![Bust of Lady Justice. Photo: Jo Zimny Photos/Flickr (Attribution-NonCommercial-NoDerivs 2.0 Generic)](https://mc-webpcache.readwhere.in/mcms.php?size=medium&in=https://mcmscache.epapr.in/post_images/website_350/post_44983278/full.png)
In the first week of December, the Uttar Pradesh government prohibited strikes by all government employees for a period of six months under the UP Essential Services Maintenance Act (ESMA), 1966. In February too the government had exercised powers under this Act during the farmers’ protests. Each time, the decision to ban strikes was criticised for being deeply undemocratic. >
What appears to have escaped attention though – including the government – is the fact that the UP ESMA was repealed in December 2022 on grounds of obsolescence and redundancy. >
Since then, the UP government has issued several orders prohibiting strikes and imposing criminal liability, explicitly drawing its powers from a statute that is no longer in force. How this is possible in a rule of law country is anybody’s guess. >
State of lawlessness>
It is tempting to categorise such an egregious use of state power as an exception, express outrage and move on. Look closely, however, and you begin to see that it is merely one symptom of a deeper malaise – the pervasive ignorance of law in India. An ignorance shared by law makers, implementers and subjects alike. And an ignorance that sometimes extends to the text of the Constitution itself. >
Think of the time the Rajiv Gandhi government landed in hot water for attempting to amend the Constitution to empower the Union to intervene in the border districts of Punjab, a power it already had under Article 249.>
To speak in terms of ignorance of the law is not to absolve anybody of responsibility. State actors who make and implement the law ought to, at the very least, know what it is, especially since the entire legal system assumes in good faith that they do. But it is worth asking: is Indian law knowable in the first place? >
This also begs the question – knowable by whom? For now, let’s assume it is a young researcher, fluent in English, trained in the law and comfortable with the latest technology, who is keen to ascertain the law applicable to them as an Indian resident.>
No comprehensive statement of Indian law
In order to find out what law governs them, our researcher must have access to a resource that authoritatively lays down the law in force in any part of the country. There is no such resource in India. Let’s break that down. >
The law in force, in a particular location, would include:
- Statutes and ordinances at the Union and state levels;
- The rules and regulations made under them;
- Government orders and other executive instruments issued;
- Judicial pronouncements.
All of this differs from place to place since states have distinct laws and even within states, different regions may have different norms governing matters within the domain of local government. As a consequence, the possibility of creating and maintaining an up-to-date database of all applicable laws in every part of India is, realistically speaking, slim. >
What about a smaller domain of enquiry?
If we limit our enquiry to a somewhat more manageable domain and look for a comprehensive statement of just statutory law in India, i.e. laws enacted by parliament and state legislatures, we will find that this too does not exist. >
The government’s digital repository of laws, India Code, claims to consist of “all enactments/Legislations enacted by the Central, States and Union Territory Administrations and their subordinate legislations made from time to time.” The claim does not bear out. >
The section on Union law has been updated over the past few years but the sections on state laws fall short. This is especially the case in relation to amendments. >
India Code does not list amending Acts and often amendments to statutes are not updated on the database. When it comes to subordinate legislation (rules and regulations made by the executive under particular statutes), comprehensiveness remains a distant dream. >
While the ‘About Us’ section of India Code makes tall claims, the disclaimer on the website is instructive: “No State Government or Union territory Administration shall specifically make any warranties or representations as to the accuracy, completeness or adequacy of any such Material or the same being up-to-date.” One is compelled to ask, if the state itself cannot guarantee the completeness or accuracy of a database of the laws that it makes, who can? >
Laws struck down often remain in statute>
Judicial review further complicates the picture. One of the core functions of the high courts and the Supreme Court of India is to examine whether the law made by the legislature or the executive is constitutional or not. >
Any law found to be in violation of constitutional provisions is liable to be struck down. There is, however, no mechanism in place to ensure that when a legal provision is struck down by a court, this is reflected in the text of the statute or subordinate legislation in question. >
Think, for example, of Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court in 2015. Between 2015 and 2020, in just 11 states, 1307 FIRs were registered under the section despite it no longer being valid law. The statute has not yet been amended to delete the provision. Similarly, Section 303 of the Indian Penal Code was struck down in 1983, but remained in the statute for 40 years. >
It has been famously said that provisions that have failed the constitutional challenge continue to live an ‘italicised existence’ in law books, where they are retained in the text of the law but marked out. The truth is, only very significant statutes are published regularly and annotated by publishers. In most cases, a lay person looking at a statute or some rules or regulations online would have no means of telling if a provision has been challenged or not. >
Obfuscation through disclosure>
The Delhi high court recently lifted the ban on the import of Salman Rushdie’s Satanic Verses. Fans of free speech may have rejoiced, but for the ground on which the decision was reached. Officials admitted on record that they could not find the 1988 order banning the import of the book, leading the court to hold that it has to assume the ban ‘does not exist’. >
Whichever way you look at it, the reading is bleak. Either a book was barred from being imported into the country without any legal backing for over three decades, or the state of Indian law is such that the government itself cannot trace executive orders anymore. >
Executive orders – government orders, directions, notifications and such – are really what constitute most people’s experience of the law. What is the minimum wage for a construction worker in Karnataka, which parcels of land are going to be acquired for the new flyover the chief minister just announced, in which industries have strikes been banned – this is where law kicks into action. Every year, thousands of such orders are issued by various departments and published in gazettes.>
Earlier, you had to have access to the physical copy of a gazette to be able to look up orders. In recent years, the Gazette of India and those of various states have gone online. This is great, except when it’s not. >
The digitisation of gazettes has, for the most part, been prospective. Executive orders from a particular point of time (usually the late 2000s) are uploaded online, but most refer to and make changes in older orders that can be hard to track (as the government discovered to its embarrassment in the Satanic Verses case). Shifting gazettes online has also meant that there is a glut of information available, but little accountability for the accuracy or completeness of that information.>
Andhra Pradesh and Telangana, for example, have online gazettes but refuse to upload all orders (or even statutes, for that matter) onto them. The Andhra Pradesh Legislature’s website lists 11 ordinances promulgated in 2020 (the last year for which it has any data on the subject). The AP Government Order Issue Register (GOIR) shows that 17 Ordinances were, in fact, promulgated in that year. Meanwhile, the AP e-gazette does not list a single ordinance, despite publication in the gazette being mandatory.>
The government has explicitly argued that they do not wish to upload government orders online because it leads to frivolous Public Interest Litigations (PILs). Despite directions from high courts requiring states to update their gazette portals regularly, the practice of selective disclosure continues. >
Even where orders are uploaded, there is no certainty that a person will be able to find them unless they already know exactly what they are looking for. Madhya Pradesh, for instance, insists on uploading only non-searchable PDFs. The Gazette of India website has finally got a free-text search, but one that appears to be faulty when tested against a scraped data set. >
A similar situation plays out in relation to the courts. Earlier, access to judicial decisions was limited along several axes. The court decided what matters were ‘reportable’ or not, then law reporters (journals) had to carry those judgements, and you needed access to these journals to be able to know the law. Digitisation has put an end to the court’s gate-keeping. >
In theory, one is now able to access interim orders and judgements across courts. In practice, there are clear gaps in the data, especially district court data, and no means of telling what the gaps are. >
The state has a monopoly over legal information. In the absence of any mechanisms to audit algorithms and data archiving practices, and any form of accountability for failing to ensure accuracy, this monopoly can quite easily be used to obscure our understanding of the law through the illusion of disclosure.>
Structural inequities>
It is evident that knowing the law in India is hard, even for someone like our intrepid (but exhausted) researcher who has access to resources and the training required to undertake such an exercise. A vast majority of Indians do not. >
There are a variety of structural reasons why the law is inaccessible to most. For one, legal documents are not systematically translated into the languages that most Indians are conversant in. Even when they are translated, the language of the law remains incomprehensible. The injustice of it is thrown into sharp relief when governments release English-only drafts for ‘public consultation’ on subjects like workers’ rights, forest land and environmental regulation. >
Additionally, the requirement of publication of the law merely extends to its appearance in the official gazette and that is nobody’s Sunday magazine of choice. Making the law public, in the true sense of the term, in a country with hundreds of languages and deep-seated inequality, requires both imagination and commitment, neither of which the state has demonstrated yet.>
Too many laws>
One may ask, given the nature of poverty and deprivation in India, should making the law accessible be a priority? Surely there are more important needs – access to nutrition, healthcare, education, work – that require focus. Is this not what the good folk of the internet call a first-world problem? >
Viewed against the immediacy of hunger, it is. Yet, the law being inaccessible is what allows a state government to criminalise collective bargaining for years without legislative backing. It is what allows traditional forest dwellers to be convinced that they do not have rights under the Forest Rights Act. It is what allows the police to arrest people under provisions that have been held unconstitutional.>
When the law is not knowable, pervasive illegality becomes the norm. Leaving aside the pressing issue of unjust laws for the moment, another problem is having too many laws. >
With over 890 Union legislations in force, hundreds more at the state level, executive orders galore and new judgements (often saying opposing things) coming in every day, the vastness of Indian law makes it near impossible for an individual to fully grasp their legal rights or obligations. >
One of the first Latin maxims a student of law studies is ignorantia juris non excusat – the ignorance of law is no excuse. If you have been hauled up for violating a law, you cannot argue that it isn’t applicable to you since you didn’t know of it. This is a pragmatic norm. Without this assumption, as you can imagine, courtrooms would descend into chaos trying to determine, factually, whether a person was aware of the law in question. >
The only way for this principle to be fair, however, is if the state ensures that the law is published and made available (and knowable). We adopted the principle from a legal system governing a smaller and less diverse population, and retained the limited imagination of what ‘publication’ entails. >
If the law has been published in the gazette (no matter how inaccessible), the state can claim to have fulfilled its obligations. In effect, we have retained the principle without discharging the concomitant duty meaningfully. As a consequence, for a significant portion of our population, there remains little that distinguishes the law from arbitrary fiat. >
Anindita Mukherjee is an assistant professor at the NALSAR University of Law, Hyderabad.>