Mind the Gap: Improving the Links Between Courts and Codes

(This post first appeared on the RSRR Blog)

It has been seventy years since we, the people of India, gave to ourselves the Constitution. But long before we did so, the British gave to us a system of laws, and we continue to live with it till today. This system of laws consisted of lengthy statutes, which were detailed to the hilt, to have the maximum certainty and predictability possible.

Complicated systems end up making law the exclusive domain of lawyers and judges, while simple codes make the law accessible for all, and that is how it should be. However, even the most detailed code might have gaps, and can certainly allow for differences of opinion about the meaning of words. Which is where courts came in, whose primary task was to apply the codes and seam any creases.

For this setup of statutory law to work efficiently, it is only natural for legislators to keep a close eye on what issues emerge in the working of their codes. There must be a feedback loop, where legislators update the law whenever courts reveal serious issues that were somehow ignored or not thought of previously. This update might be an amendment to fill the gap, or a clarification to set any doubts at rest, and ensure everyone is on the same page.

If the update exercise stops happening, the point of having the codes will slowly be lost. It will not be enough to simply read the text of the law; one would also need access to case reports to understand what that text means, or how it is applied in specific cases. Slowly then, we find that the law is no longer accessible to all, but an undemocratic exercise where only those who know the magic words can make things happen.

This parable of the gradual transformation of statutes nicely captures the current situation of the Indian criminal process. Once at the vanguard of a codification project where legal statutes were periodically updated based upon feedback from courts and administrators, India’s criminal law codes are now the pre-eminent examples of laws whose meaning cannot be gleaned without copious references to a gargantuan and complex body of judicial opinions. And considering that it is the poor who are most in contact with criminal law, we can imagine the especially insidious nature of this transformation—those who cannot afford lawyers in India are most in need of them for the simple task of understanding just what the law says.

For instance, consider Section 167(2) of the Criminal Procedure Code 1973. This provision says that a person cannot be detained in custody for longer than sixty or ninety days in a pending investigation (depends upon the alleged offences), and upon expiry of this period the accused “shall be released on bail if he is prepared to and does furnish bail”. Unfortunately, there are some gaps here, for instance: (i) must an accused file an application to trigger this process? (ii) what if the accused cannot furnish bail within sixty days? (iii) when do sixty days expire? Now, if one opens a legal commentary on these aspects, a copious set of citations can be found. And even after that, there are local practices to account for in respect of issues (i) and (ii). This is the kind of situation that cries out for a statutory update: If there is ever a need for clarity in law, it is on questions of personal liberty. And yet, the law remains as it was in 1973.

I also want to highlight a set of connected and very problematic consequences that follow if gaps between the courts and the codes continue to grow. The first of these is the disastrous impact had upon the cutting edge of law—cases where individuals are engaging in conduct at the limits of legality. This could be the case of a free speech activist testing the limits of obscenity law, or the case of a start-up engaging in bitcoin or medicinal marijuana business.

Disputes about where the lines of legality are drawn will certainly come to court, and the status quo will shift. A law might be struck down as unconstitutional, or courts might insert restrictions upon how the text can be interpreted. But if that changed legal position doesn’t get reflected in the statute itself, how can we be sure that the same issues will not crop up in respect of other persons engaging in the same conduct?

I wish this was a hypothetical, but it isn’t. One glaring example of this is the afterlife of Section 66-A of the Information Technology Act, 2000. Struck down as unconstitutional by the Supreme Court of India in 2015, a study reported that the police across many states continued to arrest persons under this zombie law well into 2019. It bears importance that within those four years, the statute itself wasn’t updated to remove all references to Section 66-A. All that was done, and it was done only in 2018, was to add a footnote declaring the provision was no longer valid law.

A different example is the rampant misuse / abuse (call it what you will) of sedition laws across India. Despite numerous judicial decisions clarifying that there must be incitement to imminent lawless action and not mere advocacy of certain conduct for a speech act to be called seditious, there has not been a single update to the text of Section 124-A of the Indian Penal Code. Of course, it can and should be argued that the police and other agencies have a duty to keep abreast of the law, and so not updating the legal text is no excuse for the police arresting persons on sedition charges in connection with a primary school dramatic play. But a clearer code would help curtail such abuses of discretion, leaving lesser room for ambiguity and unnecessary argument.

How difficult can it be to update laws periodically? There are state law commissions, as well as a Law Commission of India, and one of the primary responsibilities of these bodies is to improve the Indian legal system. Could there not be a process of periodical review of the laws, much like our decadal census, to take care of the situation? That there is almost no country with a concrete process in place mandating the periodic review of legislation gives us an indication of how hard this can be. After all, legislatures have tons of work, and there is little political mileage in tinkering a law that is doing alright for the most parts. Although it must be noted that today, most of the classic civil law jurisdictions (if one accepts this crude classification between “common” and “civil” law terrains) are governed by EU law, which comes with its own difficulties of execution and implementation.

If this necessary periodic review by legislature appears to be a bridge too far, then why not the legislature depute a body to work actively at creating a criminal practice manual? This could link the courts and the codes by having small explainers, distilling the essence of how judicial decisions have interpreted the text. By having a government-appointed body at the helm, rather than a group of private persons, that distilling exercise will have the weight of authority and avoid critiques of bias and nepotism. This body could perhaps be modelled on the lines of the Sentencing Commission, which is tasked with rationalising law and practice on sentencing to craft Guidelines that can be applied by courts. Of course, this exercise of technocrats distilling the law suffers from the criticism of being just another undemocratic scenario to replace the already existing one we are suffering.

Even though it has not completed a full year in power for its second term, the government has repeatedly stated that it is considering amendments to the criminal laws to bring them in tune with the aspirations of 21st Century India. As this short essay argues, perhaps the best way for any government to fulfil this promise is to create a process of periodical legislative review, rather than one that happens once every fifty, or even one hundred and fifty, years.