A BUNCH OF LEGAL FICTIONS

Light of Truth

The State, everyone agrees, is man-made. It is, therefore, distinguished from nature, which is ‘natural,’ not contrived. All man-made systems and artifacts exist on arbitrary assumptions, or fictions, which are not open to questioning, except by incurring grave peril by the ‘heretic.’ It is a wide-spread myth, though, that only religion is so erected. The fact is that everything invented by man stands on arbitrariness. For this reason, nothing man-made is perfect or enduring. Also, all systems are inherently insecure and intolerant. The intolerance of a system is directly proportionate to its imperfection and insecurity.

One of the fictions that a modern State stands on is that of the equality of all citizens in the eye of the law. The fictitious nature of this hypothesis rests on the cleavage between theory and practice. Theory, in respect of large collectivities, functions in terms of excluding disabilities. So, no one shall be discriminated against, on the basis of caste, gender and so on. But that does not mean that all have equal access to facilities or opportunities.

The notional equality of the individual is offset by gross inequalities in the society. Equality in the eye of the law is, therefore, virtually meaningless unless equality of conditions is maintained. For instance, your child has, in theory, a right equal to that of the child of your next-door billionaire to study in the best school or college in the country. But that does not mean that your child will do so, because she is handicapped by your vastly inferior purchasing power as well as the influence that goes with wealth in any society.

Or, you have an equal opportunity to secure justice from a court of law. Our judges are, barring rare aberrations, objective and impartial. But, given how our justice system works, the outcome could depend to a great extent on the competence of the lawyer you engage. And that depends entirely on how much you can afford. As it stands today, you have to be enormously rich to be able to afford even mid-level legal help. Your being equal with your adversary in the eye of the law proves a fiction on the ground; for, in the existing system, a judge can only decide on the materials and arguments presented to him, and can do nothing on his own initiative or investigation. The economic elite have a vested interest in making the legal system unaffordable to the common man.

As socio-economic disparities spin out of control, as it is happening today, the gulf between notional equality and effective equality continues to widen. This should make us worry about the growing privatization of education, especially higher and professional education. Education is increasingly becoming an instrument for undermining equality and for slanting development in favour of the privileged. What is, in theory, an instrument of inclusion becomes, in practise, a fortress of exclusion.

The second fiction pertains to the sovereignty of the people. This legal fiction is erected on the premise that all citizens have a vote each and that all votes are equal in value. But it conveniently overlooks the power the economic and political elite have in swinging votes through propaganda and money power. In effect, the financial clout of a billionaire, or the muscle power of a desperado, makes him a greater political force than a million of his fellow citizens. The political class will, hence, profess concern for the common man, but stay subservient to the corporates. The nexus between the corporates and the State orients the latter to fascism.

While the people are sovereign in theory, it is only the State that is sovereign in practice; as the State alone, even in theory, can use force legitimately. The State is in a position, besides, to influence the citizen in a variety of ways and to vitiate the electoral level-playing field, even if it doesn’t go as far as default-programming EVMs. As long as elected representatives of the people are enslaved to party whips, and not to the concerns and priorities of the people, people’s sovereignty will remain a sweet illusion.

Citizens are an amorphous body. They have no effective will to exercise, or settled identity to assert. People are like water. They can be made to assume shapes by manipulating contexts, or existential containers. No legislative or executive action is open to their will or opinion. The so-called ‘public opinion’ is anything but ‘public’ in a people’s sense of the term. It is public only in the sense that it is manufactured for public consumption, always by vested interests. People’s representatives cease to be so immediately after elections. For the remainder their terms they are lords and masters, who treat voters with arrogant indifference.

A third contrived premise on which political life in many countries including the US is erected is that of federalism. Despite constitutional guarantees and enlightened judicial interpretations, the federal system is inherently volatile and susceptible to vicissitudes, subtle and drastic. It is a fact, for instance, that in times of war, the federal structure tends to be unitary. All that a federal system has to do to convert itself de facto into a unitary system is to involve the country in a substantial war effort with a designated enemy nation.

No state stays federal in polity just because it is provided for in the Constitution. The political culture of a people is continually shaped by their geographical peculiarities, social and cultural mores, socio-economic structures and past history from the beginning of their recorded memory. Seen in this light, the federal structure is alien to us. We have been notoriously divided for much of our history. The idea of one nation is largely of British improvisation, consolidated further by Sardar Patel. This needs to be recognized, not to the derogation of our federal structure, but to ensure that we do not become complacent about its health or survival. Ultimately, a people get only the mode of government they deserve.

Well, we should not be dismissive of fictions! Much of our life is lived on fictions. The good thing about them is that they are amenable to being translated into realities. But this does not happen automatically. For collective fictions to grow into shared realities, a people have to work tirelessly for long, and prevail against entrenched vested interests that subvert their progress to commonwealth. The common man has gained nothing in history except by the long and bleeding way.

For that to happen there is one fiction that he has to be discarded: the fiction of ready-made saviours as developmental magicians, which is the most pernicious of all fictions. All saviours of the masses have proved to be the burial grounds of their welfare, in many cases of their very survival. In human terms, your neighbour next-door, even of the most commonplace kind, will be more useful to you in times of need than the larger-than-life hero you venerate at a distance. Not only that. All political saviours promote an outlook of abject dependence on them, which is injurious to your empowerment. Do you need a savant or seer to tell you that it is better to walk on your own legs than on crutches borrowed from someone else?

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