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Category: Litigation (page 1 of 30)

How a CRZ violation is leading to a small revolution in Karnataka

Baad, a village near my village of Kagal in coastal Karnataka, hosts a fair every year at the Shri Kanchika Parameshwari temple. As children, the joy of going to this fair was unparalleled. During the fair, the yakshagana, a folk dance, used to take place in a big field near the temple. Instead of paying to watch this dance, my friends and I used to play a game of dappanduppi with mud stones. These memories remain as fond connections to our childhood.

In 2008, while I was completing the final year of my BA studies, I came to hear that this field had been sold and that a big resort would come up there. Many questions about why the owners would want to sell such a prosperous field, where farmers would grow rice and peanuts during the monsoons and vegetables during the summer months, plagued me.

satellite image of Nayak Hospitalities

Satellite image of the Nayak Hospitalities compound

Nayak Hospitalities (“NH”) was the buyer and as a result of the purchase, farmers’ fields, some public wells, and even a cremation yard, was acquired. Public access to a beach was also blocked. The loss of the wells affected the supply of drinking water to three villages – Baad, Jeshtapura, and Gudeangadi. After NH built a wall of about 15 to 20 metres height around the occupied land, fresh breeze from sea stopped blowing into the village. The villagers, who were also worried about the dangers posed by the crumbling of the wall during the rainy season, complained to the panchayat on two occasions and asked for the height of the compound wall to be reduced, but the panchayat did not take any action.

meeting with the people affected

Meeting with the people affected

As an Enviro-Legal Coordinator with the Centre for Policy Research (CPR)-Namati Environmental Justice Program, my job is to inform people about the law, and work with them to solve the various environment-related problems they face. I had helped conduct training programmes on awareness of the Coastal Regulation Zone Notification, 2011 (“CRZ Notification”) in Baad and surrounding areas. This led to discussions about the violations caused by NH and a decision to work together in collecting information, evidence, and pursuing remedies with the local authorities. Collection of information is central to the way we try to resolve problems. That way, if a similar problem arose in the district, a solution based on this case could be used.

Collection of information

The project had obtained clearance from the Ministry of Environment, Forests and Climate Change in December, 2010. Under this letter, permission had been granted to construct the resort on survey numbers 4 to 9, 11 to 13, 17, 19 to 21, 23, and 26 of Baad and survey numbers 14, 16, 18, and 19 of Gudeangadi. It also contained 12 specific conditions and 14 general ones but we observed that many of them had not been complied with.

Nayak Hospitalities compound area

Nayak Hospitalities compound area

  1. Construction on land in excess of permission given: The project had permission to construct on 5.26 ha, but ended up constructing on 9.67 ha. The land includes public property such as government wells, a cremation yard, a temple’s field, and also access to the beach.
  2. Construction in No Development Zone: Under the CRZ Notification, no new construction is allowed in the zone known as CRZ-III. However, the compound wall has been constructed in the 0-200m No Development Zone of CRZ-III.
  3. Access restricted: The lack of access to the three government wells located on NH’s property is leading to shortage of drinking water for the villagers living in the area.
  4. Non-permissible installation: The installation of a pumpset in the NDZ of CRZ-III is not a permissible activity. However, pumpsets have been installed on the NH site. This has reduced ground water in the region.

Advocating with authorities

I discussed strategy with the villagers and identified the relevant authorities. A letter was sent to the Regional Director (“RD”) of the Karnataka Coastal Zone Management Authority (KCZMA) office at Karwar. After a site inspection, the RD noted some violations and sent a report to the KCZMA and a notice to the proprietors of NH.

site inspection by regional director envrionment

Site inspection by Regional Director

Since no relief followed, the villagers and I decided to send letters to all relevant authorities including the District Commissioner (“DC”), Executive Officer (“EO”), and the Panchayat Development Officer (“PDO”). Site inspections were carried out and once again, notices were issued against NH. Upon request by the villagers, the panchayat on five separate occasions, gave notice to NH to reduce the height of the compound wall. This too had no effect. Finally, an order by the DC led to a reduction of the height of the wall from 15-20 meters to 6 feet. This was a small victory after two years of hard work.

Not a small victory

The victory was not absolute since the villagers still did not have access to the common land and the government wells. We used provisions in the Karnataka Land Reform Act, 1961, Panchayati Raj Act, 1993, and the Environmental Protection Act, 1986 and wrote letters to the DC, the EO, and the PDO. If any action had been taken pursuant to these letters perhaps a solution might have had been possible. The letters get transferred from one government department to another and my job then becomes to trace the status of the compliant. This is a waste of time, money, and energy.

The NH project is still inconvenient for the villagers in Baad and Gudeangadi and though their problems are not yet fully resolved, there is still hope. Through these two years, there has been immense support from the villagers of Baad and Gudeangad in working together to resolve the problems that they face. They now also have a pretty good understanding of the law and are in a position to seek remedies to their problems in the legal system. By working to get justice in this case, the villagers have also become more aware about the importance of the environment and common resources. This manner of legal empowerment has also helped them solve other small CRZ violations.

 

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Vinod Patgar is an Enviro-Legal Co-ordinator with the Centre for Policy Research – Namati Environmental Justice Program.

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Declaring Independence: What to keep in mind when starting an independent practice

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Declaring Independence  is a series by Tishampati Sen, an Advocate-on-Record who quit his job at a top-tier law firm to start his own practice. Setting up one’s own practice at a relatively young age is a challenge, albeit one that can have great rewards. Every month, Tishampati will look at an important aspect of going independent and have useful tips and advice for young lawyers who just want to break free!

Ever since I graduated from law school, I have enjoyed a wide variety of experiences. I have had the good fortune of starting my career with a large top-tier law firm in Delhi-NCR, where I trained with some of the finest lawyers and learnt how to be a legal professional. I gained experience in the transaction side of the practice, as well as in the dispute resolution side. I handled large deals and conducted negotiations and also learnt to prepare matters, draft pleadings and appear in various forums. However along the way I developed a strong desire and passion to be able to start something on my own. So finally, egged on by my family, much to the horror of some close friends and colleagues, I took the decision to quit the firm and work towards setting up my own practice.

Before we move on, let me say this right up front, this project is in no way an attempt to show-case life outside a law firm, or conversely the life within firm or to discuss which is better. I am only using this platform to share some of my experiences and lessons that I have learned in the process of setting up an independent practice.

Moving out of my Comfort Zone

One of the first things that I learnt when I told people that I am looking to quit the firm to start my own practice, was how woefully inadequate my life is! I had been looking at the world through rose tinted glasses. One very prominent senior colleague in the firm smiled at me and told me that I was having the “law firm mid–life crisis”. There were others who told me about the people who had tried their hand at starting their own practice, failed miserably and then could not even find a job at a law firm again. The fact is that we know of all the reasons why such a move could end up being detrimental.

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But I noticed that once I did take the step, let go of the safety net and swam into the rougher waters, there were plenty of people to hold my hand and show me the way. The funny thing is that most people will tell you only about what could go wrong, and I guess to a large extent that is needed so that you make an informed, practical decision. But happily, there are quite a few very successful advocates and legal practitioners out there, who have equally, and sometimes more remarkably left cushy jobs to follow their dream of having their own practice. These are people who understood the internal conflict and self–doubt that I was going through and gave me invaluable guidance and a pat on the back. Their only request was that I persevere even when I cannot see the light at the end of the tunnel. I still remember how a rather soft–spoken, quiet sort of a man, had looked squarely into my eyes and had said with a force I have never before noticed in him, “If you have a safety net, burn it. Only when there is a fire on your backside will you make this work”.

FIRST STEPS WHEN LEAVING THE FIRM

So if you are in a law firm and have decided to branch out on your own, the first few steps could possibly include the following:

1. Save, Save and Save

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Definitely give yourself a few months (if not a year or more) before you disclose that you plan to move out. Use the steady flow of income that is coming your way to create some savings. One of the great things that my wife helped me do was analyse our spending and expenses for a couple of months (of course being told that I don’t really need a new PS3 game, was like being relegated back to school), and we came up with a number which would be the average monthly expense. Keeping a plan/sum in mind may allow you to save while still not living like a hermit. Savings are definitely a must, since it gives a bit of a reassurance as to one’s financial sustainability in the initial period. Panic is a very usual and daily emotion in such a state, but it helps if your partner or family member or friend can keep reminding you of the savings and assure you that you will be alive and fed, even if you make nothing, or close to nothing, initially.

2. Choosing the kind of work while in the firm

This, to a large extent, depends on the structure followed in the firm and whether there is any option for you to be able to choose the kind of work that you would be involved in. In the firm that I was a part of, while work was mostly assigned, one did have some amount of say and control over the kind of matters that one could opt into. The firm attracted clients who were large corporate houses, or businessmen, and the work, that I was initially involved in, was mostly in the nature of writ petitions, or Special Leave Petitions, and some company matters. But I realised that it would be a while before corporate houses would approach me and pay me to go challenge the constitutional vires of certain laws. Therefore, based on the advice of friends and mentors, I tried to involve myself in a wide variety of litigations including matters in the lower tribunals, civil suits, certain minor criminal proceedings etc., so as to get a wide base of exposure. Most people in a firm would agree that the attraction of any particular matter or transaction is also often contingent upon the billing rate and the regularity of payment by the client. However, at this stage of declaring independence, the attraction is for the specific forums where the matter is listed and the nature of the dispute. A word of caution, though: while doing this in the firm your revenue and billing may take a hit. Swallow the embarrassment of the scrutiny that your performance may be subjected to, and remind yourself of the larger picture. A good friend once gave me the following perspective which was helpful: “Take it like being taught important skills and being given essential experience, and all the while being paid for it.”

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Since my practice and work today includes both transactional as well as disputes work, I must share my learning on the transaction front as well. My experience in the firm on the transaction front was with the Projects team, under a truly brilliant partner and with an excellent team. Hence, I have always been very comfortable and confident in contract law, structuring deals and providing legal opinions on various rules and regulations. However, given the work split and team divisions in the firm, I did not have ample exposure to pure company issues relating to the shareholders rights, structuring and restructuring of companies. There seems to be plenty of work relating to the such company issues that are available for young independent lawyers to do. Especially, in the age of start-ups, corporate arrangements, shareholder agreements and restructuring become viable work opportunities. So while I had to pick up these skills along the way, with the help of friends, if you intend to do transactional work, get some experience on these while still with the firm if you can. It may not be as juicy as contractual, or other work, but get into it. You’ll thank me later!

3. Preparing the mind

Ask anyone else who has taken the same path before and they will tell you right out, your life will change once you have left the safe harbours of the firm. Of course there are many types of firms and how you feel will depend on the structure of the firm as well as how long you have spent there. But I never realised until I quit my job, how large a part of my identity was the firm name. Having had the good fortune of being a part of a top–tier law firm with a very recognisable and well–established name, I had always been very confident and proud of introducing myself to people and piggy backing on the firm’s goodwill. I guess it is presumed that since you are with this particular firm, you would be competent as an advocate and a contender. Corporates and business people recognise your firm name and you bask in its reflected glory. But once that identity goes, you are relegated to only being a lawyer. One of many. No matter how many times you tell people that you have your own practice or your own firm, unless you are (a) middle–aged, and (b) a known name (which is unlikely until you are middle–aged), it is often heard by people as “not employed”. One moment you are the hot-shot associate in one of the largest firms in the country and the next, you are just an advocate like the thousands around you. What’s more, the other advocates are more street smart than you and have something you don’t have yet – clients. Prepare yourself to re-invent your identity and image. You will have to build your reputation and goodwill from scratch.

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Simple perks like clean toilets, green tea, a court clerk who actually knows how to get things done, playing a cricket tournament as a part of the firm, running printers, office boys etc., may be sorely missed and the memory of the same could trigger a violent emotional outburst later. For all those who are overworked and stressed from working really hard in a law firm looking at going independent as a way out, to whom it looks like a way out from the crazy hours, working weekends, unreasonable clients etc., you are in for a shock! You will find yourself working just as hard (hopefully and eventually) when your work load increases. There are no longer any concept of weekends, all days merge into each other. Remember, shorter timelines for delivery and lower fees are the only USP that you have to offer in the period while the world figures out that you’re a legal genius and are willing to pay you top dollar.

KEEP THE FAITH

The one major learning I have had since I quit the firm has been that things have the propensity to work themselves out if one is willing to be patient and open to receiving help. Fortunately, as I mentioned earlier, there are plenty of very wonderful advocates and lawyers, who are very supportive towards ‘youngsters’ and happily act as mentors towards young advocates and lawyers. In the period since I quit the firm, the one thing that I am very proud of myself for is that I was able to swallow my pride, quickly get over my past identity and seek guidance from people who had been doing this before, including people who are younger than me. I have picked up invaluable lessons and tips on various issues, such as client handling, self–projection, preparing for a matter keeping in mind the concerned judges and the day on which the matter may be listed, settling upon the fee rates, and the way to remind clients and seek payment of the same. 

I look forward to sharing my experiences and learnings with you on this blog!

Tishampati SenTishampati Sen is an Advocate–on–Record  of the Supreme Court of India. He worked with one of the premier law firms of the country (in corporate transactions as well as dispute resolution) for many years before deciding to take the plunge of independent practice. He appears primarily before the Hon’ble Supreme Court of India, Delhi High Court and the National Consumer Disputes Redressal Commission.

Written by myLaw

When can a Civil Suit be disposed of without a trial? Lessons from the commercial courts law

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Framing of issues, as I had observed in my last article here, sets the ball rolling for a conventional trial, that is, the recording of the evidence of both parties. But is a conventional trial mandated in every civil suit? In other words, can a suit be disposed of without parties having to go through this rigmarole? Yes.

For instance, a suit may be disposed of through rejection of the plaint on the ground that, having regard to the pleadings contained in the plaint, the suit is barred by law under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 (CPC”). Order 7, Rule 11 provides six grounds for rejection of a plaint, some of which are factual in nature and some are procedural. Ground (d) is legal. Procedural grounds relate to curable defects and are not necessarily fatal to the suit. Factual grounds are usually treated as issues which require trial and therefore do not result in rejection of the plaint upon filing of an application invoking such grounds. These are framed as preliminary issues for trial and taken up at the stage of final arguments based on evidence led by the parties. A legal ground however, could result in the rejection of the plaint and even the decree of the suit, before trial. For example, if a defendant in a suit for copyright infringement takes the defense that the subject matter in which copyright allegedly vests, is ineligible for copyright protection since it falls outside the definition of “work” under the Indian Copyright Act, 1957, it may be possible for a court to reject the plaint and decree the suit on that ground alone if it concurs with the defendant.

Another provision which may be invoked to obviate the need for trial is Order 12, Rule 6, which empowers a court to pronounce judgment and decree a suit on the basis of admissions of fact made by a party to the suit in a pleading or otherwise, orally or in writing. This would, however, require such admission to be unequivocal, unambiguous, and material to the claim of the plaintiff or defense of the defendant, as the case may be. If there is scope for more than one plausible interpretation of the fact or further evidence needs to be led in relation to that fact, a court may deem it fit to allow the suit to proceed to trial on the ground that a clear-cut case of admission as required under Order 12, Rule 6 has not been made out by the applicant.

A suit may also be decreed in terms of a settlement arrived at by the parties under Order 23, Rule 3. While a judgement delivered under Order 7, Rule 11 or Order 12, Rule 6 is appealable, a consent decree is not unless the terms were arrived at by fraud or misrepresentation.

Summary judgment under Order XIIIA of the CPC

The CPC as amended by the Commercial Courts Act, 2015, has provided yet another way to decree a suit of a commercial nature without it having to go through the motions of a conventional trial. Order XIIIA of the amended CPC, which I have discussed once earlier in the series, provides a mechanism under which a summary judgement may be delivered in commercial suits if the conditions set out in the provision are satisfied. In a recent judgment of a division bench of the Delhi High Court, I had the privilege of assisting the Court in examining the stage at which Order XIIIA may be invoked, the manner of its invocation and application. I was instructed in this matter by the NCR-based law firm, Sim & San.

The judgement, which I would strongly recommend law students to read, discusses the institution of a suit in great detail with analysis that spans several provisions of the CPC. One of the questions before the Court, perhaps for the first time, was whether it is open for a court to invoke Order XIIIA suo moto in a commercial suit to dismiss it even before issuing summons to the defendant.

In addressing the issue, the Court undertook a detailed examination of the scheme of Order XIIIA, including its placement in the CPC after issuance of summons to the defendant under Order V and before framing of issues in Order XIV. A clear reading of the procedure laid out reveals the following:

  1. An application under Order XIIIA is contemplated to set the ball rolling.
  2. The application may be made at any time after summons has been served on the defendant, but not after issues have been framed in the suit.
  3. The application may be moved by either the plaintiff or the defendant.
  4. What the application must specifically contain has been prescribed in Rule 4 of Order XIIIA.
  5. The respondent to the application must be given a period of 30 days to respond to it.
  6. Apart from the evidence already on record, both parties may lead additional evidence to support their respective contentions.
  7. A date of hearing in the application must be fixed, of which the respondent to the application must be informed.
  8. The necessary grounds on which a summary judgement may be delivered by a court are – (a) that the respondent to the application (either the plaintiff or the defendant) has no real prospect of succeeding in the suit and (b) there is no compelling reason why the suit should not be disposed of before recording of oral evidence.
  9. Rules 6, 7, and 8 set out the various orders that a court may pass in deciding such an application.

Nowhere does Order XIIIA permit a court to invoke and apply this framework suo moto, much less dismiss the suit even before the defendant enters appearance. Apart from the fact that Order XIIIA does not empower a court to do so, such power, if it had been vested, would have been at loggerheads with the adversarial legal system followed by Indian courts. Extracted below are the relevant observations of the Division Bench in this regard:

“23. From the provisions laid out in Order XIIIA, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIIIA cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court. The Court is never an adversary in a dispute between parties. Unfortunately, the learned Single Judge has not considered the provisions of Order XIIIA CPC in this light. 24. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.

  1. In view of the discussion above, since no summons had been issued and obviously no application had been filed by the respondents for a summary judgment, the learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.”

 To me, the court’s recognition and reinforcement of the adversarial nature of the Indian legal system, notwithstanding the amendments made to the discovery mechanisms in the CPC in 2002 and through the Commercial Courts Act, 2015, is one of the highlights of the decision. In the near future, we can expect a few more decisions that revolve around provisions introduced through the Commercial Courts Act.

In the next part, I will proceed with a discussion on commencement of and preparation for trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

Written by myLaw

Taking a stand on sitting down

SayakDasguptaA few years ago, I had read an article about the peculiar social and cultural differences between Japan and the west. It was written by an American man who had married a Japanese woman and settled down in Tokyo. He wrote of an incident when his parents-in-law had come to eat dinner. As they entered, the writer, as a matter of habit, proceeded to help his mother-in-law take her coat off and put it on the coat rack. He then realised that his father-in-law had not taken too kindly to that rather innocent act. The writer’s wife told him later that while taking your guest’s coat was a gesture of polite hospitality in the west, in Japan it was an act of deep intimacy – one only husbands can do for their wives. When it comes to love, the Japanese are culturally not as flamboyant, effusive and demonstrative as the Americans or Europeans (the Japanese millennial might be more westernised, but this seemingly still holds true for most of Japan). They don’t hug and kiss each other all the time. They don’t say “I love you” at the end of every conversation. Instead, the Japanese show their affection for their spouses and even their children through a hundred small acts that demonstrate caring and intimacy. This restrained, understated form of love might seem strange and even silly to westerners, but that doesn’t make it any less valid. In fact, it has its own charm and beauty.

This is also true of Indians. I am sure only a minority of the Indian readers of this blog will have actually heard their parents or grandparents openly profess their love for each other. And your mother or father might not actually say the words, but they show you they love you in other ways (making your favourite food, feeding you before they eat, giving you extra portions), and perhaps you do the same. Now, imagine if some people found this unspoken love ridiculous and made it a rule that every morning before you take a bath you must step outside your house and shout “I love my mother/father/spouse” loudly, for everyone to hear. Isn’t that strangely intrusive and oddly obtrusive at the same time? What does bathing have to do with loving your family? Why do you have to demonstrate to everyone regularly that you love your mother? Do you really need to remind yourself that you love your father? Will this make you love them more?

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Shyam Narayan Chouksey (Image from Facebook)

The Supreme Court’s interim order pursuant to the writ petition filed by Shyam Narayan Chouksey seems to suggest that your love for your country should be demonstrated openly and publicly every time you go to a theatre to watch Shah Rukh Khan romance an actress in the Swiss Alps or Salman Khan single-handedly beat up the entire Indian mafia. Many people have asked a very pertinent question: why movie theatres? On the face of it, playing the national anthem before a film might seem like quite an arbitrary way to instil patriotism in people. It’s like making people sing ‘Vande Mataram’ every time they open a book. But film as a medium is optimal for eliciting an affective reaction. When people go to watch a film, you have a large group of people in a single enclosed space completely focused on whatever is happening on the screen. It is the perfect setting to make you feel whatever the person in control wants you to feel. As author China Mieville has said, “You know how easy it is to emotionally manipulate you. Hollywood is a factory to manipulate you. That is what it does. That is what it is for. Emotion is very easy to manipulate. You’re in a darkened room, there are loud noises, there’s light shining in the darkness. It is an overwhelming experience in certain ways. I think quite a lot of the time when people say ‘I liked it’, what they mean is something along the lines of ‘I was temporarily stupefied by noises and lights for which my limbic system has no adaptive evolutionary mechanisms to respond with.’” The movie theatre’s unique ability to sweep you off your feet is why it has historically been the preferred venue for propaganda. Of course, it was in a movie theatre where this all began.

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The disputed scene from Kabhi Khushi Kabhi Gham (Image from YouTube)

In 2001, Shyam Narayan Chouksey was in Jyoti Talkies, a movie theatre in Bhopal, watching Karan Johar’s Kabhi Khushi Kabhi Gham. In one scene clearly designed to pull at the heartstrings of the patriotic NRI, an Indian-origin child born in the UK surprises his parents by singing the Indian national anthem at an event in his preppy private school. Mr. Chouksey immediately stood up for the anthem, but was inconsolably dismayed to see that everyone else hadn’t done the same. In fact, some even booed at him (probably because he was blocking the screen). He was also angered by the movie’s treatment of the national anthem. He filed a writ at the Madhya Pradesh High Court and it went to a double bench. Coincidentally, one of the judges was Dipak Misra J, the same judge who delivered the interim order on November 30, 2016. The 2003 judgment delivered by Misra J is quite a read, with several paragraphs dedicated to flowery, grandiose, baroque (to the point of incoherence) praise of the national anthem. “The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India,” it declares. “It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.” Denouncing the scene in the film in which a young boy falters while singing the national anthem, Misra J writes: “They have not kept in mind ‘vox populi, vox dei’. The producer and the director have allowed the National Anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny it is a simulacrum having the semblance but sans real substance. There cannot be like Caesar’s thrasonical brags of ‘veni, vidi, vici.’ The boy cannot be allowed to make his innocence a parents rodomontrade, at the cost of national honour. In our view it is contrary to national ethos and an anathema to the sanguinity of the national feeling. It is an exposition of ad libitum.” The High Court’s decision was to ban Kabhi Khushi Kabhi Gham until the scene in question was deleted.

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Justice O. Chinnappa Reddy who delivered the Bijoe Emmanuel judgment (Image from supremecourtofindia.nic.in)

The judgment referred extensively to the landmark case of Bijoe Emmanuel & Ors. vs. State of Kerala & Ors. AIR 1987 SC 748. On July 8, 1985, the Emmanuel siblings – 15-year-old Bijoe, 13-year-old Binu and 10-year-old Bindu – were attending school when the headmistress announced that the national anthem would be sung in the classroom. The siblings stood up but did not sing, as they were Jehovah’s Witnesses, a specific Christian sect that prohibits its followers from singing in praise of anything or anyone apart from their god. Their father, V.J. Emmanuel asked for a special concession for his children on religious grounds and the headmistress and senior teachers agreed. However, word reached a member of the legislative assembly who raised the matter in the house and soon a senior school inspector ordered the headmistress to expel the children. Mr. Emmanuel filed a writ petition in the Kerala High Court, but when the decision went against him, he appealed to the Supreme Court. The Supreme Court upheld the students’ right not to sing the national anthem, stating that their fundamental rights under Articles 19(1)(a) and 25(1) had been infringed. In its 2003 judgment, the Madhya Pradesh High Court seems to have relied specifically on the following paragraph from the Bijoe Emmanuel judgment: “We may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. It is true Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India ‘to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.’ Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.”

Misra J seems to have relied on a literal reading of this paragraph when he, in the interim order dated November 30, 2016, made it compulsory for all moviegoers to stand up when the national anthem plays in a movie theatre. He writes in the order, “Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. [sic] The idea is constitutionally impermissible.” And showing respect means standing because that has been mentioned in the Bijoe Emmanuel judgment. One wonders, if there had been no Bijoe Emmanuel judgment, would the order have made it compulsory for people to sing it as well? Just like there is no provision of law that obliges anyone to sing the national anthem, there is also no provision that obliges anyone to stand for the national anthem. The Prevention of Insults to National Honour Act, 1971, a tiny act with just four sections, states in Section 3: “Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.” Would sitting quietly during the singing of the national anthem constitute prevention of singing the national anthem?

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Justice Ruth Bader Ginsburg

Earlier this year, American football player Colin Kaepernick caused a huge controversy in the US when he sat or kneeled during the American national anthem in a series of matches to protest the killing of several black US citizens by the police. Was he being unpatriotic? Many of his fellow athletes didn’t think so and joined him. When asked about it in an interview, Justice Ruth Bader Ginsburg said, “I think it’s really dumb of them. Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag-burning. I think it’s a terrible thing to do. But I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. It’s dangerous to arrest people for conduct that doesn’t jeopardise the health or well-being of other people. It is a symbol they are engaged in.” This is the point. Forcing people to demonstrate faux patriotism under the threat of arrest is dangerously close to totalitarianism. Playing the national anthem in movie theatres serves no reasonable purpose and has, in fact, been the cause for violence in the recent past, including the case of Salil Chaturvedi, who was assaulted in a movie theatre in Goa for not standing up for the national anthem. Why did he not stand up? He is a paraplegic. In the 90s, he had represented India in two wheelchair tennis tournaments. “Irrespective of my contribution to the country, I still need to prove my patriotism,” he said. People have varied relationships with their nation and have varied ways of expressing them. Forcing everyone to conform to one arbitrary way of engaging with their country will not make them more patriotic. As Justice Chinnappa Reddy said at the very end of the Bijoe Emmanuel judgment, underlining, in my opinion, the true spirit of the decision: “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

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Rabindranath Tagore

One last thing. The author of our national anthem, Rabindranath Tagore, was often very vocally critical of the very concept of a “Nation”. In 1916, he visited Japan and was alarmed by what was being done in the name of nationalism there. I started this piece with Japan and it seems natural that I should end with Tagore’s observations about it: “I have seen in Japan the voluntary submission of the whole people to the trimming of their minds and clipping of their freedom by their government, which through various educational agencies regulates their thoughts, manufactures their feelings, becomes suspiciously watchful when they show signs of inclining toward the spiritual, leading them through a narrow path not toward what is true but what is necessary for the complete welding of them into one uniform mass according to its own recipe. The people accept this all-pervading mental slavery with cheerfulness and pride because of their nervous desire to turn themselves into a machine of power, called the Nation, and emulate other machines in their collective worldliness.”

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

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[Video] Mathura: The rape that changed India

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Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

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What’s the issue – Understand why and how courts frame issues in civil suits

JSaiDeepak_OnTrialIt helps to occasionally step back and seek the true meaning of an element of procedure. This is true about the framing of issues in a civil suit since the significance of this step in a trial is often taken for granted.

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What is an issue?

The title of Order 14 of the Code of Civil Procedure, 1908 (“CPC”) is “Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon”. Clearly, a suit is determined on the basis of issues of law or other issues agreed upon by the parties in a suit. But what is an “issue”? Although the CPC does not define the term, Sub-rule 1 of Rule 1 of Order 14 says that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In other words, both parties must disagree on a material proposition of fact or law.

The Evidence Act, 1872 also defines “Facts in issue” to mean and include any fact which, either by itself or in connection with other facts, has a bearing on a right or liability asserted or denied in a suit. According to the explanation to this definition, when a court records an issue of fact under the CPC, the fact to be asserted or denied in response to such an issue would also be treated as a fact in issue.

What is a material proposition giving rise to an issue? Sub-rule 2 of Rule 1 states that material propositions are those propositions of law or facts which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. Simply put, a material proposition is one that advances a party’s case factually or legally.

Sub-rule 3 mandates that each material proposition on which the parties disagree shall be framed as a distinct issue. Could it be said therefore, that propositions of fact or law which do not further a party’s case are not material and therefore ought not to be framed as issues? What consequences follow when a proposition of fact or law, although material, is not framed as an issue despite the parties being at variance with each other?

On this, the Supreme Court has held that the non-framing of an issue does not vitiate the proceedings as long as the pleadings of parties bear out that the issue exists and both parties have led evidence at trial to prove their respective contentions on the issue. In other words, a court can rule on an issue even if it has not been specifically framed, so long as it is material to the determination of the suit.

[Learn the Essentials of Procedure And Jurisdiction! Enrol today.]

The process of framing

How does a court go about framing an issue? Sub-rule 5 of Rule 1 lays down the procedure for this. At the first hearing of a suit, the court shall, after reading the plaint and the written statement, and after examination under Order 10 Rule 2, and after hearing the parties or their counsel, ascertain upon what material propositions of fact or law the parties are at variance, and shall then proceed to frame and record the issues on which the right decision of the case appears to depend.

What does this mean? Simply, that a court has to understand the contentions of the parties from their written pleadings and oral submissions and distill only those propositions of fact and law on which the parties differ and which are “material” for the adjudication of the suit. The question of materiality in Sub-rule 5 has no bearing on the tenability of the contentions of parties on factual or legal propositions. It simply refers to testing an issue for its relevance to the determination of the case.

For instance, in a suit for patent infringement, if there is no dispute between the parties about the plaintiff’s ownership of the patent, there is no point in framing an issue on it. Even though the question of ownership is material, the parties do not disagree on it. Contrast this with a situation where the plaintiff claims to be an assignee of the erstwhile patent owner and the defendant disputes the fact of assignment. The question of ownership or assignment of the patent is material because under the Patents Act, only a patentee or the exclusive licensee may institute a suit for infringement. In other words, the maintainability of the plaintiff’s action is in question. Moreover, since the parties disagree on this material question, the court has to frame an issue on it.

This procedure of framing of an issue needs to be clearly understood. Some people tend to read more into the mere framing of an issue under Order 14 than is warranted. The framing of an issue does not amount to a court taking a position on the contentions of the parties on a material question of fact or law. The court is merely etching the contours of the trial so that the progress of the trial is not waylaid by a slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties. Reading the Supreme Court’s decision in Makhanlal Bangal v. Manas Bhunia (2001), delivered in the context of the Representation of the People Act, 1951, but relevant since the procedure under the CPC applies to the statute, will help clear the fog around the framing of issues.

In the next post, I will deal with the commencement of trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

We hope you liked this article. You might want to check out our course on Essentials of Procedure And Jurisdiction!

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More tools for litigators after Commercial Courts Act boosts discovery in India

JSaiDeepak_OnTrialI have often heard it lamented that India lacks U.S.-style discovery mechanisms at trial. While I am no expert on U.S. procedural law, I believe that Indian civil procedure contains substantial mechanisms for discovery. Let us now look at the mechanisms available under the Code of Civil Procedure, 1908 (“CPC”) including those recently introduced to the CPC through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act“). Employed effectively, they can narrow down the scope of facts and issues that need examination at trial.

Discovery under the CPC

Section 30 of the CPC provides for a court’s power to order discovery. At any time during the conduct of a suit, this provision empowers a court, either of its own motion or on the application of a party, to pass necessary and reasonable orders relating to the delivery and answering of interrogatories; the admission of documents and facts; and the discovery, inspection, production, impounding, and return of documents or other material objects that may be produced as evidence. The provision also empowers a court to issue summons to persons whose attendance is required either to give evidence or to produce documents or other objects that may be led in evidence. A court can also order any fact to be proved by way of an affidavit. While it is commonly assumed that only Order XI of the CPC corresponds to Section 30, Orders XII, XIII, and XVI also contain provisions that relate to Section 30.

What’s the role of a court in discovery proceedings?

The framework that emerges from a combined reading of Section 30 and Orders X, XI, XII, XIII, XVI, and XVIII informs us that the assumption that Indian courts lack powers of discovery because they adhere to the adversarial system of justice may not be true. In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012), the Supreme Court, holding that discovery was one of the main purposes of the existence of courts, made some telling observations:

“A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

41. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.”

The Court also quoted from the report of the Malimath Committee, which had highlighted the drawbacks in a strictly adversarial system and recommended that courts be statutorily mandated to become active seekers of truth. This fundamental shift in the Indian approach to disputes must be borne in mind when one invokes the mechanisms for discovery. In A. Shanmugam v. Ariya K.R.K.M.N.P.Sangam (2012), the Court, apart from reiterating the ratio of Maria Margadia Sequeria, categorically observed that ensuring discovery and production of documents and a proper admission or denial is imperative for the effective adjudication of civil cases.

Bar raised by Commercial Courts Act

The Commercial Courts Act, 2015 builds on this approach further by introducing an improved discovery mechanism, evident from the language and structure of Rules 1 to 5 in the revised Order XI, which is specific to suits of a commercial nature. The spirit of the revised framework is perhaps best captured by Sub-rule 12 of Rule 1. It unequivocally states that the duty to disclose documents that have come to the notice of the party shall continue until the disposal of the suit. It goes without saying that the reference here is to documents, which are relevant and necessary to decide any question that is germane to the dispute before the court. Critically, both parties are expected to file a list of all relevant documents which are in their power, possession, or control regardless of whether those documents support or undermine their respective positions on merits. Clearly, the bar has been raised under the Commercial Courts Act and both the parties and the courts have access to fairly effective discovery options to facilitate expeditious disposal of suits. The actual employment of these options, of course, remains to be seen.

In the next part of this series, I shall discuss framing of issues and the commencement of trial.

J. Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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Nanavati v. Maharashtra, the sensational true case behind Rustom (2016)

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Rustom, released today, is Akshay Kumar’s latest movie. You probably know that it is based on a true story, but do you know the details of the sensational trial on which it is based? The real story is far more explosive and dramatic than any fictional film could possibly be.

K.M. Nanavati v. State of Maharashtra had all the elements of a thrilling potboiler but it involved real people and events. The cast of the actual case became more famous than movie stars – not just K.M. Nanavati, Sylvia Nanavati, and Prem Ahuja, who were involved in the actual incidents, but even those involved in the subsequent trials, including Y.V Chandrachud, Karl Khandalavala, and Ram Jethmalani. Moreover, the case became forever etched in the legal history of India as the last jury trial held in the country.

Join us as we delve into the events, personalities, and the unbelievable twists and turns of this true story that probably became the first instance of a trial by media in India. With the help of Senior Advocate Sanjay Hegde and legal historian Kalyani Ramnath, we explore how this case has affected the way we deal with circumstantial evidence, what “grave and sudden provocation” means, the Governor’s power to grant pardons, and much more. We also ask the big question: Should the jury trial be brought back?

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Witness for the Prosecution (1957) – The Courtroom as Chessboard

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I can’t claim to know a lot about chess. I mean I know the basic rules, but put me up against even a semi-competent 6-year-old and I would probably struggle to hold my own. Ask me what a “Sicilian Defence” is and I would guess Vito Corleone’s attorney. Mention “Scotch Game” and I would assume you were challenging me to a round of “Who can drink more Glenlivet?” But as an outsider, I am endlessly fascinated by chess, in much the same way as I am fascinated by quantum mechanics. My rudimentary understanding of the subject gives me enough of an idea of the big, complex things to be intrigued and beguiled by them, but I can barely wrap my head around their intricate workings.

Not just a game

Chess, of course, is a world in itself. Contained within the sprawl of those 64 squares are millions of moves and gambits, hundreds of memorable matches, and 1700 years of history spanning the entire globe. It is not surprising that for chess enthusiasts, the sun can rise and set on that chequered board. For them, chess becomes more than a mere game. Take, for instance, one of the greatest games of chess ever played: the World Chess Championship match of 1972 between Bobby Fischer and Boris Spassky – the subject of numerous articles, books, documentaries, and at least one major film. Played at the height of the Cold War, the match came to represent far more than a simple game of chess. No one put it better than one of the greatest players of all time, Garry Kasparov: “I think the reason you looked at these matches probably was not so much the chess factor but for the political element, which was inevitable, because in the Soviet Union, chess was treated by the authorities as a very important and useful ideological tool to demonstrate the intellectual superiority of the Soviet communist regime over the decadent West. So that’s why Boris Spassky’s defeat in 1972, when Bobby Fischer took the crown from the hands of the Soviet Chess School… Since 1948, the chess title was firmly in the hands of Soviet players. This event was treated by people on both sides of the Atlantic as a crunch moment in the midst of the Cold War. Big intellectual victory for the United States and huge, painful, almost insulting defeat for the Soviet Union.”

“But, contrary to popular belief,” Kasparov added, “Chess was never part of the education system in the Soviet Union. Soviet authorities had no interest in actually using chess – which I believe has the unique ability to enhance cognitive skills of kids – to use this in the schools, because all they wanted was just to find talent. So it was an investment to make sure that the top tier of Soviet chess would be always reinforced by new talent coming from the bottom of this pyramid.” Winning a game of chess became an end in itself. And it’s not difficult to see how that could happen. Satyajit Ray’s Shatranj Ke Khiladi (1977) is the story of two noblemen of Lucknow who are so consumed by the game that they fail to realise that Awadh has fallen to the hands of the British. And for all the fuss kicked up over the global political ramifications of the Fischer-Spassky match, wasn’t it much ado about almost nothing? The Cold War would continue for another 19 years. Bobby Fischer, who suffered from various psychological issues including paranoid personality disorder, would refuse to defend his title, which would go to a new Soviet Grandmaster, Anatoly Karpov, who would remain world champion for another decade. Nothing really changed. Despite the historic defeats and victories on the chessboard, the real world takes its own course. And this, it would seem, is what many also believe about the judicial system.

Not just a court drama

WitnessFortheProsecutionBilly Wilder’s Witness for the Prosecution (1957), based on a play adapted from Agatha Christie’s short story of the same name, is a classic that is considered one of the greatest legal dramas ever made (placed 6th on the American Film Institute’s List of Top 10 Courtroom Dramas), which is a well-deserved accolade, given its clever plot, tight pacing, sharp dialogue and some truly memorable performances by the actors. But what really stayed with me is what the film seemed to say about the relationship between the trial process and justice.

Before I move on to the plot, I should warn you that the film hinges on a major twist that the filmmakers were very careful not to divulge. In fact, at the end of the film, a voice-over says: “The management of this theatre suggests that for the greater entertainment of your friends who have not yet seen the picture, you will not divulge, to anyone, the secret of the ending of Witness for the Prosecution.” It is said that Marlene Dietrich may have lost out on an Oscar purely because of the studio’s unwillingness to campaign for her lest they inadvertently give away the ending. Of course, this was much before the days of the Internet – a simple Google search for the film will lead you to hundreds of pages that will readily reveal the ending. This is also before the “twist ending” became a gimmick for every other movie (M. Night Shyamalan, I’m looking at you). The film is now almost 60 years old – whatever novelty the surprise ending once had has surely been around for long enough for us to be able to talk about it. But, if you haven’t seen the film yet and feel that spoilers will completely destroy the film for you, consider yourself warned. Go watch it, come back and read the rest.

**MASSIVE SPOILER ALERT**

Sir Wilfrid Robarts (Charles Laughton) is an accomplished and respected barrister who has just recently suffered a terrible heart attack. Despite the remonstrations of his nurse Ms. Plimsoll (Elsa Lanchester), he takes on a murder case that has been making the headlines in England. Leonard Vole (Tyrone Power), an unemployed young man, is accused of murdering Mrs. Emily French (Norma Varden), a rich older widow. He had befriended her hoping that she would some day lend him money to finance the mass production of a new kind of eggbeater that he has invented. While he had received no money from her when she was alive, Mrs. French has left him a large sum in her will. Naturally, this makes Vole the prime suspect. Believing him to be innocent, Sir Wilfrid agrees to represent him in the trial. Vole has an alibi – he was home with his wife Christine (Marlene Dietrich) at the time the murder is supposed to have been committed – and he is quite certain that she will testify to that fact. She has already confirmed the alibi in her statement to the police. However, when Sir Wilfrid interviews her in the hope of putting her on the stand as a witness for the defence, she turns out to be cold and completely unsympathetic to her husband’s plight.

WItnessForTheProsecutionMarleneDietrichChristineChristine is a German actress who had met Vole while he was serving in the Second World War. She reveals to Sir Wilfrid that she had only married him to get out of war-ravaged Germany, and that her marriage to Vole is actually void as she had already been married to another German man before she had even met Vole. Sir Wilfrid immediately decides not to put her on the stand and tells her that, by law, she cannot give incriminating testimony against her husband. However, during the trial he is shocked when Christine appears as a witness for prosecution. His objection is overruled when it is proved in court that since Christine was already a married woman when she married Vole, she cannot legally be considered his wife – spousal privilege does not apply and she can testify against him. (The law of spousal privilege no longer applies in quite that way in England. While a person cannot be compelled to testify against her/his spouse, s/he has a right to testify if s/he so wishes.) Christine testifies against Vole, denying that he was with her at the time of the murder and contradicting all the statements made in his defence. Vole’s case seems to be completely destroyed. However, just when all hope seems to be lost, Sir Wilfrid gets a call from a woman who, for a substantial sum of money, hands him a bunch of letters written by Christine to a lover, Max, in which she has written about her plot to destroy her “husband”. Armed with this fresh evidence, Sir Wilfrid discredits Christine’s testimony, proving that she has perjured herself. The jury acquits Vole.

Not just a twist

WitnessForTheProsecutionLeonardVoleTyronePowerHowever, as promised, there is a twist in the tale. It turns out that Christine is actually very much in love with Vole. Realising that “no jury would believe an alibi given by a loving wife”, Christine had decided to become a witness for the prosecution and orchestrate a chain of events that would lead to the jurors believing that she had lied under oath to get her husband in trouble. There was no Max – she had painstakingly written fake letters to an imaginary lover to fool the court. The woman who had given the letters to Sir Wilfrid had, in fact, been Christine in disguise (a truly stunning performance by Marlene Dietrich and a fantastic job by the make-up artist; I genuinely had no clue it was her the first time I watched the film). She reveals all of this to Sir Wilfrid after the trial is over along with the chilling fact that Vole had murdered Mrs. French. However, her dreams of reuniting with her “husband” are dashed when Vole, pleased with his acquittal and newfound wealth, tells her that he is leaving her for another woman. When she threatens to go to the authorities and confess to her perjury, he laughs it off, saying he can’t be convicted for the same crime again (we should take another quick moment to note that double jeopardy doesn’t quite work that way – cases can be reopened on the basis of fresh evidence). Enraged at her lover’s infidelity, Christine uses the knife that had been used to murder Mrs. French, to stab Vole to death. When Ms. Plimsoll declares, “She killed him,” Sir Wilfrid corrects her, “She executed him.” As the film comes to an end, he decides to represent Christine in her murder trial.

At the time Witness for the Prosecution was made, the penalty for murder was death (capital punishment for murder was abolished in England in 1965), and so, the film seems to suggest that justice has been done. It also seems to state that the legal system had nothing to do with it. True justice, it seems to say, is an independent concept that stands removed from the process of arriving at justice. The idea that justice by its very nature is a divine, elevated concept marred by flawed and ineffectual corporeal legal systems is not a new one, and is reiterated time and again in various works of fiction. A good example is Graham Greene’s short story The Case for the Defence. A man accused of murder is acquitted because he has an identical twin brother and the eyewitnesses cannot be certain which twin they saw at the scene. But as the brothers walk out of the courthouse, one of them is run over by a bus and dies instantaneously. Although we never really find out whether this was the twin who committed the murder, the narrator hints at an act of divine vengeance. But, once again, the larger point here seems to be that judicial mechanisms are easily manipulated and true justice can only be achieved outside the boundaries of law.

WitnessForTheProsecutionCharlesLaughlinWilfridRobartsFilms and literature often view the trial process like a game of chess, a self-absorbed exercise in futility with strict rules, prone to becoming an end in itself rather than a means to achieve justice. Like chess, the trial becomes nothing more than a competition of wit and cunning, in which clever practitioners can carefully plan their every move, employing every devastating tactic, strategy and gambit in their arsenal to foil their opponents and achieve victory. The players in the system tend to lose sight of the forest for the trees. The trial itself becomes more important than dispensing justice. You can call this outlook cynical, but is it entirely untrue? I’m not sure it is.

Not just a coincidence

But what does this say about the filmmakers’ and perhaps the audience’s perception of the judicial process? Is it that courts of justice really have no agency at all? That the trial is a sham, a sideshow, so much window dressing and going through the motions? Is it, like the Shakespearean idiot’s tale, full of sound and fury signifying nothing? In Witness for the Prosecution, “justice” is delivered through the stabbing hand of Christine, an extra-judicial act of vigilantism that, in the eyes of the film, is not criminal but necessary. In The Case for the Defence, “justice” is seemingly completely beyond the realm of human action and has to be meted out by an act of God. It betrays our weakness for an individual mover and our suspicion of faceless systems. It’s why in our popular fiction, heroes are godlike and government agencies are Kafka-esque. In her final act of vengeance, Christine is Batman, dispensing justice where the legal system failed, while Sir Wilfrid is Commissioner Gordon, a part of the system who watches helplessly as it fails the cause of justice and then decides to work from inside to help the hero.

While speaking about the Fischer-Spassky match of 1972, Garry Kasparov said, “Bobby Fischer was a great player, but he was like a lonely warrior, a guy from Brooklyn taking on the mighty Soviet Chess School. […] Mathematically speaking, the chance of finding Bobby Fischer was miniscule, so Fischer was some kind of miracle while the almost assembly line of champions in the Soviet Union was quite predictable because of the massive investment of the state into the chess infrastructure.” A lonely warrior triumphing over a larger system. Doesn’t that narrative sound familiar? It would seem that, like the trial, the game of chess, with its cold, technical precision and its self-contained, self-regulated mechanism of cause and effect, is not immune to the influence of the fairy tale flights of fancy of the outside world. And even on a square board, it is possible to come full circle.

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

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Damini (1993) – The Courtroom as Theatre

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(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.)

Written by myLaw