Perhaps, in an unprecedented act of expressing disagreement, a decorated police officer has reportedly shown her middle finger to (?) the presiding judicial officer of the Special Court (ND & PS), Manipur during the hearing of a bail application of a politician who is being accused of peddling drugs. She followed up this act with posting on her social network site, expressing her disagreement with the judicial officer who has granted interim bail to the accused. In the post, she even offers to “teach law” to the Judge “in case she didn’t know it adequately”, and signs off with a cuss word!
These rather unusual acts of the police officer have set off a controversy with the All Manipur Judicial Officers’ Association (AMJOA) filing a police complaint against her, accusing her of, amongst others, undermining the judicial institution. As CSOs, especially community based organizations, and students groups have joined in, there are signs of the controversy beginning to remind one of the estranged inter-community relations in the state.
The Case and Its Context
From the beginning, this has been a high profile case, not merely because of the amount of drugs being sized but also the fact that the accused is a politician and at the time of his arrest he was serving as the Chairman of the Autonomous District Council, Chandel (Manipur). Subsequently, there has also been rumours and allegations of powerful forces trying to save the accused.
It may be recalled that the said police officer had arrested the accused with huge quantity of illegal drugs worth crores of rupees on 19 July, 2018. And this is not the first time that the accused had applied for bail. In fact, a few months after his arrest, he was granted interim bail on 19 December, 2018. But he jumped the bail and the court had subsequently declared him an absconder. After remaining “untraceable” for more than a year, he finally surrendered to the court on 28 February this year. In April, barely two months after the surrender, he again applied for bail. This incident wherein the policewoman had shown the “offensive” gesture was during the said bail hearing of the accused. Since then, he has been granted interim bail for the second time, incidentally on the same ground for which he was granted bail earlier.
Outlandish as the acts of the officer may be, there have been approving voices of her acts as “deserving”, something that “shakes up the system” etc. Some even justify her choice of the cuss word. While many others have asked for “the rule of law”, and “sanctity” and “decorum” the court to be respected and allowed “law to take its own course”.
In this sense, the controversy cannot be understood merely in terms of “law”. It involves larger dynamics within which “law” exists and operates. Indeed, the issue invites us to take a critical look at our society and cultural ethos, including that of politics. Even while seeking to address the “legal issues”, it might be instructive to take cues from the realist theory of law to sense what has been unfolded before us. In short, a vantage point of “law and society” will show us the complexities of the issue at hand, including that of the health of our society and polity of which our legal institutions and practices are constituent elements.
Civilization and The Rule of Law
“The man who first flung a word of abuse at his enemy instead of a spear was the founder of civilization”, Sigmund Freud once wrote in a paper which has his collaborator Josef Breuer as the co-author. This oft quoted statement, albeit presented in variegated forms, is not justifying the use of cuss words or foul languages in our social intercourse. It is an observation on how certain instincts (such as violent or aggressive ones) are allowed to get expressed in some vicarious forms, a development which is at the root or the birth of human civilization. Indeed, it is one of the first known psychoanalytical statements on civilization. Some forty years after this paper, Freud came back to deal with this issue in detail in his well-known work, Civilization and Its Discontents.
At the core of its theorization, Freud views civilization as something that is built up on renunciation of instinctual gratifications. In that sense, civilization presupposes non-gratification, thusly a sort of dissatisfaction remains. This inability to be happy, even with regulations that we as human beings have created, is due to, Freud believes, “our own psychical constitution”. At the same time, it is this element that drives our civilization. For, our instinctual drives are not completely denied; they are managed by allowing them to get expressed in some indirect ways. In a way, it is these vicarious activities and form of behavior that constitute human civilization as, to quote Freud’s definition of civilization, “the whole sum of the achievements and the regulations which distinguish our lives from those of our animal ancestors”.
For Sigmund Freud, one crucial feature of those achievements is “the rule of law” which is a part of “the manner in which the relationships of men to another, their social relationships, are regulated”. This regulation of social relationships affects “a person as a neighbor, as a source of help, as another person’s sexual object, as a member of a family and of a state”.
Freud’s formulation of “the rule of law” and “justice” as aspects of “civilization” are instructive. In political theory and jurisprudence, “the rule of law” implies (a) individual surrendering her right to an entity that stands in for the “collective” (e.g., Hobbesian Leviathan or the established juridico-political order) while simultaneously setting up mechanisms and normative injunctions that constitute “institutional restraints on power” (as the “rule of law” from the vantage point of liberal democracy).
As an answer to what Freud poses as “what is civilization in general”, he makes the following observation:
“…element of civilization enters on the scene with the first attempt to regulate these social relationships. If the attempt were not made, the relationships would be subject to the arbitrary will of the individual: that is to say, the physically stronger man would decide them in the sense of his own interests and instinctual impulses. Nothing would be changed in this if this stronger man should in his turn meet someone even stronger than he. Human life in common is only made possible when a majority comes together which is stronger than any separate individual and which remains united against all separate individuals. The power of this community is then set up as “right” in opposition to the power of the individual, which is condemned as “brute force”. This replacement of the power of the individual by the power of a community constitutes the decisive step of civilization.”
This observation resonates with those ideas enunciated by social contract theorists like Thomas Hobbes before him. That the limit of individual satisfaction or happiness has been conditioned by this “replacement of the power of the individual by the power of a community” is something that Freud clearly outlined. Thus, he says:
“The essence of it lies in the fact that the members of the community restrict themselves in their possibilities of satisfaction, whereas the individual knew no such restrictions. The first requisite of civilization, therefore, is that of justice – that is, the assurance that a law once made will not be broken in favour of an individual.”
This idea of justice as “the assurance that a law once made will not be broken in favour of an individual” has another site: the tyranny of injustice that the law itself can become. Thus, injustice happens when the law becomes, to borrow from Freud, “an expression of the will of a small community… a stratum of the population … which, in its turn, behaves like a violent individual towards other, and perhaps more numerous, collections of people.”
There is another element, a relevant aspect, in Freudian formulation of civilization, namely the question of “beauty” or “aesthetics”. It is a part of a striving towards finer forms of taste in conduct and thought. It is more often than not an aspect of sublimation of our psychic processes, something to do with “cleanliness” and order”. In itself, beauty may not have any obvious utility (in the narrow definition of the term) but we can’t quite do away with it in our life. As Freud says, “beauty has no obvious use…yet civilization could not do without it”.
It is this aspect of aesthetics that gets implicated when we try to make a judgment on human conduct by invoking concepts like “decorum”. Although it refers to aspects of “regulation” (of behavior), it also implicates issue of (cultivated) “taste” (e.g., behavior in good taste and propriety). Etymologically speaking, the word evokes ideas of beauty, elegance, charm, grace, ornaments etc (e.g., Latin roots of the word such as decorare, meaning embellish/embellishment or decus or decoris meaning ornament etc). In short, the rituals that marked proceedings of various institutions, including the legal ones, are rooted in “aesthetically” crafted symbolic and utilitarian functions.
It is these aspects of the “rule of law”, “justice” and “beauty” as “civilizational” attributes that we must bring in to bear upon our assessment of the conduct of the police officer as well as that of the judiciary, or for that matter, how law is understood and practiced in our society. Only then, would we be able to understand and deal with the malaise that this latest controversy speaks of our society.
The author is a social and political psychologist who teaches social psychology and sociology at the Jawaharlal Nehru University, New Delhi