The Lifeworld of Law: Methodological Multiplicity in Legal Pedagogy

Abstract

Multidisciplinary studies in the field of law in India in the last two decades or so have gained traction. The grudging acceptance of insights from social sciences into the technical discipline of law has expanded the horizon of its study. The presence of insights from other disciplines, however, has not predominantly altered the approach to legal education in India and they have at best remained alternate modes of legal analyses juxtaposed with a technical-doctrinal study of law. The methodological challenge is to think of ways to dovetail the insights to co-produce legal knowledge which is shared across disciplines. This paper is an attempt in that direction by bringing in a synthesis between the ‘external’ and the ‘internal’ perspectives, arguing in favour of interdisciplinarity as a pedagogical frame. The approach towards legal pedagogy is heuristic where methodical perspectives are not imparted but demonstrated. This paper undertakes this task in relation to how criminal law in India can be taught through a case study on the law of sedition—Section 124A of the Indian Penal Code, examining it from three different perspectives—the doctrinal, the instrumentalist and the constitutivist. The learnings from different vantage points and the exchange between them create lessons for legal pedagogy.

The trajectory of legal education, which evolved alongside the development of legal schools of thought, has not followed any singular pattern across jurisdictions. Speaking more generally of the West, and specifically of the development of legal education in America in the twentieth century, one can nonetheless discern a pattern that denotes an initial preoccupation with a more formalist approach to the study of law, gradually and grudgingly giving way to social scientific studies, which later consolidated into more critical approaches looking at law as entirely embedded in society and politics, challenging the formalist claim about law being a self-contained normative universe. Despite different temporalities of emergence following non-linear graphs, taking into account the argument in its generality, it can be stated that the development of legal education globally, has navigated between an inward-looking approach with emphasises on law as a technical discipline and an outward-looking approach open towards influences from other spheres into the discipline of law. ² There are jurisdictional patterns connected to these approaches linked to the question of the location of law as either a professional discipline or a part of social sciences or humanities. While no jurisdiction fits the ideal type exclusive model, with some generalization, it is asserted that the social science model dominates the US legal academia, the UK is still believed to be in the transitional phase where the thrust is still on technical-professional discipline but with momentum towards moving to the social science model having experienced a brief exposure to the humanities model in relation to the hermeneutical dimension of law. Germany is another example where legal academia has remained closer to legal profession, with law schools having fewer multidisciplinary faculties as compared to the United States, where multidisciplinarity has become a norm. ³ Methodologically, this evolutionary trajectory has bifurcated the approach to study law into two: the traditional ‘black-letter’ approach (internal perspective) associated with legal formalism and legal positivism and the non-conventional multidisciplinary approach (external perspective) which borrowed from social sciences and humanities.

The shift from the internal to the external perspectives expanded the modes of legal analysis contributing to specific theoretical frames for understanding the law. These perspectives, however, are often seen to be translating into a binary pair of methods. Arguing against the binary construction, and in favour of synthesizing the ‘internal’ with the ‘external’, this paper demonstrates the consequences of such a synthesis for understanding the relationship between law and society and the role the law performs in society. In doing so, the paper argues for recognizing interdisciplinarity in legal studies as a pedagogical frame which is not constituted simply by bringing in perspectives from other disciplines to study law, but by dovetailing the perspectives from external disciplines into the technical reading of law. Alternatively, the paper distinguishes between the presence of multidisciplinary accounts of law and a truly interdisciplinary study of law which synthesizes the multidisciplinary accounts to create an understating of the law which is shared across disciplines because it is co-produced. Through this frame, the paper makes a plea for interdisciplinary legal education in India and demonstrates the pedagogical frame of interdisciplinarity, heuristically.

The theoretical frames explored in this paper emerge through three different approaches: the doctrinal, the instrumentalist and the constitutivist. A pure doctrinal form of study is the mainstay of the black-letter tradition which makes up the internal perspective and argues in favour of the ‘autonomy’ of law from society. The instrumentalist and the constitutivist approaches have both emerged from the external perspectives on law, but the former emphasizes the ‘intersection’ between law and society, while the latter emphasizes the ‘embeddedness’ of law in society. ⁴ The rationale behind adopting these frameworks is the difference in how they conceptualize law in relation to the society, which in turn explains their placement within the internal and external perspectives and showcases how their divergent conceptions of law contribute to different methods of studying law.

The approach of the paper towards legal pedagogy is heuristic where the methodical perspectives are not imparted but demonstrated. This paper undertakes this task in relation to how criminal law in India can be taught through a case study on the law of sedition: Section 124A of the Indian Penal Code. Instead of focussing on the theory of methods, sedition law is demonstrated to have been analysed through different perspectives with the intent to allow the reader to gain perspective on how to apply methods that emerge through a combination of perspectives constructing an interdisciplinary pedagogical frame. Note that the focus on methodology in this paper does not concern with standard methods of pedagogy such as the case law method, Socratic method, clinical education, etc. Methodology emerges through questions around the ways of approaching and understanding law that produce different kinds of legal scholarship of which interdisciplinary legal studies is an illustration. The relevance of interdisciplinary studies for current trends in legal pedagogy in India cannot be ignored. For instance, the increasing space for clinical legal education ⁵ with a focus on experiential learning to complement the traditional methods such as the case law, and to make professional legal education socially conscious and connect to the goals of social justice, stands to gain bountiful from a contextual study of law, a task that interdisciplinary studies comprehensively undertake. Notwithstanding the fact that the frameworks chosen, in terms of their theoretical origins, are largely American, this pedagogical frame is appropriate to India as the field is ripe with an increasing number of scholarship on law by social scientists at least for the last two decades. The attempt has to be towards weaving them together.

The paper is divided into five sections. The first section traces the development of legal schools of thought in the West emphasizing the key historical moments marking paradigmatic shifts in the study of law and locating the emergence of the three conceptual frameworks within specific paradigms. It then explicates the frameworks through the methodical diversity in how each of the frameworks approaches the study of law and its relationship with society. The second, third and fourth sections demonstrate the application of the method through the thematic of the law of sedition in India, from each of the three perspectives, respectively, to make a case for an interdisciplinary approach to the study of criminal law in India. The conclusion consolidates claims for interdisciplinarity.

Towards an Interdisciplinary Legal Education: The Frameworks of Analysis

This paper has advanced an argument that internal and external perspectives on law have contributed to specific conceptual frameworks through which law can be studied. But neither of the two perspectives are monoliths and have in fact subsumed a range of philosophical traditions and empirical legal movements within the broad categorizations. How does one reconcile the internal diversity within the two perspectives to locate conceptual frames that would apply to all of the traditions within them? The predicament can be addressed by sifting approaches through the conception of law in relation to society with which they work, which gives rise to conceptual frameworks within which their specific conceptions of law can be located. The first framework of analysis is the doctrinal for it being the mainstay of the ‘internal perspective’, subscribing to a conception of law which sees it as autonomous of the society. Both the second and the third frameworks emerge from external perspectives but have been chosen for their unique conception of law, with instrumentalist framework conceiving law as a phenomenon that remains separate yet intersects the society and the constitutivist framework seeing law as embedded in the society.

The Doctrinal Framework

The organization of knowledge into specific domains that follow an internal structure, concepts, beliefs, methods and values, defines an academic discipline. ⁶ Disciplines also present themselves as self-contained, closed systems of knowledge, a claim that has been traditionally endorsed about the academic discipline of law by the Black-letter approach. This approach is concerned with looking at law as has been posited. This posited form of law, or what is technically termed as ‘positive law’, is valid only when duly enacted following rules and procedures of enactment, by the appropriate authority. The black-letter approach has also been termed classicalism or the classical approach to legal education which dominated the Anglo-American discourse up until the early twentieth century, is claimed to be the dominant approach in Continental Europe, whereas the other jurisdictions, starting with America, started to explore alternate frameworks by the 1930s. ⁷ This positivist approach to law had a formalist character looking at law consisting primarily of authoritative rules, as being essentially autonomous, deciding on claims brought to it by applying abstract rules to concrete facts. The school of thought associated with it was legal formalism ⁸ of which Hans Kelsan would be the strongest proponent, and the variant of analytical jurisprudence that legal positivists like Hart and Joseph Raz constructed. Positivism and formalism are separate traditions but what connected them was the view of law as autonomous from society, constituted of an internal normativity, claiming intelligibility on its own terms. ⁹ The idea of autonomy is explicated not in the assertion that the legal and the social worlds do not interact but in the belief that the interaction does not change the legal. The form and substance of law is not malleable to influences from society and changes within the legal system take place through its internal reasoning.

The doctrinal method emerges as the dominant framework for studying the legal texts within the black-letter or the positivist tradition, with its distinct mode of analysis, and the one which has kept the legal academia and the profession together. ¹⁰ Despite internal debates on the exact definition of a legal doctrine, ¹¹ a doctrine has been understood as the exposition of the rules and principles governing a field of law. These rules and principles are expressed in judicial opinions, sometimes explicitly and at other times more subtly, which become the basis of the opinion. Because they emerge from judicial opinions, the doctrines are also termed as judge-made law. ¹² Jan Smits elaborates that the doctrinal approach, which is the systematic study of the rules and principles of law, serves three main functions-description, prescription and justification. ¹³ A legal doctrine describes the existing law in a particular field. It prescribes the normative behaviour or practice in that field guiding the judges in arriving at their decisions. In the process of describing the existing law and presenting it as prescriptive, a doctrine also justifies the law. These three functions performed by a legal doctrine take place from within the legal system, contributing to what is called the ‘internal perspectives’ to the study of law. It is an approach which requires the researcher to place oneself within the system and think through its internal logic, and understand the law on its own term. It offers a distinct method of analysis where legal texts and principles are subjected to the ‘internal convention of legal decision meaning’ where the concepts, techniques, reasoning and evaluative standards, are all internally evolved and changed, making legal system appear to be a sealed one. ¹⁴ It is the internal perspective that claims the ‘autonomy’ of law from society.

Legal reasoning, which Joseph Raz defined as reasoning according to law, has been the underlining principle of law’s autonomy. ¹⁵ Legal doctrines expressed in judicial opinions do not represent private will. Raz argues that legal reasoning is a form of artificial reasoning that people require while acting as judges to help determine a case when natural reasons of taste, preference and will run out. The doctrinal method is also associated with anti-positivists such as Dworkin who was a doctrinalist but not a positivist and offered a different framework of the doctrinal theory of law which has not been the preoccupation of the traditional legal academia. ¹⁶ Within the positivist framework, from the doctrinal perspective, the figure of the judge emerges as a neutral figure composed of the internal logic of the system whose decisions are independent of extraneous social considerations. The jurisprudence, thus, evolved in a particular field of law, is the principle of law composed of its own reasoning, created and upheld by autonomous courts far removed from the social imperatives. The epistemological basis of this legal reasoning relies on material which is entirely internal to the system: legislations, case law, etc. ¹⁷ The system so developed is the doctrinal system, or the ‘inner system’ ¹⁸ of rules, concepts and principles, creating a value-neutral and technocratic approach to law.

The Instrumentalist Framework

America was the first jurisdiction to turn to a post-classical approach to law followed by others, that is, newer ways to study law besides the reliance on the doctrinal method. ¹⁹ Instrumentalism was the first successful paradigm within post-classicalism which called for an empirical study of law. It was a substantive challenge to doctrinalism in the early twentieth century with the rise of an academic movement broadly labelled the ‘law and society’ which gave birth to the school of thought: the legal realism. ²⁰ Legal realism as an empirical movement, subsumed within itself a range of positions. American realism was inspired by the views of Justice Holmes among others, who had famously remarked that the life of law was not logic but experience. ²¹ It was quick to turn to a pragmatic approach to law claiming that the doctrines and the logic do not fully explain how courts decide but emphasized socio-psychological elements of legal reasoning, for instance, something called judicial behaviour. ²² The Scandinavian Legal Realist School, which inspired the European turn to empiricism, was relatively more philosophical in approach and placed the study of law in a realist paradigm in opposition to the natural law tradition. ²³ What united the different kinds of realists was the focus on instrumentalism in viewing the function of law in society which identified the legal phenomenon as intersecting the social.

The realists did not fundamentally alter the object of study but modified the gaze on the object. One of the fundamental ways in which the realists differed in their methodical gaze from the formalists, was the question of the outcome of law. Formalism, as a distinctive style of legal reasoning resting on the doctrinal method, looked to precedent or extracted general principles of law to find answers to a legal question but almost never sought outcomes that would advance public policy. ²⁴ The realists turned this position around to shift the focus from the rules that are written to rules that are applied, reformulating the method of study as being invested in exploring what law does, as opposed to what law says. ²⁵ They concurred with the formalists that legal rules governed the society but disagreed with them that law performs its function while remaining apart, above and autonomous from the society. They argued that if law is instrumental in bringing about social change and governance, the legislative intention embodied in the letter of the law and its strict technical judicial interpretations non-conversant with the ground on which it is implemented, are incapable of making the law effective in society.

They shifted the gaze to how ‘effective’ the law is, which could be deduced from its working. The design of the law could no longer be seen in a silo, independent of the form it took on the ground in the course of its implementation. The question of the bad law or the good could no longer be determined solely on the basis of doctrinal principles but the actual assessment of the law in fulfilling the intent for which it is created. Since legal doctrine did not provide for a methodology to determine the effects of law, the legal realists looked to social sciences to provide them with the tools, paving the way for empirical research in legal studies. ²⁶ The epistemological basis of this approach was no longer confined to legal material like the doctrinalists but socio-political findings on and around the law that could be deduced into factual figures. ²⁷ The empirical study of law was to help discern the gap between the law in books and the law in action and provide an antidote to the policy failures in achieving the projected legal goal. The instrumentalist approach, hence, provided for the ‘misuse’ framework of law to emerge in deducing the reasons for an ‘ineffective’ law which could be correlated to the design of the law. This was the ushering in of the ‘external’ to make sense of the ‘internal’ by bringing in the law and society perspective. Law was supposed to be defined by function and not the form, and by the 1940s, at least in America, this approach had gained footing in proving that even the normative efficiency of the judicial system can be improved through empirical findings. ²⁸ It was this excessive reliance on empiricism to study law and the functionalist approach to law, which created internal fissures within the instrumentalist perspective, and by the 1960s, a new wave of legal scholarship erupted in America, broadly termed as the constitutivist.

The Constitutivist Framework

The constitutivist approach cannot be identified with any single legal movement though it grew out of the American Legal Realism as a disaffected body of thought which no longer wanted to evaluate law in instrumentalist terms through social scientific studies. The instrumentalists had until now focussed on law as a vehicle of social engineering. The later scholars, however, began to emphasize on law being historically and socially constructed, to the extent that the approach Law and Society did not capture the essence of law in society and in fact emphasized the embeddeness of Law in Society. ²⁹ Drifting away from instrumentalism was marked epistemologically by a post-realist turn to the study of law embarked upon by critical legal scholars. ³⁰ The Critical Legal Studies (CLS) in American became the most dominant school of thought associated with this framework, but the constitutivist approach to law is broadly the framework within which the Marxist School, the Public Choice theory, Critical Race Theory, Feminist Legal Scholars and Law and Emotion scholarship among others are also placed. ³¹ Each of these views assigned a different character to law and understood it as performing different ends in the society; however, the common conception of law for them remained as one that is embedded in society and hence demonstrates an inherent mutability to changes in society.

The instrumentalists viewed the social as preceding the legal and the latter as an external phenomenon brought in to cure the former by mapping its efficiency in society. The constitutivists, on the other hand, according to Sarat and Kearns, began to see the ‘law’s effects’ no longer in terms of its effectiveness judged on the parameters of the intention of law, but in shaping the society internally. These effects of law entailed understanding how law shapes social relations and in turn gets shaped by them. The emphasis was on law’s power of meaning-making including those that the law itself remains unaware of and how the ‘social actors internalize the meanings and artefacts of law such that they appear as normal and natural’ ³² . The constitutivist research hence did not produce quantitative data on the basis of which a failed law can be differentiated from an effective law. Instead, they focussed on the lived realities of law which may or may not produce generalized conclusions.

Methodologically, since the constitutivists were anti-positivists and because they associated positivism with empirical studies, they drifted away from the study of law quantified in numbers and figures. For them, using a positivist method to generate ‘social truths’ did not necessarily produce objective knowledge. Their emphasis was on the everyday stories and narratives of law. ³³ This phase of legal scholarship was also the ‘turn to humanities’ ³⁴ which concerned itself with disciplines of literary and critical studies distinct from the dominant framework of social sciences which embodied the positivist character. Critical jurisprudence grew out of this variant of the constitutive studies challenging the fundamental basis of traditional jurisprudence dominated by positivists which associated law with determinate rules. Critical jurisprudence made room for emotion to be recognized as a cognitive element in the study of law with the claim that emotional discourses condition legal reasoning. ³⁵

The consequence of this critical turn to legal scholarship for legal education can be summarized into two: first, the constitutivists opened the doors for seeing legal reasoning as indeterminate and politically conditioned, and second, they took the study of law to its quotidian life. The second consequence was different from a legal realist framework as the quotidian study of law was not limited to an empiricist gaze preoccupied with eliminating the challenges law meets in its enforcement. Rather, it focussed on how the legal and the social were co-produced in a way that the empirical separation between the two was impossible even if desirable.

The following three sections demonstrate the application of the different methodological frames to a Criminal Law case study in India demonstrating what an interdisciplinary turn to legal education would entail.

Framework I: The Doctrinal Approach and the Jurisprudence on Sedition

How does one look at Section 124A of IPC as an illustration of a criminal offence in India through the lens of the ‘autonomy’ framework following the doctrinal method? The basic assumptions of the framework are that the origin and development of the law of sedition can be explained through the doctrinal principles that ground it, with the socio-political context in which the doctrines develop, having no role in shaping the content of law, or in other words, in effecting its judicial interpretations. The doctrinal evolution of sedition in India is traced back to colonial jurisprudence. The law was enacted in 1870 and was modelled on the common law offence of sedition. Sedition was defined as the offence of ‘exciting or attempting to excite feelings of disaffection’ against the government, by words, signs, or by visible representation, or otherwise. ³⁶ The section, however, acquired meaning in 1897 in course of the trial of Bal Gangadhar Tilak, a nationalist leader who had been charged for seditious libel. Justice Strachey, in the trial, interpreted the word disaffection to mean ‘hatred, enmity, dislike, hostility, contempt and every form of ill-will to the government’, observing further that the word ‘disloyalty’ is the best general term comprehending the bad feelings against the government and Section 124A criminalized the umbrella of feelings captured by these words. ³⁷ A year later in 1898, Section 124A was amended to reflect the understanding of the offence evolved in Tilak and it now criminalized ‘attempts to bring into hatred or contempt’ or ‘attempts to excite disaffection towards the government’. The Explanation to the section read that ‘disaffection’ includes disloyalty and all feelings of enmity.

In the 1940s, the interpretation of the offence of sedition generated a lot of discussion in the wake of two judgments that reflected on its scope. In 1942, in Niharendra Dutt Majumdar v. The King Emperor, the Federal Court of India, the predecessor of the Supreme Court of India, ruled that for the charge of sedition to hold, excitement to feelings of disaffection must include either incitement to disorder or should be able to convince the audience of their intention to excite. ³⁸ This interpretation was, however, overruled in 1947 in King Emperor v. Sadashiv Narayan Bhalerao, a case decided by the Privy Council. The bench ruled that the earlier judgment proceeded on a wrong construction of the meaning of Section 124A. It restored the understating of the offence given in Tilak stating incitement to violence or disorder was not a necessary ingredient of the offence. ³⁹

Post-independence, Section 124A was retained in the IPC with the Privy Council’s interpretation acting as the precedent. The constitutionality of sedition was challenged after independence and High Courts ⁴⁰ gave differing opinions on whether Section 124A was a valid restriction on the fundamental right to freedom of expression guaranteed under Article 19(1)(a) or not with the Allahabad High Court in 1958 offering the least convoluted logic that Section 124A is unconstitutional as it imposes a restriction on speech which are not in the interest of public order. ⁴¹ The doctrinal confusion was ultimately settled by the Supreme Court in Kedarnath in 1962 in which the constitutionality of Section 124A had been challenged. The bench acknowledged that there was a direct conflict between the decisions of the Federal Court and the Privy Council on interpreting the scope of the offence of sedition which required a resolution. The bench ruled that for the law to be consistent with the fundamental right, it has to be interpreted in consonance with the views expressed by the Federal Court. A literal interpretation of the words contained in Section 124A, as expressed by the Privy Council, would violate the right to expression. ⁴² The bench, hence, resolved that feelings of hatred, contempt, disloyalty and disaffection against the government should import the tendency to public disorder by the use of actual violence or incitement to violence, to be counted as sedition. ⁴³

The 1962 judgment, in the doctrinal world, resolved the question of the constitutionality of the law and its relationship with free speech in India. Sedition as an offence was not inconsistent with the right to freedom of expression as the Indian Constitution allows the State to impose reasonable restrictions on the exercise of the right in the interest of public order. Sedition henceforth was read as an offence against public order through its tendency to incite violence and disorder. A doctrinal critique of the law will engage with questions such as whether the test laid down by Kedarnath is capable of distinguishing between expressing mere bad feelings about the government and inciting violence, or does the expression ‘tendency to public disorder’ establish a proximate connection between speech and its consequences? ⁴⁴ In other words, a doctrinal review would concern itself with the letter of the law, the rules laid down in the course of its judicial interpretation and how subsequently the law has been applied to facts. In the process it can modify the interpretation, overrule or uphold. A doctrinal viewpoint, however, does not look at the law beyond its design question to focus on its implementation. The implementation of the law takes place in the domain of the social from which the letter of the law claims complete autonomy. Over the years, the Supreme Court has been petitioned to draw attention to the use of Section 124A in cases not corresponding to the understanding of the offence laid down in 1962, amounting to gross misuse of the law by the executive. The court, however, had been unwilling to review the law on the ground of its misuse reiterating that the directions for its use have been laid down in Kedarnath.

In an unprecedented move, the Supreme Court in 2022, responding to a batch of petitions praying for a review of the law citing its unparalleled misuse, suspended the use of law until it is re-examined. ⁴⁵ This is a judicial move that transcends the conventional doctrinal standpoint by allowing the lived reality of law to become a ground for its constitutional challenge. The specific judicial moment allows for a partial synthesis of legal formalism with legal realism where the internal perspective draws inferences from the ‘external’ alluding to the argument that the letter of the law cannot claim complete autonomy from the habitus in which it is made to work. This is an argument that can be explicated in the ‘instrumentalist’ paradigm.

Framework II: Law and Society through the Instrumentalist Approach

An instrumentalist approach to reading the law of sedition in colonial times uncovers the political intent of the law. Sedition was not originally an offence in the IPC enacted in 1860 despite being a part of Lord Macaulay’s draft of the Indian Penal Code presented in 1837. It was introduced as Section 124A only in 1870 with the justification that the provision had been dropped from the IPC by mistake. ⁴⁶ Historical records, however, suggest that the immediate reason to introduce the law was to counter the Wahabis, a network of rebels who part of the Revolt of 1857 and were known for their preaching, and had subsequently built a substantive challenge to the colonial authorities. ⁴⁷ In the early years, the law was used indiscreetly to target the freedom of press but a majority of these trials resulted in failing prosecutions. This empirical approach to the study of law explicates its doctrinal life and its aftereffects in relation to their socio-political contexts. If the doctrinal approach answers the ‘What’ (is law) question, the instrumentalists pose and reflect on the ‘Why’ question, where the ‘Why’ may have several explanations. ⁴⁸ This kind of fragmented chronicling of a law’s positivist existence is possible when the technique of interpretation is borrowed from other disciplines, in the case of the present argument: the historical method. They contest meta-narratives allowing for plural explanations to emerge. ⁴⁹

The amendment to Section 124A in 1898 to reflect the interpretation given in Tilak was a legal act with political intentions which may be very different from the legislative intention which is the focus of the doctrinal method. ⁵⁰ Many a trial with the exception of Tilak in 1897 had resulted in failing prosecutions. In two of the cases, the bench opined that the main text of the law was not complemented by the Explanation that follows it. Justice Strachey in the course of Tilak’s trial also stated that the ‘explanation’ has led people to misconstrue the meaning of disaffection that ‘nothing short of an incitement to rebellion was an offence within the meaning of the section’. ⁵¹ The authorities were made cognizant of the fact that the law had been misunderstood. The colonial archives bear witness to discussions among members of the executive with solicitors advising against using Section 124A in the charge sheet for the fear of unsuccessful prosecution. ⁵² Following these developments, the law was decided to be amended to reflect Justice Strachey’s reading of sedition which had secured a successful prosecution. Within the ‘instrumentalist framework’, this was a response to the question of law’s effectiveness in meeting the ends for which it was created, which, in this case, was governed by a colonial imperative.

Section 124A survived the transition from the colonial to the post-colonial as part of the legal edifice independent India adopted from the colonial state. Owing to its history of abuse against nationalists and its chilling effect on free speech, sedition was still a law of concern within a democratic polity guaranteeing the fundamental right to expression. The Constituent Assembly opted for an aporetic solution wherein Section 124A was retained in the IPC but was not recognized as a constitutional restriction on fundamental right. Sedition, which by definition was the act of spreading disaffection against the government, hence, remained an offence in independent India. ⁵³ The law of sedition, however, could not be used to restrict forms of disaffectious expressions unless disaffection against the government could be connected to jeopardizing one of the various interests, mentioned as constitutional restrictions, which State had a right to protect such as national security, etc. The initial years following the commencement of the Constitution saw an escalated use of the law of sedition by the executive, including the First Amendment to the Indian Constitution to include the word ‘public order’ as an additional constitutional restriction on free speech. It enabled the law of sedition to be used in those cases where a connection could be drawn between disaffection against the government and threat to public order. The judiciary, however, in majority of the cases struck down the use of S.124A in limiting the right to freedom of expression on grounds of untraceable link between disaffection against the government and threat to public order or national security.

The 1962 Supreme Court order in Kedarnath, which read the law down to make it consistent with the fundamental right to free expression, discussed above in the doctrinal framework, needs to be viewed against this background. Scholars have opined that the law was read down by the Court to save it from being invalidated. ⁵⁴ These vignettes help contextualize the doctrinal evolution of law by unpacking the social and political underpinnings of the legal doctrine. Kedarnath set the tone for an instrumentalist analysis of Section 124A. The reasoning offered by the Court redefined the legislative purpose of the law as distinct from the colonial intent. From being an offence of incitement of subjective feelings against the government, Kedarnath redefined the offence as importing the tendency to public disorder or violence. Sedition was effectively constructed as an offence against public order routed through incitement of disaffection against the government. The intent of law, consequently, shifted from prosecuting affective utterances against the government to targeting expressions tending towards public disorder.

Post Kedarnath, the intended effect of the law has been reformulated as protection of public order by restricting expressions against the government. If the law is evaluated in the instrumentalist framework, it would have to be studied empirically on the parameters of being effective in fulfilling its intended effect. The instrumentalists would thus measure whether the use of the sedition law has been in cases where a threat to public disorder is posed by the expression in question or not. In case of the latter, an instrumentalist conclusion would state that the law in book is different from the law in action and the gap points to the law being misused for a purpose beyond its legislative intention. This misuse of law is a statement of its failure in fulfilling its desired purpose and hence should be a reason for the law to be reviewed. This position is different from the doctrinalists for whom the implementation failures of which misuse by the executive is a kind, is not a flaw and does not require a judicial review. ⁵⁵

Empirical studies have been conducted on sedition from the instrumentalist standpoint, by civil liberties and legal aid groups ⁵⁶ or activist lawyers who have petitioned the court to intervene, supported by statistics on the misuse of law. ⁵⁷ Work done in descriptive-analytical framework has attempted to deduce patterns of empirical uses of sedition in registering FIRs. ⁵⁸ The reference point for such studies has been Kedarnath, judged against which it has been concluded that the law is being used in cases which have no relation with public disorder. The studies have been extremely crucial in pointing out the gap between the law in the book and the law in action. ⁵⁹ The data mining escalated in the late 2000s owing to a revived use of law against civil libertarians which were also supported by the findings of the Annual Crime Statistics in India which showed an increasing use of the law ever since the compilation of cases under Section 124A began in 2014. ⁶⁰ These empirical studies galvanized into multiple challenges to its validity in the Supreme Court since 2021 which eventually resulted in the Court suspending the law in 2022 till it is re-examined. The Court’s decision was an acknowledgement of the legal realist framework as the law was suspended not because of the detection of any doctrinal flaw but on the ground of its everyday implementation.

The law and society approach following the instrumentalist perspective thus would read sedition as a failed law as per its intended purpose. The other perspective within the law and society approach—the constitutivist—however, calls for a deeper reading of the law that refuses to confine itself to the intended effect.

Framework III: Sedition Law in Society Through the Constitutivist Approach

Quite apart from the technical interpretations of Section 124A or its misuse which can be represented in figures, a constitutivist approach looks at how the figure of the seditionist is constructed and where does the seditionist stand in relation to the society. In doing so, it brings to the fore how sedition law has influenced modes of thought and social practices. Case studies of the law’s constitutive effects are the following.

A constitutivist reading of law allows to locate sedition in the anti-colonial discourse as an act of political opposition. Challenging the settled doctrinal interpretation of sedition as an offence against the government, the nationalists in India redefined the vocabulary of sedition. As a colonial law deployed to serve the interest of an unjust system, Gandhi viewed Section 124A as a tool of repression and the act of sedition as the ‘highest duty of the citizen’. ⁶¹ In this alternate conception of sedition, the actors questioned the legal positivist framework which criminalized disaffection, and liberated sedition from the vocabulary of the state. Using a constitutivist lens, the scholars of Affect Studies have argued that Section 124A, which criminalized feelings of disaffection, was the most pronounced attempt to use affect as a tool of colonial governance and discipline. Drawing from critical jurisprudence, the trials of sedition can be best understood at the intersection of law and emotion/affect studies, making sense of how the judges drew upon a host of affects to construct the ambit of criminality under Section 124A. The law, which tried to manufacture affection repressively, had the opposite effect in the rise of Indian nationalism where disaffection became the language of political dissent. ⁶² Engagement with the sedition law in colonial times, from a constitutivist perspective, also comes from literary studies. The scholars have shown how the linguistic devices, such as allegories, palimpsests and analogies, were used for journalistic writings critiquing the British rule, to evade inviting sedition charges. ⁶³ These were extremely important techniques in defence of the accused in the trials of sedition, one witnessed clearly in Tilak.

The contemporary discourse on sedition is again telling of the multiple meanings that the law of sedition has acquired on the ground which are constitutive of socio-political relations. Two such illustrations would be discussed briefly, the first relates to the use of Section 124A in socio-ethnic conflicts and the second relates to sedition being equated with anti-national activities. There have been multiple instances of the invocation of Section 124A in caste conflicts against those fighting caste discrimination. ⁶⁴ A deployment of this kind would be dubbed as the ‘misuse’ of law in the instrumentalist framework and may be cited as a reason for the law to be reviewed. For the doctrinalists, these instances can never reach fruition as they would be unsustainable in the court of law. However, for the constitutivists, the implications of these deployment run deeper. The use of sedition against ‘Dalits’ (the lowest in the caste hierarchy) in a caste conflict manifests the identification of the dominant caste with the authority of the state. It replicates the relationship of suppression between the state and the seditionist in the society through the caste hierarchy where the dominant caste, like the State, assumes the right to suppress challenges against itself shielded by a legal provision. Despite the legal un-tenability of these charges, the message is sent out that challenge to the caste order is akin to sedition and a seditionist in constructed out of a ‘Dalit’, not in the domain of the legal but in the domain of the social through the use of a legal category. The embeddedness of the law in the social is highlighted through the use of law in reproducing the social hierarchy. An inventive argument emerges on sedition in the realm of the social, through the intersection of the disciplines of law and philosophy where sedition is viewed through evolutionary social semantics in Ambedkar’s writings. He uses the concept of manav droha (resistance to humanity) in relation to caste discrimination akin to moral sedition. By extension, sedition is seen as a crime against human dignity and universal moral law. ⁶⁵

The second illustration focusses on the gamut of cases where sedition has been used to criminalize a range of activities under the umbrella category of ‘anti-national’ expressions. These include instances of cheering for the rival cricket team, singing praises of another country, not standing up for the National Anthem, use of the slogan ‘Azadi’ (Freedom), etc. From the instrumentalist perspective, these were the classic cases of misuse on the basis of which the statistical challenge to Section 124A could be built. A constitutivist approach, however, would look at the consequences of these instances which take shape of registered complaints making their way into the formal-institutional space of the State—the police station.

The consistent registration of these cases as seditious has resulted in a popular vocabulary of sedition, which is ‘deshdroh’ (resistance against the nation). In the positivist world of law, disaffection not amounting to threat to public order is not sedition. However, the popular iterations of sedition create an extra-legal sphere of state criminality occupied by the non-confirming acts to the dominant discourse of nationalism. The registration of these cases as seditious until the stage of acquittal at the trial, creates the framework of state criminality where acts which ordinarily would not be covered under any existing legal offence, are rendered criminal in the executive discourse of the state. The meaning-making of sedition takes place through the state officials but in the realm of the social which finds its way to the state institutions. A constitutivist reading would go further to read the implications of the translation of sedition as ‘deshdroh’ on the accused. Studies ⁶⁶ have highlighted the social consequences of an extra-legal interpretation of sedition where the tag of the ‘anti-national’ has resulted in delegitimization, ostracization and abandonment of the constructed ‘seditionist’ despite the cases not translating into establishment of guilt in courts. From a constitutivist approach, hence, an ‘afterlife’ of the law emerges, which is explored to understand the inveterate spaces that law creates for itself in the society beyond its doctrinal mandate and at times, antithetical to it.

Conclusion: Constructing the Interdisciplinary Frame as Polyrhythmic, Not Cacophonous

The three frames put together allow for a holistic view on what the law is, as regards the case study on sedition, and how it affects society and gets affected in turn. The doctrinal approach is essential to retaining a coherent and disciplinary identity of law and is indispensable to its foundational understanding, but it does not capture its complex interaction with society, culture and politics. A creative landscape of law emerges when the doctrinal viewpoint is allied with other perspectives in a collaborative manner. A study of law as a contested terrain of practice cannot be blinded to influences from outside. The instrumentalist approach interrogates the effectiveness of formal law in engineering the social and provides for those vital learnings that would help the law reform the social. The constitutivists are able to experience law internally as part of the social and locate the many meanings of law in the non-formal spaces which are constantly shaping the subjects of law and redefining their agency in ways never anticipated by positive law. For instance, deviating meanings of the law brought to the fore by the constitutivists, or the lived reality of law evidenced in statistics, provide an answer to the question of what law is as succinctly as the doctrinal or the jurisprudential discourse. How did the sedition law capture the nationalist imagination in the colonial times, how crucial were sedition trials in the emergence of the Indian public sphere, how the doctrinal development of sedition has philosophically shaped the right to speech debates in India, how the positive morality of law in the contemporary times produces the ‘anti-national’ in India today, etc., are questions that demand a synthesis between the internal and the external of the law.

The synthesis or the interdisciplinary frame does not, however, produce a cacophony rather is polyrhythmic in character. Elsa Barklay-Brown uses the term polyrythmic to denote a technique in which one lyric is made to stand alone and at the same time be in connection with all the lyrics being sung. ⁶⁷ This is to mean that the contradictions between the perspectives remain. External perspectives continue to pose ontological challenges to claims of the doctrinal method about law. Interdisciplinarity does not harmonize the contradictions, in fact, it accentuates them to add layers to the question of what is law. It stands for a combination of perspectives resulting in meaning accretion on the object of study with epistemological coherence between the analytical layers accreted. It is not simply a juxtaposition of the insights gained from the three theoretical frames.

When the momentum within the state of legal education in India already is towards synthesizing theory and practice in how law is taught, which can by extension also become a framework for bringing together profession and academia, the interdisciplinary approach which situates law in context will only coagulate the current trend in legal education. Second, it will also bring legal scholarship and legal education closer. Legal scholarship in India contemporarily is flourishing in the law and society studies. Legal education would become conversant with this creative landscape of law that these scholarships are producing by adopting the interdisciplinary frame. It will be fundamental to the state of legal education in India which is not a space of professional education alone, but also an academic space with a social teleology.