Rule by Law and the Making of Authoritarian Democracies

Rule of law is one of the foundational ideals of contemporary political morality and of modern liberal democracies. Its ascendancy as a system of rules, formal equality, institutions, and checks and balances was designed as a counter to arbitrary, despotic rule. It symbolizes, to use a Weberian term, the rationalization of the legal system where law operates independently of the influence of power, political forces, and ethics in society.
 
This article seeks to understand a mutation in the rule of law project, with India as a case study, in which an increasing gap between the rule of law and rule by law becomes a factor in the fashioning of modern ethno-democracies and/or authoritarian democracies. Rule by law alludes to a process where law, rather than being a check on arbitrary power, becomes a tool—a technology of control to perpetuate power and bypass democratic controls. 

I classify this technology of control into three categories: constitutional-legal, legal-exceptional, and extra-legal. The article discusses how rule of law is subverted at each of these levels, and used as a technology of control rather than as an instrument of checks and balances that prevents the authoritarian conduct of power.

Constitutional-Legal

The conduct of authoritarianism needs “enemies” of the nation and people marked as “outsiders.” The threat of enemies justifies the aggrandizement of majoritarian power. Further, opposing an enemy translates into support for and loyalty to the sovereign as the protector, the savior, and the restorer of pride and greatness. From here begins an ever-evolving partnership between masses and demagogues. It is much easier to absorb individuals into a mass of like-minded people once you dig into their deprivations, give it a name, find a scapegoat, and reinforce and weaponize the biases they already harbor. Let me cite two examples.

In 2019, the Citizenship Amendment Act, accompanied by the creation of the National Register of Citizens, delivered a deathly blow to India’s secular social fabric. For the first time since independence, religion became a criterion of citizenship. While the act, formally at least, only excludes those deemed illegal Muslim migrants, what it elliptically and insidiously does is to cast a shroud of doubt on many legal, valid Muslims citizens of India. It perpetuates the narrative that: (i) only Islamic countries are intolerant towards their minorities and; (ii) that India is not a natural home to Muslims and that they are unworthy citizens and unequal applicants. It provides the air of legitimacy that stokes the fires of hatred and prejudice playing out on every forum and platform available against these deemed enemies of the nation.

In the constitutional-legal category, there are also statutory laws that aid and abet the criminalization of dissent, a feature critical to the project of authoritarianism as it defines the limits of citizen’s conduct. It is important to note two aspects of this. 

First, free-speech restrictions dissolve the distinction between the public and the private by subjecting the private conduct of speech—Facebook, Twitter, articles, books, op-eds, drawings, art, cartoons—to surveillance and sovereign scrutiny. The separation of the public and private, especially of public and private morality, was a foundational move of modern liberal democracies. A reversal of this reveals how authoritarian regimes mimic their colonial masters and re-enact colonial genealogies. The intent of law in both instances was and is to quell dissent, discipline native subjects, and, very importantly, to divide and rule through selective and arbitrary application of law.

Second, drawing from Ajay Skaria, implicit in the way in which free-speech regulatory laws operate is the colonizer’s mentality—that “subject-citizens” are not “rational citizens” who can be trusted to follow the protocols of a rational public sphere. They may have, to quote Skaria, “weak and vacillating” minds and therefore the “speech of free men should modulate itself to deal with the volatility of ordinary citizens.” With the legal structure and jurisprudence making space for private feelings—hate, offense, morality, enmity—its governance in the post-colony mimics and affirms the subject status of both the dissenter and the defender, the offender and offended. 

In essence, what free-speech restrictions do is to establish sovereign authority over what is “reasonable” and rational in the public sphere, what need not and cannot be private. As sovereign authority is established over these spheres and the conduct of law becomes less autonomous, less formal, less equal, and less objective.

Legal-Exceptional

The conduct of authoritarian power cannot leave the question of “dissent” and dissenting speech at the doorstep of only “ordinary law.” It therefore sets up a network of exceptional laws, prima facie to check terror, internal strife of a violent destabilizing nature, civil war, and threats to national security. What exceptional laws do is to create, as Giorgio Agamben terms, “states of exceptions,” which enables the state to “legally” strip a person of legal protections that are available to other citizens. What makes them “exceptional” is that they are an exception to ordinary law where constitutional remedies are available to those charged.

There are a plethora of exceptional laws in India. Anti-terror laws like the Unlawful Activities Prevention Act (UAPA), the Public Safety Act, and the National Security Act, to name a few, are increasingly used to incarcerate political opponents, journalists, civil rights activists, and human rights lawyers, and to make them socially disposable. The 2019 Watali judgment makes bail a virtual impossibility for those accused under the UAPA . The numerous bail rejections for those accused in relation to the Bhima-Koregaon and Delhi riots of 2020 is a case in point. The National Crime Records Bureau data reveals a 33 percent jump in UAPA cases between 2014 and 2020. But what is more damning is that very few of these cases even reach the stage where innocence or guilt is proven. In this seven-year period, only 4.5 percent of the 6,900 cases sent for trial reached the stage of completion. And we are not yet talking of cases that languish in protracted pre-trial and trial period: 95.4 percent of cases were still pending trial at the end of each year between 2014 and 2020. 

The purpose of such arbitrary “trial without a trial” is no longer justice, where the guilty are punished and the innocent are set free. It is rather to convert the law into a tool of sustained suppression of citizens who are thinking, questioning, and dissenting a little more than the state is willing to tolerate. It is meant to “teach” those who talk back just how fragile the edifice of their constitutional rights is, and just how socially disposable their enfranchised lives are. These extraordinary laws are fast becoming a permanent state of exception where the state suspends the rule of law in the exercise of its powers. This is a deployment that will always have the potential to transform democracies into authoritarian states.

Extra-Legal

Extra-legal modes operate in the obscure space between legality and illegality. Not expressly sanctioned by the law or its agencies, the shadowy arm of law insidiously backs and assists, aiding and abetting the routinized deployment of majoritarian violence. Examples include the police not registering cases, not filing “first information reports,” ignoring open calls for violence, and conducting communally biased inquiries, as well as a myriad other instances where law-enforcement agencies authorize the impunity of vigilantes and self-proclaimed caretakers of the Hindu-first nation.

This is the process of informalization that Nobert Elias draws our attention to. The perception that loss of relative status and pride, failure to “progress,” and failure to revert to the “fantasy position” is because of the “enemy” leads to loss of self-control and willingness to embrace violence. The latter cannot happen unless the legal system is willing to look the other way and unless impunity is authorized. In that sense, informalization is not just the breaking down or loosening of norms of behavior but the informalization of rule of law itself. 

Conclusion

Stephen Holmes argues that one of the modes through which the rule of law is subverted or diminished is when “repressive and acquisitive elites,” “bullies and plunderers” keep the structure of law deliberately unclear, ambiguous, and fluid. Law becomes predictable for the sovereign but unpredictable and “maddeningly erratic” for the citizens. What looks on paper like an impartial system behaves in practice like a “dual state.” What looks on paper as the rule of law functions as a rule by law. 

 Ajay Skaria, “Questions of Hurt,” Economic & Political Weekly, Vol. 49, No 40, 4 October 2014. 
 Giorgio Agamben, I, University of Chicago Press, 2005.
 To render people socially disposable implies removing them from the network of relations that sustain citizens as social beings. It implies, as Henry Giroux suggests, that disposable persons/ population do not deserve to live. See, Henry Giroux, “Memories of Hope in the Age of Disposability,” I, 2013, Vol. 33, No. 1/2 (2013), pp. 65-84.
 Norbert Elias, The Germans: Power Struggles and the Development of Habitus in the Nineteenth and Twentieth Centuries, ed. Michael Schroeter, trans. Eric Dunning and Stephen Mennell. New York: Columbia University Press, 1996. 

Rajshree Chandra is professor of political science at Janki Devi Memorial College, Delhi University. She was a visiting fellow at the IWM in 2022.