Menu Close

Category: Litigation (page 2 of 30)

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.)

Written by myLaw

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.

Written by myLaw

[Video] How can a junior advocate assist better during arguments?

For up to a few years after they enter the profession, advocates can find themselves assisting their more senior colleagues in court. What is the role of an assisting counsel and how can a junior advocate excel in that role? These are questions that naturally occur to a junior advocate but unfortunately, only experience and corridor conversations seem to present any answers.

We felt that there was much to learn from the experiences of others and so we put these questions to a number of young Delhi-based litigators.

Watch what they had to say, in the video below.

Written by myLaw

[Video] Judicial pendency: What’s the big problem?

Why did the Chief Justice of India have a “breakdown” about the impossible burden facing the judiciary? Is the judiciary doing nothing about the massive backlog of pending cases at the courts? Are the courts really that slow in India? What is the problem, anyway? Will appointing new judges fix the problem? There are no simple, straightforward answers (or questions) when it comes to judicial pendency in India, but here is a video in which we have tried to make the issue much clearer.

Written by myLaw

What to tell your clients and when – Learn the essential litigation skill of communicating with clients

An advocate’s career is not all about communicating an argument effectively with a judge or assisting a senior colleague. Building lasting relationships with clients is almost equally important. Since legal education, unfortunately, provides very little help in navigating this part of an advocate’s professional life, we asked a few experienced advocates whether they had any advice for young advocates who are commencing their professional journey. This is what they had to say.

 

Written by myLaw

Get better at drafting for a career in litigation

At the beginning of a career in litigation, good drafting is one of the few things that junior advocates can do to earn the respect of peers and seniors. Is there a method to drafting well? How does one get better at drafting pleadings? We put these questions to a few experienced Delhi-based lawyers. You can listen to what they had to say, in the video below.

Written by myLaw

Know all available interim reliefs but be smart about using them

JSaiDeepak_OnTrialIn my previous post here, I discussed a few important terms from the Code of Civil Procedure, 1908 (“CPC”). That discussion alone illustrates that mechanical compliance with procedural law is not enough. Even though they are regularly described as the handmaidens of justice, procedural legislations are also statutes to which rules of statutory interpretation apply. If you are still not convinced, just talk to some colleagues about some of the most basic terms and clauses in the CPC and you will see for yourself the varied and equally plausible interpretations they can give rise to. Imagine how much trouble the creative interpretation of procedure can cause!

Let us take the case of interim applications. These are applications filed as an adjunct to the primary suit proceeding and may result in interlocutory orders, dismissals of suits, or decrees. If you represent the plaintiff, you will file along with the suit, a host of interim applications — starting from the seemingly mundane applications under Order 13 of the CPC seeking exemption from filing original documents to the important ones seeking urgent ex parte interim reliefs under Order 39 pending disposal of the suit. If you represent the defendant, you will move applications along with your written statement objecting most frequently to the maintainability of the suit on the procedural and substantive grounds under Order 7, Rules 10 and 11. Clearly, while interim applications are expected in theory to proceed in parallel to the suit, more often than not they interfere with the progress of the suit and vice versa.

More interim reliefs in the CPC, Horatio, than are dreamt of in your philosophy

Because of practice and convention, a few interim applications are invoked more often than others. But lawyers cannot afford to limit their knowledge to provisions that they frequently encounter. In fact, what better way to impress a court than to invoke a less-trod procedural provision and to explain to the court the manner in which it should be construed and applied? For instance, when sued by a foreign party that has no immovable property in India, it might help to test waters by drawing the court’s attention to Order 25 of the CPC to require the plaintiff to deposit security in court. This will help you understand the plaintiff’s will to fight to the finish since an order for depositing security casts an additional financial burden on the plaintiff besides the court fee and legal costs it has already incurred.

Another example is Order 13-A of the CPC, introduced recently through the Commercial Courts Act, 2015. It allows a defendant to seek a summary judgment in any commercial dispute if it is able to convince the court that the plaintiff is unlikely to succeed at trial and therefore no need for a protracted conventional trial. The Commercial Courts Act, 2015 is replete with such opportunities because it is designed to reduce frivolous litigation and expedite genuine litigation.

Know when to press a procedural button

That said, it is also important to appreciate the distinction between the theoretical availability of a procedural option at any stage and the appropriateness of invoking it from a strategic perspective. For instance, interrogatories under Order 11 of the CPC allow a party to put factual questions or questions relating to documents with a view to elicit answers which are not evasive. While this mechanism has certain benefits on paper, it gives the other side a peek at the interrogating party’s potential strategy at trial, besides the obvious advantage of answering questions without being under the pressure of cross-examination. Similarly, while it may seem routine to lodge a caveat under Section 148A of the CPC with a view to pre-empt the grant of ex parte orders, it is important to consider how such a course of action may be perceived and the adverse inference that a court may draw. Once again, this is a question of strategy and a litigator has to strike a balance between knowledge of a provision and the advisability of its application.

Substantive legislations also provide for a host of interim applications addressing various aspects of the subject-matter they cover. For instance, on February 5, 2016, a full bench of the Delhi High Court delivered a decision on the application of Section 124 of the Trademarks Act, 1999 under which infringement suit proceedings can be stayed subject to the satisfaction of the conditions under the provision. This decision is being considered by a division bench in a batch of appeals where Section 124 has been commonly invoked. I happen to be arguing in one of the appeals and hopefully, shall be able to write on this issue once there is more clarity.

In the next post, I will discuss discovery proceedings.

J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai 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

Reforming a system that rewards lawyer misconduct – a conversation between Apar Gupta and Sanjay Hegde on #PatialaHouse

AparGuptaSanjayHegde

(Apar Gupta is a Delhi-based advocate and Sanjay Hegde is a Senior Advocate of the Supreme Court of India.)

From: Apar Gupta

Dear sir,

I am writing to you looking for answers and for hope.

The practice of law is an art but it has never required martial combat. One week ago, lawyers in the Patiala House courts challenged the genteel nature of legal practice by practising criminal assaults in the court premises. This has been done successively over two days within the premises of the court complex and besides the India Gate circle. I repeat this because the location is important. It shows how less than a mile away from the Supreme Court, the rule of law was subverted to a rule by force.

On February 16, 2016, some lawyers acting in groups beat up Kanhaiya Kumar a student, his family, friends, college professors, and journalists. On February 17, 2016, when reports of similar assaults emerged, six senior advocates were rushed to that location under orders of the Supreme Court. Reports indicate that even though they went to the Patiala House Courts with police protection, stones and flowerpots were flung at them. They were called dreadful abuses accusing them of incest and questioning their allegiance to the country. On returning to the Supreme Court, they called the situation, “unprecedented”.

This raises a frightening possibility – a situation in which the writ of the Supreme Court stops at the steps of the Patiala House Court. Where even under its supervision, lawyers not only defy the law but also exhibit such defiance on national television. The practice of law requires courage but it has never required the audacity to undermine the Supreme Court.

It would be myopic to reduce the blame to a few violent lawyers. The Delhi Police bore witness to this affront to the rule of law on both days. It did not prevent the violence. It did not police. The Delhi Police Commissioner in subsequent interviews has said that preventing the violence could have caused “collateral damage”, an apt term owing its seed in popular culture to the Gulf War and drone strikes. It captures the deprivation of basic human rights of an accused and working journalists perfectly. It displays how norms of human decency, which find their way in law, give way to the rule of force and might. Brazen statements by the Commissioner and the police inaction on the second day despite judicial oversight raise further questions on the Court’s authority.

AparGuptaquote1

Alexander Hamilton in the federalist papers termed the judiciary, “the least dangerous branch”. He reasoned that the Court relies on the existing branches to ensure compliance and enforce its orders, compliance that comes through the obedience of the political executive and the police acting under it. This is necessary in a society that is governed by a rule of law. When lawyers publicly exhibit defiance to it and the police condone it — how is the Court to act? Does it moderate or limit the wide powers it can exercise for contempt? Does it err on the side of caution? Is it not reasonable to fear that any hesitance to act firmly may encourage further acts of defiance, which seek immunity by false claims of nationalism?

There is some reason for my pessimism. On December 2, 2014 the Supreme Court issued a peculiar circular. It said, “On 24.11.2014 an Advocate, wearing black gown, band and a saffron color long gown entered into the Hon’ble Chief Justice’s Court which was viewed seriously. It has been directed that, in future, Advocates only in proper uniform be allowed entry into the Court Rooms.” On February 18, 2016 in the midst of a hearing in the Supreme Court concerning the Patiala House Court violence a lawyer disrupted proceedings shouting, “Vande Mataram”. Reports indicate that the Court pardoned him after he offered an apology. Reports further indicate that after being pardoned, he came out of the courtroom and stated, “I am not ashamed of what I did”. Viewed individually, the first incident is a minor transgression and the second is an attempt to overawe a court hearing. In both instances, the transgressions have received minor censure from the Court – a determination that rests solely within its discretion. I fear that further judicial compassion will only be mistaken for weakness.

But how far can the Court act under contempt? Can it trust the police to enforce the law? Events over the past few weeks bring me an acute sense of shame. This gives way to the much larger discomfort of threats to judicial independence — a situation when judicial orders reduce to mere words and the words in our statutes no longer have meaning; a society where the rule of law compromises its existence with the rule of force.

Sincerely,

Apar

From: Sanjay Hegde

Dear Apar,

To my mind, there is no doubt that the actions of the violent lawyers in Patiala house are criminal, destructive of the rule of law, and in contempt of the orders of the Supreme Court. They would in all probability be convicted if prosecuted properly or if proceeded against under the Contempt of Courts Act. I hope that they indeed are so proceeded against.

However, the prosecution and conviction of these individuals will be merely cosmetic if the underlying causes are not addressed. The chief cause to my mind, is that in a legal system that is stagnant and overwhelmed by the burden of arrears, only two kinds of lawyers get noticed, either the very famous or the very notorious. Notoriety is easier to achieve than fame, and a notorious lawyer, in due course gets cleansed into respectable authority, when he begins to invoke fearful compliance from opponents and courts.

A reputation as a troublemaker is not a bad reputation, when confronting judges who want to struggle through their never-ending list of cases to be heard on that day. A troublemaker lawyer, who can call for a strike and violence, who can paralyse the working of courts, will find himself being humored by judges who do not want trouble in the courtroom. Such a lawyer will soon find himself engaged by parties who want to overawe a court or derail proceedings in any matter. He will also be engaged by parties in a righteous cause, who will brief him only to prevent him from going over to the other side.

SanjayHegdequote1

A troublemaker who can cow down judges is also more likely to be elected as a representative of the Bar than a lawyer whose chief virtue is well-researched articulation in court. These elected leaders of the Bar then get invited to social functions at welcomes and farewells involving judges. Elected offices at Bar associations then translate into upturns in practice. The ability to win a Bar election sometimes translates into a political candidacy as well. It seems to me that the system as it now exists, does not punish bad conduct but actually rewards it.

While Patiala House may have attracted attention because of its proximity to the Supreme Court, similar hooliganism has been seen in Chennai and Karnataka in recent years. In Chennai, the Chief Justice had to resort to Central forces, to ensure the conduct of peaceful proceedings in court. There are also times when Bar associations pass resolutions refusing legal assistance to some accused and then seek to enforce their diktat by violence. A decade ago in Jammu and Kashmir, trials of those accused in a sex scam had to be transferred outside the state because of such a resolution. Bluntly put, the average individual lawyer in India is less likely to be an Atticus Finch and more likely to follow or lead a mob.

The answer has necessarily to come from lawyers themselves. How do we make mob rule unprofitable and unsupported? How do we ensure that the leader of the mob today, is not the leader of the Bar tomorrow? How do we decriminalise our courts as a necessary precursor to the decriminalisation of politics itself? The all powerful Supreme Court in Delhi, if it fails to ensure condign punishment at Patiala House, may well become like that blind Mughal Emperor of whose nationwide jurisdiction, it came to be said, “Dilli te Palam, ast zameen Shah Alam”. From Delhi to Palam is the land of Shah Alam.

Regards,

Sanjay Hegde

From: Apar Gupta

Sir,

Two prominent points indicated by you in the previous thread push our conversation beyond the law of contempt. The first is case pendency and the second are usurpers at the helm of our Bar associations and councils. Both problems as you indicate are structural and require systematic engagement with time and patience. This can only be implemented specifically through the state bar councils and not episodic interventions by the Court. But what is the Bar Council today?

In my view, bar councils today act in the interest of lawyers but not in the interest of the legal profession. While they have the ability to structurally engage on issues of professional ethics and development, they rarely perform such a role, reduced over time to a body with allegiances to local groups aligned on lines of caste and religion and worse, political parties. While lawyers have always formed a large contingent of parliamentarians, there was always a conscious attempt to keep electoral politics at a distance from the practice of law. The independence of the judiciary is supported from the neutrality of the bar. This is increasingly under threat.

Recent events in which office bearers use the strength of their position to campaign for a political party, send SMSs soliciting support, and even hold seminars and rallies focused on lawyers give a cause for concern. Such incidents loosely link the social interest necessary in legal practice towards obedience and servitude of a particular political ideology. This is dangerous. For me, many lawyers (including me) who have been silent at such events in the past are to blame for the increasing brazenness that ultimately fructified in the Patiala House courts. I think any lawyer, whether working in a legal aid clinic or structuring a complex commercial agreement, can sense a growing influence of electoral politics in the practice of law. It is for the profession to decide whether they are willing to tolerate it further.

AparGuptaquote2

Another instance on which I see complete inaction by state bar councils are strikes organised by lawyers. Coordinated calls for strikes sometimes even arise from bar council members. Despite repeated and clear judgments by the Supreme Court that such strikes are illegal, this affront to the rule of law continues, practised by the very people who are licensed to professionally protect it. Even the courts maintain a studied silence when bar councils and associations announce strikes. Some even condone it by adjourning cases casually and treating it as an unsanctioned school holiday.

In my view, the continuing district court strikes over the past two years in Delhi have given lumpen elements in the Bar the confidence necessary to now open a larger front on professional ethics itself. Members of the legal community, especially seniors, need to actively support juniors whose bread and butter is immediately impacted due to the threats of violence and coercion which are used to prevent them from appearing in courts where such strikes are announced.

Strikes are just one form of a breach of professional ethics contained in the Advocates Act. The absence of action under it by bar councils is a worrying sign. It also points to a larger rot where complaints are dealt with in an opaque process and proximity to members of a bar council rather than the merits of a case may determine a finding of misconduct or the penalty which is imposed. To me the regulations require immediate surgical intervention. The hoary language that extolls the virtues of advocacy needs to be replaced by the commercial professionalism that a modern legal practice demands. The opaque and rusted process needs to be reformed after studying the reasons why the remedies suffer such weak enforcement.

One of my favourite quotes on this branch of law comes from the judgment of the Supreme Court in R.K. Anand v. Registrar, Delhi High Court where observing rampant professional misconduct, it notes that, “Such conduct reminds us of the fictional barrister Rumpole, `the Old Hack of Bailey’, who self deprecatingly described himself as an `old taxi plying for hire’. He at least was not bereft of professional values. When a young and enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual `plonk’, `Chbteau Fleet Street’, he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; `why he was defending the most hated woman in England’, Rumpole ended the meeting simply saying “In the circumstance I think it is best if I pay for the Dom Perignon””. Unsurprisingly this judgment arises from a finding of contempt of court and not professional misconduct as found by a bar council. While this may merely be anecdotal, it is telling that contempt law is only imperfectly filling in a vacuum created by the bar councils.

Regards,

Apar

From: Sanjay Hegde

Dear Apar,

Thank you for recollecting the Rumpole example. I have a confession to make. Rumpole has been a great teacher to me for long, and I did introduce the series to Justice Alam who used it in the R.K. Anand judgment. It does seem to me that if Rumpole was Indianised to Vakil Rampal and a series set in a district court in India, many an appropriate lesson could be taught to the average Indian lawyer.

Rumpole would teach him that the first requirement of an advocate is courage, but that courage is not displayed by participation in or leadership of a mob. A lawyer’s true courage is when he gets up on his hind legs and cross-examines his witness to elicit the truth, regardless of suggestions from even a bully of a judge like Justice Bullingham, or from the icy condescension of a Justice Graves.

Rumpole would also teach a lawyer, that courage is in not meekly submitting to the advice of even your chamber mates and your friends, when such advice is detrimental to the client’s interests. A lawyer would learn also from the threat of disciplinary proceedings that Rumpole was subjected to by being reported to the benchers of his inn and to the professional services board. Lawyers could learn also from Rumpole’s fierce independence, which cost him a shot at being designated a Queen’s Counsel. In short, a Rumpolean philosophy of never pleading guilty, while forever perfecting the craft of persuasion, in a life interspersed with small cigars and Pomeroy’s ordinary wine, is a model with which many an individual lawyer would agree.

While the life of an Old Bailey hack epitomised by Rumpole is fast becoming an anachronism in Britain, it is still achievable for a Vakil Rampal, if only the profession as a whole sees itself as something more than a mere trade union of purveyors of the justice system. The Indian advocate often sees himself not as an officer of the court, but as a champion of his client within it. A lawyer usefully employed within the system, often does not have the time to look beyond his brief. But for large swathes of the profession, it is a mere refuge from the world outside, and a badge of a vocation no matter how tenuous. A lawyer suffering from disguised unemployment is an easy mark for the leader who is in want of a flock. Many a political party is populated with people who are nominally lawyers, but are rarely seen making a legal submission. Practice as a lawyer, is a useful adjunct to many a business like property dealings and the like. In short, the time available to a lawyer waiting to be briefed, is often a resource that is wasted or put to dishonorable pursuits.

SanjayHegdequote2

With disguised employment being the bane of an overcrowded profession, a number of people reliant on uncertain incomes tend to seek and find supplementary sources. These multitudes are often treated as individuals, only when their vote is solicited for elections to the bar associations of courts or to bar councils at the state and national levels.

Disciplining errant members of the Bar and checking their certifications and qualifications are all left to these elected bodies. Those who seek election to these bodies are loathe to move against potential and existing voters. Expecting elected bar councils to police the profession is an exercise in unwarranted optimism.

Courts too have contributed to the decline in standards by refusing to deny audience to errant members of the bar. R.K. Anand’s Case was unique in its invocation of contempt powers, but it was aided by press exposure, coupled with the vulnerability of Anand, who as a Senior Advocate, risked getting his designation revoked. It was in fact revoked and was a punishment that could not have been visited upon the average lawyer.

To my mind, the situation will not improve unless the lawyer genuinely is made to realise that he is an officer of the court and that the court has powers to curtail his continued tenure in that office. Unless a lawyer becomes a stakeholder in an organised system of justice delivery and ceases to act as a robber baron ruling through violence, the rule of law will not be truly established.

Regards,

Sanjay Hegde

From: Apar Gupta

Sir,

Your email gives a chance for introspection. It indicates that the answers many lawyers are searching for are present in their own practice. They are also timely, given the Supreme Court is examining the legality of the All India Bar Examination. Despite the derision directed against it, in principle few would quarrel with its aim to improve the quality of advocates in India — qualities both of the mind and the heart.

The Law Commission of India has been alive to these concerns for decades. In its 75th Report given in October 1978 titled “Disciplinary jurisdiction under the Advocates Act”, it underscores the need for self-regulation. Commending the system of advocates who form part of the disciplinary committees it recommends no change to the Advocates Act. It only takes a decade for it to revise and reverse this view. In 1988, in the 131st Report, the Law Commission noted two important things. First, a fall, or a “devaluation” of the lawyer in the public eye and second, a “hesitance to accept this implantable fact”. It suggests two key changes in the disciplinary system for adjudicating misconduct by advocates. It suggests that high courts should be given suo motu powers to review determinations made by the bar council of a state. There is also a suggestion for a social audit conducted by members of the public and civil society as “consumers of justice”. These are just two measures in a multitude which may be devised. There is an urgent need to devise substantive ethics regulations, periodic competency reviews, and enforce it by a system which is efficient and insulated from political pressure.

AparGuptaquote3

I agree with you that the best hope for the legal profession is in the daily practice of each lawyer but systems should create the proper incentives for its existence. Recent events give us a chance to not only individually reflect but also review the existing rules and systems for professional misconduct.

Thank you sir for engaging on this issue playing on the minds of many lawyers over the past two weeks. More personally, this exchange has given me the hope necessary to keep looking for answers.

Warmly,

Apar

From: Sanjay Hegde

Dear Apar,

While we agree that long term measures, based on greater professionalisation and lesser politicisation is the way to go, the immediate question is what immediate measures can be put in place towards that end.

Firstly, the Patiala House incidents must be used to totally disincentivise criminal behaviour of the type exemplified by Vikram Chauhan and his group. The Supreme Court must use the opportunity to send a tough message, by ensuring and monitoring prosecutions and disciplinary actions. The Court could also use the opportunity to devise newer measures to ensure that hooliganism is not rewarded and is in fact a disqualification to any elected office, including in bar association elections. Judgments of the Supreme Court in respect of its own bar elections are now setting the agenda for elections to other bar associations. A disqualifying clause, to be administered by presiding judges, upon those accused of violence or intimidation, would be very useful.

The next step, which can’t be delayed now, is requiring that advocates certification be renewed from time to time. Credentials are checked cursorily upon enrollment and thereafter rarely questioned. If the rolls are to be compulsorily revalidated every five years to weed out those who can show no proof of serious practice, then a huge burden of non-professionals can be weeded out.

SanjayHegdequote3

It may also be a good idea for technological solutions to be put in place, with a national registry of qualified lawyers, whose fingerprint scans can be used for recording court appearances. Data on frequency of appearances in court, as opposed to attendance in bar rooms might be revealing.

All told, the basic issue is of requiring and enforcing professional pride, in ones standing as a lawyer. As the saying goes, “he who will not stand for anything, will fall for everything”.

Regards,

Sanjay Hegde

Written by myLaw

The High Court as trial court in death penalty confirmation proceedings

ProceduralLawOfTheDeathPenalty_AmrutanshuDashIs a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Amrutanshu Dash is a student in his fifth year at the National Law University, Delhi. The views expressed in this article are his alone.)

Written by myLaw

[Video] What traits are necessary for a career in litigation?

Apart from the necessary skills and the knowledge required to build and present a case before a judge, everybody knows that hard work is essential for a successful legal practice in the courts. But what else? Are there any other “x-factor” ingredients that successful litigators have but not many others have? We put this question to some of the brightest young minds working in Delhi’s courts. Watch the videos below to find out what attributes of character are necessary for a career in litigation.

So to sum up, a junior lawyer needs to have (a) the fortitude to handle long unpredictable hours, the financial uncertainty, and the mental and physical exhaustion of the early years in the profession; (b) a love for law and the profession; and (c) the skill to network and bring in work.

Written by myLaw