Bibek Debroy writes: Under vague laws, bees are fish and cats are dogs

There is an anecdote about Lord Byron from his days as a student at Trinity College, Cambridge, in the first decade of the 19th century. Byron wanted to take his pet dog along. At the time, the college statuses didn’t allow dogs on the college premises. However, there was no such prohibition against bears, presumably because no one had contemplated such an eventuality. Hence, in protest, as long as Byron was there, he kept a tame bear as a pet. For years, Tony Weir, Fellow of Trinity College, taught law in Cambridge. He was a celebrated teacher, specializing in tort law. Any lawyer worth his salt will know about the Donoghue versus Stevenson case. Weir possessed two cats, appropriately named Donoghue and Stevenson. By then, Trinity College’s bye-laws must have changed from Byron’s days and dogs must have been allowed on the premises. The folklore was that Trinity College’s powers-that-be decreed these cats would henceforth be known as dogs, to comply with the letter of the law. Selwyn College, Cambridge, had a converse problem, since Roger Mosey, the Master, possessed a basset hound and Selwyn allowed cats, but no dogs. Therefore, the college decreed that the basset hound would henceforth be known as a very large cat.

It reminds you of Humpty Dumpty in Through the Looking-Glass. “’When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” What’s in a name? In many matters, courts are monarchs and masters of all they survey. An appeals court in California has just ruled that bumblebees are fish, so to speak. California has an Endangered Species Act (CESA), the first US State to do so. The law is meant to protect plants and animals and using the powers of this statute, the California Fish and Game Commission protected four species of bumblebees.

No one denies that bumblebees are endangered and deserved to be protected. The legal question was whether the Commission had the powers to protect bumblebees as “fish”. It depends on what you mean by fish and the Superior Court of Sacramento County thought otherwise. The California Court of Appeal overturned that decision. “Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the legislature in the definition of fish in section 45 is not so limited… We certainly agree section 45 is ambiguous as to whether the legislature intended for the definition of fish to apply to purely aquatic species. A fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” The expression “term of art” is reminiscent of Humpty Dumpty’s remarks — an expression may have a meaning not identical to its meaning in everyday usage. So yes, though the matter is complex, newspaper headlines got it right. A California court has indeed ruled that bumblebees are fish.

But the court also made a point about reducing legislative ambiguity. The more ambiguous a legislation is, the more the need for judicial interpretation. Indeed, the more interventionist the legislature is, the more the need for judicial interpretation. There is a Tacitus adage, linking the number of laws with the extent of corruption. Even if one disputes the correlation there, one shouldn’t dispute the correlation between the number of laws and number of court cases. If Sweden didn’t have a law on what names (for children) are allowed and what are not, would there have been a case about whether the name Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116 (pronounced “Albin”) was acceptable or not? Protesting against naming laws, parents gave their child this remarkable name, which was not accepted by the district court.

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In my childhood years, we grew up with Binaca toothpaste, a brand that is now dead and gone. Those interested in music will remember Binaca Geetmala from the radio. I remember Binaca because I used to collect Binaca toys or charms. Each packet of toothpaste had one of these, the figure of a toy animal. Childhood collections are rarely treasured beyond a certain age. They too are dead and gone. However, I recently met someone who has a collection of these Binaca toys. I am told such a vintage collection has considerable value now. His collection dates mostly to the 1970s, when these toys were made of plastic. My childhood memories of the 1960s are of these animals with a gold finish, with a tiny gold-coloured chain. No memory is infallible and I haven’t seen these for a while. I suspect that in the 1980s, Binaca switched to water-stickers, before the idea fizzled out. In any event, our children, when they were growing up, were never enamoured of those water-stickers. The world had changed. Had Binaca still made those, I wonder what the GST rate would have been. It is 18 per cent for toothpaste. It is 12 per cent for plastic toys. What about one with a gold-finish? Since they weren’t made of plastic, the GST rate might well have been 12 per cent. There was no actual gold. Otherwise, 3 per cent. You can imagine the legal wrangling over what these were — toys or charms. Names, labels and HSN codes do matter and “term of art” can also lead to litigation and legal tangles. Couldn’t CESA have mentioned insects and avoided the problem? It could have. Couldn’t we have a simplified GST?

This column first appeared in the print edition on June 9, 2022 under the title ‘Laws in the dark’. The writer is chairman, Economic Advisory Council to the PM. Views are personal

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