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Litigation Lounge

Soft judicial review, conflicts with other rights, and other problems in the Draft Equality Bill

CLPR_SudhirKrishnaswamyDikshaSanyalAndreasWalter

(Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has proposed a draft Equality Bill, 2016 and myLaw has invited some scholars and advocates to comment on it. This is the third response we have published and it is from a team from the Centre for Law and Policy Research. Tarunabh has asked us to convey his gratitude for the comments from Alok and Talha and he has already revised his draft in light of those comments.)

The Draft Equality Bill, 2016 is an ambitious legislative proposal. This Bill aims to advance civil remedies against discrimination by private and public actors on several grounds. It follows a sequence of civil society proposals for a new civil equality law in India like the Bangalore Declaration in 2007 or the Lawyers Collective’s HIV/AIDS Bill 2007. In the last decade, at least two reports by committees established by the Government of India have proposed new initiatives to serve social equality: the Equal Opportunity Commission: What, Why and How? in 2007; the Sachar Report Social, Economic and Educational Status of the Muslim Community of India, 2006. Three new book length works on equality have been published in the last 3 years: Tools of Justice: Non-discrimination and the Indian Constitution by Kalpana Kannabinan; A Theory of Discrimination Law by Tarunabh Khaitan and Unconditional Equality: Gandhi´s Religion of Resistance by Ajay Skaria.

At present, equality law is composed of constitutional rights and a hotchpotch of legislation to provide remedies against different types of discrimination in India. Some legislations provide criminal remedies, like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 others offer civil remedies, like the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Equal Remuneration Act 1976; a third category adopts a welfare approach like the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. These legislation address certain aspects of equality in a particular sector or for certain specific groups. There has been no overarching equality law that has inbuilt flexibility to respond to the varied aspects of equality.

The draft Bill aims to fill in this lacuna by protecting an open-ended list of characteristics, establishing new concepts such as separation and boycott, relying on the principle of proportionality, and imposing negative and positive duties on public and certain private parties.

Though well-intentioned, the Bill raises several fundamental questions which have constitutional implications. This essay interrogates whether the Bill goes beyond the constitutionally permissible means to achieve the aims of equality. This analysis is organised in two parts: the first is an analysis of the concept of equality that the Bill proposes and the conflict it poses to other rights while the second part deals with the judicial review approach.

Equality and other rights

Expression and association

The material scope of the Bill is wide enough to cover a wide array of parties and relationships hitherto outside the ambit of the law. The protected grounds are also wide, loosely defined, and open ended. For instance, ‘harassment’ covers any communication or conduct related to a protected characteristic or group that creates an “intimidating, hostile or bullying environment”. Section 7(2) also provides that in order to determine what constitutes such an environment, the point of view of a “reasonable person belonging to that protected group” will be taken into account. The politics of who constitutes the “reasonable person” in the protected group might play out adversely to the detriment of the fundamental freedoms we have in the Constitution, especially with regard to freedom of speech and expression. This is because the Indian courts have tended to disregard the demands of liberty and autonomy.

Similarly, the definition of segregation under Section 9, is too broadly phrased. It covers any “overt or implicit abetment, support, encouragement, facilitation of, or use of force, coercion or manipulation” with the intent of preventing a person from “interacting with, relating to, marrying, eating with, living with, socialising with, becoming friends with…” The import of such drafting is that under the current framework of the Bill, families, inter-personal relationships such as friendship, private contractual relationships between individuals are covered under it.

Further, the legal duties are novel and extensive. In contrast to the anti-discrimination duty under Section 12, which applies to only certain categories of persons (employer, landlord, trader, service provider, public authority, and private persons performing public functions), the duty not to engage in aggravated forms of discrimination, under Section 14 which includes boycott, harassment and segregation applies to everybody. Additionally, while there exists a list of exceptions to the anti-discrimination duty under Section 12, the same does not extend to the case of aggravated discrimination. This list of exceptions includes for instance, “any form of expression protected by Article 19 of the Constitution”. In other words, the duty to avoid aggravated discrimination has been already cast wide and without a list of exceptions qualifying the same, can end up conflicting with autonomy and free speech. If interpreted too literally by the courts, this Bill can have detrimental effects on the autonomy of individuals to freely enter into private relations on the basis of contract.

Trade and Business

Another significant issue that arises with this Bill is the way it will pit one right against the other.

This is chiefly due to the broad, unremunerated list of protected characteristics in the Bill. Sections 3 and 4 the Bill defines the meaning of protected characteristics and groups respectively. Even a cursory glance through these two sections will indicate the wide scope and application of the Bill. Besides expressly mentioned protected characteristics, the Bill provides a guideline for the courts to define new characteristics.

The combination of this open-ended list of protected characteristics and the newly introduced concept of indirect discrimination may end up creating legal uncertainty because an excessive burden will be placed on private parties as they may not foresee the consequences of their own conduct when they enact or enforce a neutral measure at their work place. The private individual may face a variety of different remedies as a legal consequence of indirect discrimination including damages. Thus, this might lead to an undue burden on to the individual´s exercise of the fundamental right to trade and business under Article 19(1)(g).

Furthermore, it is doubtful whether the Bill as it currently stands should effectively hand the powers to the courts to curtail or expand the scope of equality as it deems fit. Judicial doctrine on equality in India is underdeveloped. Given the Indian courts’ reluctance to expand the range of protected groups and an established model of executive identification of disadvantaged groups, it is unclear why courts should be given this important task. Judicial institutions, especially in an adversarial system are not well equipped to carry out an assessment of which groups are disadvantaged. In this regard, it may arguably, be a better suggestion for the Equality Commission to promote a data-driven, transparent, identification of protected groups and characteristics. Currently, the only power before the Central Equality Commission under the proposed Bill is to recommend the inclusion of disadvantaged groups under Section 16. This list of disadvantaged groups is only significant for the imposition of a diversification duty under Section 18.

However, the courts are free to expand and limit the interpretation of protected group and characteristics under Section 3 and 4.

Judicial review approach

Proportionality

The Equality Bill, 2016 relies on the doctrine of proportionality on multiple instances. Under Section 5(7)(i) and Section 6(2), proportionality is used as justification for acts which amount to prima facie direct and indirect discrimination respectively. The Bill however, does not provide an independent clause which defines the doctrine of proportionality. If anything, it provides a negative understanding of proportionality under Sections 5(9) and 6(3) when it mentions that a conduct will not be deemed proportionate if there exists other less discriminatory ways of achieving the objective of the Bill. Such an understanding of proportionality falls short of the definition of proportionality which has been adopted by constitutional courts across other jurisdictions. It can therefore be assumed that the Bill relies on the understanding of proportionality which has been adopted by the Indian courts to complement the limited definition provided in the bill.

The Indian courts’ jurisprudence on the doctrine of proportionality is underdeveloped. Abhinav Chandrachud and Soli. J Sorabjee argue that although the Supreme Court had adopted a test of proportionality in Om Kumar v. Union of India, AIR 2000 SC 3689, its later judgements have gone on to reformulate the doctrine of proportionality so as to make it similar to the Wednesbury principles of unreasonableness by adopting the language of “shocking disproportionality” instead of the three-tier test which the doctrine of proportionality prescribes. In the process, even though the courts have used the language of proportionality, they have lost the essence of the doctrine. However, in a recent judgement of the Supreme Court in Modern Dental College v. State of Madhya Pradesh, Civil Appeal No.4060 of 2009, the court correctly interpreted the doctrine, though it failed to apply the same adequately to the case as it did not adjudicate over whether the method adopted was the least harmful method available when compared to the alternatives available. Though this case brings back the doctrine of proportionality as a test for the validity of a statute, it doesn’t address the lack of clarity with regard to what the principle requires in an adjudication context.

In light of the argument above, it becomes necessary to define proportionality in the Bill so as to ensure that the confusion created by the courts regarding the definition if the doctrine does not get inscribed into the Bill. If the doctrine is left undefined as it has been done in the Bill, it would fail to achieve the purpose it is designed to achieve as it operates as an anchor of the judicial approach to the law.

Incompatibility

The Bill effectively establishes a new hierarchy of the Indian legal order which might undermine the Indian constitution. This new hierarchy puts this Bill below the constitution but above every former and future Act of Parliament. It equips the High Court with two novel powers, an interpretation of compatibility and a declaration of incompatibility.

Under this Bill, in Section 26, the High Court has the duty to interpret formerly and subsequently enacted law to be compatible as far as possible with this Bill. This is the first stage, which leads to a new de facto legal hierarchy. In addition to the Constitution, this Bill, if enacted guides the interpretation of other acts. Thus, a claimant may invoke this Bill to challenge an interpretation of another law, which might be incompatible with this Bill. Therefore, this Bill operates as a new standard of validity of all other laws.

Further, another new power given to the High Court under this section is the duty to issue a declaration of incompatibility where a subsequently enacted Act cannot be interpreted in a way which would be compatible with this Bill. Although a declaration of incompatibility has no legal consequence on the validity of the reviewed Act, it amounts to a soft review as it imposes political pressure on Parliament to change the incompatible law.

These two new measures are not novel to persons familiar with public law in the United Kingdom. The key remedies under the Human Rights Act 1998 (“HRA”) are an interpretation of compatibility and a declaration of incompatibility. Although the transfer of legal remedies into other legal system might be beneficial, it should be done with great caution. The HRA and its key measures are seen as a compromise between effective human rights protection and parliamentary sovereignty under an uncodified constitution. This special situation does not apply to the Indian situation. India has a codified constitution under which human rights are protected and fully enforceable by the Supreme Court through hard judicial review. Therefore, there is no need to create an intermediate level of human rights protection that this Bill seeks to do. A higher human rights protection against a legislation may only be achieved under the current legal system by amending the Constitution. This Bill, however, institutes new grounds for judicial review of Acts of Parliament without following the constitutional amendment procedure.

Additionally, this provision also has the powers to upset the principle of federalism under the Constitution. This Bill, by allowing any later act which might include also state legislation to be reviewed under this Bill, impedes upon the law making powers of the states.

Furthermore, there is a risk that the Indian courts will adopt case law of the British courts by interpreting the concept of compatibility. The Indian courts have already a tendency to adopt British principles into Indian law as may be observed in judicial review in administrative law. Therefore, if the Bill draws on a one to one remedy already existing in the British legal system it actually invites the Indian courts to follow their lead by interpreting the remedies in the same way. This blind importation of the case law may even further compromise the current constitutional framework as the British courts constructed the interpretation of compatibility very broadly. All provisions, notwithstanding their wording, may be read down to the extent that it does not compromise the “key features” (Ghaidan v. Godin-Mendoza, [2004] UKHL 30) of that Act. This means, if adopted by the Indian courts, that the hard judicial review under this Bill would apply to almost all provisions of reviewed Acts and effectively amending the hard judicial review under the constitution without following the constitutional amendment procedure.

Conclusion

Even if, the legal issues expressed above are addressed, there remains a concern with an approach to achieving equality through the ordinary civil remedy that relies to heavily on the courts as the key legal institution for enforcement. In a society where access to justice is still beyond the reach of the millions it is questionable whether such an approach would ultimately manage to create a significant, measurable impact in curbing discrimination.

(Sudhir Krishnaswamy, Diksha Sanyal, and Andreas Walter work with the Centre for Law and Policy Research)

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Lounge

Awara (1951) – The Courtroom as Ivory Tower

SayakDasgupta_InCamera

(In Camera is Sayak Dasgupta’s series of essays that examine the depictions of trials in cinema. He will look at how filmmakers have chosen to use trials and the criminal justice processes and what those depictions tell us about their view of cinema and the societies they made those films for.)

In Raj Kapoor’s directorial debut, Aag (1948), he played Kewal, a boy whose father is a successful lawyer and wants him to become one too. Kewal however, is not interested in the law; he wants to start his own theatre company. When he fails his law exams, he goes to his father and tells him as much. His father responds with an ultimatum: if he wishes to keep living in his father’s house, Kewal must forget about theatre. Kewal chooses to leave home. Aag, to use a rather obvious pun, didn’t quite set the box office on fire. It got a lukewarm response from audiences and quickly faded away. Unlike Kewal, something about the law must have appealed to the actor who played him, because three years later, in his third directorial venture, Raj Kapoor once again told the story of a son whose father is a lawyer. But this time, the story was entirely different.

The context

Where Aag fizzled out, Awara exploded like a ton of dynamite not just in India, but all over the world. It became massively popular in South Asia, the Middle East, Turkey, the Soviet Union and most of eastern Europe. Search for “Awara Hoon” on YouTube and you will come across an array of endearing videos of Russian, Uzbek, Turkish, and Chinese people singing the song, in Hindi or translated in their native languages. It is said that Chairman Mao himself counted Awara among his favourite movies.

Awara was released four years after India gained its independence, and forty years before the liberalisation of its economy. The ideals of Nehruvian socialism were still very much an important part of the zeitgeist in India and would remain so for many decades to come. And at its core, the film is about class struggle. It isn’t surprising that the film appealed particularly to Indian, Soviet, and Chinese sensibilities at the time.

At that crucial moment in India’s history, Raj Kapoor’s films would go a long way in defining how commercially successful melodramas with a social message would be made for years to come. In this film, he chose to frame the narrative within a trial.

SPOILERS AHEAD

The story

Awara_courtroomIn fact, the film begins in a courtroom. A young man called Raj (Raj Kapoor) is accused of attempting to murder the widely respected Judge Raghunath (Prithviraj Kapoor). In true Shakespearean fashion, Raj’s defence attorney is his lover, Rita (Nargis), who questions Raghunath about his long-estranged wife, leading us into a flashback.

We discover that when Raghunath was a young and wealthy lawyer, his wife, Leela (Leela Chitnis), was kidnapped by the notorious thug, Jagga (K.N. Singh). Years ago, Raghunath had apparently managed to get him convicted for a rape that he had not committed, purely on the basis of the fact that his father and grandfather were criminals. You see, Raghunath holds the firm but bewildering belief that crime is a genetically transmitted disease. In other words, criminals are born to criminals, and no child of an honest person can ever get into a life of crime. (Clearly he hasn’t given much thought to what happens if an honest person and a criminal have a child. Perhaps an Indian version of Two-Face? Seriously, who wouldn’t want to watch that movie?)

Here, we get our first glimpse of the theme of the film. Whether Raghunath knows it or not, his beliefs are clearly not based on biology, but on class factors. In his mind, respectable people with respectable jobs and families cannot produce criminals. Criminals come from the other side of society.

Ironically, in Jagga’s case it was the criminal justice system that turned him into a criminal, and his sole aim in life seems to be to have his revenge. So when he finds out that Leela is pregnant, he knows exactly what to do. He uses Raghunath’s own flawed belief system to destroy his life. Jagga sends Leela back to Raghunath knowing that there would always be uncertainty about who the unborn child’s biological father is. And sure enough, Raghunath, like a modern Ram, casts his pregnant wife out of his home.

Leela gives birth to a boy and names him Raj. Despite living in abject poverty, she dreams of her son becoming a lawyer and a judge some day, just like his father. She scrapes together enough money to get him a decent education in a good school. Young Raj (Shashi Kapoor) is an anomaly in his class, which is full of children from far more affluent families. His only friend is Rita (Baby Zubeida), the daughter of a rich lawyer. Raj is a conscientious young boy who is eager to do honest work to help his mother make ends meet, but he finds it difficult to balance work and school. His life completely falls apart when he reaches class late one day and is expelled, and also informed that his best friend Rita has left town. At home, his mother is severely ill and he can’t afford to buy food or medicine. The straits have never been direr. Enter Jagga, who is still not done with his ridiculously elaborate revenge plot. On a quest to prove that even respectable people can give birth to criminals, he takes Raj under his wing and leads him into a life of crime. By the time he is an adult, Raj has become a career criminal and a frequent jail inmate.

The conflict

Raj Kapoor ensures that he keeps our protagonist as everyman as possible. In creating Raj, he borrowed heavily from Charlie Chaplin’s loveable tramp character to ensure our sympathies lie with him. We empathise with Raj’s ambitions of being upwardly mobile. In a revealing reflection of the times, Raj tells Jagga that he met a “political” the last time he was in jail and learnt to speak English from him. Despite working for the ruthless Jagga, Raj never seems to commit any particularly heinous or violent crimes (we mostly seem him commit petty theft). However, he is very acutely aware of his place in society, and when we do see the class struggle embodied in him erupting in acts of violence, it is particularly jarring. An especially disturbing example comes after Raj is reunited with Rita after many years and they fall in love. When Rita jokingly calls him “junglee” (uncouth, uncivilised, ill-mannered, ill-bred), he physically assaults her, twisting her arm, choking her, slapping her. Rita, despite being the one who has been assaulted, begs his forgiveness, even encouraging him to hit her some more. This bizarre scene only makes some semblance of sense if one thinks of Rita as a representation of the upper class, filled with its own version of white guilt, seeking forgiveness from the lower classes – an extraordinarily tone-deaf spectacle of self-flagellation from the affluent makers of the film.

After her father passed away, Rita was adopted by none other than Raghunath, who is now a respected judge, and she is now training to be a lawyer. Having fallen in love with her, Raj tries to leave his life of crime behind and start afresh. He gives up his swank apartment and becomes a factory-worker. However, his employer find out that he used to be a criminal and fires him. Before leaving, Raj asks him an important question: If he didn’t want to employ former criminals, did he want them to go back to a life of crime in order to survive? It is very rare for a mainstream Bollywood film to ask tough questions about the rehabilitation of criminals. This scene serves the dual purpose of exposing our society’s attitudes towards criminals, while also underlining the ability of the powerful upper class to disenfranchise and take away the means of survival of those who have less power.

Judge Raghunath is the very embodiment of this toxic mix of prejudice and power. When Rita tells him of her love for Raj, he insists on meeting him, and when they meet, he humiliates and belittles Raj. When Raj gets back home, he finds Jagga trying to kill his mother. In trying to save her and himself, Raj kills Jagga. In a stunning (and rather convenient) twist of fate his case is brought up before Judge Raghunath. Even before he has heard arguments on the matter, Raghunath has made up his mind to find Raj guilty – a clear demonstration of the unholy marriage of prejudice and power. But Rita takes it upon herself to get Raj acquitted. She asks Leela to testify to her son’s innocence, but when she reaches the court, Leela sees Raghunath from afar and recognises him. As she tries to walk to him she is run over by Raghunath’s car. When Raj hears of this, he is overcome with rage thinking that the judge has attempted to murder his mother. He escapes from prison and goes to Raghunath’s house to kill him. However, he is unable to go through with it and is arrested. And this brings us back to where the film began – the trial of Raj for the attempted murder of Raghunath.

The message

In Damini, Govind (Sunny Deol) repeatedly asserts that the judicial system has become a pawn in the hands of the rich and powerful. In Awara, this is demonstrated. Raghunath, referred to throughout the film as “Judge Sahab”, comes from a wealthy family and benefits from all the privileges that come with it. As a judge he gains power over people’s fates, but he is human, and like many humans, he harbours irrational prejudices that warp his sense of justice. He sits in judgment from atop an ivory tower completely ignorant of the harsh realities of living in poverty and squalor. The big question Awara asks is can you truly judge someone of being guilty of a crime if you can’t understand the circumstances that made her/him a criminal?

AwaraNargis2The film makes repeated references to the gulf between the law and the heart. Towards the end of the film, Rita asks Raghunath: “Kya ab bhi aapka dil use beta maanne ke liye taiyar nahin? (Is your heart still not ready to accept the fact that that this is your son?)”. The presiding judge says, “Rita Devi, kanoon dil ko nahin manta. (Rita Devi, the law does not recognise the heart.)”, to which Rita replies, “Janaab-e-wala, dil bhi kisi kanoon ko nahin manta. (Your honour, the heart also does not recognise any law.)” The film seems to say that the courts can be heartless and cold because the people who are given the job of dispensing justice often come from a privileged section of society that divorces them from the real world, rendering them incapable of having genuine empathy for those who are not like them.

However, does this mean that Awara is purely a polemical exercise in denouncing our criminal justice system? Not really, because, in the end, Raj’s trial has possibly the most just outcome. He is found guilty of attempting to murder Raghunath, but given the singular circumstances and the history of the people involved, the court sentences him to only three years in prison. Even Raj agrees that this is fair, that he must atone for what he has done. While many Hindi films would have acquitted Raj entirely, Awara takes an uncommonly fair and even-handed approach to the case. In the end, the court climbs down from its ivory tower and justice is done.

(Sayak Dasgupta wanders around myLaw looking for things to do.)

Categories
Litigation

Damini (1993) – The Courtroom as Theatre

SayakDasgupta_InCamera

 

(The criminal trial has proved to be a most useful literary, dramatic, and cinematic device. It finds place in some of humanity’s earliest texts and in some of its greatest – Shakespeare and Dostoyevsky for example, made abundant use of the criminal trial to explore good and evil and the complexities of justice and judicial decision-making. Cinema too has found it hard to resist the lure of pitting individuals and belief systems against each other in a courtroom. In Camera is Sayak Dasgupta’s series of essays that examine the depictions of trials in cinema. He will look at how filmmakers have chosen to use trials and the criminal justice processes and what those depictions tell us about their view of cinema and the societies they made those films for.)

It’s one of the most potent and lasting images in Indian cinema: Sunny Deol standing in a courtroom in a gown and band screaming in his eardrum-shattering, nails-on-a-chalkboard voice, the famous (or infamous, depending on how you see it) lines: “Tareekh par tareekh, tareekh par tareekh, tareekh par tareekh, tareekh par tareekh milti rahi hai! Lekin insaaf nahin mila, milord! Insaaf nahin mila! Mili hai to sirf yeh tareekh!” followed by a peculiar sound effect that resembles the cracking of a whip. Every time Sunny Deol shrieks “tareekh” the whip-sound is used to underline the point. These lines have become, for better or worse, a cultural milestone. Rajkumar Santoshi’s Damini is perhaps most well known for just this one scene. The sentiment expressed in that piece of dialogue is reflected by several members of the legal community. In a myLaw interview, Soli Sorabjee himself called adjournments “the greatest curse” plaguing the judiciary. But it isn’t what was said in that scene in Damini that is interesting. It is how it was said.

Trial and error

The trial in Hindi cinema is a strange creature. Often it has almost no connection with reality. While the courtroom is a place governed by exceedingly strict rules of procedure, evidence, and conduct, all rules are suspended in the Bollywood version. Anyone can walk into the courtroom and offer testimony in the form of dramatic monologue, new facts and witnesses can be presented as a surprise element, a lawyer can pick up a bottle of medicine that has been presented as material evidence and drink it up to prove that it is not poison, and, as in the case of Damini, a defense attorney can even conduct his own version of a police lineup in the courtroom by presenting a bunch of men, faces covered in Holi colours, and shoving them onto the witness. There were several moments in the movie that made me clutch my head and exclaim, “What the hell is going on here?” But I don’t want to write about the legal and procedural inaccuracies in Hindi films. Films from all over the world have always played fast and loose with how legal systems work. Instead, I want to observe how the trial process has been represented in popular Hindi cinema and understand what that says about our collective perception of our system of dispensing justice. I decided to start with Damini simply because the lines from the film that I have mentioned above have left such an indelible mark on the Indian filmgoer’s psyche that even 23 years after the release of the film, they are still the first lines that come to mind when you mention law and film in the same sentence. Last year, we had conducted a light-hearted contest in which we had asked our followers on Facebook and Twitter to send in Dubsmash videos of themselves mouthing lines from any law-related movie. Over 80 per cent of the entries were of people vigorously enacting Sunny Deol’s “tareekh par tareekh” primal scream. Most of them were law students who hadn’t even been born when Damini was released.

But despite the incredible staying power of its dialogues, I realised that Damini is a very typically melodramatic ‘90s Bollywood movie that hasn’t aged very well. While it certainly means well with its strong denunciation of the treatment of women in India, it is often unbearably clunky and heavy handed.

*SPOILERS AHEAD*

The story so far

To briefly recount the story, Damini (Meenakshi Seshadri) is a small town girl who belongs to a lower middle class family. She is spotted by Shekhar (Rishi Kapoor), the son of a major industrialist from Bombay, and it’s love at first sight. Shekhar marries her and takes her to Bombay, but his family treats her more like a servant than a bahu. She befriends and becomes very close to the maid, Urmi (Prajakta Kulkarni). Several days go by and one day when the family is celebrating Holi at home, Damini witnesses Shekhar’s brother Rakesh (Ashwin Kaushal) and his friends raping Urmi. She tries to stop them but fails as they push her out of the room and lock the door. She rushes to get Shekhar and when the both of them manage to break the door, the rapists pick up a now unconscious Urmi, drive her away in a car and dump her at the side of a road. When the police come to question the family, they claim that the rape had not occurred in their home and that they had no knowledge of it. Shekhar convinces Damini to lie as well. However, Damini’s conscience eventually compels her to tell the truth to the police. Shekhar’s father, Mr. Gupta (Kulbhushan Kharbanda), hires “Barrister” Indrajit Chaddha (Amrish Puri), a suspender-snapping, hair-flicking, unscrupulous, slimy shyster as his son’s defence attorney. The trial begins.

BarristerChadha_AmrishPuriIt is interesting to pause here and note that the first lawyer we are introduced to is the utter embodiment of evil, representing absolutely every negative cliché in existence about a lawyer. Far be it from the film giving us a more complex lawyer character who must painfully grapple with the moral dilemma of representing a rapist, we are given evil incarnate, a man who actually believes that rape is no big deal and will go to any lengths to get his client off. A man we can safely hate. When the trial begins, neither the victim nor the accused are seen in court. The victim is in the hospital because of the severe injuries she has sustained from the rape. But the accused? There’s no explanation for their absence. What we see instead is Damini on trial. I found this erasure quite bizarre. Damini could have been the story of a rape survivor’s fight for justice. Instead, the story relegates the rape victim to the sidelines in her own case. In fact the victim doesn’t even survive the trial.

As the only witness who is willing to come forward Damini is put up on the stand and Chaddha proceeds to prove that she is insane. He does this by getting Shekhar’s family and Damini’s own father (Anjan Srivastav) to cook up false stories. He does not produce a single psychiatrist, doctor, or medical document to prove her insanity. Which seems to be fine with the court. Thanks to Chaddha’s cunning plan, Damini is committed to a mental facility, her testimony is discredited and the accused are released. At a later stage he encourages his client to get Damini murdered. Once again, it’s important to note here that Chaddha is not just following his client’s orders here. He is actively hatching the evil plots and advising his client to do evil things out of his own innate evilness. What we need to keep in mind here is that the film shows him as “the lawyer”. He is referred to as “Barrister” and at one point Sunny Deol calls him “kanoon ke dalal”.

The question of agency

The fact that the protagonist of Damini is a woman witness who battles against all odds to get justice for the wronged is in itself quite revolutionary, but as I said earlier, the film doesn’t age too well. The language of the film is steeped in the traditions of the popular movies of the late ‘80s and early ‘90s. Although Damini seems to be a talented dancer, she seems to have no ambitions of making a career out of it. In fact, she seems to have no career ambitions at all despite being quite intelligent, independent, and educated. When she marries Shekhar, she immediately becomes a housewife and everyone settles down in their traditional gender roles, Damini_MeenakshiSheshadrino questions asked. In one scene, Damini says to Urmi, “Pati ko apne hee haath se pakaake khilaane mein bahut sukh milta hai. (It is a great pleasure for a wife to cook for her husband.)” All of this seems jarringly dated in the age of films like Kahaani and Queen. Her daring act of pure agency is when she defies the family and goes to the police to reveal the truth about the rape. But even here it is revealed that the police and other interested parties are actually using her as a pawn in a larger game of deceit and intrigue. The very act that gave her some agency is completely undermined. Throughout the movie Damini is used, manipulated, harassed, humiliated, and imprisoned. Her other act of agency comes when she escapes from the mental asylum. She is chased through the streets by Rakesh and his friends until she runs into Govind (Sunny Deol), who saves her and becomes her protector. Damini running to Govind for protection, standing behind him, and peering nervously over his shoulder while he faces her assailants in all his manly glory is another recurring image in the film. It seems very obvious that Damini has been turned into a victim. From the moment Govind enters the film, he becomes the archetypical male protective force and the mover of the plot.

AdvocateGovind_Damini_SunnyDeolWho do the lawyers represent?

Govind is also a lawyer, but the film goes to quite some length to show that he isn’t really a “lawyer”. When Damini runs into him, he has quit the law, disgruntled and disillusioned by its failure to help him get justice for his dead wife. He constantly speaks of himself as an outsider to the profession and refers to the system as a tool in the hands of the rich and powerful. One can’t help but come to the conclusion that he is supposed to represent the voice of the frustrated masses dressed in a gown and band only so that it can find a place inside the courtroom.

This polarised positioning of the two lawyers seems to perpetuate a dangerous myth about the legal profession: that lawyers always agree or sympathise with whomever they represent, otherwise they would not take the case. This patently false assumption often leads to prosecutors being held as heroes and defence attorneys being considered villains by the layman.

As the literal (screaming) voice of conscience in the film, Govind is supposed to be representing us all in that courtroom. Through his wit, intelligence and guile, he is able to take on Chaddha’s most cunning moves and thwart them in court. Isn’t that the dream? Throw out the rules and regulations and we could all be Govind. If it weren’t for all those bothersome procedures we could all just put on a gown and band and give stirring speeches in the courtroom and defeat our enemies by the sheer force of our intellect. However, bring in all the rules and procedures, and lawyers like Chaddha win. American movies based on the law tend to emphasise a lot more on rules than Indian ones. Whether it is a light-hearted jaunt like My Cousin Vinny or a serious drama like A Few Good Men, procedure plays a critical role in the Hollywood depiction of a trial. The fact that cases can be won or lost on procedural technicalities has been drilled into the American audience’s mind, so much so that entire TV shows like How To Get Away With Murder, Law & Order, and The Practice can be largely based on how procedural intricacies can frustrate or help lawyers. For the American audience, the courtroom is a battlefield or a competitive arena where strict rules make for riveting games and clever strategies.

For the Indian audience, on the other hand, the courtroom is a theatre where the drama unfolds. In many Indian films based on legal trials one gets to see the spectacle of a person, not necessarily a lawyer, giving a long uninterrupted speech while animatedly walking around the entire room, followed by thunderous applause from the people sitting and watching the performance. Indeed, Govind’s “Tareekh par tareekh” speech in Damini gets a standing ovation in the courtroom. We like to see ourselves in the dramatis personae, hear our voices emanating from their mouths. The film trial, for us, is meta-theatre – we want to be surprised, delighted, enraged, shocked, moved; we want a satisfying denouement. We want to believe that within this courtroom anything can happen, and above all justice, or at least our conception of it, will be served. We expect from the trial everything that we expect from the film itself.

Damini starts off with a quote from none other than India’s most famous lawyer, Mahatma Gandhi:

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.”

This is a line that is repeated right at the very end of the film by the judge who is presiding over the trial as he congratulates Damini and commends her for her courage, integrity, and strength of will. But it also sets the tone of the film and perhaps frames our films’ attitude towards our judicial system. Isn’t it quite an awkward paradox? In the court of public opinion our actual courts of justice don’t stand a chance.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Categories
Corporate

[Video] Share transfer restrictions – Learn the practical stuff, understand the legal debates

A corporate lawyer’s job includes facilitating mergers and investments by and into businesses. Really experienced corporate lawyers become extremely familiar with shareholders’ agreements and joint-venture agreements but young corporate lawyers and law students working at corporate law firm internships are known to look at terms like ROFR, ROFO, tag-along, and drag-along with wonder.

These different types of share transfer restrictions are a massive and complicated topic. To make it easier to understand, we spoke to Arjun Rajgopal (Principal Associate, Khaitan & Co.) and Umakanth V., an Associate Professor at National University Singapore, and among the most respected names in Indian corporate law.

What we have below are two videos which contain a completely lucid, simplified, and practical explanation of shareholder restrictions. In the first part, we discuss their purpose, their different types, and how they work.

In the second part, we look at how Indian laws have treated share transfer restrictions and the massive debate over their enforceability. What did the Companies Act, 1956 say about them and how have things changed with the new Companies Act, 2013?

If you want to be a corporate lawyer, you cannot afford to miss these two videos.

 

Categories
Litigation Lounge

Adversarial litigation may not be effective in fighting discrimination

Talha-Abdul-Rahman(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. The second response is from Talha Abdul Rahman, a Delhi-based advocate. Among other things, he has observed that the traditional adversarial system may significantly limit the effectiveness of litigation under the proposed law.)

In the Constitutional scheme and specifically within the ‘equality framework’, it is possible to locate the rights for every kind of minority or a discriminated class of persons through interpretation. The protection accorded to one class of minority has the potential to become a basis for the protection for another class of minority. Having said that, as exemplified by the partially dissenting opinion of Justice Ruma Pal in the T.M.A. Pai Foundation Case, identifying ‘minority’ in the Indian scenario is not free from legal difficulty. This is in addition to the fact that the Constitution itself promises equality for all (which manifests differently for different classes of persons). In this backdrop, Tarunabh Khaitan’s Equality Bill 2016 (“Bill”), emphasises two key principles: one, that it is important to ensure inter se protection to various categories of minorities (which he defines by referring to ‘Protected Characteristics’) as much as it important to protect the minority from any affront at the hands of the majority, and second, that it is equally important to afford protection of law even to a member of the majority who is need of protection. These two principles, in my view, form the core of the Bill as they recognise the locational vulnerability of an individual at a given time and place. In this piece, I have focussed on provisions dealing with enforcement of the rights and duties under the Bill.

The administration of the provisions of the Equality Bill rests on the shoulders of the Central and State Equality Commissions and the Equality Courts. Broadly, the functioning of Equality Commissions (“EC”) under Section 23 of the Bill are comparable to the functioning of the National Human Rights Commission and other such commissions. For instance, the EC have been entrusted with the power to “investigate complaints with regard to the breach of the diversification duty, monitor enforcement of this Act, review the functioning of this Act and make recommendations for its improvement from time to time, approach any court for the enforcement of this Act, and support aggrieved person seeking legal remedies provided under this Act”. It appears to me that the jurisdiction of EC, even though comparable with other commissions (such as National Commission for Women), is widely and more exhaustively defined.

The adversarial system has limitations

Further, the Equality Courts, in terms of Section 25 of the Bill are ordinary district courts which are to be designated by the State Government as an Equality Court. I anticipate two issues from this approach. First, resort to a full adversarial system for rendering justice to ‘persons aggrieved’ of discrimination and abuse who could be on the fringes of the society is not really the best approach. This is because the adversarial system is heavily loaded with costs, delays, and procedural impediments, and its success largely depends on a prosecution of the claim by the aggrieved person. The issue of discrimination and equality is too serious to be left upon the ability or capability of the aggrieved person, especially because the society as a whole stands to benefit from a successful prosecution. It is relevant that notwithstanding the protection against victimisation under the Bill, an aggrieved person may not be able to fully prosecute the claim for a range of reasons. Therefore, at least under this Bill, a partly inquisitorial system could be adopted. Naturally, such a system would also have to provide for adherence to the principles of natural justice and must also be tweaked to suit our specific Constitutional requirements. Regard may be had to ‘protection officers’ under the Protection of Women from Domestic Violence Act, 2005. Truth stands a better chance of being found in an inquisitorial system if administered by competent persons than when it is left at the mercy of a person who may not be able to match up to the legal might of the oppressor.

The problematic prioritisation of equality claims

Second, the approach to utilise an overburdened court system for full blown litigation is far from desirable. This is because the matter would still have to be adjudicated by (a) existing courts and (b) existing judges who may not necessarily have requisite training in diversity. Further, the obligation upon the State Government to direct the courts to first dispose of equality claims (when in excess of fifty) under the Bill and to give them priority over all pending cases is legally improper. There does not exist sufficient legal justification to accord to equality claims such priority in adjudication to the exclusion of all other cases. The success of an inquisitorial system would also depend on the predilection, quality, and capability of the persons presiding over or assisting the Equality Courts. It is relevant that Section 27 ‘dilutes’ the jurisdiction of the Equality Court by providing that “reliefs available under this Act may also be sought in any legal proceeding before any court affecting the parties to such proceedings, in addition to any other relief that may be sought in such proceedings”. Further, the provisions dealing with the jurisdiction of the High Court, apart from creating a right to appeal, appears to be superfluous as they do nothing more than restate the settled position of law.

Part G of the Bill contemplates the passing of “protection orders” upon an application of the aggrieved persons, by the court of Judicial Magistrate (First Class) or the Metropolitan Magistrate. It is specifically provided in that Part, that “the fact that the case could be pursued, is being pursued, or has been pursued, in civil proceedings before an Equality Court or the High Court shall not be a ground for refusing to issue a protection order.” The reasons for this multiplicity of fora (in addition to overlooking res-judicata) is not entirely clear.

More power to the district courts

Further, as District Court does not have the power to punish for its contempt, they could be so empowered in respect of orders passed under this proposed legislation. It also appears that the prohibition that “the Equality Court shall refuse to take cognizance of any breach that is alleged to have been occasioned by a speech, expression or communication that is prima facie protected under Article 19 of the Constitution” could defeat the working of this Bill. It is one thing to recognise the defence of freedoms under Article 19 being available, and another to bar cognizance of cases.

In summation, enforcement provisions, including those dealing with the creation or conferral of jurisdiction need a re-look. The administration of rights and obligations created under this Bill rests upon the Commission and the Courts. Therefore, the provisions enabling access to courts and their conduct and powers, need to be based on experience in addition to logic.

Talha Abdul Rahman is a Delhi-based advocate.