The State of Non-compliance

Let us suppose that on a particular issue -- for instance, the rights of individuals to broadcast information over the airwaves -- the laws of the land are somewhat ambiguous. Initially, this is of no consequence, since not very many citizens evince any interest in the matter; quite possibly this explains the absence of such laws. As time goes along, however, someone -- say, the Cricket Association of Bengal -- decides to broadcast matches at Eden Gardens to an expectant audience across the country. The Government of India takes the position that unrestricted dissemination of the telecast is simply not on, and bars the CAB. In response, the association decides to move the courts, asserting its fundamental right to free expression.

The matter appears before the justices, and after much deliberation the wise men decide in favor of the petitioner. The right to impart and receive information, the Court decides, is a species of the right to freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have access to telecasting for the purpose. Following this fairly clear verdict, within a very short period of time we should have begun to see broadcasters setting up shop all over the country, and closing down uplinking stations and other facilities hitherto forced into Nepal and Malaysia.

Except, we don't. Because, alongside its verdict, the court creates a caveat. Namely, that whereas it is the right of citizens to transmit information using the airwaves, the government has the obligation to regulate what is transmitted in the interest of national integrity and security. Therefore, the government is ordered to set up the necessary regulatory framework. And citizens are assured that any material that isn't malevolent to the national security interest is in fact quite acceptable for transmission using public property -- namely, the airwaves.

All very democratic, and perfectly within the way the system ought to work. However, let us further suppose that the Government of India, in response to the judgment, simply declines to comply. No particular attention is paid to the verdict; the government goes about its business as if the matter had not passed through the courts at all.

What do you do?

You've probably guessed that this scenario isn't entirely hypothetical. In February 1995, Justices Sawant and Mohan did say (Union of India vs Cricket Association of Bengal, 1995) more or less as stated above. The airwaves, the judges said, are the property of the people, and whereas the government may take a reasonable amount of time to establish a regulatory mechanism to ensure certain national interests, there is simply no case to be made for actually restricting broadcasts outright. That was over seven years ago. The time granted to establish a regulatory body, by any reasonable consideration, has long since passed. Yet the government's licensing and other requirements largely restrict the use of the airwaves to a few purposes that it 'approves.'

There are plenty of other examples. In examining a wide spectrum of events and policies, we find that much that is shameful in Indian political conduct can be gathered under a simple banner -- the deliberate non-compliance of the State with the law.

Judicial directives regularly meet irrelevant deaths at the hands of politicians who couldn't care less what their honours order. Several judgments relating to the resettlement of persons dispossessed of their lands by infrastructure projects have explicitly required that the displaced persons be compensated for their loss with other lands, and yet the government either has paid cash or made no compensation in dozens of such projects. The Supreme Court clearly indicated last year that state and central governments must provide nutritional meals in aided schools to all underprivileged children, yet the implementation of this order is minimal. And most famously, Karnataka Chief Minister S M Krishna pleaded inability to enforce the court's orders to release water from the much-fought-over Cauvery.

When even direct orders can be so flouted, standing law is even less a concern. Various development projects require detailed approvals by ministries of law, environment, mines, etc, and government simply waives those requirements or makes such approvals available without any studies. Even the few studies that are conducted are little more than deliberate subversions. In one celebrated instance, a prominent auditing firm simply took an existing report, altered the names of its clients, and obtained two separate approvals! In other instances, the government simply claims that all safeguards have been met, but insists the public cannot scrutinize this determination independently. Even documents that are required to be shared with the public are withheld creatively.

Such anecdotes might seem too trivial to warrant detailed consideration, but they aren't isolated instances of circumventing our expectations of good governance. Much of our socio-economic tension, in fact, can be traced back to non-compliance. A quick look at the Directive Principles of State Policy is enough to find multiple examples of delay and denial of the many rights and standards exhorted therein -- a living wage, the right to education and food, genuine local government, and the Uniform Civil Code, to cite only a few. These are the egregious dismissals of law -- dating back to the very beginning of the Republic!

Reform-minded citizens cannot be blind to the key role of non-compliance in maintaining the current politics; it is at the heart of political malaise partly because upholding the law is an obfuscating matter, not easily understood by the laity. The law is a process-minded beast. No matter that you may be held without trial in prison - as hundreds of thousands are, often longer than they would serve if convicted! -- you must still petition the courts and executive for redress. Remove the opportunity to do so, and your freedom dies with it. Even a well-intending court can intervene on behalf of only so many persons; without a broad emphasis on compliance, reforms will remain spotty at best.

There is, however, a quirk to such deviance, for it is equally an opportunity for civil society. Deliberate disregard for rulings and laws notwithstanding, all politicians and administrators wish to appear to uphold the law. This is why Krishna 'begged the court's understanding'. Law-breaking private citizens similarly wear a noble mask. The Hindu columnist P Sainath records repeatedly in his travels in rural India that landlords and contractors who flout employment laws nonetheless always maintain that they in fact pay the required wages and never employ children. The expectation of compliance has remained with us, both individually and as a society, despite many decades of failed law. This, we must leverage to the citizens' interest.

The Constitution of India, it is often said, benefited from the experience of democracies in many other nations, and incorporates the best elements of their own founding documents. There is some truth to this; Indian laws both encourage and permit a more vigorous civil society than in many other nations. But they also assume -- perhaps with the enthusiasm of newfound freedom -- that leaders and citizens alike will embrace their roles as guardians and promoters of the public interest. We must keep faith with this original promise, despite the cynicism that surrounds it today.

Even as many have concluded that the laws offer no protection from corrupt overlords, some public interest organizations have concluded that the legal process nonetheless offers the best means to rein in elected officials. The National Campaign for Electoral Reforms, for example, put a simple proposal before the courts and our politicians -- that contenders to elected office must disclose their assets, their education, and their criminal histories, if any. The political parties banded together to defeat this in the courts and in Parliament, but the battle continues. The NCER proposes to make disclosure a keystone of its efforts at political reform.

Other compliance-oriented reform measures are also taking greater hold -- these include greater use of Right to Information laws to demand public accountability, the establishment of citizen watchdog groups to monitor government spending, and litigation that targets non-compliance. These offer the best hope for lasting reform, and the public interest minded among us must add this filter to our efforts. We must choose the organizations and efforts we endorse to include a significant emphasis on obtaining greater compliance with the laws from those charged with administering them.