The tension between the way the law views justice, and the way public opinion views justice, is the best reason not to make laws based on public opinion, says Mitali Saran
A good communicator uses both the precision of language, and its inherent slipperiness, to advantage. A good critic sees through both those moves, picking apart the craft of evoking an idea, and evaluating the integrity of the idea itself. There is a reason that nations squabble over every word and punctuation mark in the statements they agree to sign -- one poorly placed comma and you could sign away your nicest port, when in fact you meant to protect your farmers.
Drafting criminal law is particularly tricky business since it can be a matter of life or death. The reviled language we call "legalese" reaches for as much tightness and precision as possible, to minimise the possibility of perverting its basic aim. Legal opponents should have to present persuasive facts, rather than be able to slip through loopholes created by sloppy language.
Even the briefest, most cursory glance at criminal procedure in India gives you an appreciation for how carefully the writers of law seek to safeguard the liberty and safety of the individual -- both complainant/victim and accused -- throughout the process. Procedural law goes to great lengths to protect individual rights and honour the principle of "innocent until proven guilty", by making it difficult to detain people or put them in jail or adversely affect their liberty, safety and health -- from the time that an accusation is made, to the conclusion of the sentence.
Given how much energy lawmakers have spent trying to keep individuals safe and free, it's a shame that so many people have come to think it as an instrument of control, oppression and revenge - justifiably so, since it is so often misused. (I'm not speaking, here, of obviously controversial special laws like the Armed Forces (Special Powers) Act or the Prevention of Terrorism Act.)
In instance after instance, we see law enforcers not just ignoring, but actively working against basic legal principles. In the recent Kochi protest kiss-in, which was a response to an assault on couples at a cafe by the tediously energetic moral police, the Kerala High Court said the protest was legal -- thereby clearing it of any obscenity -- but when a spectrum of conservatives violently disrupted the protest, the police arrested the kissers, not the hardliners who were beating them up.
As laypeople, few of us have any sense of how the law works. We consume stories played out in the media in non-legal terms - that is, as thrilling scandal or shocking corruption case, or morbidly fascinating murder. We have an instinctive subjective, non-legal response to perceived wrong or injustice. We want rectification, reprisal and, often, revenge: the wronged spouse compensated, the corrupt politician behind bars, the brutal killer hanged. We don't want the corrupt to get bail. We are so repulsed by the fact that the juvenile in the Nirbhaya rape case got a lighter sentence based on the Juvenile Justice Act that we want to lower the age governed by that Act.
Our instincts are to wreak righteous vengeance by denying people their rights from the moment we personally decide they are guilty, to satisfy our own sense of what is just.
The law seeks to do the opposite; it safeguards rights. Lawyers uphold their clients' rights; judges are trained to set aside their personal reactions and examine the merits of each argument against the provisions of the law, and ensure that rights are protected as far as possible. It doesn't always feel just, but legal penalty is not the same as social sanction, particularly in a country so deeply riven by prejudices of caste, misogyny, religion and cultural practice.
But police officers and lawyers and judges are only human, and drawn from the same opinionated society. Instead of ensuring a woman's safety and freedom, the police will say she's asking to be raped and shouldn't have a mobile phone. Illiberal personal opinions often shine through in court judgements. In the Arushi Talwar judgment, the judge made much of a bottle of alcohol found in the house; the Supreme Court judgment upholding the criminality of Section 377 remarked that homosexuals are a tiny percentage of the population anyway - which, given that rights do not accrue by the principle of majority, was irrelevant.
And yet the law itself is so well armoured against prejudice that any number of rapists, rioters and other criminals have been acquitted by a court doing its job well - often a disapproving court that would rather have convicted, but cannot because the prosecution has done such a bad job of supplying persuasive legal evidence, witnesses and arguments.
The tension between the way the law views justice, and the way public opinion views justice, is the best reason not to make laws based on public opinion. It's a shame that in a country with law so scrupulously committed to preserving and enhancing individual freedom, we so often respond to social friction by trying to impose greater restrictions and controls.
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