Posted on: August 3, 2020 Posted by: KUSHAGRA PANDYA Comments: 0

Author: Rhea

Co-Author : Drishti Saraf

ABSTRACT

The supremacy of law in a society is what binds society as a whole while maintaining a balance and peace. The rules of law which have been well adapted on paper, have miserably failed when it comes to procedural effectiveness. The implementation of individual judgements is very different from implementing laws aimed at making society stronger and better. The implementation is often compromised due to various reasons like the diverse composition of the Indian population, lack of awareness and lack of access to the rules and acts, inefficient judicial review system, the elite section of the institutionalised society, and corruptive government practices. For better execution of the law, various steps are required to break the tendency of people to break laws.

INTRODUCTION

A society primarily is not governed by the rulers or the nominated representatives of people but by the law. The supremacy of law is what binds the society as a whole while maintaining a balance and peace among the people and for the law to be supreme, law enforcers & the courts shall be free from all external influences and prejudices to deliver fair justice in the society. Thus, the freedom and independence of the judiciary become an essential pillar for the implementation of law and delivery of justice. The separation of power between the three wings of state-executive, legislature, and judiciary ensures that the judiciary remains independent but it is the implementation of the law that needs to be made efficient and effective[1].

Indian constitution states that India shall be governed by the rule of law i.e. the constitution is the supreme power in the land where the executive and legislative draw authority from the constitution. According to the 2020 World Justice Project Data, India ranks 69th of the 128 countries surveyed around the world, even though the corruption is at peaks, and rampant in the country[2]. However, the rules of law which have been well adapted on paper, have miserably failed in its procedural effectiveness.

Whilst the problem persists, the constitutional mechanism has always safeguarded the rule of law, so that it persists in one form or another. The courts have attempted to follow and implement the rule of law through their decisions. But the question that arises is that despite working in a congruence manner, why have the courtrooms not been able to apply the laws and judgements meticulously?

The implementation of individual judgements is very different from implementing laws that are aimed at making society stronger and better. Though bringing a change in the institutionalised nature of society is not an easy task, the keepers of law have failed to effectively implement certain important social laws within the nation challenging the effectiveness of law and deteriorating the trust of the public in the legal system of the country.  Although the courts formulate, design, and dictate the laws, they fail to enforce them which results in a failed attempt of the lawmakers in achieving the public’s interest. Usually the quote ‘Justice Delayed is Justice Denied’ is used to signify the reason for this failure, it is understandable that due to overburdening of courts the entire judicial process gets obstructed and the credibility gets compromised. However, it is not the people in the field of law who are solely responsible for the poor implementation of law and rules and policies in the country.

The Law or the Legal system of India is not just limited to or in control of the Judiciary alone, the Parliament and the general public of the country are all inter-linked with this process/system. As in the absence of law, the rules cannot be established and governed, correspondingly in absence of legislature and society/public, the law cannot be implemented and acted upon.

 First, the implementation is often compromised due to the diverse composition of the Indian population. The multi-cultured and multi-linguistic groups/tribes residing in the nation perform several practices which do not go hand in hand with the supreme law. For instance, despite The Prohibition of Child Marriage Act (PCMA), 2006 many people in India still witness child marriages and deny to follow the law. Under the Muslim personal law, child marriages are still legal and therefore are kept out of the preview of PCMA, as prescribed by the Punjab and Haryana High Court in Mohd. Samim vs State of Haryana And Ors (2018)[3]. Such conflicting stances of the courts and the personal (cultural) practices of different groups often result in rendering the law neglected.

Furthermore, the education system of the nation needs to be upgraded and the literacy rate needs to be increased in a manner that people are able to comprehend the law and its implications rather than just being able to read it. Due to this lack of awareness and lack of access to the rules and acts, many people lack the basic understanding of various policies and laws that have been designed and enacted for the well-being of the public. The recent deductions made by CBSE in its curriculum for class X, XI, and XII[4] is one of the scenarios where due to reductions in the syllabus, children will have insufficient knowledge to learn, perceive and analyse various acts and laws sanctioned by the Indian courts.

In addition to this, the inefficient judicial review system and corruptive government practices (where the government also lacks the will to ensure the public welfare as a whole) must also be blamed for poor implementation of laws and policies. After decriminalisation of Section 377, the LGBTQ+ community had achieved a long-lost battle and homosexuals could also celebrate their relationships like heterosexual couples. Nevertheless, decriminalisation alone is not an end to all their hardships. Indian law primarily recognises ‘male’ and ‘female’ alone. Laws like Sexual Harassment, Rape, Assault (Section 354-B), Stalking, etc. are all male-female centred laws. There are no special or separate provisions for the LGBTQ+ community if they fall victim to any of the listed/recognised crime in India. Similarly, the Right to Adoption and the Right to Marry is still reserved for heterosexual couples alone. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and the Surrogacy (Regulation) Bill passed by Lok Sabha also doesn’t provide many opportunities to the people of this community. As the Act is only for women employees/workers, the transgender (employees) victims are not granted any relief under this Act. Likewise, Bill dictates that only the couples who have been married for 5 years are eligible for surrogacy. Though the LGBTQ+ community is not the majority group, the Judiciary and the Parliament are still obliged to cater to the needs of this group as well, and therefore, it is important for the former needs to review the laws and acts and accommodate the people of this community within them. The latter must ensure that it acts parallel to the legal system and perform all the necessary duties to benefit the public at large, side-lining its corruptive practices (like opposing/neglecting a significant section of society due to their personal biases or for their political gain).

At last, the laws drafted at benefitting and uplifting the image and position of women at the domestic as well as at the public platforms, like Protection of Women from Domestic Violence Act, 2005, Dowry Prohibition Act, 1961, Indian Divorce Act, 1969, National Commission for Women Act, 1990, Equal Remuneration Act, 1976, Muslim Women (Protection of Rights on Marriage) Act, 2019, etc. need to be enforced in the right manner to achieve their purpose in the society. These acts along with many other laws and sections, that have been drafted to preserve their dignity and grant them relief has been in place for many years now but the women in India are still accustomed to most of the crimes prohibited under these laws[5]. The elite section of the institutionalised society often stands in way of these policies, preventing their proper and effective implementation. Because of the guidelines and teaching preached by these elites, the society also denies to accept the equality of women or grant them the platform they rightfully deserve. This strong repulsion of the law then increases the number of cases aimed at penalising the accused for breach of the law, resulting in overburdening of the courtrooms.

The law exists on paper but remains a theory because of the lack of implementation of the law and to improve the implementation of the same various steps are required. The first and foremost requirement is the allocation of adequate resources by the government for the effective implementation of law in society. The rulemaking process in India lacks the consultation of citizens and experts, as the consultation and feedback from the public can identify various pitfalls of implementation of the law because, at the end of the day, it is the public who is directly affected by all the rules and policies established in the country. A close review of these laws helps in understanding why they are not being followed by the citizens or where and why is the implementation lacking which then can be rectified for the better implementation of the laws.

 People often ignore the law due to lost faith in the Indian Judiciary system due to a long list of pending cases and delay in deciding upon cases. This loss of trust of public also leads to high crime rate as culprits believe that they will not be punished for their actions as the case will take years to be heard and decided upon by the courtrooms and if it goes for an appeal in a higher court than it takes longer to come to a final decision. This practice causes a higher tendency among people to break the law, thus, exploiting the inefficiency of the courts overloaded with cases addressing several acts and breaches. Therefore, to reimpose and maintain the fear of law, courts must ensure that the implementation along with judicial practices need to be strengthened and paced up so that the general public understands the need and the importance of the laws and its functions.

Besides Judiciary’s need to work systematically, the population size of India, the secularity and diversity of its people which often results in conflicting interpretation of law within different religions, cultures, regions, and citizens of the country that leads to neglection and rejection of the law, as discussed above, must be prevented for fair and unified implementation of the law. To combat this diverse nature of the country, the law to be imposed must be translated in every language officially recognised in India so that majority of the population can understand the law and its true meaning which makes the probability of acceptance comparatively high as often due to inability to understand a law, people choose to ignore it and substitute it with their local, personal law. Moreover, due to religious differences, many groups try to establish the supremacy of their personal law over the central law and this practice needs to be stopped and the law enacted on a national level must be enforced on all the groups unanimously as all the citizens of India are governed by the Indian Constitution alone.

India’s current literacy rate is 74.04% and yet many lack adequate information and understanding of various acts and policies which are in force. People are required to be educated and made aware of the laws so that they comprehend and understand the law in their true essence. To achieve this aim students must be educated or taught law from a primary level itself, like all the other general subjects taught by the education system. This practice is not supposed to pressurise into adopting law as a field of study but to know the areas of law to be a learned citizen. For the illiterate masses, the gram panchayats and other bodies must reach out to these people and try to make them aware of the law and help them understand the necessity of the same.

The laws shall be consistently revised, reformed, and updated in accordance with the current environment of society to reduce the endless cycle of litigation. This can be done through building up an effective judicial review system that would cater to and accommodate all the needs and laws of all the communities, respectively.  A review system will help in better implementation of the law as they will be able to understand the difference between the current law and its flaws that need to be amended. This practice may also persuade the citizens to take the law seriously as only then can they raise their concerns and queries if they actually comprehend the functioning of the same. This will also require the implementation of the laws passed, in their entirety, thus accomplishing the desired aim of the system.

Furthermore, the corrupt practices of the politicians, who use their power & authority for their political gain can be stopped from exploiting the minority sections of the country for their malicious agendas and benefiting at their cost. A review system, like one suggested for the judicial practices, can be set up for the government scrutiny as well, where the unfair and prejudiced nature of the officials will be prevented from interfering in matters of law. The bills passed by the government must also be audited to ensure that they are consistent with the laws and judgements passed by the Indian courthouses. The auditing officers must ensure that the bills passed are in synchronisation with the needs and demands of the group they are aimed at,  unlike the Transgender Persons (Protection of Rights) Bill, in order to strengthen the position of the respective group and achieve the purpose that creates the need for such an act to be carried out by the parliament.

Lastly, close monitoring of the implementation of laws is required. The union and state governments should provide for national and local level monitoring bodies to ensure a healthy implementation of law in all parts of the society and the judicial system must overlook at this practice of the government to assure that everyone is discharging their respective responsibilities in a comprehensive manner. A separate committee can also be set up to carry out the functions discussed above which may act free of any influence or discrimination. This will also help in breaching the objective perspective of the society which has been instilled in them by the elites (in the current time the role is played by the Government officials who persuade a large populace). When the true understanding and meaning of a law reaches the minds of the public, it may happen that they try to view it subjectively, thus, breaking the bonds of institutionalisation, giving a larger and brighter perspective to the society.

CONCLUSION

Hence, we can conclude that implementation of the law is equally important as the establishment of law is, and therefore, the required steps need to be taken to overcome the repeated failed attempts at implementing the law for the welfare of the society, in the most appropriate and desired way. As discussed, the reasons affecting the proper and efficient implementation of the law and policies affect the smooth and fair functioning of the society which need to be resolved and the suggestions presented might prove to be suitable and effective measures to accomplish the desired goal. This may also help and scale down the crime rate in India along with improved public well-being because the entire system and their respective functions are inter-linked in a manner where something may cause a chain reaction in the entire system if one thing is affected due to certain external or internal disturbance. Thus, if we focus on bringing reforms in one field, then there is a possibility that many problems hindering the growth of the nation and its people can be resolved to a certain extent.

REFERENCES 

Hariharan. “Rule of Law in India.” Academike 16 November 2014. 25 July 2020. <https://www.lawctopus.com/academike/rule-of-law-in-india/#:~:text=Editor’s%20Note%3A%20The%20concept%20of,by%20the%20rule%20of%20law.>.

Mohd. Samim V State of Haryana. No. MANU/PH/1331/2018. Punjab and Haryana High Court. 26 September 2018. Manupatra.

Nussbaum, Martha C. “”India: Implementing Sex Equality through Law .” Chicago Journal of International Law 2.1 (2001): 35-58. 25 July 2020.

PTI. “CBSE reduces syllabus for classes 9 to 12 by 30% for academic year 2020-21.” 7 July 2020. The Print. 25 July 2020. <https://theprint.in/india/education/cbse-rationalises-syllabus-for-class-9-to-12-by-30-to-reduce-course-load/456451/#:~:text=New%20Delhi%3A%20The%20Central%20Board,’Nishank’%20announced%20on%20Tuesday.>.

World Justice Project Rule of Law Index® 2020. 2020. Web. 26 July 2020.

FOOTNOTES

[1] (Hariharan)

[2] (World Justice Project Rule of Law Index® 2020)

[3] (Mohd. Samim V State of Haryana)

[4] (PTI)

[5] (Nussbaum)

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