It can be argued that it's not just the function of the courts to interpret the law, but also of all the advocates. When arguing, you'll invariably have to interpret words in specific ways. I remember telling one of my friend’s that the bare acts are the tools of the game of law, and then it is up to us how we use those tools to win this game. But the main focal point still remains words and the meaning behind them as people who enacted them would’ve intended it to be. And that leads to a more fundamental realization about not only the IPC but for the totality of Law, which is the sheer importance of words and texts. Legal language defines the bounds in which we are to remain a free individual and actualize our humanity. The range of our rights, freedom and entitlements are all centered around and defined by the words that are used in such legal texts. It is a tragedy that law students don't study much about the semantics of such texts more deeply, and more importantly about the historical development of how these very selective words came to be used in statutes and not others. Especially when they are transitioning from a vernacular vocabulary to a legal one. Take for example, the attempt-preparation dilemma in Joint liability. What can be qualified as attempt in law might not be looked as attempt in vernacular English and day to day conversations, and vice-versa. Or, how did words like ‘lascivious’ and ‘prurient’ used in section 294 of the IPC come about. An understanding of how language and text evolve and shape our world would give us a more comprehensive picture of the subject.
While investigating this concept, one’s mind invariably flutters to Derrida. He talked about how every authority is founded in texts, and that if we deconstruct those very texts, it can lead to the deconstruction of those very power structures that the text upholds. There is a legitimate way of thinking about how to manifest this approach of deconstructionism in IPC (or any legal text). For example to deconstruct the attempt/preparation binary, we will necessarily have to de-centralize the logocentric development of law around the word or concept of attempt. In the binary, Attempt is privileged over preparation, and is as much defined by the absence of the other in the binary as much it is defined by the presence of itself. We can perhaps apply such philosophical enquiries to when we as lawyers argue for what constitutes an attempt and what constitutes as preparation, or other areas of law as well.
Derrida also talked about the tension that exists in any text, of 'what the text manifestly means to say and what it is nonetheless constrained to mean'. This sentence is very interesting when applied to legal texts. Does this mean that a deconstructionist approach can unlock wider and newer meanings of the text and thus newer and wider degrees of freedom, or even altogether new rights and entitlements? One can't help but draw parallels to the right to privacy judgement and how it was held that the right to privacy flows from Art. 21. Or, when the Delhi HC in Naz foundation V Govt. of NCT of Delhi opined that sex within the meaning of Article 15 also means a right against discrimination based on sexual orientation. These can be looked at as legitimate examples of a deconstructionist approach. The court deconstructed the gender binary by tracking the logocentric development of the how the law interacted, defined and criminalized sexuality. It deconstructed the binary of heteronormative/non gender binary by displacing the privileging of one over the other. In a way deconstructionism espouses values of Article 14 in itself. Another very interesting thing Derrida said was about the concept of Differnace. In French, the verb defferer means to both 'differ' and 'defer'. Derrida wants us to realize that texts evolve in their meaning through time. This beautifully and elegantly captures the legal evolution of rights and legal concepts. It is evident from when we interpret the same text as meaning something entirely different from what it used to mean earlier in law. For example right to life is not just a right to not be killed. It is also a right to live with dignity, a right to sexual autonomy, a right to personal privacy, a right to human liberty. All these new dimensions were expanded and re-imagined by the court aided by the legal imagination of the litigants. The constitution gives us the right tools within itself to constantly keep re-imagining itself and to unlock newer meanings and rights. As Justice Subba Rao once said, “The constitution is only permanent, not eternal”.
Hauntology is a term coined by the French Algerian philosopher Jacques Derrida. Derrida used the word to describe how we never encounter things as fully present. In all of our experiences, the present is always mixed up with the past and the future. The concept refers to persistence of the elements of the past in the present and even the future. As if they're the ghosts that keep haunting.
The IPC and most of the colonial laws are hauntological in nature. The ghosts of colonial yesterday are still kept alive through the text of IPC. They're invoked to reality whenever someone is booked under sedition, UAPA, obscenity etc. It’s as if Macaulay's ghost still whispers through the black ink into the ears of the law. The ghosts of our colonial past affect us in real ways through the laws that never changed. Laws that reflect a morality stuck in time. There are rare moments like the reading down of Section 377 that reflect a disjoint in this continuum. An act of transformation. The court exorcized the haunting of colonial overlords when it said, “The aim of the constitution is to transform the society and not to entrench and preserve the pre-existing values of the majority”. The constitution and the values it imbibes aren’t just abstract ideals. They are tools for crafting a better society. A tool for not only defining the constraints of the state, but also a tool to correct and redefine the social relations within the citizens themselves. The constitution is not hauntological because it represents something entirely new, entirely different. The legal imagination that was imbibed in the nation through this document represented a fracture in time. In Pandit Nehru’s words, "the soul of a nation long suppressed had found utterance". As argued above, it is the constitution that we have to invoke if we have to lay the ghosts of colonial pasts to rest. And although, the past never stops to dictate the future by causality, we can reclaim the future from the clutches of the past by making sure that the laws aren’t still shaped by a morality stuck in past.
While investigating this concept, one’s mind invariably flutters to Derrida. He talked about how every authority is founded in texts, and that if we deconstruct those very texts, it can lead to the deconstruction of those very power structures that the text upholds. There is a legitimate way of thinking about how to manifest this approach of deconstructionism in IPC (or any legal text). For example to deconstruct the attempt/preparation binary, we will necessarily have to de-centralize the logocentric development of law around the word or concept of attempt. In the binary, Attempt is privileged over preparation, and is as much defined by the absence of the other in the binary as much it is defined by the presence of itself. We can perhaps apply such philosophical enquiries to when we as lawyers argue for what constitutes an attempt and what constitutes as preparation, or other areas of law as well.
Derrida also talked about the tension that exists in any text, of 'what the text manifestly means to say and what it is nonetheless constrained to mean'. This sentence is very interesting when applied to legal texts. Does this mean that a deconstructionist approach can unlock wider and newer meanings of the text and thus newer and wider degrees of freedom, or even altogether new rights and entitlements? One can't help but draw parallels to the right to privacy judgement and how it was held that the right to privacy flows from Art. 21. Or, when the Delhi HC in Naz foundation V Govt. of NCT of Delhi opined that sex within the meaning of Article 15 also means a right against discrimination based on sexual orientation. These can be looked at as legitimate examples of a deconstructionist approach. The court deconstructed the gender binary by tracking the logocentric development of the how the law interacted, defined and criminalized sexuality. It deconstructed the binary of heteronormative/non gender binary by displacing the privileging of one over the other. In a way deconstructionism espouses values of Article 14 in itself. Another very interesting thing Derrida said was about the concept of Differnace. In French, the verb defferer means to both 'differ' and 'defer'. Derrida wants us to realize that texts evolve in their meaning through time. This beautifully and elegantly captures the legal evolution of rights and legal concepts. It is evident from when we interpret the same text as meaning something entirely different from what it used to mean earlier in law. For example right to life is not just a right to not be killed. It is also a right to live with dignity, a right to sexual autonomy, a right to personal privacy, a right to human liberty. All these new dimensions were expanded and re-imagined by the court aided by the legal imagination of the litigants. The constitution gives us the right tools within itself to constantly keep re-imagining itself and to unlock newer meanings and rights. As Justice Subba Rao once said, “The constitution is only permanent, not eternal”.
Hauntology is a term coined by the French Algerian philosopher Jacques Derrida. Derrida used the word to describe how we never encounter things as fully present. In all of our experiences, the present is always mixed up with the past and the future. The concept refers to persistence of the elements of the past in the present and even the future. As if they're the ghosts that keep haunting.
The IPC and most of the colonial laws are hauntological in nature. The ghosts of colonial yesterday are still kept alive through the text of IPC. They're invoked to reality whenever someone is booked under sedition, UAPA, obscenity etc. It’s as if Macaulay's ghost still whispers through the black ink into the ears of the law. The ghosts of our colonial past affect us in real ways through the laws that never changed. Laws that reflect a morality stuck in time. There are rare moments like the reading down of Section 377 that reflect a disjoint in this continuum. An act of transformation. The court exorcized the haunting of colonial overlords when it said, “The aim of the constitution is to transform the society and not to entrench and preserve the pre-existing values of the majority”. The constitution and the values it imbibes aren’t just abstract ideals. They are tools for crafting a better society. A tool for not only defining the constraints of the state, but also a tool to correct and redefine the social relations within the citizens themselves. The constitution is not hauntological because it represents something entirely new, entirely different. The legal imagination that was imbibed in the nation through this document represented a fracture in time. In Pandit Nehru’s words, "the soul of a nation long suppressed had found utterance". As argued above, it is the constitution that we have to invoke if we have to lay the ghosts of colonial pasts to rest. And although, the past never stops to dictate the future by causality, we can reclaim the future from the clutches of the past by making sure that the laws aren’t still shaped by a morality stuck in past.
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