“If victory is attained," I had written in an article in this paper before the 2014 general election, “will Modi be able to rein in his dogs of war, or will the nation be subjected to the ills of majoritarian muscle flexing? The threats to stability from Modi’s supporters, unshackled from the need to work toward a win, may be as great as those from his detractors.’" Unfortunately, such fears appear to be fast turning into reality.
Acts of violence are being perpetrated almost weekly by self-appointed upholders of public morality. The victims are Muslims, leftists, rationalists, and Dalits. In the wake of concerted national and international opprobrium, the Union home minister has finally taken notice. The prospect of an anti-lynching law emerged in the monsoon session of Parliament. The session also saw the enactment of the Criminal Law (Amendment) Bill, which introduces the death penalty for the rape of girls below 12 years. Can the legislations give respite? Is there another way of tackling the growing menace?
An insightful paper by Guy Halfteck in the Stanford Law Review identifies legislative threats as an important alternative to actual legislation. Legislative threats are prospects of harm meted out to groups of individuals, firms, or communities by legislators or regulators through a variety of means, including public statements, draft legislation, and policy recommendations. These are characterized by their desirable impact on social or commercial conduct without any explicit rulemaking.
An example of such legislative control is the recent US Congress investigation into the alleged infringement of privacy by Facebook. No explicit action will be taken provided the company concerned and the industry undertake sufficiently stringent measures for self-regulation.
The advantage of adopting such a method of social control is that it provides flexibility to legislators in a fast-changing world and does not bind them to prematurely formulated statutes set in stone. However, three enabling conditions are necessary. First, the threat that an actual legislation will be enacted in the absence of behavioural change must be credible. Second, the prospect of successful law enforcement following the enactment of the threatened resolution must be real. Third, the threat should be addressed to reasonably cohesive groups that are capable of demonstrating perceptible behavioural change in a rapid fashion.
In India, the prospect of using legislative threats is bleak. “Soft lawmaking" can be a useful addition to the tool kit of lawmakers only when the systems of explicit lawmaking are in good order. India ranked 62nd among 113 countries in the World Justice Project’s 2017-18 Rule of Law Index, and only 98th on the dimension of order and security. Under the circumstances, a legislative threat would have little meaning.
That leaves us with the oft repeated cycle of enacting fresh legislation where previous legislation already exists, or escalating penalties, sometimes beyond the level commensurate with the crime. A number of new provisions can be debated in the context of lynching, including enabling third parties to prevent, report, and deter such crimes. However, such a discussion would be sterile without the recognition that the current phase of violence is integrally linked to the promissory cocktail of Hindutva and development that propelled the Bharatiya Janata Party (BJP) to power in 2014.
That promise includes two contradictory elements—good governance and the consolidation of a majoritarian identity. The appeal to cultural majoritarianism draws respectability from its avowal of constitutionalism, but derives its power from its ability to draw the masses to the polling booths even as it arouses the passions of the worst elements in society. Pleasing development enthusiasts while pandering to Hindutva gangs is the balancing act that the BJP has set out to master.
The administration has undertaken a number of progressive economic steps, including the implementation of the goods and services tax, the Real Estate Regulation and Development Act, and the Insolvency and Bankruptcy Code. However, the delay in addressing the non-performing assets problem, demonetization, and the neglect of agricultural distress in the first two years of the regime have resulted in a situation where the economy is growing but without increasing the well-being of the masses.
The failure to bring about achhe din means that the balance has tilted away from the development enthusiasts and toward the hardliners. The steady breakdown of law and order is, thus, not an anomaly, but a direct consequence of the politics of the BJP and its failure to fulfil the aspirations of its supporters, especially in the area of chronic unemployment.
Given the political provenance of the problem, the solution must emerge from new political dynamics. With an alleged attempt to murder in the heart of Delhi, the ruling party might feel that things have gone too far. Arson in remote rural locations is apparently alright by its lights, but disorder in Delhi may be a bit too close for comfort! The desire to project a moderate face in the run-up to the general election may also acquire heft. Action might return to the sleepy towns, while Delhi reverts to its status of permanent outrage without any skin in the game.
The road to a truly law-abiding society begins with exemplary punishment meted out to hate-mongers and lynch mobs, irrespective of where and under whose patronage they operate. Does the government have the guts to throw out the baby with the bathwater?
Rohit Prasad is a professor at MDI, Gurgaon, and author of Blood Red River. Game Sutra is a fortnightly column based on game theory.
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