcement machinery can be summed up as programmatic attempts to infuse
humanization into the appearance of the structure. It is a fact that court
system (including legal advocacy), in India, survives not on the fact that it
delivers justice in disputes brought before it but on the psychic fear of
harassment and injustices potentially present for every prospective seekers of
legal remedy. Innovative institutional processes, for example, public interest
litigation or legal aids, uniquely integrated to this part of the structure as
charity was the greatest project for re-cultivating civility about the judicial
system. In some way, humanization efforts save the structure from reaching its
breaking points. The great souls (Iyer & Bhagwati JJ.) who brought specific
tools (PIL, Legal Aid services) were certainly disasters for India as system
and a people.
The
cultivated civility which the humanization project produces also brings an
all-encompassing attitude of uncritical loyalty to the parts as well as towards
the structure in its entirety. I think, this is the very first and last reason
which have so far kept decapacitated the whole set of legal academic from
undertaking and producing alternative reading/understanding of the
Constitution, law or democracy. We do not have academic works providing Commonsensical
reading of the Constitution. The major works written within the Common Law
tradition of scholarship (Seervai 1991-96; Basu-2017; Shukla-2016; Jain-2014;
Austin-1966, 2004 etc.,) fall under either of the following three categories:
‘encyclopedic’ inhibiting development of critical reflection and capacity
building (i.e. Basu, Shukla); ‘legalistic/technological’ on the working of the court system sunning
empiricism and facts (Seervai); and the last ‘romanticizational’(i.e. Austin- 1966 & 2004) capitalizing and feeding upon the beauty and
sublime (see Ch: Retrospect, Hipple
Jr. ed. 1957) sentiments/desires of people. Popularity of these works owes
much to the imageries of thought in which we describe the so called fundamental
concepts in Constitution, law or of democracy. Kant would add, ‘the categories
to which we refer and the inferences by which we interpret them. The imageries,
concepts, referents, and inferences of interpretations present swanky
(exclusionary) ‘prism of semiotics’ obscuring/inhibiting alternatives. Semantics
and epistemology or methods and things falling in such categories cannot form
points of reference (Chanchal-Sml L. Rev. 2018). The calamitous justices
added to the swankiness of the ‘prism of concepts’ by devising lenses of PIL,
Legal Aid and Services. It could be described to be attempt to regenerate and prevent
the judicial system from nose diving crash. Since
then the new images of judicial process have generated and constructed its own
referents/prism.
The
programmatic imagination would require, I think, alternative epistemic
categories constructed upon the genius and cultural foundations, a semantics
that can transcend the swanky prisms of law, market, and courts. ‘For
constitutions are always in the nature of organic (evolutionary in historical
sense) growth’ (Aggarwal-1944). But above all a semiotic structure that does
not feed upon but leads to lessening the gaps between ideals/norms and fact,
actions/conduct. Such a programmatic project has potential to rescue
scholarship from what, we may call-an analogy of Ravana- the mythical king of
ancient Sri Lanka, ‘Ravanic disorder’. (according to mythology Ravana had
knowledge of what is good conduct, just, and virtuous yet he remained enslaved
to his own habitude). Market, law and so called constitutional democracy
envisions and establish illusionary life & world visions in a double sense.
Which the life of Ravana symbolizes. The
project, by its nature must involve reconstruction of Indian ancient
institutions and normative categories in their evolutionary sense/course, were
it left uninterrupted by the Western
academic violence. It was the academic attack that almost finished Indigenous
administrative, legal and constitutional system. Otherwise, the ancient systems
had survived with vitality all other kind of violence over thousands of years
of their existence.
Posted By: Chanchal Kumar Singh, Assistant Professor of Law, HPNLU Shimla
