Category: Litigation

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Litigation

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

SayakDasgupta_InCamera

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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Litigation Lounge

[Video] How the President’s Rule drama in Uttarakhand and Arunachal illustrate India’s Centre-State relations

Earlier this year, a constitutional provision returned to the headlines after a brief hiatus. Article 356 was invoked and President’s Rule imposed in the states of Arunachal Pradesh and Uttarakhand. After prolonged political drama, the judges of the Supreme Court and the Uttarakhand High Court struck down these proclamations.

As the situations developed in parallel, it became clear that the Governors of the states played key roles in the use of this constitutional provision as a weapon of political war. This was also evident from a bare reading of the text of Article 356.

What was the constitutional design behind vesting the Governor with these powers? Why did the judiciary not interfere, as Article 356 was repeatedly misused for forty years? What motivated the judges of the Supreme Court and the Uttarakhand High Court to strike the proclamations down?

To answer these questions, we turned to senior advocate and Times Now regular Sanjay Hegde and Alok Prasanna Kumar, the Senior Resident Fellow at the Vidhi Centre for Legal Policy. As they explain judgments of the Supreme Court and narrate tales of political intrigue, you will realise that the history of Article 356 is the history of Centre-State relations in India.

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Litigation Lounge

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

CLPR_SudhirKrishnaswamyDikshaSanyalAndreasWalter

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

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

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

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

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

Equality and other rights

Expression and association

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

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

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

Trade and Business

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

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

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

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

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

Judicial review approach

Proportionality

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

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

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

Incompatibility

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

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

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

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

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

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

Conclusion

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

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

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Litigation

Damini (1993) – The Courtroom as Theatre

SayakDasgupta_InCamera

 

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

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

Trial and error

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

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

*SPOILERS AHEAD*

The story so far

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

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

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

The question of agency

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

AdvocateGovind_Damini_SunnyDeolWho do the lawyers represent?

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

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

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

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

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

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

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

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

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Litigation Lounge

Adversarial litigation may not be effective in fighting discrimination

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

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

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

The adversarial system has limitations

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

The problematic prioritisation of equality claims

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

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

More power to the district courts

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

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

Talha Abdul Rahman is a Delhi-based advocate.