chapter  7
51 Pages

Rule of law in a society of unrest

From ideals and ideas of governance we move on to frameworks of governance. Anyone familiar with decolonized societies is also familiar with the complaint or sigh that there is no rule of law in these societies, people are violent, mad, disrespectful of law, and hence these societies are anarchic. From UN experts busy with mending and fixing social ills to behavioural scientists studying these societies, the refrain is the same. Governance fails because it is not well rooted in law, because crimes are rampant and because rule of law does not exist. In fact most of what is known as restorative exercises in global governance involving restoration of state and structures of government undertakes as the first exercise the task of training police, drafting a constitution, setting up independent courts and introducing criminal and civil law manuals. It seems therefore that an important step in studying the nature of governance in India can begin with an examination of the mourned fate of rule of law in the country. In this exercise it will be not enough to say that the foundations of rule of law are colonial. While that is true, it is necessary also to dig deeper into those foundations, and bring out what exactly rule of law came to signify in a society of unrest. To find that out, instead of conducting a general normative exercise we propose to conduct in this chapter a scrutiny of one of the arch stones in the edifice of rule of law – the Act of Evidence, 1872 (the two others being the Indian Penal Code, 1860 and the Indian Criminal Procedure Code, 1898 subsequently revised in 1973). We shall see how the liberal and colonial practices of law-making were deeply intermeshed, so much so that post-colonial governance today cannot forge its tools without depending on the liberal-colonial heritage of law and law-making.