An anti-lynching law is the wrong solution3 min read . Updated: 22 Jul 2018, 09:35 PM IST
Governments are always keen to write new laws as it frees them from the burden of actually attacking the underlying problem
The Bolivian constitution provides 88 legal rights to citizens. The one in Venezuela offers 81 rights. New Zealand has zero rights written into its constitution. However, it is safe to assume that most people would feel more secure in New Zealand than in the two Latin American countries. What is written in law is not necessarily a good indication of the situation on the ground.
This is a lesson worth remembering at a time when the Supreme Court has said that India needs a new law against lynching. The problem is undeniable. The recent episodes of lynching are a national shame. So are the several cases of child rape that have hit the headlines. Every such event is followed by calls for a new law to prevent its further occurrence. Too many people think a new law is the solution to every major societal problem. Governments gladly grab the opportunity to pass legislation, since it allows them to cheaply signal their good intentions without actually doing anything substantive.
The Indian law books are bulging with all sorts of laws that seem good on paper while being completely ineffective. India would be a paradise of social justice if all these impressive laws actually addressed the problems they seek to deal with. Some hasty laws even have malign consequences. The law against parliamentary defections is a good case in point. It was passed at a time when the problem of lawmakers crossing the aisle through defections was a hot button issue among the elite. The Rajiv Gandhi government won brownie points for introducing the law. It has not ended political wheeling-dealing—but it has killed democracy within parties. For example, this month, Biju Janata Dal member of Parliament Jay Panda had to give up his Lok Sabha seat while leaving his former party because of the law against defections. The party whip is supreme.
This newspaper is not arguing for a minimalist state with a handful of duties. The Indian constitutional project is not just about individual liberty but also about using the law to change the social equilibrium. B.R. Ambedkar had few doubts about this issue. The founders of the Indian republic used the law to empower women and provide social mobility to millions trapped at the bottom of the caste pyramid. They quite rightly felt that sustaining a political democracy amid social inequality would be an onerous task, and that special interventions were needed in the interests of freedom. However, such an approach has now degenerated into an unthinking dependence on new laws to solve every problem that catches the public eye.
Governments are always keen to write new laws as it frees them from the burden of actually attacking the underlying problem. The political class has few problems agreeing to laws that it knows will not disturb its influence in practice. The usual cycle of atrocity, outrage, law is thus unending.
There are more profound consequences as well. The surfeit of laws that either cannot or will not be implemented on the ground further undermines public confidence in the constitutional state. The legal commitment to address a particular problem combined with an inability to meet that commitment works against the constitutional order. This is a danger that too many well-meaning people ignore in their enthusiasm for new laws from a state that often fails in its basic duties.
This newspaper had earlier backed moves to withdraw all sorts of outdated laws that clog the statute books, such as the one introduced in 1867 to punish owners of sarais—defined as “any building used for the shelter and accommodation of travellers"—who refused to give free drinking water to people who were passing by. The parallel argument is that new laws should be introduced with care, rather than to satisfy the popular urge of the day.
Much of this is related to the meta issue of state capacity. The episodes of lynching need to be dealt with harshly. The fact that people can be killed by mobs on suspicion of carrying beef or because a simple act of giving chocolates to children leads to hysteria about child lifting is both a reflection of widening social fissures as well as the inability of the state machinery to do its basic job of maintaining order. Neither of these two problems can be solved overnight. The mere passage of a law—and that too one that will not be implemented—is more a signal than a solution.
What effective measures can the government take to stop lynchings? Tell us at firstname.lastname@example.org