Large Republics With Diverse Interests Can Be Safer Haven Against Tyranny Than Homogeneous And Exclusive Ones : Justice G S Patel

Large republics with diverse and conflicting interests can be better home for liberty, a safer haven against tyranny than homogenous and exclusive ones, said Justice G S Patel, while delivering a lecture on the topic "Mephisto in Mantralaya : Whose Government Is it Anyway" on Monday.

"Large republics with diverse and conflicting interests can be better home for liberty, a safer haven against tyranny than homogenous and exclusive ones. Within them factions and differences can check one another moderating ideological fervour and softening power. Not understanding this is perilous", Justice Patel said, emphasizing the relevance of democracy governed by rule of law.

He was talking at the event held in remembrance of famous civil servant and social activist Joseph Bain D'Souza on his 98th birth anniversary. Joseph Bain D'Souza had a long and illustrious career as a bureaucrat. He was the Chief Secretary of the State and also the civic chief at one point. He remained active even after retirement and campaigned for issues he believed in. He consistently demanded action on the Srikrishna Commission's report on the 1992-93 communal riots.

Commenting on the view harboured by many in society that an authoritarian regime will help build an orderly society, Justice Patel said :

"The thinking is symptomatic of a more fundamental discontent. Democracies are noisy, messy, chaotic but that is precisely what they are meant to be, because that is precisely what vox populi actually means.

Systems in republics work more slowly than in authoritarian regimes precisely because of the over-arching principle of the rule of law. Our impatience is with the form that processes of rule of law take. We find them glacial, confusing, illogical, out of step with technology and social needs"

But law acts as a "great social leveller", he added.

Justice Patel also lamented the fact that despite so many laws, India has remained anarchic. "If we have so many laws and regulations, how is it that so much is so utterly anarchic?", he wondered. 

He also criticized the tendency to describe the lack of regard for law as an "Indian mentality".

"We find ourselves admiring other countries to our west and east, for being so very law abiding. Why are we so impatient with our laws? When we say we are like this only, we say attributing to this thing we call the 'Indian mentality' by immediate favouring of individual convenience over collective responsibility. This is superficial and depressingly fatalistic suggesting that you were born this way, that it is somehow our karma and that we are doomed forever to be a nation of exceptions and exemptions and provisos to whom the law does not apply, especially if you have a motorcycle or a scooter", he said.

Without rule of law, society will be a mere rule by mob majority, and not a democracy governed as per Constitution. Rule of law means that "sheer majority will not determine the outcome at any level, it is the law, the body of rules, structures, regulations and norms that are determinative".

"In a country as apparently chaotic as ours where individual liberty seems to have become some sort of an elitist side salad, the broader overarching principle of accountability requires a closer look. There is first the accountability of the individual to the law and second the accountability of the enforcers in the implementation of the law. The individual must be answerable to the law for his daily conduct, the state must be answerable in its enforcement of the law", he added.

Justice Patel started his speech reminiscing about Bain, as his friends called him-

"Thank you for inviting me, good evening. My task this evening is not easy and that befits the man we are honouring today. Joseph Bain D'Souza, Bain to his family and friends could himself be somewhat intimidating specially to those who did not have a measure of his ethical and moral centredness. My own association with him spanned decades, my memories from my childhood are of a tall, lean, quiet and apparently stern man somewhat forbidding with the watchful look of a bird of prey. It is perhaps ironic that I am here today, for decades ago my sense was that in his presence it was better not to speak at all.

He was not actually like this but that knowledge came much later. When I began my practice in law, I got to know him differently as one who lent his name to many causes in which he believed such as riots, urban issues, intolerance. If asked to describe him in one word of the many that spring to mind, I would choose unflinching. The word embraces many things: dedication, commitment, courage and fortitude, unwavering fidelity to one's principles, clarity of thought, and above all a vision of justice in its broadest and most elemental self."

Thereafter, Justice Patel shared his thoughts on the rule of law and the differences between a democracy and a republic.

Excerpts from his speech :

"From law and constitutional law in particular, we know of the very old concept of separation of powers. The doctrine is in fashion now a days, mostly to pillory courts for something called judicial overreach. Our High Courts and the Supreme Court, as critics say, stray illegitimately into the executive and legislative realms. While this may be true in some cases, these are usually outliers. For the most part, Courts are careful to stay within their boundaries. It is when executive action is found again and again to be utterly indiscernible and misguided that we see expansive judicial intervention. The criticism comes most often and now somewhat predictably from the executive and we must see this for what it really is. A complaint by the executive about Court holding that some executive action is unjustified in law. Required to defend the indefensible, the response is to shoot the messenger and accuse Courts of judicial overreach. There is no attempt to understand, let alone correct the faulty civic structures and processes that made judicial intervention inevitable.

What is a civil society? One marker I suggest is consistency, I certainly do not mean neatness or orderliness and certainly not conformity or uniformity. In theory atleast, consistency means everybody must be judged by the same standards. Conceived thus, I understand consistency to mean the agnostic application of a clearly defined and intelligible set of rules, regulations and laws. Indeed, that is the whole of Article 14 of our constitution as I understand it. The greatest societal leveller is the law, as it should be. As our life has become more complicated, so laws have proliferated now invading the most intimate inter-species of daily life, food, entertainment, education, health, travel, education, all of it is in some sense regulated. Yet many of these laws are abominably drafted and that is the first failure. Bad laws make for bad governance. An even-handed application is also not something that we see in India very much, indeed we see it very little. There are always those who get away with it and it does not really matter what the 'it' is. Duping consumers and purchasers, financial fraud, jumping ques.

We find ourselves admiring other countries to our west and east, for being so very law abiding. Why are we so impatient with our laws? When we say we are like this only, we say attributing to this thing we call the 'Indian mentality' by immediate favouring of individual convenience over collective responsibility. This is superficial and depressingly fatalistic suggesting that you were born this way, that it is somehow our karma and that we are doomed forever to be a nation of exceptions and exemptions and provisos to whom the law does not apply, especially if you have a motorcycle or a scooter.

If we have so many laws and regulations, how is it that so much is so utterly anarchic. There is no enforcement, we then say, we are overregulated and underenforced. What do we mean by this, do we want even more laws and even more terrifying invasive policing? Surely that cannot be our solution. Our search for the answer must. I propose, begin with a rudimentary understanding of what we are or at any rate what we are supposed to be. For this we must refer to our defining document, the constitution. That document made a very conscious choice among the very many available for self-definition, it called us a democratic republic. Neither one nor the other exclusively but both together. At its simplest, this means that sheer majority will not determine the outcome at any level, it is the law, the body of rules, structures, regulations and norms that are determinative. I read somewhere of this marvellous distinction, of how mob catches a thief and the majority decides that he should hang. That is the democratic voice, the voice of the demos, but a society governed by res publica, is a form of government in which the nation state lies outside private concerns. For example- when a mob catches a thief, the sheriff, an emissary of the law rides in, arrests him and takes him away from the mob that would have hanged him then and there. He then takes the thief to a court to stand trial according to the law of the land. This therefore accords primacy in our society to this thing we call the rule of law. It is central to the notion of a republic and while definitions vary, the simplest is perhaps the best. The law rules, no one is above it, all are comfortable to it and under it. And that includes the state which has no power outside the constitutional framework to affect the fundamental rights guaranteed by the constitution. To ensure this our most powerful tool is judicial oversight and that in turn posits access to courts. In a country as apparently chaotic as ours where individual liberty seems to have become some sort of an elitist side salad, the broader overarching principle of accountability requires a closer look. There is first the accountability of the individual to the law and second the accountability of the enforcers in the implementation of the law. The individual must be answerable to the law for his daily conduct, the state must be answerable in its enforcement of the law.

We could go back over a century to the time of Cicero (106-43 BC) and his words resound through time, "We are all slaves of the law so that we may be able to be free". When we believe that we are unshackled from the law, that the law, whatever its from, does not apply to us as individuals and second that there is no one to enforce it effectively, that is when we begin to witness a breakdown of the law. We begin the dismantling of the republic, of a society governed by the rule of law and we return ourselves to an era of subjects and rulers. Some years ago, a particularly strident politician, better known for her collection of handbags pronounced- "One day I shall too rule India."

And I remember thinking to myself 'no madam you will not'. You may never rule India, you may someday be given a shot at governing it, but so long as we have a constitution there will be no ruler. It has become fashionable, atleast amongst the chatterati at gatherings where one has to shout to be heard, to propose after a couple of rounds of fortifying libations that all our problems can be magically solved if only, we had this thing called a presidential from of government. It is unclear whether this is supposed to mean an invitation to the English to return to our shores post-Brexit, now that it is June and May is gone or to anoint some homegrown despot. As a follow up you will soon be told that it is a jolly good idea to have an elected mayor. It isn't, it is a terrible idea but that is when know its time to leave the party.

The thinking is symptomatic of a more fundamental discontent. Democracies are noisy, messy, chaotic but that is precisely what they are meant to be, because that is precisely what vox populi actually means.

Systems in republics work more slowly than in authoritarian regimes precisely because of the over-arching principle of the rule of law. Our impatience is with the form that processes of rule of law take. We find them glacial, confusing, illogical, out of step with technology and social needs.

Large republics with diverse and conflicting interests can be better home for liberty, a safer haven against tyranny than homogenous and exclusive ones. Within them factions and differences can check one another moderating ideological fervour and softening power. Not understanding this is perilous."