(This is a guest post by Rajyavardhan Singh)
The editor of this Blog recently sketched a provocative thought. His argument, stated simply, was that Indian law is a landscape without a lodestar, lacking any “legal science” that could guide coherence in lawmaking or adjudication. What we confront instead is a dissonant landscape, where legislatures, courts, and enforcement agencies operate at cross-purposes. This is so, for their approach seems to be shaped more by immediate contingencies rather than a settled conception of law.
By tracing the Constitution back through colonial codification, company rule, and pre-colonial inheritances, the earlier post showed how Indian law is a layered historical construct, but one that lacks an organising framework to make its elements cohere. In this piece, I seek to continue that conversation by asking what it might mean to imagine coherence in Indian law today. To pose the question in this way is to recognise that law and order without coherence risks devolving into administration alone, where outcomes are dictated more by contingency and power rather than by reason.
Towards a Grammar of Coherence
To imagine coherence in Indian law is not to posit a single, all-encompassing theory that tidily resolves every institutional conflict. Rather, it is to ask whether there exist conceptual anchors that can discipline the otherwise unstructured interplay between legislation, adjudication, and enforcement. What such anchors might look like, however, is a contested question. Comparative experience offers some possibilities — Hart and Sacks’ Legal Process school in the United States, or Dubber’s project of a New Legal Science, both sought to reconstruct law on the basis of shared principles that could orient lawmaking and adjudication without erasing pluralism.
The Indian context, however, is complicated by the absence of any comparable intellectual tradition. As was also argued in the earlier post, our legal system is an inherited mosaic of colonial codification, postcolonial constitutionalism, and precolonial practices — none of which has been systematically interrogated for the principles that might underwrite a coherent order.
This absence, I suggest, has consequences. Take, for example, the Courts oscillating between the established maxim that bail is the rule and the contrary practice that treats custody as the default; with little more than case-specific discretion to explain the difference. What results, as Gautam Bhatia has recently argued, is a kind of judicial double-standard. For when a fact is potentially favourable to the individual (say, in a UAPA matter), courts invoke the Watali judgement to refuse engagement, shutting their eyes to material that might support bail. But when the fact is adverse, the same courts are happy to wade deep into the evidence, even drawing inferences that go beyond the record.
Legislatures, meanwhile, frequently add new offences or enhance punishments in response to episodic crises (as with the post-Nirbhaya amendments to the erstwhile Indian Penal Code in 2013, their further expansion after Unnao and Kathua in 2018, or, most recently, the Aparajita Bill introduced in West Bengal following RG Kar) without any reference to a settled framework of penal theory. As scholars of penal populism observe, they embody a politics of symbolic criminalisation, where the severity of punishment substitutes for any substantive justification of criminal law.
Enforcement agencies then, for their part, exploit ambiguities in the law by exercising vast discretion in arrest, investigation, and prosecution. Despite repeated judicial reminders that arrest must remain an exception, police and specialised agencies continue to use it as the default. Besides, investigations themselves have long been marred by political misuse and lack of independence, while prosecutions operate less as trials of guilt than as punishment by process. The resulting system, hence, is one where liberty turns on happenstance rather than principle.
Thus, coherence (in this sense) would not mean the elimination of judicial discretion or the homogenisation of legislative policy. It would mean that discretion and policy are exercised within an intelligible grammar — such that it allows citizens, institutions, and scholars alike to evaluate whether state action is consistent with the law’s core commitments. What, however, would such a grammar consist of?
At its simplest, such a grammar would rest on a set of conceptual commitments that organise the otherwise scattered practices of lawmaking, judging, and enforcement. These commitments are not difficult to name. To name a few — Culpability as a precondition for punishment. Proportionality as the measure of how much punishment is justified. Due process as the assurance that the road to punishment is neither arbitrary nor degrading.
None of these, I submit, are alien imports. They exist in fragments across case law and statutory text. Yet, because they are rarely articulated as organising principles, they fail to discipline practice. Proportionality, for instance, is invoked in sentencing but abandoned when legislatures escalate punishments to death or life terms. Due process, again, is hailed in theory but hollowed out in practice by a set of procedural checklists. Seen thus, this grammar is not just a code to be written once and for all. It is a discipline of justification.
It demands that legislatures explain why a new offence requires criminalisation rather than civil liability (as with the criminalisation of Triple Talaq), that courts justify why liberty is denied in one case but granted in another (for instance, Gulfisha Fatima’s treatment in the Delhi riots bail hearings, contrasted with the release of similarly placed accused), that enforcement agencies demonstrate why an arrest was necessary beyond the fact that it was possible and used as a reflexive tool of control.
A coherent grammar, however, would not guarantee agreement — scholars, judges, and lawmakers will still disagree about the scope of culpability or the limits of proportionality. But it would guarantee that such disagreement occurs within an intelligible frame, one that allows citizens to assess state action against principles rather than personalities, and to demand fidelity to the law’s core commitments rather than its most immediate conveniences. Without such a grammar, Indian law risks remaining what it too often is today — a set of rules and practices that work until they do not, lacking any deeper account of why they should endure.
To Conclude
If coherence in Indian law, indeed, is to be imagined as a grammar, then the challenge is in cultivating a culture that insists on returning to them. The law does not fail for a want of lofty ideals. It falters when those ideals are not treated as binding coordinates. To that extent, coherence is less a destination than a discipline of thought, one that requires institutions to account for themselves in ways that transcend immediate expediency. For too long, the discourse has been content with doctrinal bricolage — stitching together precedent here, statutory text there, and leaving the seams to show. What a grammar of coherence demands, instead, is sustained reflection on the why of law, and not merely the what.
Now whether Indian law can rise to this challenge remains open. But to ask the question is, at the very least, to resist the comfort of dissonance.
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