The Morehead-Cain

The Rule of Law: India’s Judicial System

By Sarah Bufkin
Campus BluePrint
October, 2010

Although it is slightly comical and largely embarrassing to admit, I flew off to India this May filled with a sort of missionary fire. I almost resonated in my cramped seat with idealism and expectation.

For the next two months, I would volunteer with an NGO in Rajasthan, India called the Mine Labour Protection Campaign, working to promote the rights of the state’s marginalized mining population and, most specifically, to address the serious issue of child labour in the industry.

Fantasies of exposé journalism pieces and successful litigation and a flush of government officials newly converted to this conception of “human rights” circled through my consciousness as I picked through the incomprehensible airplane curry for vegetables.

How ignorant I was. I arrived in India cloaked in my sense of privilege and in my intellectual arrogance to find that just be- cause I could think and that I had studied India’s current predicament did not mean that I knew a thing about the situation on the ground in the city of Jodhpur.

What in the U.S. would have been an investigative spread on the front page of every major newspaper or a lawsuit settled for millions out of court was simply an accepted social norm in India—namely, that child labor exists, that it is prevalent, and that the government is not willing, or at this point even able, to re- move children from its workforce.

As soon as I arrived for work at MLPC the first day, I had already fixed my hopes on the judiciary system as the mechanism by which human rights would prevail over exploitation and injustice. After all, India is lauded as the world’s most populous democracy, as an example for the rest of the developing world to emulate, as the heroic foil to the nefarious rise of its northern neighbor, China.

When my supervisor didn’t show the same level of enthusiasm about the idea, I sunk into confusion. Why not? Wasn’t the purpose of the court system to enforce and interpret the laws created by the people’s elected representatives?

My confusion evaporated a couple of weeks later, however, as I perched on a lopsided aluminum chair in one of the district offices of the State Department of Labour, nursing my fourth cup of chai as the assistant labor commissioner attempted for the fourth time to answer the question I had posed.

Finally, he headed for a cabinet, shuffled through a few hundred sheets of crumpled paper, and pulled free a packet. Tossing it at me, he nodded and said, “Look at the numbers. Maybe then it will make sense.” Sense being, of course, a relative term.

The numbers reflected the cases relating to child labor filed in the Bundi district’s court system back in 1997. Eighty-five cases of child labor reported during the calendar year were in the hazardous industries; 243 cases of child labor in the nonhazardous industries. Of those 85 cases, only 29 were ever prosecuted in the courts.

In 28 of the cases, the employers suffered no penalties, no con- sequences, not even a slap on the wrist. In one case, the court charged a fine of 200 rupees (US$4). Out of the 243 nonhazardous cases, only three were prosecuted. The court did not penalize the employer in any of them.

The numbers astounded me. India’s court system redefines the entire conception of a case backlog; a recent government study cited by the India’s NDTV estimates that the high courts and the subordinate courts face backlogs of 3.8 million and 26.4 million cases, respectively.

According to the Times of India, a high court justice stated in March of 2010 that it would take the Indian judicial system a total of 320 years to slog through all of the 31.28 million cases currently pending, without taking into account the addition of new cases over that time period.

As such, the independent, impartial and fair judiciary on which we Americans so pride ourselves has been crippled and rendered pragmatically useless in the Indian system of governance.

In fact, legal philosopher Jeremy Waldron has argued that the courts, when kept impartial and fair, are more than just one of the practical manifestations of a government that practices “the rule of law,” but that the courts are essential to the very conception of the rule of law itself. In his self-named “proceduralist model,” the judiciary is not incidental, not a by-product of a democracy, but one pillar of the foundational platform upon which democratic government is built.

Waldron references two main roles that the courts fulfill in a law system: as the en- forcer, one that can hold both the citizens and the officials themselves accountable for adherence to the laws and as a public forum, one in which citizens may come to argue the laws both as to their legal manifestations of the general societal norms and as to their interpretations in specific, individual cases.

In his paper, “The Rule of Law as the Theatre of Debate,” Waldron claims that “a society is ruled by law in this sense when power is not exercised arbitrarily, but only pursuant to intelligent and open exercises of public reason in institutions and forums set up for that purpose.”

But in the mining district of Kota, the miners and their children have no such forum; they do not believe in the power of their courts. Neither did the assistant labor commissioner that served me chai and spoke with me for an hour or so one afternoon in July. From looking at Waldron’s premise, one would think that the Indian government is currently a system that does not comply with the rule of law.

But one thing that India has taught me, and taught me well, is that the divide between the ideal and reality is often tremendous. The rule of law is, after all, simply another political ideal that we Western thinkers bandy about in our exegeses on the state of world affairs.

A Western education cannot in itself constitute a means through which to solve the world’s ills. Democracy cannot be transplanted into a soil so different from that of its origin and be expected to grow into an exact mimicry.

Do I see the failings of the Indian judiciary as a deep flaw within its government? Yes. Do I wish that the Indian people had a more viable public forum to air grievances and argue their own legal regime? Yes.

Do I think we are too quick to preach where we should instead attempt to bridge the divide between theory and practice? Yes; 1.15 billion times, yes.