Measuring the Rule of Law in India: A Volunteer Lawyer's Experience

Maine Law Review Volume 60 Number 2 Symposium -- Nation-Building: A Legal Architecture? Article 16 June 2008 Measuring the Rule of Law in India: A Volunteer Lawyer's Experience Linda D. McGill Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr Part of the Rule of Law Commons Recommended Citation Linda D. McGill, Measuring the Rule of Law in India: A Volunteer Lawyer's Experience, 60 Me. L. Rev. 537 (2008). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol60/iss2/16 This Special Section is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine School of Law Digital Commons. For more information, please contact . McGill: Measuring the Rule of Law in India MEASURING THE RULE OF LAW IN INDIA: A VOLUNTEER LAWYER’S EXPERIENCE Linda D. McGill* When I set off for New Delhi, India in January 2003 to serve as a volunteer with the International Senior Lawyers Project (ISLP),1 nation-building was not in my mission statement. After all, India is the world’s largest democratic country, sustaining that status for sixty years from its violent birth by partition through the curtailment of individual freedoms in the 1975 “emergency”2 to its recent emergence as a “giant” of economic development and intellectual capital.3 India’s hold on democracy is all the more impressive given the religious and cultural differences among its vast population and the legacy of still-simmering resentments from centuries of social and economic stratification under the caste system.4 Except for cross-border tensions with Pakistan, India has been at relative peace with itself and the world since its independence in 1947. It has a functioning and independent judicial system, free elections, civilian police force, parliamentary government, and numerous robust political parties. The Constitution of India, the longest of any in the world, is an admirable document. The statutes and common law are comprehensive and based on well-accepted legal norms. In short, and in contrast with its neighbors Myanmar, Sri Lanka, Pakistan, Nepal, and China, India has built a democratic nation that has endured. Rather than nation-building, the rule of law was the framework for my volunteer service. Consistent with ISLP’s mission, I was volunteering in order to support and advance the rule of law in India. My specific assignment was to provide “senior lawyer” assistance to a group of public interest lawyers who handled human rights cases on behalf of the poor. Given the facially healthy appearance of India’s democratic institutions, I assumed that the rule of law issues embedded in that work would be somewhat nuanced and subtle, well along a continuum of rights and principles that had already been established. However, as I was to discover, many rule of law principles in India are at a more nascent stage of development. It is true that virtually all of the fundamental legal principles associated with a democratic system of law are eloquently articulated in India’s Constitution, codes, and judicial opinions. However, many of these laws—especially those affecting individual rights and protections—are so unevenly and inadequately enforced that they effectively do not exist for large segments of India’s population. The size of the gap between the law on the books and its access by and application to all levels of a society is one crucial * Shareholder, Bernstein, Shur, Sawyer & Nelson, P.A. Ms. McGill practices labor and employment law in Bernstein, Shur’s Portland, Maine, office. 1. Founded in 2000, ISLP provides volunteer legal services by experienced attorneys with the goal of advancing democracy and the rule of law, protecting human rights, and promoting equitable economic development worldwide. See generally ISLP Home Page, http://www.islp.org. 2. Following a period of economic and political stability in India in the wake of the 1971 war with Pakistan, Prime Minister Indira Gandhi imposed a state of emergency that included the imposition of press censorship and the curtailment of other fundamental freedoms. The Emergency ended with the defeat of Gandhi’s party in 1977. See SUNIL KHILNANI, THE IDEA OF INDIA 45-48 (Penguin Books 1999) (1997). 3. See generally ARVIND PANAGARIYA, INDIA: THE EMERGING GIANT (2008). 4. For an analysis of why democracy in India has prevailed and is likely to continue, see generally KHILNANI, supra note 2. Published by University of Maine School of Law Digital Commons, 2008 1 Maine Law Review, Vol. 60, No. 2 [2008], Art. 16 538 MAINE LAW REVIEW [Vol. 60:2 indicator of a country’s progress on the rule of law continuum. By that measure the nation of India, while not outside intervention or fundamental restructuring, is still in the building process. My volunteer assignment was for a period of five months, the length of a semester at the American Embassy School in New Delhi for my fourteen year-old daughter and a sabbatical from my law firm for me. Even today, with the benefit of hindsight, I would not be able to articulate an entirely logical rationale for the decision to trade our comfortable, small-town lifestyle in Maine and my satisfying and busy practice, however temporarily, for the considerable uncertainties of living and working in India. For my daughter, the lure was the opportunity to live in another culture and have classmates from around the world. For me, the motivation was less certain. It is easier to identify the decision point, which came shortly after I learned about ISLP and discovered the potential for using years of legal experience in a very different setting from my management-side employment practice at home. In the fall of 2002—at the same time my daughter and I were beginning to discuss the feasibility (or lack of it) of spending a few months together living out of the country and musing on India as a place that interested us both—ISLP had been contacted by the Human Rights Law Network (HRLN), a collective of lawyers and social activists headquartered in New Delhi who provide pro bono legal representation and other advocacy for those who have little or no access to the justice system in India.5 When I found the ISLP site on the Internet and made a spur-of-the-moment application, I did not know this. But from my first contact and interview with ISLP’s executive director, the die seemed cast. HRLN needed a volunteer lawyer in India, and I was a lawyer who wanted to do volunteer work in India. In surprisingly short order, I arranged a leave of absence from my firm, transferred files to my partners, and obtained the airline tickets and visas. On New Year’s Day we stumbled through customs and out into the air of New Delhi, acrid with the warming fires of street dwellers and the exhaust of thousands of vehicles, all apparently competing for a single traffic lane. After a (...truncated)