The law is not what it is

 

 “Skilled reading is not discerning what is there but a matter of knowing how to produce what can thereafter be said to be there. Interpretation is not the art of construing but the act of constructing. Interpreters do not decode a poem; they make them.”

-      Stanley Fish

Do you pride yourself in thinking that you are a rational person? Do you think that you approach anything with an open mind, listen first, and then only make a decision? This is actually not the case – with you, me or even the Justices of this country! Little do we realize that we are inclined towards making certain decisions. Reasoning follows later to justify our stance on an issue. Men don’t make reasoned decisions; they come up with decisive reasons.

Kindly, hear me out. Consider we have a legal dispute. There is a law on the subject matter. The parties have to use the same law to substantiate their case. So, the means to justify their stand is the same, but the goal sought to be achieved is different. To a novice me, a text had only one meaning. Especially a legal text which is so detailed and specific couldn’t have two meanings, because otherwise what is the point of being so detailed? I looked at everything so directly and plainly, and believed that the law will give a clear-cut answer as to who is the winner and loser. 

But imagine my surprise! It was absolutely incredible to me that you could project your meaning onto the text and voila! You have a new interpretation! Attorneys do this on a daily basis because they have a clear outcome to achieve for their clients. However unfavorable a legal provision appears to be prima facie they play the devil’s advocate.

While learning case laws as part of any course I have read some bizarre arguments from the losing side. They were desperately trying to extract a new meaning out of the statute with the sole purpose of getting immediate benefit with no regards to the possibility of setting a dangerous precedent for future cases. It took me quite a while to digest that lawyering entails what is called creative interpretation. This coupled with good argument skills help in persuading a judge to decide in one’s favour. Weekend lectures offered by eminent persons in the field made it all the more clear that law can be bent as it suits the needs of a person. Because how else could influential people obviously guilty of their crimes walk away scot-free when brought before the law? The joke about there being a court of law, but never a court of justice seemed all the more real.

What is the law?

I hope I have been able to show how open-ended the law is. As each person brings his own interpretation to the table for vested interests, law can hardly be said to be rigid. But why is this the case let’s explore.

Our laws follow the British model which had a dual system of administration of justice – first, is the common law courts which decided disputes purely from a legal stand point and second being the equity courts which came into existence at a later point of time for remedying the injustice rendered by common law courts. So they literally had courts of law and justice as separate institutions. We don’t make this distinction and purport to offer justice in the same court of law.[1]

It is contentious if this is the case because we have to understand that law is not framed on the foundation of what is morally right and wrong. This distinction between law and morals is the first thing that is drilled into the head of a first year law student. Law only punishes a legal wrong which may at times also be a moral wrong. However, a moral wrong is not answerable before the law. Adultery, a moral wrong, was punished under sec. 497 of IPC until it was decriminalized in 2018. Similarly, there are many moral injustices for which a person cannot get a legal remedy.

It is easier to list down what the law is NOT rather than trying to explain what it is. Law is clearly not based on morality as indicated above. Law doesn’t seek to do justice as it only inspects whether a conduct is legally valid. If we accept all this, then this begs the question what the hell is the law? Beyond the simple definition that it is a bunch of rules that regulate the conduct of people in a society, what is the foundation upon which it stands? If it does not mind that a morally right conduct is important in a society, then on what does it place its reliance? If law is not an end in itself, then it is the means to achieve what? The answer is constitutional morality.

A political will is formulated into a policy to finally find expression as law. So, wrong policies can end up to be a law and there are plenty of examples for this such as the reservation system. This is the reason we find newly brought out legislations being challenged before the apex court for violating the constitution. It is on this same standard that already existing IPC provisions that punished acts of adultery and homosexuality were decriminalized. Likewise, customs and usage also find recognition of the law as long as they don’t contradict with constitutional values. Therefore, law could be just about anything – a political will, an already existing legal provision, customs and usage of any community. These are recognized as valid laws as long as they comply with the constitution.

This begets another question about what is constitutionally moral. Simply said there is no straight answer to it. It is dynamic enough to adapt to changing times and keeps evolving. For example, in the Shankari Prasad[2] and Sajjan Singh[3] case, the Supreme Court took the view that a constitutional amendment is not law under Art. 13(2) and that the Parliament had all the powers to amend any part of the constitution including the fundamental rights. This was later overturned in the eleven-judge bench decision of IC Golak Nath[4] which completely stripped Parliament of its powers to amend Part III of the Constitution. Finally, the issue was settled in the famous Keshavananda Bharati[5] case by a thirteen-judge bench that held that while the Parliament had all the power to amend Part III it didn’t have the power to alter the basic structure of the constitution. Thus, we see the SC see-sawing between constitutional principles all in a matter of two decades and the issue being settled by a slight majority.     

While every challenge to a law is raised on the ground of violation of fundamental rights, much energy is spent in trying to find out if the constitution does in fact take such a view on the matter. So the position of law on the issue needs to be settled first i.e. the issue of law. And here is where the interpretation game happens backed by jurisprudence and interpretation tools that are predominantly Western. This is a process in finding the real purpose of the legal provision, its extent and scope, limitations etc. People often think that there is a just and fair system in place which will resolve their dispute when actually the dispute is with the law itself, in establishing that the matter is within the scope of the legal provision if we see it in this and this way. For example Art. 21 guarantees the right to life. It was solely through creative lawyering that the scope of this apparently simple provision was expanded to recognize and enforce rights such as the right to privacy, right to sleep, right to speedy trial, right against handcuffing etc. among many others.

Once the law is established, it is applied to the case at hand for determination and final judgment i.e. issue of fact. The verdict hinges upon the personal biases of the judge as this part of decision-making is largely discretionary and subjective. It is not uncommon for the result to go the other way when the operative order has been saying one thing all along. While the judgment may recognize a position of law that was previously unknown, it could refuse to accept that the case at hand violates the law. This is exactly where we see law failing to upkeep justice.

Moral vacuum created by law…

Because law inherently lacks moral standards and having rejected societal morals, in its place we have accepted constitutional supremacy. But these constitutional morals actually rests on western jurisprudence.[6] Have we given away our morals to be only governed by the West and its ideas in the name of constitutional law? Because if you observe the trend of recent judicial pronouncements, the constitutional morality favours individual freedom above community happiness, upholds the agenda of breaking India forces masquerading as human rights activists, and overall fails to connect with the woes of common man. We are yet to see doctrines on constitutional law that is purely ours and does not take inspiration from western thinkers. The doctrines that originated in the West were borne out of the political situations and social customs that were unique to them. Applying these ideas to a society that never witnessed the problem in the first place will give mixed results for morals differ from society to society. 

Unless there is some infusion of Indic thinking to our constitutional values we will see repeated denial of our rights as it happened in the Sabarimala judgment[7] and Jallikattu case[8] where the court played into the hands of divisive forces. Because clearly constitutional morality and societal morality is at loggerheads. It is funny how the apex court was of the notion that it is unnecessary to prosecute crimes like adultery which it felt to be a wrong of personal nature but when it came to a politically motivated issue like the Sabarimala case it enthusiastically interfered. An immoral act of adultery goes on to have many societal repercussions as it breaks a family structure. However, a reasonable classification that prohibited women of menstruating age from entering one particular temple was somehow more important for the law to address. In both the cases, the court favored individual rights and liberty over community rights. This earned them not only huge disapproval and contempt but also widened the already existing divide between the court and people.

Why are our cultural practices so easily twisted out of context and misunderstood by our own people? It could be because we are a culture who placed duty above everything else. We believe that it is in doing our duty that we live in the moment. An action performed with the right intention was enough for us that we didn’t worry about fixing the future. Contrast this with Western philosophies which talks in depth about a good, bright, and happy future for everyone with no mention of how exactly to get there. I cannot fathom how specific duties were let go for fancy abstractions; why we became preoccupied with the ends when we should pay attention to the means.   

This is exactly the problem that we see with various constitutional law disputes where the ends i.e. equality and liberty of the individual is spelled out, but no one knows how to achieve it. There is no guideline on what constitutes a right conduct, so it is completely left to the sense and sensibilities of the judges to decide if the action of the executive or legislature was arbitrary or constitutional. Very similarly, there are rules of interpretation for statutes. Some like the tax statutes have to be interpreted literally, while others have to be interpreted loosely because they are welfare legislations. But every style of interpretation at the end of the day is merely a backing for an object already decided. Hollow ideals with no real plan sums up what our constitution is. As I realize the implication of this, I am bewildered about what is said about rule of law which actually is a rule of chaos.

Atmavan manyate jagat…

This Sanskrit saying means that a person sees the world according to one’s own conditioning. Man is the sum of all his life experiences and based on it, he takes decisions. This is what I meant when I said in the introductory that we are inclined towards making certain decisions. If you had exposure to foreign values and culture, then this culture and its practices will appear strange, orthodox, backward and requiring reforms. However, if you were exposed to this culture and its practices, you will be able to see the why of it. This is respectively called as the outsider and insider drishti by Rajiv Malhotra.[9]    

If a Sanskrit saying doesn’t suit you, then consider what Stanley Fish says about interpretive communities.[10] While the theory was initially applied across literature as part of the reader-response criticism, its usefulness has been acknowledged by jurists as well. What Fish says is simple yet profound. According to him a text does not have a meaning independent of the reader. This means that each person reads and understands a text from his capacity to understand which is influenced by the interpretive community that he is part of. An interpretive community is a group of people who hold similar framework of ideas. As we don’t read anything in a vacuum and we have prior pieces of information from various sources, reading is done in relation with what we already know. The result is that no two person comes up with the same analysis of a text. This makes perfect sense as to why contesting parties to a legal dispute would genuinely believe that the law is on their side; because they read the provision from their framework of information and ideas. If we step out of this framework, there is the possibility of viewing the same text in a different perspective![11] Because we are conditioned to a particular way of viewing things, it is only with great conscious effort we can become unconditioned.[12] Additionally, Fish also talks about how language is responsible for a shared experience. This again is one of the reason why judges fail to connect with the people as beautifully portrayed in this film on love jihad.  

Often I ask why is the court a victim of ploy? This is sadly because we have been made strangers to our own culture and value systems due to many factors which I won’t go into here. As a consequence we look up to western ideals and miserably emulate them not realizing that our dharma prescribes far greater ideals to live by. So, if the drishti of the judge changes, we will see more judicial decisions that are just and truly serve the interests of the people.

For this to happen men learned in law alone won’t do. Because I have shown how fickle the law is, it all ultimately comes down to the integrity of the person judging the case. What I have to say might sound unusual, but I will take the risk to say it nonetheless. Anyone joining the defense forces is evaluated for certain officer like qualities (OLQs) and if we they are identified to possessing them, then they are selected and offered training. Just like that we need people occupying positions of judgeship to possess certain judge-like-qualities which must include among others compassion and empathy[13], sense of duty, emotional and social intelligence (ESI), problem-solving abilities[14] etc. which can be best assessed by sannyasins who are extraordinary human beings with great discipline of the mind. Since they are people who have no worldly desires, their services can be used to assess and train potential judges and justices. The judiciary, which has inherent reservation with any interference from other organs of the government, can rest assured that those assessing them are not ones who want to usurp their powers.   

In conclusion…

The object of this article was to show that we are trying to control the ends when the truth is we only have the means in our control. Bhagavad Gita says:

कर्मण्येवाधिकारस्ते मा फलेषु कदाचन।

(Karmanyev Adhikaraste, Ma faleshu Kadachana)

मा कर्मफलहेतुर्भूर्मा ते सङ्गोऽस्त्वकर्मणि॥

(Ma karmafal hetu bhuh, ma te sangah astu akarmani.)

The meaning of the verse is that while we have the right to do our prescribed duty, we do not have the right to claim the fruits of our action. Secondly, we should not consider ourselves as the cause of the result of our actions. If the intention behind the act was good, then there is no need to worry about the results which may or may not go in one’s favour.

I started off with explaining that we are predisposed to making certain decisions. I took the law as an example to show how it answers to the needs of any person using it. This was followed by a section on what exactly is the law and that it rests on the foundation of constitutional morality. Thereafter, I addressed how an issue of law is largely settled by western jurisprudence and the reason for this is an outsider drishti. In conclusion, I am saying this drishti needs to be changed so as to look at the action itself in its right context and not the consequences of the action. This is what our sanatan dharma also prescribes.

Let us understand that we have only adopted the western system of laws and mode of governance. We needn’t function by the same philosophy that they go by. We have the Indic system of interpretation i.e. mimamsa which can be utilized along with western models to deliver just decisions. And we have great thinkers in our own culture from whom we can get inspiration and we only need to look! While the lawyers can practice their dharma, we need to have judges with the right drishti to filter arguments and set responsible precedents.  

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[1] Recently a petition was dismissed by the Delhi HC because of the use of slang language. The petitioner was appearing in person and had drafted the petition of his own. I don’t know if we pride ourselves in making justice inaccessible to laymen by paying attention to details over content and matter.

[2] Shankari Prasad Singh Deo vs. UOI AIR 1951 SC 458

[3] Sajjan Singh vs. State of Rajasthan 1965 AIR 845

[4] IC Golak Nath vs. State of Punjab 1967 AIR 1643

[5] Keshavananda Bharati vs. State of Kerala AIR 1973 SC 1461

[6] Late Justice V.R. Krishna Iyer actively advocated Fabian socialism which believed in gradual reforms as opposed to revolutionary overthrow.  

[7] Indian Young Lawyers Association vs. State of Kerala 2018 SCC OnLine SCC 1690

[8] Animal Welfare Board of India vs. A. Nagaraj (2014) 7 SCC 547

[9] RAJIV MALHOTRA, THE BATTLE FOR SANSKRIT: IS SANSKRIT POLITICAL OR SACRED, OPPRESIVE OR LIBERATING, DEAD OR ALIVE? (2016).

[10] STANLEY FISH, IS THERE A TEXT IN THIS CLASS? THE AUTHORITY OF INTEPRETIVE COMMUNITIES (1980).

[11] One can say that this is the reason why we had an oral tradition of passing on knowledge. It is acknowledging the dangers of different interpretation through reading that Vedas were taught directly and orally to students.  

[12] In yoga they say that as much as a person frees himself from his karma, he will be free to take the right decision.

[13] This will avoid insensitive judgments that was delivered in a POCSO case by a female judge of Bombay HC.

[14] Law colleges teach argument skills by encouraging students to participate in moot court competitions. Unfortunately, the curriculum does not teach anything about decision making skills! It is as if the education itself is promoting how to exacerbate problems and not solve them. If we take our fables and folk tales, they are full of stories about great lives who brought immense joy to the society by solving the problems of ordinary people.