In a recent post on this Blog, we touched upon the idea of criminal law in India being a rather confusing space to navigate. While the post focused on confusion created due to different courts promoting contrary positions on law, the issue is much broader than that. Courts, Legislatures, and the Enforcement Agencies, all appear at times to be speaking at cross-purposes — on matters of both substantive and procedural law.
I felt that the point about confusion in the law’s landscape could do with a longer, standalone post. I say confusion instead of consistency, but perhaps they can be used interchangeably to describe what I have in mind. Which is the absence of any meaningful coherence within the structure of law. No lodestar to guide lawmaking itself, or to guide decision-making within laws by various stakeholders wielding power.
Law and Legal Science
There are many reason for pursuing this thought. One of them is a recent paper by Prof. Markus Dubber titled ‘New Legal Science in the Dual Penal State‘ (available here). The paper explores the idea of looking at the structure of law, stripped of the baggage that the legal enterprise has acquired over time in different parts of the globe (traditionally divided across the Common Law and Civil Law lines), and then creating a system based upon identified principles which are pursued through the law.
This idea, of starting from the ground up to develop a system of law, is a thought experiment which we do not end up dealing with much in India. We do not have any scholarship comparable to Hart & Sacks’ The Legal Process that has attempted to unpack the many layers of our legal system, and then try and resurrect it on a bed of principles. What would such an exercise look like within the Indian context? It would need a lot of work, for starters, because of how many layers the Indian system consists of. And then there is the conflict about principles. Professor Dubber’s paper moves on the premise that a new Legal Science will be in pursuit of a critical analysis of law. However, can we really agree on what those principles will be, and create a system in willing pursuit of critically analysing the exercise of power by the state? I wonder.
Here, I only bear half the burden and explore the layers of our legal system, working backwards, peeling back layers of the onion. The fight about principles can come later, and by others.
Our Constitution as a Source of Principles?
Before you say “We do have a lodestar, it is the Constitution of India, and this post can end here”, let me deal with that at the outset. The Constitution is a political document which proscribes certain legislative acts in Part III, and promotes certain others in Part IV, but it is not a document which actively crystallises principles for lawmaking. Within that broad sphere of activity which the Constitution leaves open, a State is free to do as it pleases. Even the power dynamics that it sponsored have created more problems than we are ready to acknowledge, as Gautam Bhatia has argued in his recent book.
The boundaries of principle have been supplied by our courts, and quite erratically at that. As Sandipto Dasgupta’s argues in his book, independent India’s judiciary saw independence as an opportunity for the courts to fully embrace Common Law, and the Supreme Court tested the Constitution not on its own terms or those of its founding principles but on the anvil of Common Law principles which the judiciary thought that it had inherited. Whatever scope for principled lawmaking the Constitution may have provided thus proved to be short-lived as a result.
The Common Law in India
Peeling off this layer of the Constitution and the founding moment of the Republic takes us to the layer beneath; of colonial rule which began formally in 1858. It was the legal traditions introduced during this time which the judges of independent India turned to. Not just the courts, but the move to “Legalize the Revolution” (borrowing again from Dasgupta) meant that a large part of the colonial state apparatus was retained after independence.
What were the principles which guided lawmaking during this era? Was it really the Common Law as the judges of post independence India wanted to argue — albeit a shackled common law which they felt had been freed with independence? Or was it something more complicated than that. M.C. Setalvad’s Hamlyn Lecture titled the Common Law in India is a good place to start unpacking this, but it is necessary to place it in context. Setalvad delivered this seminal lecture in 1960, at the end of the tumultuous first decade of the Constitution of India governing affairs. A decade in which he was the country’s Attorney General and at the forefront of the constant tussle for the Constitution that was going on. To think that Setalvad was in England merely delivering a historical or academic lecture is naive — the lawyer was making a case about his vision of independent India’s legal system.
The pitch that the Common Law came into India is one that has stuck since. But it requires more critical scrutiny than what has so far been offered to help us arrive at a more honest appreciation of the conflicting influences that guide India’s legal system. To simply wax lyrical about the Common Law in India ignores a large tradition of colonial legal history — that of the Codification enterprise.
Codification was conceived of, in part, as a response to the Common Law. A set of predefined rules that did not change on the basis of successive judicial decisions. It was meant to be the scientific expression of law, par excellence. And it was in codification that the colonial legal enterprise was birthed originally, in both realms of civil and criminal law. The Common Law that the courts of British India employed was within this context of these codes, and within the broader context of colonial rule. It presents us with the original setting of the common law working in an age of statutes, much before Guido Calabresi would go on to discuss these themes for America.
The principles, motivations, and influences behind the Colonial Codes, which were interpreted by courts using — at times — the set of principles developed in the Common Law of England, are therefore also an inseparable part of how we unpack Indian law today because of independent India’s choice to retain these codes lock, stock, and barrel.
The Messy, Pre-Colonial, Company Era
Peeling the layer of colonialism, we find the messy pre-colonial era which preceded the formal assumption of power by the Crown. Much like the peaceful transfer of power that occurred in 1947, the assumption of power in 1858 was no break with systems past. Instead, legislative and administrative projects which began prior to 1858 are what came forth as the first colonial codes in criminal and civil law.
A shift from colony to independent nation-state in 1947 without changing much of the colonial state apparatus, including the colonial legal codes, meant that independent India chose to avoid confronting the logic of power that underlined the colonial legal system. This was a logic which placed the sovereign above the subject-citizen. Adopting it in a post-colonial setting has, arguably, proved not to be the best of choices from the perspective of creating accountability upon sovereign power.
If we turn the clock back to 1858, the transfer of power took place by a simple proclamation read aloud by Lord Canning, and all the natives under Company rule became subjects entitled to all protections of a rule of law under the British Crown. But, the foundational premise of Company Rule was markedly different from Crown Rule. Its predominant goal was policing the territory to maintain law and order and maximise revenue; justice, was not a prerogative. And in adopting the police-state as the base for Crown Rule, it was ensured that the justice promised under the Crown would also remain a poisoned chalice.
The core interest of Company Rule was revenue collection: administration of law was a by-product. For ease of administration, procedural systems similar to the British law were introduced for civil and criminal proceedings. The core interest structuring these proceedings was not justice but regulation and maintaining order for maximising extraction of wealth. Company Rule coexisted with a sliver of pre-1858 Crown rule, in the form of Crown Courts for certain areas (Presidencies) and peoples (the British).
The shift from Company to Crown Rule did not eliminate the Police State components while introducing or expanding the just rule of a benevolent sovereign — assuming that the Crown Courts administered any such thing in the first place. But rather 1858 and the subsequent years assimilated them together to form a composite structure akin to the kind of Dual Penal State which Dubber has identified in different contexts. This is perhaps most visibly seen in the complementarity and later assimilation of the Police Act and the Criminal Procedure Code which were enacted by the Crown after 1858.
Forerunners to Company Rule
The police state of Company Rule is as much part of the foundations of Indian Law as is the Constitution. But it is not the last layer of the onion. We can continue to peel it further and reach the 18th Century. At this point, different parts of the subcontinent were under different legal regimes. Those parts in which the British East India Company took root were no terra nullius either. The legal systems which the Company introduced through its regulations were designed to either nullify, or complement, the pre-existing regime that the Company encountered. This meant, therefore, that the Company’s law was also influenced in turn by what came before it.
The recognition that what came before Company Rule mattered to how the British went about their task in introducing legal rules and schemes for governance is important to help understand just how complicated the structure of present-day Indian Law is. These influences are also not of mere historical significance but can be felt even today, both indirectly in terms of how they influenced the British-era law as well as directly in how various practices can still trace roots back to this period. It is a shame that an effort to go and ‘decolonise’ the criminal law made no attempt to unravel the substantive foundations of the present-day Indian criminal law, which appear to be largely a 19th Century creation.
Why a Legal Science?
Without fully engaging with, and deconstructing, all of these influences upon our legal system, it is impossible to carve out the principles that do guide its functioning, or identify ones that ought to guide it.
There is no need for this exercise if all that we want from ‘Law’ is that it provides some kind of rickety and uncertain basis for how social, political, and economic relationships can function. But if we want to go a step further, then a project of the kind that Dubber bats for — call it by whatever name — is obviously a desirable effort. Especially, in a jurisdiction like India, which has so far not had any time for a true and honest reckoning with its legal history to organise its legal present.
There are numerous examples where a consistent, principled, approach would reap benefits in how the law is created and applied. Within the criminal law, one can easily think of how it would transform the regime of bail and arrest. Again, I might add, for better or for worse depending on where you stand. Either which way it would be better than the present system where outcomes appear determined largely by the luck of the draw, and personal moral compass of individual officers and judges who wield near total discretion in deciding matters pertaining to individual liberty.