3. Myths about the ‘Law’ : What it is and what it's not and cannot be

Author's note: This is a series of 7 articles written during the Delhi Rape case period. The focus is on the nature of change, our understanding of the law, the system and how real change happens. It is strongly recommended to read them in serial order starting with the first one here, lest they seem too abstract and philosophical.

Maybe before we set out to correct the law, the system, the politicians, the ‘animals in human guise’ - if we can correct our understanding of it, that will hopefully let change blossom, instead of being imposed. Excuse the spiritual shades, but the thought demands it. Here are some erroneous understandings that I think we all suffer from, to some degree. Due to which we end up solving the wrong problems, and then wondering at the unexpected results.

Myth 1. The law is about right and wrong

We automatically accord morality to the law books. Morality is a fiction of the mind, which trickles down to culture. What exists in reality is actions and consequences. Nature(not plants and mountains, but everything) provides this system for free. And nature is the ONLY real law maker, because a 'law' by definition has to assert itself automatically, without any subjectivity. That is what makes it a law.

Man made laws are our attempts to make the consequences more tangible(rather than a matter of karma), and to speed up the cycle of action and consequence. As such, it is surely a reflection of the social mindset and should be. The error is that we try to "design" the consequences, so as to CONTROL the actions - based on fear of course. That's not a law. That is manipulation. And manipulation is about which fear is greater. The perversion has already started. the seed of failure is already planted. The shocking implication is, a law(unlike morality, religion, culture) is not about "It is wrong to rape", but more about "Action: Rape. Consequence: 10 years rigorous imprisonment"."Action: Stealing. consequence:  2 years of imprisonment". Of course, any artificial law inherently has 'judgement' of our priorities built in it. So at most, it can be "As a society, we think rape is far worse than stealing, hence 10 vs 2 years". But that's where it should stop. A law should NOT be about instilling fear, but simply listing out the consequences. The fear might be an unavoidable side effect, but it should not and cannot be the objective. We risk defeating the very structure. The law is simply a list of actions and consequences.

Myth 2. More cruel the consequence, more effective the law

Though we argue about having stricter rape laws, do we really think that a rapist would think "Hmmm, 10 years of imprisonment would be fine, but castration is not". Our attempt to mimic nature will succeed more by guaranteeing that 99 out of 100 rapists are imprisoned, rather than castrating 34 out of 100(the average conviction rate in India for rape cases?) Cruel punishments might provide us our needed dose of vengeance and personal gratification to feel good about the 1 case we know about and conveniently forget about the 66 - but what more does it provide? The power of a law, is in the certainty, not the cruelty of its consequence.

Myth 3. Justice is about providing closure to the victims, restoring balance

Really? Aren't we aware that these battles are purely internal? We might congratulate ourselves, that we, as a society gave them 'closure' - but these traumas go deeper than that, across generations perhaps. And psychology 101 would tell us that it has nothing to do with he law. A Death sentence might be 'good enough' for me, castration for you - but would it be enough for the victim? An extreme example: If one victim says "Castrate him in public and have his family members watch. Then I will be at peace!!!" and another says "What has happened has caused me extreme pain. It will take me quite some time to heal, to face society - even if I know its absolutely not my fault. I wish that my aggressor meet the legal consequences. But that is more to help society and the future, not as a personal vendetta". Who do you think has a chance of recovering earlier? The 'closure' that we trumpet, might be more for us than the victim. Getting justice might make it more justifiable to tolerate the pain, but not easier to accept, and therefore to heal the wound.

Justice is merely about ensuring the consequences that we as a society have decided. Even if those decisions are (and should be) subject to constant debate. Justice is merely the tool to ensure this consequence, not to balance anything to restore harmony.

Myth 4. Law is always a reflection of its society

It SHOULD be. Again, not because it’s ‘good’. But because it makes enforcement swifter – because the enforcers and the society BELIEVE in it.  But it is often not. In fact, the positive thing about Khap panchayats is that their laws reflect the REAL social mindset: good or bad. It shows that the society functions as a collective whole. That justice will be swift and hence, meaningful. The law is for REAL. If we can somehow manage to convince them to change their barbaric mindsets, and HENCE their laws, you can bet that it will be ENFORCED. It serves as a good gauge of REALITY. The first step to change the future is to know the present reality. This becomes extremely difficult if the actual reality(social mindset) and its reflection(law) are not in sync.

Myth 5. Good laws mean a good society

There is nothing called a good law or a bad law. There are clear laws, strict laws but not good laws. In fact, this perception is an incentive to distort reality as per convenience. This leads to many serious problems. Firstly, Morality is subjective, a law is just a law - inherently objective. This allows the rise of a hypocritical society which says great things, but need not be serious enough to let the law reflect it. A more important question to ask those police officers(Tehelka article: 'The rapes will go on' Senior police officers were laying the blame on the rape victims, on the modern culture etc) would have been "So since you think the real problem lies elsewhere, how should the laws be changed accordingly?" THAT would show which laws our police force is READY TO ENFORCE. Without being FORCED to. But our refusal to face reality, banishes us to live in extreme contradictions - and strive for laws that are divorced from reality. This attempt to distort the mirror to produce a sweeter image IS the BASIC problem. Believing that good laws will lead to a good society is the basic problem. Laws are a creation of society; and not the other way round. Effective laws are more a reflection, rather than a complicated creation of society. Hence, the enforcement is swift.  System optimizations, technology advances of course help. But whether we WILL let it help, in which areas, how much and where will we LET it succeed, which loopholes will we choose to plug – is all decided by people, not machines

 Secondly, once law is cut off from reality, it loses its relevance. And hence, its degree of enforcement. And hence people's trust. People start thinking that the 'system' is useless. Exactly like we think 'Politics is bad'. It is, but only if we make it! There is nothing called the 'the law' or the 'system' or 'Politics'. There are people who create them, and people who enforce them. And both are the same! If there was a system, we ARE it. There is no "us vs them". The 'bad them' is just a mental projection. We might hate to admit it - but we just MIGHT be a nation with extremely fundamentalist mindsets. Who knows? We have denied ourselves a mirror for too long.

Thirdly, once we allow the law to enter the realm of subjectivity - this allows the rise of 'I-am-above-the-law' mindsets (moral police, the rioters etc). If the law is about being right, then I can be more right. The law can be wrong. We forget that our duty is to make laws true, not right. Even the 'nobody-is-above-the-law' school loses its strength, because this same liberal school has been busy decrying how bad the laws are. The only difference being that they think their version is the better version.

The fact that Indian laws seldom change is the symptom, the evidence - and not the cause of the problem. We talk a lot about change, but really don't think its important enough to invest the energy to help change the law. The best we can do is to blame the politicians for not doing so.

Again, think Khap villages vs cities. For example, if we LET our laws reflect urban mindsets: it is possible that we would have laws about the length of women's skirts, the timings that they should be out for, whether they should go out to pubs. It would at least help shatter our illusion that we are very different from a Talibanistic society or from the Khap panchayats we supposedly abhor. But atleast they will be enforced. And imagine what will happen if we are sure they WILL be enforced? The law will for the first time become a living, breathing entity. That refuses to die. Or bend down with a bribe. It WILL impact everybody’s lives. And the girls, guys who have a problem will be forced to fight that law (Not a vague ‘system’) right from the moment it is brought up in parliament. But this fight will be much more REAL, much more meaningful. If they don’t, or are OK with it, or are in minority, or fight and fail – that’s fine too. Or when the 'wise elders' verbalize their thoughts, the reaction might jolt them to accept that the world has moved on. We and they will find out WHAT WE REALLY ARE. Good, bad or otherwise. And then attempt to REFORM it if we don’t like what we see – not protest it, blame it. Because we would have already seen reality, and the futility of 'fighting it' would be a fact, not a sad belief. If they care enough, if this is one of the top priorities - they WILL have to try and change the people first, not the laws. It wont be the 'idealistic', but the most 'practical' option.

Bottom line: Its not about which law is good. But the need for it to be 'real'. The level of engagement in the law making process will grow exponentially. If the law is crazy, the impacted people will engage themselves. If the reason is that the lawmakers are too old - but KEEP making laws anyway, youngsters will be forced to jump in, if the reason is that women are in minority and men are making crazy laws for them, women will be forced to jump in..Not because it's our duty, or it's good, or we have turned into a new leaf - but simply because it IMPACTS us for REAL.

Now Let us know 4. The truth about ‘Change’