Monday, August 31, 2009

Symbolic Laws, Signalling Effects

Guest Blogger

Kalyani Ramnath

I followed the debate on honour killings with interest. Is ‘effective’ social reform only about higher conviction rates or is it also about community understandings? Much of the skepticism surrounding the enactment of a special legislation on honour killings is because of the former rather than the latter. Measuring legal reform and social reform with the same yardstick appears unjust to both.

Tushnet and Yackle, in a study of statutory reform in the United States (available here) look at three kinds of statutes – expressive, instrumental and symbolic. Instrumental statutes do not attempt a changing of societal values, but alter the importance that is attached to it. Expressive statutes attempt to change societal values as well as the benefits attached to holding that particular viewpoint. Symbolic statutes attempt to replace existing values and preferences or impose the values or preferences of a particular interest group on the other. In the case of symbolic statutes, what is evident is that the emphasis is not on deterrence but on the signals sent out to the community. It is the perceived nature of the crime that changes.

For example, the understanding that sati is ‘too dangerous’ a practice to abet. Symbolic statutes are not to be considered symbolic post facto, nor is the difficulty in implementation / ease of achieving convictions ever a reason to not enact them. A more useful critique of such measures would arise if this was taken into account. If a statute is enacted with the understanding that its role is primarily symbolic, then perhaps greater attention would be paid to awareness raising than to dealing straight off with institutional design or problems of implementation. If this is not the case then perhaps statutory reform will remain the bastion of middle class thinking rather than that of any impact on the larger community, whether it be in terms of implementation or change in perceptions.

The usual objection to enactment of symbolic statutes is that it erodes the credibility of the legal system. But as mentioned earlier, is law only ‘effective’ if it achieves higher conviction rates? Perhaps too little emphasis is placed on the initial steps following law reform and particularly that relating to perceptions. Malatras identifies four ways in which a social movement may relate towards the law – using the law as strategy, law as liberation, law as constraint and using the law as a symbol.[1] This could be extended to any attempt to bring about statutory reform, even if it is not through the medium of a social movement, however defined.

It is sometimes argued that in order for a law to be effective, it has to be in consonance with established social and cultural understandings. However, if the very purpose of a law is to change those understandings, is the answer then not to bring about statutory reform? Another argument is that laws should only be enacted if the majority find it acceptable. In his article (Atul Setalvad, ‘Paper Laws’, EPW (1988), Setalvad focuses on the lack of a proper enforcement machinery in the case of the Prevention of Food Adulteration Act and the Dowry Prohibition Act, both of which have therefore remained ‘paper laws’. (On the other hand see this article by Neeraj Hatekar et al, ‘Legislating Social Change: The Strange Case of the Sarda Act’, EPW 2007 for evidence of how community understandings of marriageable ages changed with the legislation) Laws play different roles in the above two cases - in the first case, to use the Malatras typology, the law is constraint and in the second, the law is a symbol or is employed as a strategy.

To get back to the question of statutory reform in India, there seems to be an increasing use of law for these many purposes outlined above. One of the more talked about statutory reform is in the area of domestic violence. The Protection of Women from Domestic Violence, 2005 is similarly considered to be a more obvious example of breaking the silence on 'private' violence and abuse. For one, the Act acknowledges the existence of relationships that are not legally ‘marriage’. Further, it gives the woman a right in the shared household.

What is disappointing however, is the Supreme Court’s response to the Act. In S.R. Batra v Taruna Batra[2], it undermined the statutory right to reside in the shared household by deciding that the right is only available to a woman in a household owned by the husband and not in the household owned by the in laws, even though it has been the shared household of the woman. The Court expresses concern that this might well result in the infringement of the rights of the women, but nevertheless attributes it to ‘clumsy drafting’.[3] This effectively takes joint family households out of the picture.

To take another example, The Juvenile Justice Care and Protection of Children Act, 2000 is considered revolutionary in its use of child-friendly terminology. However, experience indicates that a lot of the procedures followed and the environment of the "dispute" resolution body i.e. the Juvenile Justice Board, is quite to the contrary. The Supreme Court in interpreting the JJA has however, managed to parallel existing understandings of juvenile justice – for example, that the child has a right to bail, that presumption of age must be in favour of a child and so on. Little or no litigation has occurred on any other point. In many cases, though, the lack of a best practices guide and effective subordinate rule making, the Act remains underutilised.

Tushnet and Yackle in their study also point to the fact that the politics between the legislature and judiciary can also result in the law being unenforced or narrowing the scope of statutes to reflect existing legal positions. This seems to be true in the case of statutes, such as the DV Act. Is this part of the judiciary’s effort to create a ‘seamless’ web of sorts? In this case as well, the signalling effect of the statute assumes importance.

In cases where the call for statutory reform has come from the judiciary such as a law on sexual harassment, the legislature remains largely indifferent, perhaps because there is no political mileage to be gained. Hence, predictably, there is scope for judicial understandings to be placed at a premium. This appears to be problematic for evident reasons. For these reasons, I would think that the proposed legal measures against honour killings is probably less about formalistic legal positions than it is about community understandings.

[1] Jim Malatras, “Legal Consciousness of Social Movements : Framing the Strategies for Mobilizing the Law”, Paper presented at the Annual Meeting of the Law and Society Association, 2005.
[2] AIR 2007 SC 1118.
[3] Batra, paragraph 23.

[Kalyani Ramnath graduated from National Law School of India University, Bangalore and is currently studying at the Yale Law School]


Tarunabh Khaitan said...

thanks for this post kalyani. expressivism has a long history in the US, and their insights are certainly relevant to many developments in Indian law too. I share with you the proposition that laws have an expressive function, and that law-making must take this function into account. the debate on expressive literature diverges at this point- do you take expresssions of law into account because it has good consequences, like reducing violence against women (Sunstein), or do you take them into account because expression of the right moral values is the role of the state irrespective of the consequences of these expressions (anderson and pildes). i have greater sympathy for the former view, and which is why i believe that hte expressive potential of a law is only ONE of the several factors which will affect its intended objective (i.e. reducing violence against women - i agree with you that merely looking at conviction rates is too simplistic). this is the reason why the DVA is such a good piece of legislation - it certainly expresses a strong moral sentiment, whcih must have some impact on popular morality. but it is ALSO a very well-drafted piece of legislation, whcih guarantees effective relief to the victim, and being civil in nature, does not trample upon civil liberties like 498A does. in fact, the DVA is an example of a law whcih sends out the right messages, creates effective remedies for hte victim rather htan paying lip-service and does not restrict rights unnecessarily. in sum, as long as your point is that expressive function of the law is an important factor to be considered along with everything else it seeks to do, it is very valid. but merely passing draconian legislations like the SC/ST act, 498A and the sort of law proposed by some activists with respect to 'honour' killings in order to express the right moral sentiments should make all of us uncomfortable.

Kalyani said...

Thanks, Tarunabh! I wanted to make the more limited point that attacking the process of 'reform' litigation on the point that a particular piece of legislation will not be fully 'implemented' would not be taking a comprehensive view of things.

With respect to 'draconian' legislation, like I indicated in the post, a lot of the second-stage signalling (if I can call it that!) will come from the judiciary. Like, in the case of the DVA. I would conclude, tentatively, that the initial tendency would be to retreat to the position before the legislation was passsed, in the interests, of say, 'consistency'. I'd be interested to look at 'symbolic' statutes where the judiciary has gone beyond the text of the statute.

Perhaps, it would be interesting to see what reasons are given to do that? I say this only because turning to legislatures to enact 'progressive' legislation forms part of the strategy of many social movements, however defined. And it wouldn't be in interests of anyone to say that it is 'wrong' to lobby for legislative change in this manner, based on whatever set of morals. Given the trend mentioned above, the investigation of the judiciary's responses to such legislation would be interesting. More so, in the context of current discussions on the distinction between constitutional and popular morality!

rohitkaliyar said...

"..... This effectively takes joint family households out of the picture."

From the Supreme Court Judgment:
"22. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'."

In my opinion, Joint family households are very much in picture and such joint family household will still fall under 'shared household'.

Further, Continuing from the judgment: "19. Learned Counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household

We cannot agree with this submission

20. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

It is well settled that any interpretation which leads to absurdity should not be accepted."

It seems to be well reasoned out judgment by Supreme Court, or is there something which I failed to appreciate in this matter?

Subramanian Natarajan said...

Just taking the point tarunabh makes forward - Symbolic purposes can definitely be served by legislation . Criminal Legislations deal with offences and sanctions for their commission.
It might be sensible social policy to make certain types of behaviour criminal - for instance making sati criminal in 19th century india or child labour criminal in 21 st century india. But can it ever be sensible or indeed legal/ permissible social policy to tinker with the procedure of establishing the commission of these offences? Does mere symbolic requirement justify the shifting of the burden of proof in dowry death cases and cruelty?
Of course, it could be argued that shifting the burden serves not a symbolic function but a practical one - in that it is extremely hard to prove these offences - but that reason sounds more like an excuse for an under equipped prosecution service than a valid reason fo social policy.