Imphal Review of Arts and Politics

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Conduct, Civilization and Law: On Decorum, Liberty and the Rule of Law in Sanaleipak

To insist that “law” must be seen as civilizational attribute is to assert that “law” is linked to human psychology. It is not merely some cut and dry rule or norm that exists on paper or a “reality out there” independent of the individuals; its very existence is deeply rooted in human needs, desires and aspirations. As noted in the earlier segment of this write up, this is something that we could see from the way Freud has formulated the idea of civilization as something that came out of seeking to regulate social relations and the instinctual impulses of the individuals. And that, for Freud, this idea of civilization is linked to the ideas of “law” and “justice”.

Even if we were to look at “law” in sociological, or more precisely Durkheimian, sense of “social fact” – i.e., as “ways of acting, thinking and feeling” – that exerts coercive impact on individuals, it can only work or live through individuals. Thus, the extent to which a given law or a judicial system commands legitimacy is not unrelated to these human needs, desires and aspirations.

Correspondingly, this also means that to condemn some acts of individuals or institutions as “uncivilized” is to pass a judgment based on some civilizational values associated with some “laws” (as standards and procedures that regulate what, how and why of conduct). Such a judgment has two specific aspects: First, it speaks of certain expectations which enable us to judge whether certain act of an individual or institution as endangering or disrupting the hitherto existing system or not. Second, it is also a moment of becoming aware of the system itself (such as whether it is serving its purpose or functioning as per our expectations). In other words, based on civilizational values and established order, a conduct (of an individual or institution) could be seen as either endangering a system or signaling a need to take a critical look at the system itself for remedial measure or change.

Illegal as uncivilized: Liberty and the Rule of Law

As it can be seen in Freud’s formulation on the emergence of civilization, one of the pressing human needs that has led to the emergence of civilization is to protect the individual – to ensure her/his safety and security – from the “brute force” of the “physically stronger man” who “would decide…in … his own interests and instinctual impulses.” It is this need which has shaped the emergence of organized group life – through an act of coming together of individuals to form a collective, as Freud puts it, “which is stronger than any separate individual and which remains united against all separate individuals”. As it has been noted earlier, according to Freud, “[t]his replacement of the power of the individual by the power of a community constitutes the decisive step of civilization.”

As it has been noted earlier, this formulation in some sense echoes the formulations of “social contract” theorists like Thomas Hobbes (e.g., on the emergence of “state” imbued with “sovereign” power as a juridico-political figure). The juridico-political entity (i.e., “state”) comes into being as a way to ensure the rights of the individuals. However, since the power, which no other individuals have, has been entrusted to this entity, it also poses a danger to the individuals themselves. Hence, in the liberal tradition, the “rule of law” is defined as the “institutional restraints on power”.

This idea of the rule of law is at the heart of many principles and practices that informed constitutional provisions and criminal jurisprudence. For instance, the fundamental rights enshrined in the Constitution of India (Chapter 3) are positioned vis-à-vis the State (i.e., all the fundamental rights are to be ensured against any detrimental acts of the state which has been defined in Article 12 of the Constitution). Here, it’s worth reminding, as Hannah Arendt has observed, that the figure of the “refugee” tells us that “human rights” are largely “citizen’s” rights, something which are to be ensured by the state.

Similarly, many of the well-known principles of criminal jurisprudence are also informed by the ethos of “institutional restraints on power”. “Presumption of innocence”, that is, individual shall be assumed to be innocent till the guilt is proved against her/him (in a court of law) is one such principle. Even if somebody has been caught red-handed committing a crime, s/he shall still be assumed innocent till a court of law pronounces her/him to be guilty of the crime.

The need to defend the individual is also encoded in the idea of “fair trial”, which seeks, amongst others, to ensure that the accused has the opportunity defend herself/himself. The idea of bail (i.e., temporary release of accused person) is also an entitlement that draws from the idea of liberty of the individual. Even those who have been awarded capital punishment are entitled to certain treatments which are rooted in the basic rights to life and liberty of the individual.

It is this valued emphasis on the life and liberty of the individuals that informed a well-known civilizational dictum in criminal jurisprudence, namely, “It is better that ten guilty persons escape, than that one innocent suffer.” This oft quoted observation by the English jurist Sir William Blackstone was echoed earlier by the well-known French enlightenment thinker Voltaire as well when he said, “it is much more prudence to acquit two persons, though actually guilty, than to pass sentence of condemnation on one that is virtuous and innocent”.

These principles structured the whole edifice of criminal jurisprudence involving separate juridical figures, namely, “prosecutor” (who seeks to prove the allegation), “defence (the one who defends the accused), “judge” (who decide on the matter after taking into account the evidence and arguments presented by the prosecutor and the defence lawyer), and “executioner” (who implement the decision of the judge). This set-up is to seek out and establish “truth” to determine the guilt or the innocence of the accused. Here, truth in question is largely “legal truth” (albeit there has been debates on the nature and correspondence between “truth” of the matter per se and the “legal truth” arrived at by the Court). These are basic mechanisms which have been evolved so that someone, especially powerful people, accusing some people do not necessarily become the truth, and each individual has adequate opportunity to defend herself/himself against any accusation.

However rudimentary these facts may sound, the same ought to be constantly reminded, especially in a situation wherein lawlessness tends to get normalized. There is no gainsaying that Sanaleipak is no stranger to that kind of tendency, emanating, as it were, from the civil society or the civilian population to the state and the non-state agencies. We shall shortly look into this aspect. Before doing that, a few words on the links between these legal principles and mechanisms and human psychology are in order.

The above institutional restraints on power has restraining instant gratification as its double. Thus, any act that smacks of declaring some people as “guilty” (.e.g., of drug peddling, rape, murder etc) before the due process of established laws conclude its judgment can be seen as an “uncivilized” act. It is “uncivilized” precisely because, it seeks instant gratification (such as the idea of “instant justice”) by doing away with (or circumventing) the established “procedures” and “restraints” of a civilizational order, which includes “the rule of law”.

Incidentally, Freudian idea of civilization, especially with respect to order and beauty, has also to do with “cleaning”, “neatness” and “order” etc, ideas associated with toilet training that a child goes through during the “anal stage” (roughly 18 months to 3 years) in psychoanalytical theory. A child’s capacity to hold back the need to pass stool till s/he could find a proper place to relieve the tension in an appropriate manner shapes her/his capacity to discipline and control herself/himself. In short, it’s a process of acquiring “delayed gratification”. Inability to develop that capacity is often associated with pathological behaviours which seek immediate gratification with least concern for propriety (e.g., stalking). In this sense, such acts work against civilization as a product of managing impulses through developing norms and regulations (law being one of those regulations).

It is this refusal to go by the established procedures that regulate our social relations and behaviours, aspects that defined our civilizational character, is implicated in phenomena like “mob lynching” or mob burning down houses and destroy properties in the name of dispensing “justice”. In such acts, the mob becomes the “prosecutor,” the “defence”, the “judge” and the “executioner” – all at once; it is not merely doing away with the established procedures and mechanisms but also giving in to unmediated impulses to derive instant gratification. It strips off the civilizational attributes that marked our life as human beings. In fact, it reduces human life to that of the animal and loses the civilizational meaning of justice (such as conveyed by “give the dog a bad name and kill him”). Thus, these acts are not merely illegal but uncivilized as well.

Nomos of a “Comparative Civilization”: Who shall bell the cat?

In his last speech in the Constituent Assembly Dr. B.R. Ambedkar said, “The Constitution can provide only the organs of the state such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the state depends are the people…It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people…are likely to play.” This is a crucial reminder of the fact that law should not be seen some cut and dry rules or norms that exist independent of the individuals. Indeed, in the same speech, he makes this oft quoted observation, “however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.” Therefore, the conduct of those who run the institutions are crucial in determining the efficacy of the establishments.

In this respect, the capacity of the judiciary to uphold the rule of law will also depend upon the conduct of the men and the women who run the institution. In a way, judiciary as the third estate of the realm is, like Freudian third structure of personality, the “super-ego” of the entire society (the “fourth estate”, the media being the other half). In this sense, its task is to sustain some sense of right and wrong in society. Thus, its efficacy has critical bearing on the capacity of the society to run as a civilized order by sustaining a modicum of lawfulness.

Thus, one cardinal responsibility that judiciary has is to protect, preserve and promote justice. That’s a civilizational duty entrusted upon the judiciary. As Freud says, “The first requisite of civilization…is that of justice – that is, the assurance that a law once made will not be broken in favour of an individual.” This is the civilizational injunction behind the legal proposition that that in the eyes of the law, all men and women are equal. Thus, any act of the judiciary that breeds or sustains any idea that law can be broken or bent in favour of some, especially those powerful, is bound to erode the credibility of the judiciary as an institution that administers justice.

For judiciary to deliver justice, it needs to command the trust of the public. In this regard, law and justice have to do with human beings, their psychology, is reflected in the well-known dictum of Lord Hewart: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”. Turning a blind eye and deft ear to the palpable disquiet amongst the public vis-à-vis certain conduct of the judiciary will not only be an act against credibility of the court but also justice and civilized order.

In this context, unfortunately, the recent controversy around the Special Court granting bail to a politician who is accused being a drug peddler rings an alarm bell. The kind of rumbling that we have witnessed does not augur well for the credibility of the judiciary. Public in general and legal fraternity in particular in the state must be legitimately concerned about this development. Since the conduct of the police officer is under consideration of the court, it will be subjudice and inappropriate to comment at this moment. However, there are, amongst others, two specific areas that need our attention. There are questions which need to be asked on (a) the manner in which the prosecution has pursued their objection to the bail, and (b) the nature of the bail order of the Honourable Special Court.

For instance, did the prosecution raise the issue of whether the accused was likely to harm the trial and the case if he were to be released (e.g., by citing, if there is any, chances of manipulation of evidence and/or intimidating/influencing the witness by the accused)? Or, given the fact that he had jumped an earlier bail, was he likely to do the same again? Did the prosecution plead in the court whether the accused could be treated in custody for the medical issues that the accused had raised or ask for a medical board to be constituted to examine the veracity of the assessment of the medical officer? If not, why? And if yes, (or for that matter, even if these were not raised,) did the Honourable Judge take note of these issues while issuing the bail order?

And insofar as the prosecution was objecting to the bail, has the prosecution approached the appellate court (.i.e., the High Court) to review the decision of the Special Court? If not, why?

These are legitimate questions if we are to follow the rule of law, the established procedures of a lawful and civilized order. In any case, the public deserves to know answers to these questions for the sack of justice.

Similarly, did any media house or legal experts and public intellectuals in the state have raised these questions? In all likelihood, if similar cases were to happen anywhere else in this country or any functioning democratic society, one would have seen these segments of the civil society raising these issues in public. If we have not heard or seen such responses, it speaks of the nature of the legal fraternity, media and civil society in the state. In short, the issue of institutional failure is not merely to do with politicians or the judiciary.

And coming to the bail order, it is worth reminding that Supreme Court has laid down certain aspects that a bail order must take care of. For instance, in a relatively recent judgment of the Supreme Court, emphasizing the familiar dictum of justice must be “manifestly and undoubtedly be seen to be done”, a Bench of Justices D Y Chandrachud and Hrishikesh Roy has said that specific reasons must be cited while granting or denying bail for the issue involves the liberty of the accused and “the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice”. The said judgment observes, “Merely recording ‘having perused the record’ and ‘on the facts and circumstances of the case’ does not sub-serve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed”.

Now the question is, does the bail order reflect the standards set by the Honourable Supreme Court? Has any legal expert in the state aired such questions to liberate our beleaguered population? If not, why? These are questions that we need to ask for the sake of the rule of law, justice and civilized order in Sanaleipak.

Here, one relevant aspect that we must keep in mind is the idea of “contempt of court”; There have been numerous commentaries on this issue, such as that this is “an outdated idea”, a “hangover of the colonial ethos”, “courts are for rights, not for contempt” etc. I do not want to go into these arguments which are available in public domain. However, there are two aspects that can be noted here.

First, I believe that just as without Article 32, which Babasaheb Ambedkar described as the “the heart and soul of the Constitution”, all the fundamental rights enshrined in the Constitution could become redundant, there has to be a way in which the order of the court can be enforced. To that extent, the idea of “contempt of court”, especially as envisaged in section 2(b) of the Contempt of Courts Act, 1971 (which pertains to wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court), seems legitimate. This is notwithstanding the fact that anybody can still reject an “unlawful” order as a “political act”.

Second, under a democratic system, court cannot follow “a King can do no wrong”, from which the idea of “contempt of court” seems to have originated. In other words, the conduct of the judiciary must be subjected to legitimate criticism. Only then justice can be served. Again, what constitutes a legitimate criticism or not, the court may decide based on its interpretation and depending on the specific case at hand. But that conclusion must be opened to public scrutiny. After all, at the end of the day, “law” without the people is like “money”; it becomes what it is through the meaning and value that people ascribed to it as they deploy it in their life.

In a sense, if judiciary is the “Super-Ego”, the people is the “Ego” of the personality, which deals with and represents reality, of the collective (“Legislature” and “Executive” are its surrogates). Its capacity to legitimately exist depends ultimately on the people, their needs, desires and aspirations. This is an insight that one can see in the words of a founding figure of American democracy, Abraham Lincoln, who once said, “The people…are the rightful masters of both Congress (American Legislature) and courts, not to overthrow the Constitution, but to overthrow the men who pervert it”.

One can understand the humongous responsibility and challenge that judiciary confronts in Manipur. Some commentators have termed the place a “failed state”. Institutional erosions and lawlessness amidst decades old protracted and multi-layered conflicts, under-development, institutionalized corruption and chaos have marked the life and times of the state, even as it is punctuated by individual success stories. The aspects of the subverted civilized life in the state are all there for anybody to see. Over the years, those who have commented in media – both print and electronic – to ordinary people and political leadership have time and gain expressed the same. The recent controversy over this case of a politician who is accused of peddling illegal drugs – though he is not the only one; other cases have also surfaced in the public domain in this regard – promises to speak of that state of affairs once again.

Ours is a society of “instant justice”. Decades of violent conflicts have numbed the psyche and normalized the dictum of “give the dog a bad name and kill him”, which, on many occasions, have also become, “kill the dog and give him a bad name”! We are all familiar with the so-called “mob justice” (an oxymoron) in the state; from the vigilante groups doing moral policing to those instances in which leikai (local community) mob accusing someone of being a thief and lynching him or burning down the house and/or destroying the property of the family of an accused person (though international jurisprudence makes it illegal to punish community or group for a crime committed by an individual) – are familiar aspects in Sanaleipak that would have troubled the established rule of law of any civilized society.

Incidentally, some years ago, I was invited to deliver a lecture on the issue (“mob justice and media trial”) as a part of the celebration of the first anniversary of High Court of Manipur.  In that rare privilege of addressing the Honourable Judges, the other learned members of the judiciary and officials of the law enforcing agencies in the state, I have highlighted on how the “lawless law” like AFSPA and its culture that smacks of “sovereign decisionism” has eroded the very edifice of criminal jurisprudence in the state, and corresponding culture of abuse of public offices have led to people losing trust in the system thereby encouraging people to take law into their own hands.

Historically speaking, the subversion of democratic life and the rule of law goes back to 1949 after the colonial British regime left the place. From that unsavory development of dismissing a constitutionally legitimate institution to the introduction of “state of exception” in the form of a “lawless law” called AFSPA, a legal fiction as a “juridical measure which cannot have a juridical form”, deeply rooted in “sovereign decisionism”, to deal with the ripple effects of that sabotage have set up the ethos of lawlessness in the state.

This spectre has been further accentuated by political mechanism of managing conflicts by creating and/or accentuating fault lines in society and nurturing a culture of rent sharing, especially amongst its elites, under a sponsored political economy. The culture of largesse and insecurity of the marginalized and traumatized citizenry have created political and intellectual bankruptcy which have given rise to ignorance and arrogance amongst many in the state. Lack of civility, running down each other – communities, groups and individuals – amidst barely veiled communal voices, the silences of the media and public intellectuals and a dispensation under a political leadership who seems to rule the state on behalf of forces from without etc have become the defining characteristics of a beleaguered people in the state.

Anybody who has observed the state keenly would see that the present case of alleged drug peddling by a politician implicates all these structural aspects and its associated socio-psychology. It speaks of, and is likely to affirm the familiar responses, of all the key players in the state – politicians, (community based) civil society groups, bureaucrats, the media, the judiciary, public intellectuals etc. The controversy has already seen its shares of selective outcries and silences which, in turn, seem to allude to clandestine moves. In the meanwhile, rather than asking legitimate questions, barrage of expletives and personalized discourses seem to have become the popular language of seeking justice and a dignified life under the Sun!

Indeed, as the place which was once described by Sir Charles Lyall, a colonial British officer, as a “singular oasis of comparative civilization and organized society” which was able to “exercise…authority…in the direction of peace and order” struggles to find its way out of an unenviable mess, the proverbial question of “who shall bell the cat” once again has come to haunt its heart and soul…!

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