“One form of the vigilante, in the United States, is the ‘citizen arrester’ who enjoys legal status and whose actions are protected by a law that permits him or her to pursue and arrest a person accused of breaking the law. Drawing on a legal convention that comes from the Common Law tradition in England, dating from the 12th Century, a citizen arrester can physically arrest a person, on behalf of the Monarch (now State) who is regarded by them as breaking or evading the law. There are procedures to be followed, and risks involved for wrongful arrest, but assuming that these are adhered to the citizen arrester is regarded as aiding the consolidation of a political system based on the rule of law. Because of its potential for abuse, in legal circles in the U.S., there is a debate on the need to circumscribe the scope, and eligibility, of who can be a citizen arrester.”
In the world’s largest democracy, the word ‘vigilante’ evokes unsavory images of goons stopping cattle trucks and lynching drivers, or video filming themselves assaulting men accused of love jihad or beating up couples celebrating Valentine’s Day. A vigilante in India is both bad news and a bad word. Vigilantes are anti-democratic. They lack the values of a constitutional democracy. A consensus has emerged in India to demand that the law-and-order machinery comes down heavily on such vigilante behavior.
A respectable garb in the U.S.
So, imagine my shock when I discovered that in the world’s oldest democracy, the word ‘vigilante’ receives only half the opprobrium that we heap on it in India. The other half is suppressed by a law that makes vigilantism respectable. One form of the vigilante, in the United States, is the ‘citizen arrester’ who enjoys legal status and whose actions are protected by a law that permits him or her to pursue and arrest a person accused of breaking the law. Drawing on a legal convention that comes from the Common Law tradition in England, dating from the 12th Century, a citizen arrester can physically arrest a person, on behalf of the Monarch (now State) who is regarded by them as breaking or evading the law. There are procedures to be followed, and risks involved for wrongful arrest, but assuming that these are adhered to the citizen arrester is regarded as aiding the consolidation of a political system based on the rule of law. Because of its potential for abuse, in legal circles in the U.S., there is a debate on the need to circumscribe the scope, and eligibility, of who can be a citizen arrester.
The ‘Heartbeat Bill’
But rather than diminish the place of the citizen arrester, the recent decisions of the Texas legislature are in fact encouraging the practice. Two cases are particularly noteworthy. The first is the latest innovation introduced in Senate Bill 8 (SB8) in Texas, known as the ‘Heartbeat Bill’, signed into law by the Texas Governor Greg Abbott in May 2021, that seeks to ban abortions after six weeks when the fetus registers a heartbeat. The passage of this law has produced an active debate in the U.S., between pro-abortion and pro-life groups, drawing on medical science, law, bioethics, and women’s rights, to refine the different elements of the Roe vs Wade judgment of 1973.
There are five aspects worthy of attention. The first is it deprives women of the right over their own bodies by making abortion illegal after six weeks when many women do not even know that they are pregnant. This in effect means that abortions, when needed, are unavailable. The second is to include, in the applicability of the law, even women who are victims of rape and incest. Victims are thereby subjected to a second victimization since now they will be compelled to carry the pregnancy to full term or seek termination in the dark alleys beyond the law. The third is to make culpable anyone associated with an abortion after six weeks and this could include the Uber driver who takes the pregnant woman to the clinic, the receptionist, the nurse and the doctor. The fourth is the declining, by the Supreme Court of the USA, in a five versus four vote, to hear the injunction challenging the Texas Anti-Abortion Law.
In her dissenting note, Justice Sonia Sotomayor wrote: ‘Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand… The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.’
This sandy terrain to which the court retired is, unfortunately, very familiar to us in India. And the fifth, on which I wish to comment here, is the legal device that blocks State officials from enforcing the law but outsources the enforcement to private citizens who can sue abortion providers from performing abortions and are entitled to collect $10,000 as a civil payout in addition to their legal fees. Such a person can even be someone from outside the state who can show any connection to the abortion. Enter the ‘bounty hunter’ or ‘citizen arrester’.
While each of the five aspects raises important ethical and legal issues I wish to highlight only the fifth since Republicans in Texas have used the legal device — call it a cunning innovation — of empowering and encouraging citizen arresters to perform the job of state officials who are thereby protected from being sued. The effect of this innovation is to deny women the rights given by Roe vs Wade. The case shows the length to which partisan groups in a democracy, even in one as mature as the U.S., will go to overturn settled law and redesign both the public discourse and the institutional order to make it consistent with their religious ideology. Linda Greenhouse commenting on the legislation in her article in The New York Times (September 9, 2021) asked in exasperation: ‘Who let God into the legislative chamber?’ This is the same question we often ask in India.
The second case in Texas concerns the Reforms to the Voting Law in Texas which seek to reverse the gains of earlier years. SB1, the Bill recently signed by the governor, bans drive through voting, 24-hour voting, and distribution of mail-in applications. It requires new ID requirements for voting by mail, creates new rules for voter assistance, establishes monthly checks, etc. To block the passage of the Bill, the minority Democrats who felt the changes amounted to voter suppression and would disadvantage minority voters, flew out of the State to Washington DC so that the house could not convene for want of a quorum. The Republicans responded by relying on the law to compel voting and thus Speaker Dade Phelan signed warrants authorizing the Sergeant-at-Arms to arrest and produce the missing representatives. The length to which the Speaker went is shocking to our democratic sensibilities. Some representatives stated that they were less worried of being arrested by officials and more by citizen arresters.
In an overview article titled ‘Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest’, Professor Ira P. Robbins discusses its historical origins, pitfalls, good application and reform. He argues for the scope of citizen arresters to be restricted to only a small category of people, such as shopkeepers, out-of-jurisdiction police, and private police forces, and being abolished in all other cases. The trend, unfortunately, as shown by Texan laws, SB1 and SB8, is moving in the other way. Because of the opprobrium we have heaped on vigilantes in India, I hesitated to equate them with the citizen arrester till I read the phrase in a letter on SB8, by the Chairman of the U.S. House Judiciary Committee, Jerrold Nadler, to the Attorney General, Merrick B. Garland, to prosecute ‘would be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law’. The oldest and the largest democracies, it seems, both have a vigilante problem today.
(The author is the DD Kosambi Visiting Professor at Goa University. He is the co-editor of the book he co-edited with Rukmini Bhaya Nair, ‘Keywords for India’)