Chytanya S. Agarwal and Gaurav

In this episode of Arbitrary, Chytanya (Editor, LSPR), and Gaurav (Observer, LSPR) sit down with Lubhyathi Rangarajan to discuss her rich experience on the nexus of data-driven studies and the social life of laws. Lubhyathi delves into her groundbreaking work on “A Decade of Darkness” database, which documents the use of sedition laws over the past decade, and discusses the challenges of data collection and the broader impact of authoritarian legality on society.

LISTEN TO THE PODCAST

Chytanya:

Hello and welcome to Arbitrary, the flagship podcast of the Law School Policy Review. Today we have with us Lubhyati Rangarajan, a research fellow at the SOAS University of London. Lubhyati holds an undergraduate degree from the Symbiosis Law School, Pune and an LLM from the University of California, Berkeley School of Law. Lubhyati has been a founding member at the Project 39A in NLU Delhi, which represented and continues to represent prisoners on death row before appellate courts in India. Lubhyati was also on Forbes India’s 30 under 30 list for her work in criminal justice and death penalty and is a TEDx speaker.

In 2020, Lubhyati led the creation of India’s first public database on the use of sedition hosted on Article 14, a digital media platform. This database, titled “A Decade of Darkness,” was cited in five petitions before the Supreme Court challenging the constitutionality of sedition. This database was also covered by several important news posts such as the Washington Post, the CNN and the BBC network. She was also a panelist on NETV Reality Check with Srinivasan Jain, Al Jazeera English, CNBC18 and interviewed for podcasts with Suno India and News Laundry for her work on sedition.

Today with Gaurav, I welcome you to the show, Lubhyati. Thank you so much for agreeing to do this.

Lubhyathi:

Thank you for having me.

Chytanya:

Yes. So, to give a background to the viewers, Lubhyati has done phenomenal work in India in the field of data and law, particularly in the creation of the database “A Decade of Darkness,” which documented sedition cases for over one decade. We would like to begin with some broad questions on this field of data and law.

In India, as we might know, much of the literature on law is restricted to doctrinal and theoretical research. Particularly on sensitive topics like sedition, we do not have any data-intensive studies. Now, as a student of law myself, I would like to understand how this field of data and law is novel. What does it bring to the table other than doctrinal and theoretical perspectives? And what methodologies do you normally adopt?

Lubhyathi:

That’s a good foundational question to ask. What is really the importance of doing data work in law, particularly when law schools and law school curriculum, as it is currently designed, does not include doing empirical research as a specific part of the syllabus. It’s something, of course, students and teachers may develop as research projects independently, but the importance of large-scale data work is yet to be, of course, part of law school curriculum. But having said that, I think what’s been interesting in what I’ve learned from my time starting with Project 39IA. I want to point out that a big issue in India is, of course, data availability. There is a lot written on that. It comes down to just institutions and what they are about online. And we are talking of people like, let’s say me, who is an independent researcher, not really part of an institution and we do not have institutional access to certain databases or to certain public officials. And I am kind of looking for data online on a particular law, let’s say. Today, my work on laws is uses Indian Kanoon. It’s an open access portal. It has case law from across high courts in India.

But what’s interesting, of course, is that it’s doing in a way the state’s work of providing that kind of interface and that sort of interactive experience that ideally High Court websites should provide. But High Court websites also are quite difficult to wade through for somebody who may be digitally challenged in some way. But to get back to the original question of why data and law is important, I mean, one is that, of course, it tells you the scale and depth of a problem that any law might bring in, any challenges that we see when laws are being implemented or interpreted – Implemented by the state on the ground and interpreted by courts.

So, you get to know things like demographic information: who is filing a case? Against whom are they filing a case? Where are they filing a case? Is it a criminal case? Is it a civil case? What has the court decided? Particularly in criminal law, things like periods of incarceration; How long is it? How much time has it taken for a police station to register an FIR? And I think the recent instance in Kolkata also brought that question out where the Supreme Court was also asking those questions of the state. And I found that very fascinating because we are currently trying to do something like that – to document the number of minutes it takes for a police official to register an FIR, let’s say in a case of sexual violence, versus a case of sedition, for example. And so that kind of microdata tells you a little bit about the state’s priorities if you know that it takes the police and in one of our cases in sedition, it took the police about 45 minutes to arrest somebody on the basis of a Facebook post. Whereas in sexual violence cases, for example, you see very clear documented instances of women being unable to register FIRs when sexual assault has happened. So to me, that kind of granular data gives you a very good insight into not only the workings of institutions, but also what are they prioritising when implementing these laws, because they implement these laws with a certain statement of object and reasons. But it is really only when you see the social life of the law that you know more about institutions and the officials who are to be accountable for those actions or inactions.

I think, on data and law, the other observation we’ve made is that judicial data is perhaps the most advanced in terms of digitisation. But that also happened only about 15 years ago. So, we’ve only had numbers or empirical data on the workings of courts and law for about 15 years. It takes a while for everyone, I think, to even catch up to the potential of what you can do with data as academics. And, an interesting digression or another observation is that even in legal academia as a career choice, this kind of research as a career path is a very new thing in law schools. It’s really the last decade that it has emerged as a particular type of career that you can actually pursue after doing law, because typically it would be litigation or corporate law firms because of the way law schools are structured. So studying data and law is a very emerging career field for a lot of younger scholars. As a career path also, it needs to be incentivised. And if it is incentivised in the right way, then more people might get into it.

But in terms of challenges in doing this type of data work, I’d say in India, it’s lack of just data availability, that’s one. Two,would be that institutions don’t speak to each other. So the executive and the judiciary don’t speak to each other very well online. Interfaces are not linked. And so it feels constantly like you’re dealing with separate institutions dealing with the same problem, but they keep their data separate. So courts, prisons, police stations are not connected, for example. And this is a challenge that a lot of people working in criminal justice have brought out. But yes, we can certainly talk more about the challenges of doing this work as we go along.

Chytanya:

Thank you so much for your insights. As I could gather, this field of data and law captures the larger picture without compromising on individual or specific cases. It can also tell us the functioning of institutions together. And one of the things that you pointed out was that a lot of institutions such as the police, the courts, and the prisons have been functioning in a disjunctive manner.

Now, one of the reports, which I can think on top of my head, is the India Justice Report, which tried to collate the functioning of these three institutions together. Now, it would be really helpful if you could give us some broad insights on that, and then we can move on and connect the scene with your work in “A Decade of Darkness.”

Lubhyathi:

Yes, the India Justice Report is a huge endeavour, and probably one of its only kind that documents specific problems around digitisation. And in fact, the experiences we had in gathering, for example, downloading FIRs from police station websites, is something that even the India Justice Report documented. So, citizen-centric police websites and ease of access to police stations is something that the executive has been pushing quite heavily in the last few years. But for researchers large-scale data work is difficult. Even for somebody who’s a one-time user, police websites, again, are inaccessible. Because police is a state subject under the constitution, it affects how these institutions are structured differently across states. Thus, each state’s police website has a very different interface, a different backend, a different frontend. Each website requires you to input different fields of data in order to access information. Very often, you have to be a registered user and it’s not something that you get. So it’s not always open access in the sense that you open the website, you search for FIR number, district police station, and you just get it. It doesn’t always work that way. More often than not, you have to be a registered user for which you have to give your Aadhaar card number or your PAN card number. Again, these are things that reduce access in some ways to websites that should be publicly available, I mean information that should be publicly available.

So when we went through that entire exercise of trying to gather FIRs, this is what we learned. One is that most police station websites also have information only after 2016, which is six years ago, so they don’t have FIRs before 2016. Many of them don’t have anything for one year prior to the incident, but the report actually records that in detail.

Though, of course, they have a very different way of testing out how easily accessible police station websites are, but they also echo a similar experience that we had when we were trying to build such, which is that it’s a very, very challenging experience. And even for law students who are familiar with law and trained in law, there are many barriers to accessing information online. Even if you’re sitting at your desk and trying to do this, there’s also so much captcha information that you have to enter. So there’s no question of doing bulk data scraping. There is an organisation in Bhopal, CPAP or the Criminal Justice And Police Accountability Project. So they do work on criminal justice, denotified tribes, they provide legal representation, they also come out with a lot of reports. And in one of their reports, they kind of scraped data from the Madhya Pradesh state website. But that experience also is very challenging. It also takes a long time for the tech developer to develop an algorithm that will match the government interface that will then allow you to get that data. To develop that algorithm takes time, it also obviously takes resources. So when you’re talking about your question on large scale data, doing data research, these are the types of day-to-day challenges I think that researchers would face. So, this type of conversation between lawyers and tech will have to happen in order to make that process a little more seamless.

But again, that is a conversation that will take some time. Because being lawyers, as I said, we are sort of comfortable with the data, maybe not as successful as they say. I’m thinking in this direction about what big data can do for you. In terms of technology at hand, I would say of doing any type of data theory depends on the concept. What is it that you’re really trying to find? And simulating your data work entirely on what you find online is certainly possible. But again, it depends on the scope of your research.

So for example, in Sedition if I were to take you step-by-step through how we did that kind of online work, our main search term was “Sedition” or “Section 124A”, because it is at the time 124A in the IPC. So these are the two terms we used on every online search portal on IndianKanoon, on media websites, on district court websites, which is the e-courts website, and on high court websites. So all of it was actually manually done; we weren’t able to do bulk data scraping from websites, because, as I said, it takes time. It takes about three to six months just to build those tools to pull out data from one website. And bear in mind that we have multiple High Courts across the country with their own websites. Interestingly, what most developers in India will tell you is that the captcha that they have makes it really hard to pull out data in bulk. So if the captcha function wasn’t there on these government websites or court websites, it would probably make things a little easier. So, these are the sorts of challenges we have to face while doing data work.

Gaurav:

Honestly, that sounds like a lot of work. And your team must be really good to collect so much data so well. Segueing to the sedition database, can you give us a bird’s eye view of your experience in the making of “A Decade of Darkness”? You have already told us the methodological approaches. Another question which is related to this is that the BNS has, as it has claimed, have done away with sedition. So would the cases continue under Section 152 (BNS)?

Lubhyathi:

I certainly would like to thank the law students who worked on the sedition website. It was actually a team of four people. At one point, it was a team of three, me and two other students, and then they left and there were two more students. But it was really, I would say a team of five people, including me who did all of this data work manually.

A lot of lessons learned from that process, for sure. Many things that I would not repeat again, mistakes that were made. There are things that only when you do it, do you realise, the next project, you can do things differently. So, even to give you an insight into our daily routine, and this was the only way we could have done: it was that for about three months. We just agreed to sit every day from three o’clock in the afternoon to around seven. No breaks, except for a small little 15 or 20 minute break in the middle. No phone calls, no meetings, no distractions. And all of this was during the pandemic. Maybe that also helped in a way, because there really wasn’t anything else for anyone to do. So, we’d sit every day, Monday to say Saturday, go through each case line by line, enter each case manually in the spreadsheet. This is something that I would certainly not recommend that people do for a large set of data. But I’ve also learned that manually entering data is inescapable.

You know, at some point, you do have to go through at least 100 cases. If there is a law that you want to study, you will have to go through 50 to 100 judgments manually at least. There is no way out. No AI can kind of capture what you said is the bird’s eye view. And if you’re wanting a bird’s eye view into any law, your perception and your point of view on that law can only come if you actually read it all yourself, and not look for a quick summary or easy tools to do it at the very beginning. In terms of a bird’s eye view on sedition, that’s a challenge for somebody who is spearheading a data research project.

Now, this is also a skill you learn with experience only. I can’t say I had that skill when I started out five or six years ago. But now I think I’m better at it; that is, you are constantly moving from the small data point to that bird’s eye view or view from the top of the mountain of data as if you’re sitting at the top if you are the one heading the project. It’s very different if you’re coming in as somebody who’s just entering data for two or three months. But if you own that research, and if you’re doing it over a long period of time, and data is sort of the mountain and you scale it until you’re on the top. But it’s the top view really that you’re looking for, and the journey along the mountain will also change. I mean your environmental factors; it’s a metaphor, but it works really well for this type of work. You also have to change the route sometimes. And you have to sort of stop and breathe for a little bit. And these are things that even I picked up.

So often when I find that I’m stuck on a particular problem or overwhelmed by too much information, particularly with sedition, I just went back to texts. I read theory, I read philosophy, I read concepts around, free speech and expression, or even the theory of law, the theory of jurisprudence, rule of law – things that took me back to the top of the mountain to say, ‘Oh, this is why we’re doing the work’ and to answer the question on sedition itself. And what is that bird’s eye view we got from the mountain of data that we gathered on sedition? It creates a legal black hole.

What we wanted to demonstrate to the public – anybody, really, who doesn’t have to be a lawyer – is that these types of laws (and it’s not just sedition, actually, it is a set of laws in the IPC, and extraordinary laws, special laws that are passed) which kind of create, metaphorically, what we called A Decade of Darkness. It’s a very dark space to be for an accused.

So, the whole database is told from the point of view of the person accused of these offences. This, again, is a perspective that I and everyone else in the team are very clear about. So we don’t start the data work unless we know what is our perspective on it is. Because then, you’re just sitting on mountains and mountains of information, not knowing how to scale it. You’re always in a base camp – which is fine, you can be at the base camp. But if you really want to scale that mountain of data, it’s much, much harder. And the only way to do it is to is to read is to think, to discuss, to talk to experts, and develop that unique perception on that data landscape that you have. And I would say that is also a challenge very often for any researcher. You do question yourself and wonder if that’s the right direction you’re taking. I think that’s the nature of all academia, really; you often have to introspect on the questions you asked yourself originally, in your original proposal, and you have to revise it.

And I would say empirical data is no exception to that process of reflection. But to get back to the bird’s eye view on sedition – the metaphor we used and again, this was an incredible learning experience for me, because I got to work also with a Creative Head Salman Usmani, who designed the whole database, he had a creative vision for it. And he and I spent many weeks just talking creatively about why we reached this point, why we do the work we do, what is it that we see from this work? What did he derive from the data and the spreadsheets that I shared with him? And what did I derive from that spreadsheet? They’re very different. And what he’s the one who kind of came up with this space-time metaphor of a ‘black hole’. Because a black hole sucks out all the light, you can’t see into it. You don’t know what’s going on in it; nobody has as yet really discovered it. So, we wanted to represent that and say that the legal process in sedition is a ‘black hole’ for the accused – you have no idea what’s happening, and you don’t know why you’re there. The process is the punishment, and we wanted a visual metaphor for that.

In addition to, of course, showing how many people are accused, the number of cases many cases, and who has filed these cases – also going back to your first question of why we do this work – a new type of data point that I’m interested in is who files the case. Very often the perspective is on the accused. And I think, particularly under criminal law, we we don’t look at it and this is what we discovered in sedition. What’s really interesting is the backstory of how that case made its way into that police station. Why did the police file the FIR? This is something that we wanted to focus on because very often it involved old rivalries that culminated in a criminal case against the person who was eventually accused of sedition. And that’s how we came up with a category also of the Everydayness – the everyday use of sedition.

The prevailing hypothesis about sedition was that it is used against people who are very vocal and who dissent and who are very, you know, politically out there. But the more we did the data work on the types of cases that came to us, most of them were cases of everydayness – where it is somebody who just clicks on a Facebook post and does not know that they are clicking on it. Very often these are people who do not speak that language, do not read English on their phones, they do not know how the app works, and are first-time mobile phone users. And they are the ones with a lot of cases against; they are the ones who have cases of sedition that the police files. If we had not done that type of data work, those types of cases, I suppose, would have been lost in the story of sedition. So, I am quite pleased that it brought out a certain new way of looking at how these laws are used – which is that even if you have absolutely nothing to do with anybody, you are not outspoken, you are not a dissenter, you are not a critic, you could still be charged with sedition, even if you are wearing a t-shirt that says Pakistan Cricket Board, for example.

Now, how that is argued in a court of law is a very different question. And I think that gets into other types of data, like data on convictions and acquittals, which the NCRB documents. So, what’s also interesting about documenting all these FIRs is to see how many of these end up in court as a full trial. And how would the court adjudicate a Facebook post saying, I stand with Pakistan Army? On what basis would you convict or acquit that person? And of course, that’s where doctrine and legal training comes in. But I suppose the point of documenting all this data is to see where are these cases coming from? Who are they being filed against? Who is filing them? And a lot of right-wing organisations are behind many of these FIRs. And there is a National Crime Records Bureau and they record official crime statistics in India. So, these are things that I suppose the NCRB would not tell you. This is something that we never find in the NCRB. And I think it is a valuable thing to know if you want to know how democracy works in this country.

Chytanya:

Thank you so much for your perspective on the sedition database! One thing which I read in one of your works on the NCRB statistics is that they use this methodology called the “Principal Offence Methodology”. Could you take one step back and tell us what this “Principal Offence Methodology” actually entails and how it gives a smaller picture of the use of sedition? We will also come to the point on frivolous use of sedition – on how sedition has been used in an overbroad way – and then connect this point with your work on access to justice.

Lubhyathi:

Yeah, so that’s what’s interesting about the NCRB. On how it collects its cases, it has a disclaimer or a methodology section in its annual report. Every year it releases its annual crime statistics since 1950 until now and every year of course new crimes are added. The report in 1950 is so different from what it is today. Things like cyber crimes have had to be added, offences against women, offences against children – all of these new laws that are passed  have to be added by the NCRB. But yes, as you rightly pointed out, the NCRB has now started putting it in their disclaimer that they use this thing called “Principal Offence Rule.” Basically, where let’s say, there are two sections, ‘rape’ and ‘murder’, in a particular case, that crime would be recorded by the NCRB only as ‘murder’ because they use the most heinous punishment rule. So if there are multiple offences in a particular crime – and typically there are in most of the FIRs. Most crimes that are recorded have several sections added on, right? Like destruction of property, kidnapping, theft, murder, etc. The offence with the harshest punishment, the most severe punishment is what the NCRB will record. So a rape and murder case will be recorded as a ‘murder’ case, which means your counting of rape cases is different. You do not put it under both the ‘rape’ column and the ‘murder’ column; you only put under the ‘murder’ column.

According to the NCRB, this is something they do to avoid over-inflating crime statistics. This is something that’s actually in written in a book called “Whole Numbers and Half Truths” by a journalist, Rukmini – she’s an incredible journalist and i recommend this book for anyone who wants to do data work in India. And she talks about it when she interviewed this NCRB official, and this is what he said. It was only after she reported this in the press that the NCRB then started saying that, yes, we do actually follow the “Principal Offence Rule.” So a lot of credit to her for bringing that point out. But yes, the NCRB is scared, I suppose, of over-inflating the number of crimes because as you imagine, if it’s an Excel sheet and there are 10 offences in the FIR, that one crime is then recorded 10 times. So it does seem like then there’d be millions of more crimes in India under the NCRB’s heads. But yes, this is obviously a problem. An interesting thing that Rukmini talks about in her book is that the state of Kerala is where the most incidences of crime are reported. And that (the reporting) is why Kerala has the highest number of crimes generally; and they’re criticised for it. But it also shows that more people are going to the police station to report more. For example, more women are then going to report sexual assault offences. So it’s an odd thing to criticise higher incidences of crime reporting by a state than a state like say, Madhya Pradesh or Uttar Pradesh that have historically underreported crimes. So it looks like no crime takes place in these states. But of course, that’s not true.

There is also a problem, not just with their methodology, but also the fact that, as I said earlier, police is a state subject. So it’s really the state that has to take accountability for the fact that, are enough people trusting our police officials to come and say that a crime has happened? I know that’s a test of, again, democracy and accountability. So, that answers the “Principal Offence Rule” question for which the NCRB does come under a lot of criticism from the public. Also, in general, on the types of information available, there is no demographic information. You do not know the religion or the caste profile or the socio-economic profile of people who are accused. You wait for prison population; in prison, they have a caste and religion data. But for police, there is no such thing. So not knowing who is accused, where are they from? How, for instance, literate are they? What is their monthly income? These are things we try to do with sedition, we try to answer some of these questions.

Because it appears that your monthly income is directly proportional, for example, to whether you can afford a lawyer or not, or the best lawyer or the best type of legal representation. This answers questions on disparities in legal representation. So if a daily wage labourer has to sell all their livestock just to afford a district court lawyer, you can only imagine what might happen simply because they do not have access to a lawyer. And they do not perhaps want to use legal aid services, which has its own set of problems. So these are the demographic information, that NCRB does not give you; it does not give you case specific information. So when you see, they (NCRB) have columns on cases pending investigation since last year, and cases closed this year, but we don’t know if it’s the same case. Then calculating the backlog of cases is a challenge, particularly when you do not know when the police open investigations and when they close investigation.

But yes, it is certainly the only institution doing it in the country. Nobody else is doing it at that scale. They are the only ones because they have access to all State Government police departments. The way they do it typically is that they write to about 17,000 police stations in the country. They would have to write to each of those state governments. Then those state governments would pass it down the hierarchy of information. The police station would then have to record in the format that the NCRB has provided, and then the information is passed all the way back up. So, this is how they gather information on crime. I think you will have to refresh my memory on the other questions you had.

Chytanya:

Just another incidental question relating to the contemporary news that last month, the Bharatiya Nyaya Sanhita (BNS) replaced the IPC. Although the Central Government claims that the Section on sedition has been discarded, we may have even more draconian provisions such as Section 152 of BNS. So what relevance would the Decade of Darkness have now? Would the cases then be passed on to Section 152? And how would that again affect your research methodology?

Lubhyathi:

So yeah, first, to answer the question on has sedition really changed with the new criminal law? No, the word sedition has been removed. But the substance of the law is almost identical. Very little changed, actually, in the, I would say the new sedition law, because it uses the same language as excites or attempts to excite visible signs and words and presentation, of things that threaten the sovereignty of India. So the language is identical. There is no real change, except, as I said, the word sedition has been removed, and that has been considered colonial, which this government has said, we are not using that term. But it does not really change anything in how the section is going to be used. So, in theory, the Decade of Darkness can continue to document cases under Section 152. While that conversation on the new criminal law bills was happening, I remember wondering how this how would it merge? One is that old cases will continue. So all old 124A cases, old sedition cases that were filed, will continue to be prosecuted. So that won’t go.

Now, additionally, you have these new laws that are coming in. So one is, of course, thinking of how courts are going to be doubly overburdened now. Because all the old IPC offences will continue to be prosecuted, but you’ll have new BNS ones. In terms of, as I said, Decade of Darkness, the theory of the legal blackboard doesn’t really end with the passage of a new penal code, actually, right? So, the language of the law or the passage of the law does not change old habits or old patterns. Old fault lines that still exist, those fractures that are still there. Again, to use a metaphor of maybe a fracture, like fractures that don’t heal properly, if you try to kind of do more work on them, it gets worse, right? The fracture never heals. So, the system is already fractured, and you’re now adding more pressure to it by passing a new law and saying, oh, look, the new law is going to change everything. It really doesn’t. Because today, if I also want to tweet, “I love Pakistan, I want them to win the match. I’m so glad India lost.” They could still file a case against me under 152 or any of the other provisions in the new BNS. That relationship that a police station has with, or the understanding that the police official has of the law – how easy it is to file an FIR – that hasn’t changed. This is something that we have also learned from the evolution of sedition jurisprudence, from Ram Nandan, in which the Allahabad High Court where it struck down sedition in the 1950s.

One of the reasons was that it’s so easy to just file a case. Who is going to interpret whether this is sedition? Is a police officer going to do it? Are they trained to do it? Is this a sedition, is it a visible sign or representation that has attempted to excite and threaten the sovereignty of India? I mean, just that language, are you expecting the police officer in, let’s say, Lucknow district in that particular police station to interpret this and say, okay, this doesn’t fall within the contours of the law, so I won’t file an FIR. What are the chances that something like that would happen? So, Ram Nandan actually tried to correct that deficiency, which then Kedar Nath Singh brought back by saying, no, we’ll keep the law. This was 1962. Let’s keep sedition, but it’s now only incitement to violence. Only in cases where violence is incited, will we file sedition. But did that change anything? It didn’t. Because then, theoretically, we would never have these types of cases that we managed to find in A Decade of Darkness, right? The person wearing a t-shirt, the person who posted: I stand with Pakistan by mistake, not that doing it intentionally also should warrant a criminal case against you; or even students who supported the Pakistan cricket team.

Was there incitement to violence? Who decided that there was incitement to violence? Certainly, the police officer didn’t, right? Clearly, even court jurisprudence by the Supreme Court has not changed what happens at the police station level. So, what is the hope that the new Section 152 BNS will have that type of change? Even logistically, we think about it, if there are 17,000 and more police stations, each one will have to be trained. Each police official has to be trained. It has to be pasted in the police station wall in the local language saying: ‘This is how you interpret the section. Don’t file the case in these types of fact situations.’ Who is going to do that? It is not like Kedar Nath Singh as an order was communicated to so many people anyway, right? Because theoretically, the point of also diluting these laws, and I guess this is the frustration or the gap you see between doctrine, Supreme Court jurisprudence, and social life of law, which is this type of ground reality – there is a huge gap.

And what data does actually, or rather this type of large-scale demographic data, is that it tells you why that gap exists. Because if Kedar Nath Singh were followed in its true spirit, why are you still sitting on so many frivolous sedition cases, to get your next question. There shouldn’t be frivolous sedition cases, right? I thought we fixed that problem. I thought the Supreme Court had fixed that problem. I thought even the old 124A when it said criticism of the government is not sedition, it should have fixed it, right? That means if I criticise the government, I shouldn’t have a case against me. It is 2020 and I still have a case against me because I said, oh, there are no ventilators in Ludhiana on Facebook. And somebody filed a case against me, which happened not to me, but to somebody in Ludhiana. So, there were so many instances even during lockdown where people had sedition cases filed against them. Does the language of the law fix the ground reality? Does even the Supreme Court jurisprudence fix that ground reality? It doesn’t. As data researchers, we can only bring out those instances through large-scale data. And that’s why we do what we do, I suppose. In one way, the value we bring or the contributions we make is to expose that gap. One, that there is a gap between what the court says and what happens on the ground. And two, the nature of that gap: How big is that gap? How deep is it? What types of gaps exist? And that is what this type of data brings out. So, I hope that answers the question of why frivolous cases happen or whether the new law will change anything.

Chytanya:

Yeah, it certainly answers the question. In fact, I was just thinking out loud that a lot of times Supreme Court jurisprudence has said that we should focus on the impact of a law rather than its intent. And in the judgments of Supreme Court, a quantitative analysis on the impact of the law is, a lot of times, missing. And there’s an important gap which a decadent of darkness can plug. And moving a step further or going beyond sedition to your general point on the way sedition has been used frivolously. In another article, you pointed out that criminal law itself has been used in a rampant manner by the state. In India, we see this dichotomy that there is a huge backlog of cases. But at the same time, we see that state itself is the biggest litigator, which is rampantly using criminal law without any restraints. So, it would be great if you could give your insights on this.

Lubhyathi:

I suppose the way things are playing out at the moment with the passage of the three new laws to replace the old three criminal laws. You also see repeat offences. One of the things is that you have an Unlawful Activities Prevention Act to prevent terrorism. And you also have very similar provisions in the BNS – same identical provisions on preventing terrorism, on what is terror and criminalising acts of terror. So, this is confusing to me. What does it mean to have that duplication – where you have a special law that governs terror, and now you have it in your penal code as well, which was not there in the IPC, but you have it in the new BNS. So, one is that type of duplication is very confusing and frankly quite redundant. Two,is what they call the ‘vice of vagueness’ in legal language that has not been remedied. So, that is something. In Shreya Singhal, the Court very clearly when they struck down Section 66A of the IT Act, largely on the basis of vague language. And still, as the petitioners or as the Internet Freedom Foundation found out, they were still filing cases under 66A, even after striking it down, which is again, a whole set of different institutional problems which we spoke about earlier. But yes, that vice of vagueness across criminal laws continues. I think, in any rule of law, the basic thing you can expect is to know what is and isn’t a crime. Much clarity should be there for people.

What vagueness allows the state to do is to, is precisely that people don’t know what is and isn’t a crime and are constantly vigilant. You are on edge, you are hyper careful, you self-censor, right? That’s the idea. Because if you’re clear about what is and isn’t a crime, then people can do anything around that. But now you want to tick the field so much and therefore you’ve kept the definition of certain crimes extremely broad – things like offending certain communities, inciting violence, etc. It makes things difficult for the ordinary person to just live their life the way they want to live. So it does restrict your freedom.

This is what over-criminalisation does. One is, of course, you are adding more offences. Two is that you do not define them. There is vagueness. And three now with the three old laws and the three new laws, as I said, you will have old cases already pending. So, already there are some 3 crore criminal cases pending. I think the National Judicial Data Grid has that breakup. But there are totally 5 crore cases pending in India. Now you are adding more BNS offences to it. So, you can only imagine what is going to happen in the next few decades. I am quite scared actually of the type of chaos that is going to be unleashed on our courts and our infrastructure.

We are not prepared. Something that I learned while researching that article that you pointed out was that creating more, building more courtrooms is not going to solve that tendency. Aparna Chandra has that book where they document the problems of the Supreme Court. So, they focus on the Supreme Court Court. Again data is far more readily available in the Supreme Court than other Courts. So, I don’t think the judiciary will actually ever be able to catch up at this point. It is never going to be able to catch up; it’s humanly impossible. No matter how many courtrooms you have, increasing judge strength – all of that has to be done, yes.

But does it solve the problems we are talking about substantially? Does it solve problems in how laws are drafted? And drafting vague laws is what has gotten us here – particularly vague criminal laws. That’s what has gotten us to this point, where you are seeing, which even police data brings out. If you look at just NCRB, again, number of persons arrested in a particular year for a particular crime versus number of persons finally acquitted or convicted – it’s a one or two percent proportion of people who finally get an outcome of a particular conviction. So, it’s always a case of the court, the police asking for a huge fishing net and you try to catch as many fish as possible. And maybe one or two big ones stay in the net and everyone else slips away. But the point is, you have caught them. You’ve caught them and now they are in prison – they are incarcerated and they have probably lost their jobs and their families. So, the impact of all of that also has to be seen. And that’s something, again, that official data does not tell you – the impact of having an FIR filed against you, the social stigma, the ostracisation, the stories that we documented in A Decade of Darkness. It is incredibly depressing actually, particularly as lawyers who are trained at elite law schools.

And I often ask myself that question, like, what is the point really of what even I am doing? What is the point of constantly playing catch-up? You are constantly playing catch-up knowing that you are never really going to be able to catch up. That’s what the government is doing, actually, to courts, in my view. You are just constantly putting more and more cases in that system and the court is never, ever going to be able to catch up – it is, to my mind at least, no matter how much you bring in tech, infrastructure, and human resources. But you already have 5 crore cases. How are you going to deal with maybe 5 crore more on your docket? No clue.

Gaurav:

One thing I love is that fisherman analogy, like, it really makes a lot of sense.

Lubhyathi:

So, actually, I should add to that. I should add that there is another incredible analogy that a prisoner on death row gave us, saying that the IPC is like a spider’s web and the police is the spider. So, you catch all the tiny little insects in the web. But the really big ones and the dangerous ones never really get caught. That analogy is also incredible. It’s another way to think about criminal laws generally – of who really gets caught and who gets away. And that’s the reality in India, the way our systems are structured.

Gaurav:

That is a really grim thought, especially coming from a death row prisoner.

So, the closing question is on your latest project, the “Social life of Authoritarian Legality.” So, what impact do you hope to make with this project? And is there a very specific conversation that you want to start around this topic with this research?

Lubhyathi:

Oh, that’s a good question. So, the project is called the “Social Life of Laws” and it’s exactly how it sounds. We are looking at how laws are manifested and experienced by people. And we are looking at a set of laws such as citizenship, anti-terror laws, religious conversion, land laws, all of which are experienced by certain groups and communities in the country who perhaps do not have that kind of social or economic capital to challenge things and institutions the way they should be. So what the “Social Life of Laws” hopefully does, and I think the kind of impact it has on how we imagine social legal jurisprudence, for example, is exactly to tell you the story of that gap that exists between the law on paper, laws enacted by parliament, and what happens on the ground.

So in a lot of scholarship and authoritarianism, there is at the moment, scholarship on top level institutions, and how that has changed demography, or made that sort of impact in how countries are run. What we are doing is actually to do a bottom-up, rather than top-down, but to look at how, in the last 10 years, how do these top-level changes translate at the bottom? How are people at the bottom experiencing, say, institutional capture, for example. So it is a little bit of an extension of at least the research I did with Sedition, the everydayness of these laws. I hope that the impact at least in the next four years that this has is on data work generally and research and how to think about it and how to do it.

And this is a work in progress for me personally, in terms of how to communicate with people from tech, how to use AI in a way that is ethical and responsible, and not give up all your power to AI. But yeah, one is, how do you conceptualise research like this at scale, at a large scale? The second is to spotlight what has been happening in the country in the last 10 years or so, perhaps longer. And as I said earlier, here are several socioeconomic fault lines in our society. As lawyers, our entry point is the law, in the sense that when we think about what’s going on in society, we use laws to understand that, certainly I do. So, a law on religious conversion, for example, tells you a lot about whether a couple has really has the freedom to get married or not, no matter what the court might say. But whether an interfaith and inter-caste couple can actually get married without fearing that they might lose their lives, because their families want to kill them, and that exists in the country, despite what the Constitution says. So I think it’s very grim. To borrow what Gaurav said, it is grim work, but I think it will change the way we think about how we do research. On demographic changes in the country or on how laws are being used. Hopefully, it creates some effect and we have a long way to go. So we will see how it plays out.

Chytanya:

Thank you so much for agreeing to record this. We were really delighted to have you with us. Thank you so much for this. We got to know a lot about data and law and the novel insights it can bring to the table and especially the part that it’s bottom-up because you start from one single dataset to the bird’s eye view. I think it’s something which should change the legal landscape in India if the discussion around it broadens in the next few years.