It takes a lot of doing to make the economy fall from a 9 per cent growth rate two and half years ago to 6.1 per cent in the quarter ending December. A fall of one per cent means the loss of almost 15 lakh jobs, and not surprisingly there is a lot of pain and gloom around, mostly inflicted by this UPA government.  News about corruption also refuses to cease. But the real tragedy is that the rule of law, one of India’s strengths, is also beginning to crumble.

This government undermined the rule of law when it overruled the Supreme Court in Vodafone’s tax case. It decided to change the law after the event and violated the spirit of justice when its decision to tax similar deals retroactively going all the way back to 1962. It was equally unfair when it announced in this year’s Budget to make Cairn, India’s largest producer of petroleum, pay $90 a ton in tax suddenly when other private companies are paying $18.

As it is, India’s reputation has suffered ever since environmental permissions were re-opened after those permissions had been granted officially. But when Maharashtra Hybrid Seeds Company was arbitrarily denied a license in 2010, when it had had toiled for a decade to develop Bt Brinjal, the world’s scientific community was aghast and upset. The company had completed 25 environmental bio safety studies through independent agencies, rigorous field trials by two Indian agricultural universities, and completed all protocols to the government’s satisfaction.

Finally, there is much sympathy around the world for Norway’s Telenor, a highly respected company with integrity, which became the unwitting victim of the Supreme Court’s decision to cancel licences given out corruptly in the 2G spectrum case. The corruption occurred well before Telenor entered the picture. Telenor first paid a hefty price to buy a share in a joint venture based on an official license from government and invested Rs 12,000 crores in the market after that. It is so upset by this turn of events Rs 70,000 crores in damages via an international arbitration from the government India.

Citizens in a civilized society look to the state to reduce uncertainty in their lives.  A robust rule of law is how the state brings predictability. As it is, there is so much uncertainty in the entrepreneur’s life, and this is why three out of four businesses fail. But in India the largest risks still emanate from the government and its regulatory process. The main reason is that the rule of law has weakened, and no longer restrains the arbitrary behaviour of the rulers.  Corruption is a symptom of this weakness.

Citizens look to the state to reduce uncertainty in their lives.  The state does this through a robust rule of law. As it is, there is great uncertainty in an entrepreneur’s life, which is why three out of four businesses fail. But the UPA government, instead of making life predictable is the main source of uncertainty. Its arrogant ministers have weakened the rule of law and result is corruption scandals. Corruption never occurs when the rule of law is strong.

Some people think that this was bound to happen. They say that the rule of law was a foreign import which came with the British Raj. After the British left, it began to wither. When ministers and officials began to think they were above the rule of law—for example people like A. Raja and Suresh Kalmadi—the rule of law collapsed.

The rule of law is based on a moral consensus, and is expressed daily in the ‘habits of the heart’. A successful democracy depends on such a moral consensus People obey the law not only because they fear punishment but because they think that the law is fair and soon it becomes a habit which expresses itself in the form of self restraint. While Indian habits may not be quite as liberal as English habits, India always had a rule of law expressed as ‘dharma’, which gave coherence to people’s lives, reduced uncertainty and provided self-restraint. For this reason the founding fathers of our Constitution often invoked dharma in their speeches. The great scholar, P.V. Kane, who won the Bharat Ratna, called the Constitution a ‘dharma shastra’.

It may seem bizarre to invoke tradition when that tradition was responsible for so much unjust hierarchy and social injustice. But the rule of law originated in religion almost everywhere. In the West, it emerged from Christianity. Long before modern European states, Pope Gregory I established laws for marriage and inheritance.  The Church also discovered the old Justinian code, which became the basis of civil law in continental Europe.  Frederic Maitland says the rule of law gained higher legitimacy because it emerged from religion; thus, no English king ever believed that he was above the law. Indian kings had the same conviction about dharma.

Although dharma originated in religion, it became a norm of secular civic duty, and the basis of the traditional rule of law. It had some surprisingly liberal elements too. In pre-modern times, dharma restrained the power of the state via raja-dharma. Dharma was higher than the state and the Brihad-aranyaka-upanishad famously called it ‘sovereignty of sovereignty’, kṣhatrasya kṣatram yad dharmaḥ (1.14). That is to say, the ruler is not sovereign, dharma is.  Some of the ministers of UPA’s government would do well to ponder this thought.

The rule of law is basic to Islamic civilization as well. It was the ultimate source of justice and it also deterred political rulers at various times in the Muslim nations of the Middle East. But Muslim and Hindu laws did not survive modernization partly because they did not achieve autonomy between religion and the state, which was crucial to the way that the modern institutions of the rule of law developed in the West.  Eventually, both India and the Muslim nations were forced to separate the two by colonial rule.

The ideal of a ruler guided by ‘dharma’ exists in the Indian imagination even today, thanks to the extraordinary continuity of our civilization. When the vast majority on the sub-continent is deeply religious, it is not inappropriate to turn to tradition to seek that moral core that can restrain public officials and citizens. Fusing tradition with modernity could help restore the moral core in a meaningful way in support of the modern rule of law to re-invigorate India’s democracy.

(The writer is a senior columnist)