Kara Sears
Lady Justice, represented by a blindfold, is expected to be impartial in the delivery of justice and the creation of laws. However, in India, there is no single, updated database that lays out all the laws that govern its citizens. This lack of accessibility to legal information raises the question of whether Indian law is knowable, and by whom. The absence of a comprehensive legal resource makes it challenging for individuals, including legal professionals, to ascertain the applicable laws in different parts of the country accurately. Furthermore, executive orders, which constitute most people's experience of the law, are often published in online gazettes, making it difficult to keep track of the changing legal landscape. The situation is further exacerbated by the lack of a mechanism to ensure that struck-down legal provisions are promptly removed from statutes, leading to confusion and potential misuse of outdated laws. These factors contribute to the perception that Indian law may not be truly blind in practice, as it falls short of ensuring equal justice and fairness for all citizens.
| Characteristics | Values |
|---|---|
| Lack of an updated database of laws | No central resource for citizens to refer to |
| Ineffective implementation of laws | The Punjab Excise Act, 1914 discriminates based on age and gender |
| Discrimination | Bar dancers in one and two-star hotels and bars were banned from working, causing many women to lose their livelihood |
| Lack of knowledge about the law | State actors who make and implement the law are unaware of certain laws |
| Inconsistent application of laws | Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in 2015, but FIRs were still registered under it until 2020 |
| Difficulty in accessing laws | Executive orders, which constitute most people's experience of the law, were previously only accessible via physical copies of gazettes |
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What You'll Learn
Lack of accessible, updated legal database
The Indian legal system assumes that state actors who make and implement the law are aware of what it entails. However, the lack of a centralised, updated, and accessible legal database in India makes it challenging for citizens, including legal professionals, to stay informed about the laws that govern them.
In India, executive orders, government directives, notifications, and similar communications constitute most people's experience with the law. For instance, they outline the minimum wage for a construction worker in Karnataka, land acquisitions for infrastructure projects, and industries where strikes are prohibited. Thousands of such orders are issued annually by various departments and published in gazettes. While these gazettes were previously only accessible in physical form, recent efforts have seen the Gazette of India and state gazettes transition to online platforms, improving accessibility.
However, the absence of a centralised legal database means that citizens must navigate a fragmented landscape of statutes, ordinances, and executive orders at both the Union and state levels. This complexity makes it challenging for individuals to ascertain the specific laws that apply to them. The situation is further exacerbated by the lack of a mechanism to promptly reflect legal provisions struck down by courts in the text of statutes or subordinate legislation. For example, Section 66A of the Information Technology Act, 2000, was struck down by the Supreme Court in 2015, yet FIRs were still registered under this section in 11 states between 2015 and 2020. Similarly, Section 303 of the Indian Penal Code remained in the statute for 40 years after being struck down in 1983.
The lack of an updated legal database has significant implications for governance and democracy. In one instance, the Uttar Pradesh government prohibited strikes by government employees under the UP Essential Services Maintenance Act (ESMA), 1966, during the farmers' protests in February. However, it was later revealed that the UP ESMA had been repealed in December 2022, indicating that the government itself was unaware of the change. This example highlights the urgent need for a comprehensive and current legal database that is readily accessible to all stakeholders, including government officials, legal professionals, and the general public.
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Lawmakers' unfairness to certain sections of society
The Indian Constitution guarantees equal status and opportunity to all citizens and provides that no person should be discriminated against based on race, sex, caste, and religion. However, there are instances where lawmakers have not been entirely fair to all sections of society when making laws.
For example, the Punjab Excise Act of 1914 prohibits men under 25 and women of any age from working in places where liquor or intoxicating drugs are consumed. This eliminates employment opportunities for a specific group of people, violating Article 14, which states that equality before the law shall not be denied. Similarly, a piece of legislation in Maharashtra banned bar dancers in one and two-star hotels and bars, causing many women to lose their jobs. The law discriminated based on income levels, as dance performances in high-end hotels were conveniently spared.
In addition to regional laws, India's national laws have also been criticized for their unfairness. For instance, Section 375 of the Indian Penal Code defines rape as a sexual assault committed by a man against a woman, failing to recognize that men can also be victims of sexual assault. Furthermore, while spousal violence against women is a serious issue, it is also prevalent against men, with 51.5% of men experiencing it in India. However, there are no specific laws to address this issue when it affects men.
The lack of an updated, centralized database of laws in India exacerbates the problem of unfair legislation. This makes it challenging for citizens to know and follow the laws that govern them, leading to a situation where "lawlessness becomes the norm." Executive orders, which constitute most people's experience of the law, are often published in online gazettes, but there is no mechanism to ensure that outdated or repealed laws are promptly removed or amended.
To promote fairness and equality, it is crucial for lawmakers to assess the impact of their laws on all sections of society and ensure that the legislative process is informed by an understanding of the diverse needs and challenges faced by India's diverse population.
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Discrimination based on income levels
Lady Justice, a symbol of justice, is expected to be impartial in the delivery of justice and the making of laws. However, this does not seem to be the case in India, where there have been instances of discrimination based on income levels.
One such instance is the Punjab Excise Act, 1914, which prohibits men under 25 and women of any age from working in places where liquor or intoxicating drugs are consumed. This law eliminates employment opportunities for a specific section of society, violating Article 14. Another example is the legislation enacted in Maharashtra that banned bar dancers in one and two-star hotels and bars, resulting in many women losing their source of income.
Interestingly, the law only banned dance performances in lower-end establishments, sparing high-end hotels, gyms, cinemas, and theatres. This clear discrimination based on income levels was challenged in the Supreme Court, and the ban was eventually lifted. However, the damage had already been done, pushing many women into harsher lives.
Income inequality in India is a significant issue, with the top 1% of the population controlling a large portion of the national income and wealth. This concentration of wealth among the billionaire class, termed the "Billionaire Raj," has placed India among the most unequal countries globally. The growing income inequality has negatively impacted poor citizens' access to education and healthcare, and the gap between the rich and poor continues to widen.
Various factors contribute to income inequality in India, including a badly shaped agricultural and rural safety net, a failing education system, and the caste system. While India banned discrimination based on caste and enacted affirmative action policies, caste-based discrimination, segregation, and inequality persist. The caste system results in inequalities in access to education, health, jobs, and technology, with lower castes facing challenges in improving their socio-economic status.
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Ignorance of the law among state actors
The Indian legal system assumes that state actors who make and implement the law know what it is. However, this assumption is questionable, as India lacks a centralised database that compiles all the laws in force in the country. This makes it challenging for even legal professionals to ascertain the applicable laws.
For instance, the Uttar Pradesh government banned strikes by government employees under the UP Essential Services Maintenance Act (ESMA) of 1966, despite the act being repealed in December 2022. This incident suggests that the government itself may not always be aware of the current status of the law.
Furthermore, there is no mechanism to ensure that when a legal provision is struck down by a court, it is promptly removed from the statute books. For example, Section 66A of the Information Technology Act, 2000, was struck down by the Supreme Court in 2015, yet FIRs were still registered under this section in several states until 2020. Similarly, Section 303 of the Indian Penal Code remained in the statute for 40 years after being struck down in 1983.
The lack of an updated legal database and the failure to amend statutes after court rulings contribute to confusion and uncertainty in the legal system. This situation can lead to the enforcement of non-existent laws and the ignorance or misapplication of valid laws by state actors, including the police and judiciary.
Moreover, the police in India have been criticised for their use of violence and torture in operations, which is often rooted in conflicting legal provisions and inadequate protections against such practices. The perception among police officers that adhering to legal procedures is cumbersome and ineffective further contributes to a culture of impunity. The extensive powers granted to the police and the immunity from legal action provided by certain statutes also play a role in encouraging the use of force.
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Lack of mechanisms to reflect legal changes
India's legal system is a reflection of the country's dynamic socio-political changes, evolving from ancient systems of law practised by different kingdoms to the imposition of British colonial rule, and finally to post-independence reforms. While the country's commitment to the rule of law is commendable, there are significant challenges that hinder its effectiveness and accessibility.
One critical issue is the lack of mechanisms to reflect legal changes. This is evident in the absence of an updated database that lays out the laws governing the country. For instance, the Uttar Pradesh government prohibited strikes by government employees under a repealed act, the UP Essential Services Maintenance Act (ESMA) of 1966, highlighting the government's inability to trace executive orders. Executive orders, including government directions and notifications, are a significant aspect of people's experience with the law. While gazettes provide access to these orders, the lack of a centralised and updated resource creates confusion and uncertainty.
Furthermore, there is no established process to ensure that when a legal provision is struck down by a court, it is reflected in the statute. For example, Section 66A of the Information Technology Act, 2000, was struck down by the Supreme Court in 2015, yet FIRs were still registered under this section in several states. Similarly, Section 303 of the Indian Penal Code remained in the statute for 40 years after being struck down in 1983. This failure to update legal provisions leads to a disjointed legal framework that undermines the rule of law.
Compounding this issue is the complexity and inefficiency of the legal system. India's laws are often archaic, poorly drafted, and riddled with ambiguities, leading to conflicting interpretations and endless litigation. The police force, governed by colonial-era statutes like the Police Act of 1861, faces challenges due to inadequate training, a lack of resources, and normalised torture practices, resulting in a high number of custodial deaths. The path to accountability for police transgressions is convoluted, and the low conviction rate further erodes trust in the system.
The cost of legal representation is another significant barrier to accessing justice. While a system of free legal aid exists for those below the poverty line, it is often underfunded and ineffective. The lengthy nature of cases and associated costs deter individuals from seeking legal recourse. The backlog of cases in Indian courts exacerbates this problem, with millions of pending cases contributing to protracted wait times.
To address these issues, India must prioritise legal reforms that streamline and update the country's laws. Implementing sunset clauses that mandate the expiration of laws after a fixed period can help prevent the accumulation of outdated legislation. Strengthening mechanisms for accountability, improving police training and resources, and promoting affordable access to legal services are also crucial steps towards a more effective and accessible legal system.
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Frequently asked questions
The statement "Indian Law is blind" refers to the idea that the law should be impartial and fair to all sections of society, represented by the blindfold on Lady Justice.
Indian Law is considered blind because, in practice, it often fails to uphold the principle of impartiality and fairness. For example, legislation has been enacted that discriminates based on income levels and gender, violating constitutional provisions such as Article 14.
India lacks an updated central database of laws, making it difficult for citizens and even state actors to know and understand the laws that govern them. This lack of accessibility contributes to the perception that Indian Law is blind, as it leads to confusion, inconsistency, and potential violations of rights.
When Indian Law is not accessible or is inconsistently applied, it can lead to lawlessness, confusion, and a breakdown of trust in the legal system. It can also result in violations of citizens' rights, as seen in the example of the Punjab Excise Act, 1914, which restricted employment opportunities for certain groups.
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