The Hindu
Friday, August 13, 1999

The case of Stephen Lawrence

By Rajeev Dhavan

DESPITE RECENT attempts to illustrate the modernity of India's dharmasastra by equating 'dharma' with modern 'law', there is a difference. Both are created by powerful forces. But dharma is a social law which draws moral strength from civil society without directly invoking the power of the state. Modern law is a political creation - an institutionalised expression of state power, which is given effect to by bureaucracies and the judiciary. In our times, the incongruent relationship between the social law (dharma) and the state law (declared by Parliament and the courts) is self-evident.

Goondas and thugs have taken over civil society. Dowry is more important than the bride. Society has no centre and no summit. The state law strikes moral poses; but cannot deliver its moral goods. In fact, the state law provides moral loopholes for the unscrupulous. Until our thugs (and political and business entrepreneurs) are found guilty of violating the 'law', they will be invulnerable. They are "innocent" - to do what they please. They can fight elections, be negligent with impunity, kill without remorse and control society without accountability. Social law has lost its vitality - the bad parts have survived, the good bits have vanished. The state's declarations of law are writ on water and society has surrendered to its worst elements. Nothing illustrates all this better than England's experiments with racism. Having failed to control it through the 'law', England is now trying to establish a new anti-racist dharma in society. This is powerfully brought out in the latest McPherson Report on the Stephen Lawrence inquiry. We have something to learn from them.

Stephen Lawrence was murdered on April 22, 1993. His friends fled as the "nigger" was killed by "white murderers". He was "stabbed to a depth of about five inches on both sides of the front of his body to the chest and the arm... severing several arteries, and blood must literally have been pumping out". As the McPherson Report put it: "Nobody has been convicted of this awful crime..., an affront both to the Lawrence family and the community at large". The state backed off as "nobody came forward to advance the case". In a private prosecution in 1996, the three prime suspects were acquitted and "can never be tried in any circumstances in the present state of the law". After a full hearing in 1997, an inquest jury declared: "Stephen Lawrence was killed in a completely unprovoked racist attack by five white youths." The Police Complaints Authority severely castigated the police investigation. Matters did not rest there.

Someone's conscience continued to stir. On July 31, 1997, the Home Secretary, Mr. Jack Straw, asked Sir William McPherson of Cluny to investigate. The McPherson Report stands out as one of the great reports of our times, asking Britain to come to terms with its racism. We have much to learn from it. India, too, is a society riddled with vicious prejudice in which the poor and the Dalits are beaten up and killed at will, women are paraded naked through towns and villages and the displaced and vulnerable are drowned by all but their sorrow and their indomitable struggle for dignity.

What is racism? Over the last 50 years, Britain has signally failed to devise a satisfactory answer. In 1944, the West Indian cricketer, Sir Learie Constantine, found that the common law had no real cause of action to deal with the racism of Imperial Hotel. The Race Relations Acts 1965-68 were cautious, limited and skewed. The Act of 1976 provided direct remedies but has not been effective as is self-evident from a detailed report I wrote for the Commission for Racial Equality in 1988. Meanwhile, the tide of brutal racism continued. The death at Red Lion Square (1976), Chaggar's murder in Southall (1977), the burning of Brixton in protest and the Lord Scarman Inquiry (1980-81), the unabated attacks against ethnic minorities. Whatever the law, racism continues unabated. Stitches on my face and hands confirm this to me. There was little McPherson could have said on the law. That is the easy way out we follow in India, holding out the law as a false promise. Racism in Britain is embedded in people's minds, in the police force, in the administration, in people's attitudes and in civil society.

With a penchant for social truth, McPherson exposed racism in the police itself. For him, there were dangers in talking of institutional racism "without addressing its meaning." For him, racism included, for example, an assumption in the mind of a woman white police officer that a black person driving a car must have stolen it. For the law as it is practised, racism was a direct or indirect knowing or intentional wrong. In society there was "unwitting racism" - an undercurrent tendency that corrupted the mind, soul and practice. It was imbricated in the collectivity of people, organisations and state machinery. In the Lawrence case, McPherson asserted that "mere incompetence could not account for the whole catalogue of failure, mistakes, misjudgments and lack of direction and control."

Looked at from the point of view of the victims and those badgered into fear, McPherson defined racism: "(a) racist incident is any one incident which is perceived to be racist by the victim or any other person." Even if the "racist" incident was not a crime, it had to be investigated. The answer was not in the law, but in confronting the "collective failure... in the organisational structures, policies, processes, practices which result in the ethnic minorities being treated unfairly and less equally (even) without intention or knowledge."

McPherson was clear that "if racism was to be eradicated, there must be specific and coordinated action both within the organisations themselves and society at large, particularly through the educational system from pre-primary school, upwards and onwards." Thus, racism existed in society and in the many processes and institutional structures which, unwittingly or otherwise, conceal, congeal and sustain it. It is civil society that had to root out racism. After McPherson, race relations colleagues in England feel there is a job to be done which is far more extensive than enacting laws and providing the machinery to implement them.

The message of McPherson would be wholly missed if we receive it with the usual false eyes of India's planning commission developmental jurisprudence that all will be right with the world if "good" laws are enacted and enforced. It is this Nehruvian heresy that has lulled our social senses to sleep. The law is important, but often no more than a symbolic declaration that something is being done. Looked at from below, the law is, at best, a "bargaining endowment in the shadow of the law" which may have a place in people's struggles. That shadow can often be as elusive as are the forces that create and sustain it. For real solutions we have to turn to the failures of society.

India is full of everyday incidents as brutal as is the murder of Stephen Lawrence. Yet, although brought within public domain, we are unmoved by this brutality. We turn to the law as an escape mechanism. If society does not change its biases about the range of permissible cruelty, nothing will change. When we speak of the dharma of civil society, it is no one's case that gender unjust and the inegalitarian prescriptions of Manu's dharmasastra be restored. But, if India has survived with all its discontent without the continuous support of a strong state, it is because its dharmasastris and maulvis located solutions in the "living law," of society. A greedy society looking in the wrong direction will mislead itself - as Britain has misled itself on racism.

We have much to learn from Sir William McPherson's report on how to confront social truths for what they are. Stephen Lawrence is dead. But the spirit of the report that bears his name will illumine us as we transit from this awesome, even if technologically creative, century.

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