13.4 — How Law Works

A criminal court and a civil court can look at the same event and reach opposite conclusions without either being wrong.

A person can be acquitted of an assault and then be ordered to pay damages for the same act.

The reason is the standard of proof. In a criminal case the prosecution must prove guilt beyond reasonable doubt. In a civil case the claimant must show the balance of probabilities — more likely than not.

Why the difference. A criminal conviction takes liberty and carries stigma, and the system is deliberately designed to accept that some guilty people go free rather than that innocent people are convicted. William Blackstone's formulation, from 1765, is that it is better that ten guilty persons escape than that one innocent suffer. That ratio is a value choice built into the machinery, and it is worth knowing that it was chosen.

Two traditions

Almost every legal system in the world descends from one of two.

Civil law, from Roman law through Justinian's codification (Chapter 7.3) and the Napoleonic Code (Chapter 10.4). Its method: a comprehensive written code sets out the law systematically, and the judge applies it to the facts. Judicial decisions bind the parties and do not, formally, make law. Used in continental Europe, Latin America, Japan, much of Africa and Asia, and Quebec and Louisiana.

Common law, from England (Chapter 7.4). Its method: law develops through decided cases. A court's ruling on a point binds lower courts in future — precedent, or stare decisis — so the law is found in the accumulated body of judgements as much as in statute. Used in Britain, the United States, Canada, Australia, India, Pakistan, Bangladesh, Nigeria, Kenya and much of the former British empire.

The practical differences.

Common law is adversarial. Two parties present competing cases and the judge is an umpire. Civil law is more inquisitorial: the judge investigates, calls evidence and questions witnesses directly.

Juries are principally a common law institution, and even there they are now rare in civil cases and, in India, were abolished entirely for criminal trials after the Nanavati case in 1959, in which a jury acquitted a naval officer of murder in the face of the evidence and the verdict was set aside.

And precedent gives common law flexibility and unpredictability at once. A court can develop the law to meet a new situation without waiting for the legislature, and you cannot always tell in advance what the law is.

India's system is common law with codified statutes — the Indian Penal Code, the Contract Act, the Evidence Act (Chapter 6.19) — which is a hybrid: comprehensive codes interpreted through binding precedent.

How a criminal case actually proceeds

In India, and the structure is similar in most common law systems.

Investigation. A First Information Report registers a cognisable offence and the police investigate. The police may arrest, and the constitutional requirement is production before a magistrate within 24 hours.

Charge. A charge sheet is filed; the magistrate decides whether there is enough to frame charges.

Trial. Prosecution evidence, cross-examination, defence evidence, arguments.

And two principles govern it.

The burden of proof is on the prosecution throughout. The accused does not have to prove innocence.

And the presumption of innocence means the accused is treated as innocent until convicted — which has a practical consequence India struggles with, discussed below.

Appeal, through the High Court to the Supreme Court.

Evidence

The rules exist because human judgement is unreliable in specific documented ways, and each rule addresses one.

Relevance. Only evidence bearing on a fact in issue is admissible, which prevents a trial becoming an assessment of a person's character.

Hearsay is generally excluded. A witness may say what they saw, not what someone told them they saw, because the original speaker cannot be cross-examined.

Confessions to police are inadmissible in India — Sections 25 and 26 of the Evidence Act — specifically because of the risk of coercion. A confession before a magistrate, with safeguards, is admissible. This is an unusually strong protection by international standards and it exists because of documented practice.

And the science on eyewitness identification is the reason for the most recent reforms. Eyewitness testimony is persuasive to juries and judges and is substantially less reliable than it feels. Memory is reconstructive: it is altered by later information, by the manner of questioning, and by the confidence a witness acquires after being told they identified the right person. A large share of convictions later overturned by DNA evidence in the United States involved mistaken eyewitness identification. Volume VI covers the psychology.

Forensic evidence has had its own reckoning. DNA is genuinely reliable when properly collected and analysed. Several other techniques presented as science for decades — bite mark comparison, hair microscopy, and some fire investigation methods — have been found by scientific review bodies to lack a validated basis.

Civil law in practice

Contract. An agreement enforceable at law, requiring offer, acceptance, consideration, and intention to create legal relations. The remedy is usually damages rather than compelling performance.

Tort. A civil wrong causing harm — negligence, nuisance, defamation. Negligence requires a duty of care, a breach, and damage caused by the breach.

Property, including the enormous Indian category of land disputes.

And family law, which in India is religion-specific (Chapter 13.3).

The Indian judicial system, honestly

Its strengths.

An independent judiciary that has repeatedly ruled against governments. The basic structure doctrine (Chapter 13.3), the striking down of Emergency-era provisions, the privacy judgement of 2017, and the reading down of Section 377 in 2018.

Public interest litigation, developed from the late 1970s, which relaxed the requirement that a petitioner must be personally affected and allowed anyone to bring a matter of public concern. It has been used for prison conditions, bonded labour, environmental protection, the right to food and the right to education. It is a genuine Indian contribution to constitutional practice and has been studied and adopted elsewhere.

And its criticism is that it has drawn courts into policy-making they are not equipped for and that it depends on which judge hears the matter.

The problems.

Pendency. Around 50 million cases are pending across Indian courts, the large majority in subordinate courts. Cases routinely take years and sometimes decades.

Why. Judge strength per million population is far below most comparable countries and a substantial share of sanctioned posts are vacant. Procedural adjournments are granted readily. And the government is the largest single litigant, appealing routinely.

Undertrials. This is the sharpest consequence of the delay. A very large share of India's prison population — commonly reported at around three-quarters — consists of people awaiting trial rather than convicted. Many have been held longer than the maximum sentence for the offence charged. The presumption of innocence exists in law and, for a person who cannot afford bail, does not operate in practice.

Access. Legal aid exists under the Legal Services Authorities Act and is thinly resourced. A person without money faces a system in which the other side can afford to prolong.

And enforcement. A judgement that cannot be executed is a piece of paper, and execution of decrees in India is slow.

Why any of this matters economically

Chapter 9.4 identified institutions as the main determinant of prosperity, and contract enforcement is the specific mechanism.

A business that cannot enforce a contract within a reasonable time deals only with people it knows. That limits the size of the market, which limits specialisation, which limits productivity — Chapter 9.6's Smith, running in reverse.

India ranks poorly on international measures of contract enforcement time and cost, and the commercial courts and arbitration reforms of the last decade are an attempt to address it.

Where this shows up in your life

If you are ever arrested in India, the operative facts are: you must be told the grounds; you must be produced before a magistrate within 24 hours; you have the right to consult a lawyer of your choice; a confession to a police officer cannot be used against you; and you cannot be compelled to be a witness against yourself under Article 20(3).

If you sign anything, the contract is the document rather than what you were told, and Indian courts enforce written terms.

And the general point about law is worth stating. Law is not a description of what happens. It is a set of instructions about what should happen, backed by an enforcement mechanism that is finite. Where the enforcement mechanism is overloaded, as India's is, rights become theoretical for exactly the people least able to wait.

What the next page covers

Chapter 13.5 covers rights — where the idea came from, the distinction between negative and positive rights and why it matters, how international human rights law developed and what it can actually do, the cultural relativism argument and how to assess it, and the practical question of what makes a right real rather than declared.