Prevalence of Rule of Law, Racism and Justice in a single transaction

Prevalence of Rule of Law, Racism and Justice in a single transaction- An Unavoidable ‘Worldwide’ Contact

Author: Adv. Himanjali Gautam, Advocate, Supreme Court of India

With the ongoing Derek Chauvin trial for the murder of George Floyd, with a diverse panel of white, black and Hispanic members in the American Legal system that follows a model different than the Indian one after the famous KM Nanavati case, the twin roles of Rule of Law, Racism and Justice seem to be intertwined beyond measure. This is further by the alleviation measures that are taken by the State, such as Affirmative action, subsequent representation, individual policy decisions in a unitary-federal setup, and awareness in the legal system comprising of laws, the procedure for promulgation of Justice against the historically ‘socially and economically oppressed. The entanglement is common and without sufficient protection for a ‘well-ordered society’ operating in Justice utilitarianism has come to the fore with the increase in hate crimes that has an exponential rise in the past year and a half including the recent Uber driver scandal, disproportionate deaths, livelihood, well-being, life and liberty of the minority population and populist policies across major countries in the world presently.

Rule of Law is one of the primal principles that are indicative of the foundational well-being of any state that assures the basic rights of the people[1].It is said to be derived from the Latin phrase “La Legalite, to connote a government functioning on principles of law and not of men”[2]. A society that is devoid of Rule of Law works arbitrarily and discriminates with an elitist society created as an end product.[3] A.V. Dicey, a pioneer of the concept of Rule of law defined it as follows-“It means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Rule of Law promotes equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts[4].

Racism is the “belief that people’s qualities are influenced by their race and that the members of other races are not as good as the members of your own, or the resulting unfair treatment of members of other races.”[5] In India, the connotation of Racism intermingled with obscenity with a subtle influence of the Rule of Law was seen in one rather interesting case. In a criminal suit filed before a court of law[6], a picture portraying a world-renowned white nude tennis player Boris Becker with his dark-skinned fiancée Barbara Feltus where the latter’s breasts were covered by the former was published in a well-known magazine. The picture was to defy the stigma attached to racism and also promote love beyond one’s colour. The court ruled that the offense of obscenity required the message of the publication to be taken into consideration. Arbitrary application of the Hicklin test as well as the changing societal and cultural norms would have defeated the purpose of Rule of Law and also affected the rights of the litigants, including setting up of a bad precedent for the future cases.

In another example, even though India faces a higher rate of discrimination based on caste and sex than racism, International students from countries abroad and North-east residents[7] are exposed and subjugated to individual racism without any adequate protection and an absent Rule of law, keeping in mind that India is a signatory to the UN Convention on the Elimination of All Forms of Racial Discrimination and also implement the Bezbaruah Committee report on ending racial discrimination[8]. During the British Rule, Racism was given prevalence over the Rule of Law by the preferential treatment of the whites over the indigenous Indians and the latter convicts faced higher and more brutal punishments for an almost exact degree of crime committed, apart from the dismal incarceration conditions, sanitation and poor living conditions due to the difference in the financial resources invested and corporal punishments for the juvenile offenders[9].

In a country like the United States of America, systemic racism is perpetrated[10] that has come to light in an even greater measure due to Covid-19 and the inhuman policy excess that led to George Floyd’s death, a black man charged with counterfeit buying of cigarettes in a local Minneapolis store.  The Coronavirus outbreak has crippled the medical healthcare system all over the world and the American Blacks are at a higher risk of dying than their white counterparts because racism in medicine and the lack of legal coverage defeats the purpose of Rule of law. The reasons attributed include slavery and the second-class treatment of black citizens under the initial 1787 US Constitution drafted in Philadelphia that led to the civil war and the “lack of coverage that has however increased after the Affordable Care Act due to the high cost of medical expenses”[11]. In response to the illegal killing of George Floyd, the City Council of Minneapolis has also vetoed the defunding of the current policing system and instead build a “community model”[12] to promote Rule of Law and equality before the law, irrespective of the skin colour possessed.

Subjecting the powers of the police to Rule of law is an undeniable part of the discussion. America’s drug laws systematically attack Blacks and browns from its inception[13], among other such Racial laws that were propagated in Italy between 1938-1943 and the indiscriminate killing of the Jews by the fuhrer administration in Nazi Germany are all examples where men abhorred the Rule of law that should have taken precedence over the administration which was marred with no valid justification for such heinous acts and unsound ideologies. The Hart-Fuller debate was markedly important right after this, which questioned morality and legality when there were members of the larger society that had no control over their melanin, identity, or other attributes that led to double discrimination and in some cases persisted even till now in parts around the globe incessantly.

Even though Rawls veil of ignorance[14] as a concept was novel which would have benefitted all classes and sections of a society and been an answer to the problem of Racism, the sheer lack of sound practical application as opposed to the theoretic drawing of the concept by Rawls himself. However, the approach was too idealistic and failed to create the desired impact since lawmakers are also exposed to personal biases and prejudices owing to their sociological processes and environments in which they were nurtured. Combined with the two principles of Justice, that was devised by Rawls, i.e. equal right to basic liberties and the inter-relationship between social and economic inequalities should derive from equal opportunities to the benefit of the least advantaged has been criticised by Sen’s work on Justice. He postulates that the difference between Niti and Nyaya where a harmonious exchange between the two would result in the maximum public welfare and Justice through the enforcement of rules and regulations, but without too much emphasis on the institutions as a whole i.e. ‘transcendental institutionalism’, to be avoided by the ability to recognize an injustice through reasonable appeal i.e. ‘Comparative realization’. The attempt as a matter of better implementation through characterization by both of these stalwarts has been successful to a certain extent, but the riddle between the reality of basic formulation and application has many nudges in between such as corruption at different levels, bureaucratic interference, party ideologies that are in power, lack of action on issues that are common world, instability, conflict, lack of education and knowledge of rights, too much of institutionalization to tackle a growing population, conflict of interest, personal experiences and other such aspects that have played out against Racism and Rule of Law when viewed from the lens and perspective of Justice.

Rule of Law can be an abstract concept sometimes without theoretical limitations since it is a  goal and the means to the end are as varied and diverse, however, Rule of Law is an objective to achieve. With conscientious individuals, it is no longer an illusion unachievable, but a standard for a lawful society that respects the inherent rights of its citizens and members beyond superficiality. The ability to take cognizance of injustice along with safety measures when dealing with the elements of the topic in sync together would go a long way.

—The Author, Adv. Ms. Himanjali Gautam is an Advocate at the Supreme Court of India, Founding-Partner at Chambers of Himanjali Gautam, Ex-President- Law Centre 2, Faculty of Law DU, Columnist, Public Speaker, and TV Personality.

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[1] Rabindra Kr. Pathak, The Virtue of Rule of Law, 7 RMLNLUJ (2015) 121

[2] V.G. Ramachandran, Administrative Law, Eastern Book Company, 1991

[3] Michael L. Principe, “Albert Venn Dicey and the Principles of the Rule of Law: Is Justice Blind? A Comparative Analysis of the United States and Great Britain”, 22 Loy. L.A. Int’l & Comp. L. Rev. 357, 371 (2000)

[4] Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (1885)

[5] Racism, Cambridge Dictionary, Cambridge University Press 2020

[6] Aveek Sarkar v. State of West Bengal (2014) SCC 4 257

[7] https://www.bbc.com/news/world-asia-26222493, https://www.huffingtonpost.in/entry/coronavirus-racism-northeast_in_5e844d9cc5b6a1bb76502923

[8] https://www.huffingtonpost.in/entry/coronavirus-racism-northeast_in_5e844d9cc5b6a1bb76502923

[9] http://racolblegal.com/indian-prison-system-under-british-rule/

[10] Ramos v Louisisana (2020); Regents of Univ. of Cal. V Bakke (1978)

[11] https://tcf.org/content/report/racism-inequality-health-care-african-americans/?session=1

[12] https://www.theguardian.com/us-news/2020/jun/08/minneapolis-city-council-police-department-dismantle

[13] https://www.aclu.org/news/criminal-law-reform/racist-drug-laws-lead-to-racist-enforcement-in-cities-across-the-country/

[14] https://plato.stanford.edu/entries/justice/#Rawl