The Language of Law – II
Proceeding from the last article we move on to a new area where we intend to describe the various stages in the development of law, the development of the language of law and the interpretation of this language at the various rungs of judiciary (since it is the final interpreter of the law). By the end of this article we wish to point out to the some unnoticed factors which have slowly made it difficult for us to follow the rule of law (as opposed to the rule of will of the Sovereign).
Let us take a live example of one of the recent developments in law and the process preceding it.
Campaign: After the Nirbhaya incident there was an outrage in the country, the civil society had moved into activism and a range of vigils ensued. People took to the streets protesting against the social evil
Aspiration: Certain members of Civil Society and Academia demanded a Law that would penalize an individual for heinous crimes against women regardless of his Juvenile status. This demand was then transferred to a committee of experts to look into, who had to advise the Cabinet on this matter.
Legislation: The Cabinet takes cognizance of the report, not necessarily following all its suggestions it drafts a bill to be tabled in the parliament. Here the language of facts and data and the studies of social sciences for the first time turn into the language of law, with mandates and dictates, creating fictional bodies that shall enforce and adjudicate on such a law.
Enactment: The statute is enacted; the law goes beyond the campaigners and aspirants. It has been provided the bludgeon of the State and the host of an entire territory. Isn’t it amazing to think though that the most active laws of the recent times have originated as activisms from social groups in small pockets and with enough enthusiasm and right timing they can be translated into Statutes which have full effect throughout the length and breadth of the country! Social activism for laws is certainly one of the best ways to make the world a better and more just place.
Implementation: This is the time for the Law to be tested on the hard ground of reality and we contend this is where most things that make the law a toothless object and a procedural nightmare happen. Imagine a district court in a remote area of Rajasthan, where a victim has filed an FIR and the police has filed the chargesheet to a young magistrate. The language that characterizes the court proceedings is very different from the language that was used during the campaign. It can even be contended that the members of civil society who campaigned for the law cannot make the head and tail of the language in which proceedings are carried out in the Courtroom. Now add to this the cultural difference between the people who envisioned the law and people who are subjected to the law. A remote district where patriarchy is still entrenched in the social fabric.
Recycling: The flaws in the law are noted and our circle goes back to stage of campaign and it takes the same course, this is what we technically call – a reform.
This is the five step process and the cyclical trajectory it follows as a self – correcting mechanism. We also focus on how the language of campaign turns in to the language of social sciences which then turns to language of Law, where there is a real conflict between the cultural norms and the radical emancipation offered by Law. Consider a village where child marriage is a norm which invokes no shock or awe among its members which is met by Law that considers it a social evil. The conflict of ethos and the chaos that ensues out of it is staged in a small taluka level subordinate judiciary – this is where Law actually happens. A very small segment of this litigation space moves into appeal to High Court and Supreme Court – where again the Court has the law making authority through the setting of precedents.