Why Enforcement Fails in India

In one line

Enforcement fails in India for five reasons: capacity, access, delay, the absence of consequence for non-compliance, and the design of the institutions, and they require different remedies.

1. Capacity

The distinction from [The Limits: What a Court Cannot Do However Activist] governs everything here.

A failure of compliance is curable by an order. The duty exists, the means exist, and the defendant is not performing.

A failure of capacity is not. The hospital, the house, the courtroom, the judge or the investigator does not exist and must be created.

Every institution in this module runs into it. Courts lack judges and courtrooms; the Commission lacks its own investigators under section 11; the Human Rights Courts under section 30 were designated rather than established; the Special Courts under the atrocities Act are not established in every district that needs one; and the time limits in POCSO are not met.

No amendment cures a capacity failure, and that is why it is first on the list.

2. Access

A remedy that cannot be reached does not exist for the person who cannot reach it.

The barriers are cost, distance, language, literacy, fear and ignorance, and they operate hardest on the people most likely to be violated.

The Indian answer has been to build accessible institutions, which is what the Commission is: a letter, no fee, no lawyer.

And the accessible institutions are the ones that cannot order anything, which is the complementary-weakness observation in [What Enforcement Means].

Section 36(2) makes this worse, because the one year bar operates hardest on the person who could not complain promptly, and a writ petition on the same facts has no such limit.

3. Delay

Delay defeats a remedy in four ways.

It defeats the claimant, who cannot sustain proceedings for years.

It defeats the evidence, as witnesses disperse and records are lost.

It converts pre-trial detention into punishment, which is the undertrial problem in [The Right to a Speedy Trial].

And it is itself a violation, of the right the same courts declared.

The special court device is the standard response, and [Special Courts: What They Are, and Why Parliament Creates Them] shows that it works only where all four of its conditions are met.

4. The absence of consequence for non-compliance

This is the cause most specific to India's institutional design.

A commission's recommendation carries no obligation to comply, only to respond and to give reasons, under sections 18(e) and 20(2).

A court's order carries contempt, which is a real sanction, and it requires the claimant to bring fresh proceedings.

A statutory duty on an official carries nothing at all, in almost every statute on this paper. Section 4 of the atrocities Act is the single exception, making a public servant's wilful neglect of enumerated duties an offence, and it is rarely prosecuted.