By: Prince Chandak & Kshitij Goyal
This post is the first part of a two part series on the topic ‘Analysing the Scheme of Open Texture of Legal Language in the Goonda Act, 2021’
Recently, a series of controversial orders introduced by the administrator of the Union Territory of Lakshadweep has sparked widespread criticism from the local people. They are being perceived as a threat to the cultural identity of inhabitants and pose severe concerns to the sensitive ecology of the Lakshadweep archipelago. Some locals protesting against the proposed regulations had also been detained under the same law but were released later by an interim stay by the Kerala High Court. One of the proposed draft regulations, the ‘Lakshadweep Prevention of Anti-Social Activities Regulation 2021’, also known as the Goonda Act, provides sweeping powers to the president-appointed administrator, including unregulated detention of a person for a year ‘to prevent him from acting in any manner prejudicial to the maintenance of public order.’ Here, the application of the rule regarding ‘the maintenance of public order’ is vague, leading to a situation of indeterminacy.
Hart would have attributed this to the open texture of the language so used.  As per Hart, judges act as surrogate legislators if indeterminacy prevails. This view of Hart contrasts with the opinion of the realists and formalists. The former claim that law does not provide any answers, whereas the latter argue that law invariably provides adequate grounds for deciding any legal question. In our opinion, the position of Hart appears to strike a middle ground. The analysis of open texture has been put to criticism by Dworkin, who has proposed a different approach in the cases involving the ‘penumbral situation’. This article will cover his analysis based on the understanding of the core and penumbra in substantial detail in light of the Goonda Act 2021.
In the first part, we will show how open texture inhabits most of the provisions of the Goonda Act and how it can prejudice the adjudication process. In the second part, we would show that reversion to ‘rights’ as indicators of ‘justice-quality’ of judicial discourse is apt in ‘hard cases’ in the backdrop of the Goonda Act. In the third part of the article, we will use Ronald Dworkin to elaborate upon how constitutional rights would function as limitations that must be observed by courts to ensure that the interpretive discourse retains ‘justice-qualities’ in the light of broad and vague provisions of the Goonda Act. 
In the first part of the series, we will deal with the first two parts of this article. The third part will be dealt with separately in the second part of the series.
1. OPEN TEXTURE OF LEGAL LANGUAGE IN THE GOONDA ACT
According to H.L.A. Hart, the law is said to have an “open texture”, which means that specific legal terms lack a precise definition, causing uncertainty regarding their ambit. Hart has ascribed this indeterminacy to the ‘open texture’ of specific legal terminology. According to him, every term applies to a typical set of circumstances anticipated by the legislator. In unforeseen situations giving rise to ‘hard cases’, the court has to resolve this ambiguity.  ‘Hard cases’ are those situations where there is a great deal of muddle as to what the law or the general terms used actually mean.
The Goonda regulation postulates an exhaustive definition of a goonda who may be a ‘bootlegger, dangerous person, cruel person, drug offender, immoral traffic offender, lending offender, depredator of environment, or sexual offender’. Such classification infringes upon Andrew Ashworth’s ‘principle of maximum certainty’ as the introduction of such overbroad substantive offences thwarts upon the efforts to control the discretionary powers of law enforcement agencies. The principle provides that offences need to be labelled, structured, and punished to reflect the extent of wrongdoings and the harm involved.  The blanket inclusion of various offences without fair labelling and classification mirrors the arbitrary exercise of powers by the administrator under the guise of this regulation. This uncertainty regarding the ambit of various legal terms, including ‘goonda’, is nothing but ‘open texture’. As per Hart, the judges act as surrogate legislators if indeterminacy prevails. Hart states that the judge in such cases develop further rules, and while doing so, judicial virtues must be displayed by using generally accepted principles.  However, the theory is not invariably appropriate, as the interpretation of open-ended terms such as goonda is context-driven. The term goonda was used generally for the habitual offenders for whom long time preventive detention was warranted, as was reflected in the law enacted in 1923 in Bengal. These terms are abstract concepts, so, it is not possible to look at these terms in isolation and discern meaning. As we look into it, such terms are inherently value-laden, which warrants analysis into the merits and demerits of the measure taken. As the term goonda is imported into the Goonda Act, 2021, in the situation of ‘hard cases’, the court may accept the general interpretation of the term goonda to mean ‘offenders meant for the long-time preventive detention’. The historical and social context to this word may prevail over the ordinary meaning of the phrases used in the definition. This would raise serious concerns.
So, Hart’s theory of open texture would not be feasible to be used as an interpretive tool, as suggested by Dworkin, who proposed an alternative approach for such hard cases.
2. ‘HARD CASES’ AND RECOURSE TO PRINCIPLE
Dworkin defines ‘hard cases’ as occurrences that advance novel issues that cannot be decided even by reinterpreting or stretching existing rules.  The method by Dworkin is prefaced on the view that prerogatives about the political morality that governs law and its interpretation are often shown as claims about the objective validity of a particular interpretation. 
It is pertinent to note that Lakshadweep will not be the only territory or state to have its own Goonda Act. In 1923, West Bengal became the first state to introduce Goonda Act, and later, Rajasthan, Uttar Pradesh, Karnataka, and Tamil Nadu implemented variations of the Act. Some of these have been and are currently challenged on their constitutionality. Historically, such acts have been misused to put people behind bars for vehemently opposing the policies of ruling governments. The Uttar Pradesh Control of Goonda Act, 1970 has been invoked against several people in land conflicts in recent years, including against farmers protesting power plants, dams and against forest-dependent people struggling to acquire their legal rights. It is to be noted here that the courts in various instances in the past have upheld the Goonda Act solely on the ground that they did not find sufficient reason to interfere with the detention order passed by the detaining authority. So, the problem here is regarding the ambit of various legal terms, including ‘goonda’, the judges can end up making political determinations where they can at most make linguistic-interpretative ones.
When Dworkin’s hypothetical judge Hercules is faced with hard cases, he relies upon pre-existing rights and principles. To facilitate Hercules’ task, Prof. Dworkin distinguished between ‘policy’ and ‘principles’ and held that judges should reason from principles rather than policy and respect rights in deciding ‘hard cases’.  Giving rights the due importance, Dworkin describes that “an argument of principle fixes on some interest presented by a proponent of the right it describes, an interest alleged to be of such a character as to make irrelevant, fine discriminations of any argument of policy that might oppose it”. Dworkin would have stressed retaining ‘justice-qualities’ in the adjudication discourse while interpreting the Goonda Act. This means no conduct can be made criminal if the conduct does not have wrongful harms in light of the spirit of the constitutional principles.
Therefore, judicial interference retaining ‘justice-qualities’ becomes imperative in scrapping down the chaotic provisions of the concerned Goonda Act.
 The conception of the open texture of language elucidated by Hart can be traced to Waismann’s ideas concerning the open texture of language. As per Waismann, legal indeterminacy provides linguistic developments of a language accommodating new discoveries.
 Upendra Baxi, The Future of Human Rights, (Oxford University Press 2002) 184. (“These may relate to the justness of procedures adopted for articulation of human rights values, or to the substance of rights, or further, to the appropriate just responses that may result in case of violation or infringement”.)
[ HLA Hart, ‘Positivism and the Separation of Law and Morals’, 71 (1958) Harvard LR 615.
 CMV Clarkson, ‘Theft and Fair Labelling’ 56(4) (1993) The Modern LR 555.
 Hart (n 6) 598
 Hart (n 6) 593, 606-07.
 Theunis Roux, ‘Transformative Constitutionalism and the Best Interpretation of the South African Constitution: Distinction without a Difference?’ (2009) 20 Stellenbosch LR 259, 258.
 David Kennedy and W Fisher (eds), The Canon of American Legal Thought (PU Press 2006) 554.
(Prince Chandak & Kshitij Goyal are law undergraduates at National Law School of India University, Bangalore. The author(s) may be contacted via mail at firstname.lastname@example.org and/ or email@example.com)
Cite as: Prince Chandak and Kshitij Goyal, ‘Analysing the Scheme of Open Texture of Legal Language in the Goonda Act, 2021 (Part 1)’ (The RMLNLU Law Review Blog, 14 September 2021) <https://rmlnlulawreview.com/2021/09/14/goonda-act-analysis/> date of access