MORE LAW, LESS JUSTICE.

The great Enlightenment Philosopher Montesquieu argued in his ‘The Spirit of the Laws’ that ‘Law should not only be perceived in terms of its acceptability among those who determine it but also its acceptability in time’. He says that there are two aspects regarding the effectiveness of law in securing ‘justice’: one, “useless laws weaken useful laws” and two, “weak laws obscure strong laws”.

The purpose of the law is a highly debated one throughout history. In ‘The Eepubic’ Plato says that law is a guiding code of natural order applied in the case of humanity. Niccola Machiavelli states the purpose of the law as a means of maintaining political stability. The Vedas regard the social order i.e.; varnashrama dharma’.

It was only in the 16th century that ‘justice’ was seen as the main objective of the law. Francis Bacon and Rini Descartes opined that laws are codified in order to provide each individual his due in civil society. This idea was further propagated by John Locke and Baruch Spinoza.

After acceptance of ‘justice’ as the primary motive of law - the question was regarding what was meant by justice and how could more justice be guaranteed by more laws? Karl Marx posited that ‘from each according to his effort, to each according to his need’ was justice. John Rawls in his ‘Theory of Justice’ remarked that rationality was the basis of law and justice.

In today’s world, rationality is what has plagued the legal setup in modern economies. The crisis of surplus propounded by Engels and the theory of accumulation by Rosa Luxemburg can not only be seen in our capitalist societies but also in our judicial systems. More laws are turning out to produce less justice.

The concept of constitutionalism has boomed in 20th-21st century post-war polities, the courtesy proliferation of democracy and republicanism. The larger power in the hands of the people has rendered larger discussion and debate in yet bigger platforms. We have delved deep into jurisprudence through researchers, scholars, political commutators, and legislators.

As a result, we now have a complex web of legal realms. For example,Atal Bhujal Yojana (ABY) and the National Project on Aquifer Managementin traditional Islamic legal system of ‘adl’ under ‘ulema’ had only 4 schools of jurisprudence, and later the colonial law was divided into civil law and criminal law. But now, we have corporate, international, maritime, conventional, cyber, defense, space law, and more. This increasing complexity has led to problems in securing justice.

The overlapping jurisdiction in the aforementioned laws many times renders conflict and contradiction between themselves. A recent example is the Data Protection Law which witnesses a confrontation between privacy and public interest. Another example is Right to information which upholds transparency and the official secrets act which upholds secrecy.

Another facet of the failure of laws to secure justice is that due to the increase in the number of laws - a lot more tedious trial procedure and additional investigation is required. This leads to delayed justice - an allegory of ‘denied justice’. The example of Akbar Siddiqui was let off 21 years after being accused of a bomb blast.

There have been several other instances like Siddiqui’s where a whole phase of youths’ life has been destroyed due to merely ‘more laws’. The inefficiency of the criminal system is exacerbated by bad policing, lax judiciary, and complicated laws.

The false notion of the ‘written word’ is another cause of more laws catering to less justice. The idea that legislature must make laws on every single offense is unscrupulous and self-defeating. A survey by Vidhi legal research pointed out that rather than reforming Indian Penal Code (1860) and Civil Procedure Code (1908) which are highly colonial in nature, the parliament is burdening new legislation causing great pain to the justicial interpretations.

For example, section 498-A regarding harassment by family members and dowry is overpowered by Dowry Prohibition Act (2005) in several respects regarding the nature of the crime, victim, and penal provisions.

The colonial character of Indian law is further unjustified by several laws that are obsolete and have been revoked by Britain itself. These laws are not in line with UN conventions, international norms, or even humanitarian principles. For example, Section 377, Indian Evidence Act (1872), etc.

While there are more laws on some subjects, there are none on others. This impedes justice more than anything else. Anti-torture legislation and human-trafficking bills are examples of delayed legal provisions.

The fact that the parliament is driven by populist tendencies sequesters it from the rationality that Rawls focuses on. The parliament pushes for laws on fugitive offenses, mob violence, and minor tax amendments that can be effectively dealt with through delegated legislation and executive orders or even a review of IPC.

Law has been an eternal entity if we consider history. The band society of early man, the tribal societies of India and religious denominations of the world have and continue to uphold their laws. Thus, the idea of a ‘written’ legal mechanism is only sanctified if it provides for justice without fear or favour. Ashoka’s Dhamma and Akbar’s ‘Sulh-I-kul’ are examples of historical modes of acquiring justice through doctrines, codes, and alternative mechanisms if the judicial system were ineffective.

Even today we have such alternative redressal mechanisms - but different from the monarchical doctrines mentioned above. The provisions for Lok Adalats, Grama Nyayalayas, Arbitration, Conciliation, and mediation have provided hope for speedy and inexpensive justice without being caught in the formal web of inefficient laws.

But these mechanisms prove beneficial only in civil cases and are not enough to secure justice for the 3.3 crore cases that are pending in our courts today. PRS Legislative points out that reading down obscure, obsolete, and non-contemporaneous laws will lead to a good 43% resolution capacity growth. Moreover, the recent repeal of over 1800 laws shortlisted by the Ramanujam Committee is sure to expedite judicial and legislative procedures. ‘Redundancy of laws is a sign of an ailing democracy.’

Beyond these measures, there is a need to move towards a balance between India’s notion of ‘procedure established by law’ and the effective American constitution’s ‘due process of law.’ a synthesis between these two concepts will bring in feasibility and reasonable nature of law which the Indian system lacks at this moment.

Good listing practices, sunset classes for temporary laws, regular updates of quantifiable provisions of laws, and eliminating frivolous government litigation are other suggestive measures that impede justice in our country. Ultimately it is about a consensus between legislature and judiciary along with upholding the separation of powers. Fali S. Nariman once ruled that makers of law must also see through the eyes of upholders and protectors of law.

We must learn from the repository of our aspirations, inspirations, and identities - the Indian constitution. Lawmakers must adopt an analytical view of this holy document because it is so wide-ranging and holistic that it provides solutions to justice across several domains. For example, Article 21 was initially only seen as the ‘right to life with dignity’ but in subsequent events like the Maneka Gandhi case, Olga Tellis case, and Waman Rao case it was realized that this single provision was a law for over 25 provisions and recently it also included ‘right to privacy’ (Puttaswamy case) and ‘right to die with dignity’ (NGO common cause case).

Thus, we must forget that laws don’t need to be ‘invented’ - they need to be ‘discovered’ and implemented to the best of our abilities. After all, a law is as effective as its executor.

There is a fascinating quote in Scherazade’s ‘Arabian Nights fables - ‘law is for fencing the pasture, not shearing the sheep.’ similarly, the ultimate utilitarian ethics behind laws, John Stuart Mill argues, is that the ‘greatest good for the greatest number’ which can only be secured through ‘justice’ - moral, social and distributive. “For,” he says, “a nation is as good as its people.”