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Pandemics and the Blurring Lines between Law and Politics

Their morals, their code; it's a bad joke. Dropped at the first sign of trouble. They're only as good as the world allows them to be. You'll see- I'll show you. When the chips are down these, uh, civilized people? They'll eat each other...

-        The Joker

Difficult times are excellent mirrors that destiny holds up close to our face and the COVID-19 crisis has been no exception. The distress has been tough and accompanied by several other difficulties across the globe. However, the one good thing that this has done is drive us closer to realism. Realists were never more relevant, and critical studies were never closer to being apt!

In the latter half of the last century, when the Critical Legal Studies (CLS) claimed that ‘law is politics’, outrages were seen from various walks of life. Experts accused it to be reductionist. Scholars dismissed it as unfounded hypotheses. And political actors laughed it off to be fanatic. But there were traces of truth in that claim, and the difficult times now are exposing it.

Since Aristotle, Law as a social institution has been teleologic – an instrument to an end. And that end, for long, has been Justice. But then, what is Justice? Is Justice the same as Morality? Is Justice utilitarian? Does Justice consider economic trade-offs? ‘Justice’ has long been the focus of political philosophy, and long deliberations can indeed prove that the very concept of Justice is political. Does Law, an instrument to achieve the political end of Justice, not become political then?

If law is political, how does it relate to politics? Law and politics have long shared a relationship – a rather close one. For most of the political history, law has been at the command of the political sovereign. It is only the modern political philosophy that came up with a concept of the ‘Rule of Law’, thus making the political sovereign subject to the law. That too often appears to be only in letters rather than in spirit.

In a modern democratic society like ours, the relationship between law and politics can play out in one of the three possible ways. First, it can be a situation when politics is dedicated to upholding the Rule of Law. It seems quite ironic, though, given that Rule of Law requires a law to be in place, and the law itself is shaped by politics. Second, when the law is nothing but an instrument to achieve political ends. If the political ends are long term and visionary, this way turns out to be practical enough. However, for short term practical ends, this often proves to be disastrous. The third and final way it can play out it when politics sees law as an obstacle to achieving its ends. This often plays out during transitional periods, when one regime takes over another without altering the laws – the new regime governs the politics, whereas the law belongs to the old regime. In visible terms, most of the interaction between law and politics happen via one of the two actors: the judge, or the legislator.

The judge is a political actor, claims the CLS movement. Ronald Collin and David Skover wrote a whole book (The Judge: 26 Machiavellian Lessons) based precisely on this assumption and the book turned out to be an eye-opener!

But we didn’t need the COVID crisis to see this in action, in India. The Indian Supreme Court has long been criticised for being political in its decisions. Starting from the Kesavananda Bharati case in the 1970s to the Migrant Labour case now, it has time and again taken political stands. Sometimes it has turned out to be wise and healthy, and sometimes not so – but politics has always penetrated the walls of the judge’s yardstick of justice.

But the legislator is someone we needed a COVID crisis to see the true colours of. We are compelled to trust a legislator blindly, especially given a democratic republic like ours. And the legislators playing with law isn’t something we are taught to criticise, even if that is of utmost significance in a constitutional democracy.

The legislative reforms in the backdrop of the COVID crisis has been quite the wild west. Some state governments even attempted scrapping the labour laws and environmental clearances in the wake of the pandemic. The question, then, is how much of them is permissible? The Supreme Court of India seems to take a reluctant position, at least for now.

With the judges passing political judgements and legislators pressing for a legal system that’ll further the interests of the ruling party, it’s the ordinary citizen whose illusions stand shattered. For decades, the ordinary citizen thought the law to be the last resort if politics doesn’t protect her interests. Now, she takes a pause and wonders whether law is as safe from politics as she thought; whether law is really the closed isolated box of justice that lies insulated from power and politics. How is this blurring of lines between law and politics to be explained?

The lines between law and politics have always been blur – a pandemic made us see them.

What next? Well, recognition and acceptance.

Recognising the blurring lines between law and politics helps us get rid of legal fetishism – the belief in law as the pious and unalterable commandment from the heavens. It makes us question those in power; and ask them for accountability. And most important of all, it helps us in realising that in a democracy, we citizens are the ones who shape the law of the tomorrow. The stories we believe today, the narratives we share today, the questions we ask today, go on to become the law of the land tomorrow!

Note: I wrote this piece originally for Porijayee: A fundraising magazine, and it first appeared there. It'll be great if you could spare a minute or two to check the magazine out. All the funds raised are used for rehabilitating victims of the COVID and Amphan crisis. 

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