Does Criminal Law Matter?

For practitioners in Delhi, courts resume regular functioning after a summer break (the length of which is determining entirely by how high you are up the judicial ladder). The start of term in July is a mix of emotions: happiness at being able to earn some money, sadness at having to work to earn that money, and a sigh of relief to be able to mingle about in familiar surroundings with familiar faces. 

For a small section of the legal community, comprising those concerned with criminal law and procedure, the predominant feeling when term started in July 2024 was neither relief or sadness, but uncertainty. The triumvirate which had defined our criminal law for more than a century — the criminal codes that were neatly combined and kept in the Criminal Manual — were being replaced by new laws. That first month was defined by conversations and discussions about what was good, what was bad, and just how much of it would apply to the cases already in motion. 

By the end of the month, most of us had realised that we weren't being asked to learn a new language in middle age, but essentially revise what we have learnt. Nevertheless, in many cases, people suffered due to the uncertainty that the introduction of new laws brought. In a system where dates of hearing are given at an interval of months and not days, losing out on a date simply because nobody knows what law applies is, well, pathetic. Yet this was the situation faced by many a litigant, and in fact, it continues to be so.

We tend to forget that not everything was smooth sailing in the aftermath. There was a strong protest by a section of the public to two changes (hiking punishments for death by negligence) and the government relented. But even this protest did not care about anything more than the specific, limited, interest, of this interest group. It did not care about the process which would affect all persons potentially ensnared within the criminal law which was being made more muscular and police-friendly. 

Why? Is it because people were not mobilised by political actors around these issues? Is it because it all happened so fast? Or was it because criminal law, honestly, simply, just does not matter within the public consciousness. It matters as gossip, as a lurid news item, as something to create a public-villain figure — at that distance, one level of remove. It does not matter because none of us ever want anything to do with it, and know that if we are sucked into that black hole of police stations, then law is not what will matter most. The overbearing discretionary nature of police powers is one way in which the relevance of criminal law is negated. This point applies to all executive power and is a broader critique of Indian law in general.

There is another critique more specific to criminal law. At its core, criminal law seeks to govern society's moral code through a combination of influences. The simple and obvious truth is that for a large part of the public, a much larger part than which stays in cities surrounded by courts and prisons and police stations, the influences of criminal law are so distant that they may as well be phantasms. The shadow of law barely manages to cover a fraction of the lives of this public, and most interpersonal relations here take place on the basis of a code that operates entirely outside the language of the sanhitas and the codes that came before. The occasions on which the state swoops in to intervene in these interpersonal relations through the criminal law are so few as to render the criminal process almost irrelevant from their calculus of concerns.

The peculiarity of criminal law means that the state knows that the elites won't speak up and the plebians can't. It means that the state can pretty much do as it wants because while criminal law matters for everyone it simultaneously does not matter at all.