Law v. Common Man: When Justice Speaks Foreign - Legal Service India

I. The Wound

Here Is A Thought Experiment The Constitution Forgot To Run

You are an upstanding citizen. You pay your taxes, you love your country, you have never once googled how to commit a crime. You are, by every metric, the person the law was written to protect.

Table of Contents

Now you are Adivasi. You go into the forest every morning to gather wood and leaves, as your family has done for generations, as the forest has permitted you to do since before the government existed to have opinions about it.

Then one morning, a notification arrives. The forest department now has the power to:

Stop you
Search you
Seize your wood
Surveil your movements
Act at will, without explanation
Act without apology

You are still upstanding. You are now also a suspect.

The Equality Of Law Paradox

Or try this one. You are upstanding and, unfortunately, homeless. There is a law against sleeping on a public bench. That law, with its majestic equality, applies equally to you and to the man sleeping in his three-bedroom apartment.

If you have a home, the bench law is invisible.
If you do not, the bench law is your life.

The law does not discriminate. It simply applies harder to people who cannot absorb its application.

Freedom Of Expression And Comedy

Or, for the comedians in the room, try this: you are a stand-up comic performing in Bombay. You think, reasonably, that you are doing something legal.

You think this because:

You have read the Constitution
You understand satire
You are making fun of people with power

Which is historically the whole point of comedy since Aristophanes was roasting Athenian generals in 425 BC.

The law, however, has been reorganizing its definitions while you were busy writing jokes. You will find out at the FIR.

Why People Fear Law

This is why people fear law. Not because they reject justice. Because they do not know, on any given morning, whether their perfectly ordinary life has quietly become a violation.

II. The Promise

To be fair to the document, the Constitution of India is a remarkable piece of work. Article 14: equality before law. Article 21: life and personal liberty. Article 39A: the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall provide free legal aid to the poor. NALSA, Lok Adalats, legal aid clinics: the architecture of the promise is real and it is not nothing. :contentReference[oaicite:0]{index=0}

Vision of the Founding Fathers

The Founding Fathers were not naïve. Ambedkar, who had read Columbia and the London School of Economics and still came home to write for Dalits and the landless, understood precisely what he was building. The Constitution is not a copy of the American model, though people love to compare them. It is, in several ways, the more ambitious document. It names untouchability explicitly. It makes equality not merely procedural but substantive. It was written by people who knew that the common man’s enemy was not just tyranny. It was also cost, distance, delay, and the polite contempt of institutions.

Promise vs Reality

The promise is there. The question, as always, is what happens when a promise contacts reality.

Orwell would recognize the answer. Kafka wrote the user manual for it. The common man meets the law not as a temple but as a corridor: a file, a date, a fee, a form that has been superseded by a new form, a clerk on leave, a fourth-floor office in a building where the lift stopped working in 2009 and nobody filed a complaint because filing complaints requires knowing how to file complaints.

III. Good Violence, Bad Violence, and Other Government Innovations

Classification of Violence in Law

Here is something the civics textbook left out the law does not treat violence as a single category. It splits it. There is good violence and bad violence, and the distinction, once you see it, cannot be unseen.

Situation	Legal Classification
Citizen confinement and coercion	Kidnapping (illegal)
Police confinement and coercion	Remand (legal)
State execution	Capital punishment (legal)
Civilian use of similar force	Crime (illegal)

If you confine a person against their will and coerce them to do something, that is kidnapping. You will be arrested and tried. However, if the police confine a person against their will and coerce them to make a confession, that is called a remand. It is legal. It is, in the law’s vocabulary, fine.

Capital punishment is good violence. A civilian using identical force is bad violence. The state detaining you for years without trial is process. You speeding away from the state is a crime. The law does not just organize justice. It organizes who gets to be violent, and against whom, and under what name.

Power, Morality, and Language

Nietzsche spent a career pointing out that morality tends to be the aesthetic preference of whoever holds the most power at the time. He was considered eccentric for this. He was also correct. When the state always has a monopoly on good violence, and citizens (especially citizens who challenge state authority) always find themselves on the wrong side of that classification, the question becomes less about justice and more about who controls the vocabulary.

And the vocabulary keeps shifting.

Shifting Legal Standards Over Time

2012: Free expression with minimal consequences
2016: Legal action, mob violence, or both
Present: Increased criminalization of speech

In 2012, a comedian could discuss nearly anything and the worst he’d face was a bad review. By 2016, the options had expanded court case, or mob violence at your venue, or both. One comic, recalling this era, noted that a court case started looking like the better deal once the alternative was watching a crowd ransack the theatre. This is, when you think about it, a rather depressing form of legal progress. The bar for “at least it’s not illegal” had fallen beneath “at least you didn’t get beaten up.”

The shifts are not random. More speech has been reclassified as illegal speech. More reactionary violence has been reclassified as acceptable violence. Political figures have been reclassified as embodying the state itself, which means that making fun of a minister is now, in certain courtrooms, making fun of the nation. These things happened simultaneously, quietly, through the reorganization of meanings that is the law’s most underappreciated superpower.

Philosophical Response

Amor fati: Accept what is
Do the work: Correct what can be corrected

The Stoics had a phrase for a situation you cannot control but must navigate: amor fati, love of fate, accept what is. But they also had a phrase for correcting what is actually correctable: do the work. The challenge is that most people are too busy surviving the shifting meanings to notice that the meanings have shifted.

IV. Panchayat Morality and the Mystery of the Learned Judge

Case Study: Uttarakhand Courtroom

Here is a recent scene from an Indian courtroom, which you may initially mistake for a family dinner.

Some citizens in Uttarakhand challenged a law requiring live-in couples to register their relationship with the government. This is a privacy case. It is a liberty case. It involves Article 21, bodily autonomy, the right to make decisions about your own life without reporting them to the state. The judge’s response, delivered from the bench, was: if you are so shameless, if you don’t even care about your parents’ feelings, you may as well declare to the whole world that you are living in sin.

From Constitutional Reasoning to Personal Morality

This is not constitutional reasoning. This is what your most conservative uncle says at Diwali dinner, transcribed onto official letterhead and delivered with the authority of the court. The judge was not concerned with privacy. He was not concerned with liberty. He had simply moved the threshold for legal analysis from “what does the Constitution say” to “what would I say to my nephew.”

Patterns in Judicial Behaviour

Matrimonial cases: questioning adjustment by wives
Speech cases: questioning timing of speech
Public order focus replacing rights analysis

This is what happens when morality replaces adjudication. It is not unique to this case. In matrimonial disputes, judges ask wives why they are not adjusting. In speech cases, judges ask why the accused chose to speak at a sensitive time when people were feeling charged. In the Ali Murad Ababad case, the court’s first instinct was not to examine the law on free speech. It was to manage feelings. To ask: did you have to say that right now?

Decline of Constitutional Adjudication

The answer, constitutionally, is irrelevant. The question, legally, should not have been asked. But constitutional courts are increasingly in the business of managing law and order, which was previously the job of the district magistrate. The problem is not just that this is wrong. The problem is that once a court starts asking whether you should have said something rather than whether you had the right to say it, the court has stopped being a court. It has become a panchayat. A very expensive, very slow, very prestigious panchayat, but a panchayat nonetheless.

Absurdity of the System

Camus called the essential absurdity the one that emerges when sincerity meets a system that does not reward sincerity. Josef K. was not guilty of anything. The mechanism did not care. The common man in today’s courtroom is often not guilty of anything. The mechanism, increasingly, is asking whether he made people uncomfortable.

V. When Justice Speaks Foreign

Let Us Talk About Provocation, Because It Is Instructive

The law on provocation is not complicated. If you say something and I get provoked and assault you, I am the criminal. In court, I might argue that your words provoked me, and that argument works as a shield in my defence. It does not, however, become a sword against you. You did not assault anyone. I did. The fact that I felt provoked does not make you responsible for what I did with that feeling.

This is settled law. It is not subtle.

FIR 59 of 2020: Inversion of Provocation Doctrine

In FIR 59 of 2020, Umar Khalid stands accused of having given Muslims a vocabulary to articulate their grievances and having helped in the mobilisation of Muslim critical mass. The prosecution’s theory is this: he organised, some people got provoked, there was violence, and he is responsible. The courts have let this case run for five years. Provocation has been converted from a shield to a sword, the entire logic of the doctrine has been inverted, and nobody in the room seems to have found this legally awkward enough to throw the case out on day one.

Kasganj and Bahraich: A Pattern in Application of Law

In Kasganj and in Bahraich, in contrast, processions that entered private homes and planted flags on terraces, which caused direct, documented property damage, resulted in the property owner being charged when he retaliated. The organisers of the original provocation were not similarly burdened.

Protest gets you arrested for others’ violence
Actual violence gets the person who responded to it arrested

Muhammad Zubair Case: Amplification vs Original Speech

Then there is Muhammad Zubair, the fact-checker, who amplified a clip of Yati Narsinghanand (a man who violates Supreme Court directions gleefully and repeatedly) saying something offensive. The criminal complaint is against Zubair for the amplification. Not against Narsinghanand for the original.

The Allahabad High Court, while refusing to quash the FIR, suggested the police look into whether Zubair’s motives were suspect. The violence of the original speech was invisible. The reportage of the violence became the crime.

A Philosophical Question: Who Is the Law Protecting?

Diogenes, who famously told Alexander the Great to get out of his sunlight, would have one question for this system: who, exactly, is it protecting? Not rhetorically. Specifically. Name the person.

Foreign Judgements in Indian Constitutional Law

And here is where foreign judgements enter, which is either the solution or another layer of the problem, depending on your level of optimism.

Indian courts, at their highest levels, cite American Supreme Court decisions; European Court of Human Rights rulings; the House of Lords; and the Canadian Supreme Court with a frequency and reverence that has a name in legal academia and deserves one in plain language: borrowed authority.

Sometimes a foreign judgement illuminates. The comparative dialogue between legal systems is genuinely valuable, and no serious legal scholar disputes this. But there is a difference between using comparative law as a lens and using it as a crutch.

Puttaswamy Judgement and Imported Privacy Frameworks

When the Supreme Court in Puttaswamy grounded its reasoning on privacy primarily in frameworks developed for American and European societies, it produced a doctrine that was elegant, global, and somewhat distant from the actual privacy violations experienced by the Indian common man.

Global Privacy Concerns	Indian Ground Reality
Algorithmic surveillance	Patwari demanding a bribe to update land records
Data protection frameworks	Policeman entering a home without a warrant

The privacy violation that terrifies the Adivasi is not algorithmic surveillance. It is the patwari who demands a bribe to update a land record. It is the policeman who walks into your home without a warrant in a village where nobody will take your complaint. The constitutional doctrine does not quite reach these people, partly because the frameworks being imported were not built for them.

Ambedkar and Indigenous Constitutional Wisdom

The deeper irony is that the Indian Constitution does not need these imports. Ambedkar’s speeches in the Constituent Assembly contain more sophisticated thinking on substantive equality, on caste and power, and on the relationship between law and social transformation than most foreign precedents being cited can offer.

The document knows its country. The question is whether the courts that interpret it always do.

Colonial Legacy in Legal Thinking

There is something recognisably colonial about the instinct to treat foreign jurisprudence as inherently more authoritative. The same legal education system that spent generations teaching Dicey and Blackstone as the foundation of all law has produced generations of lawyers and judges who reach for Washington and Strasbourg before reaching for Nagpur and Ambedkar.

This is not a conspiracy. It is a habit. But habits have consequences. When constitutional interpretation is grounded in foreign soil, it tends to float above Indian social reality rather than being accountable to it.

Conclusion: Justice Must Find Its Own Voice

Justice that needs to borrow its reasoning from a country that has never met the plaintiff is justice that has not yet found its own voice.

VI. The Colonial Hangover

One last thing, and then the conclusion.

In the United Kingdom, in Europe, and in the United States (despite its considerable problems), the law of arrest works roughly like this: investigation happens first, independently; if evidence points to someone, you charge them; you arrest them when you are ready to prove something. The arrest is the conclusion of an investigative process, not the opening move.

In India, the colonial model persisted: arrest first, investigate through custody. The British did not trust native enforcers to conduct investigations independently, so investigation began with detention. Everyone associated with an incident was brought in. One case became eight to ten arrests, which became eight to ten ongoing trials. The magistrate, presented with a person in custody, asks why you should be in custody (required everywhere else) as the exception; here the default is custody, and you argue bail separately.

Colonial Legacy And Its Continuing Impact

The colonial administrators are long gone. The architecture they built is not.
Arrest-first approach continues to dominate investigation practices.
Custody is treated as default rather than exception.
Multiple arrests emerge from a single case, increasing systemic burden.

The result: sitting judges have said publicly that they know a particular accused will not be convicted because the evidence is insufficient, but they will not grant bail because the accused has only been in pre-trial detention for six months, and six months, for a murder charge, does not feel like enough. Not enough evidence to convict. Enough time spent in jail without conviction. This is the criminal justice system operating on vibes and instinct, which would be merely alarming in a lower court and is genuinely remarkable coming from a judge on record.

Pre-trial detention as informal punishment, administered by people who acknowledge they are not adjudicating the facts. Kafka built a whole novel around a less precise version of this. The novel is considered a masterwork of existential horror. The Indian system is running it as standard procedure.

VII. The Conclusion

The Core Problem

The problem is not that law exists.

The problem is that the common man must usually climb through bureaucracy, cost, delay, shifting meanings, borrowed vocabulary, panchayat morality, and the very specific contempt of power before he reaches what was promised to him as a right. And when he gets there, breathless and diminished, he sometimes finds a system citing a 1973 American judgement to explain his 2024 Indian suffering.

The Constitutional Vision Vs Reality

Constitutional Vision	Ground Reality
Adivasi gathering wood seen as exercising rights	Seen as trespasser in government forest
Homeless man seen as failure of the state	Treated as violation of public order
Comedian seen as democratic expression	Viewed as law and order problem

The Constitution wanted something different. It wanted a system that could look at an Adivasi gathering wood and see a citizen exercising ancient rights, not a trespasser in a government forest. That could look at a homeless man on a bench and see a failure of the state, not a violation of public order. That could hear a comedian making fun of the powerful and see democracy functioning, not as a law and order problem to be managed.

What exists instead is a system that, in the words of a sharp legal observer, grants individual bails without addressing patterns; stops one demolition without calling out the practice; gives interim relief without cautioning the malicious prosecution; and treats the state with a deference that it does not extend to citizens even when the state is visibly, documentably, on the wrong side of its own laws.

Judiciary And The Problem Of Patterns

The judiciary is not uniformly bad.
There are judges who understand social and legal context.
They distinguish between dissent and incitement.
They recognize the difference between satire and crime.

The judiciary is not uniformly bad. There are judges who understand context, who read the room of Indian society, who can tell the difference between punching up and punching down, between dissent and incitement, between a comedian doing his job and a mob doing something that used to be called a crime. The problem is not the absence of good judges. The problem is the pattern. And patterns, in law as in life, are more powerful than exceptions.

The Final Illustration

Here is the final joke, and it is not funny:

A man was arrested. He was told there was a case against him. He was not told what he had done. He was taken to a building where the lift did not work. He was made to fill out forms. The forms were the wrong forms. The right forms were on the fourth floor. He asked when his case would be heard. He was told to come back next Tuesday. He came back next Tuesday. He was told to come back next Tuesday.

Kafka wrote this as a novel. India is running it as a calendar.

Why The Law Fails The Common Man

It does not fail due to lack of noble words.
It fails when rights cannot survive poverty and delay.
It fails when power outweighs accountability.
It fails when courts question speech instead of protecting it.
It fails when legal language alienates citizens.

The law does not fail the common man because it lacks noble words.

It fails when its words cannot survive contact with poverty, delay, and the quiet arrogance of power. It fails when the court asks whether you should have spoken, rather than whether you had the right to. It fails when provocation becomes a sword against the provoked. It fails when it speaks to the farmer in the language of the foreign judge.

Article 39A And The Unfulfilled Promise

Article 39A promised equal justice. The promise is still there, waiting, on the fourth floor, next to the lift that has not worked since 2009.

Author’s Note

The author is interested in law, literature, and the increasingly blurred line between them. He did not get into a NLU on the first try. Neither did the common man’s appeal.

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