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12 Angry Men (1957) and Ek Ruka Hua Faisla (1986) – The Courtroom as Red Herring

SayakDasgupta_InCameraIn 1973, a boy named Kevin Edward Noonan took his high school sweetheart to watch a screening of a 1957 movie. She had just earned a full scholarship to Princeton and was considering going to law school in the future. Perhaps he hoped that watching a classic legal drama would inspire her. And it did. She was especially moved by a scene at around the hour mark in which an immigrant speaks about the greatness of the American judicial system. “This, I have always thought, is a remarkable thing about democracy,” he says. “That we are… what is the word? Notified! That we are notified by mail to come down to this place to decide on the guilt or innocence of a man we have never heard of before. We have nothing to gain or lose by our verdict. This is one of the reasons why we are strong.” The young girl, whose only legal inspiration till then had been Perry Mason, was blown away. “I had never thought about the juries and their function until I saw this movie,” she later said. “This was my very first inspiration. When the watchmaker in that scene talked about the greatness of democracy being the jury system? It sold me.” The movie was 12 Angry Men, and the girl was Sonia Sotomayor, the first Latina to become a judge at the Supreme Court of the United States.

The Origin Story

12 Angry Men was originally written as a fifty-minute teleplay in 1954 by Reginald Rose, one of a group of bright, socially-conscious up-and-coming screenwriters of the ‘50s – a decade known as the golden age of television drama in the US (much like the present decade) – that included such legends as Rod Serling and Paddy Chayefsky. Rose was inspired by his own experience of jury duty on a manslaughter case in New York City. Initially, he had been reluctant to serve on a jury, but, as he wrote later: “the moment I walked into the courtroom… and found myself facing a strange man whose fate was suddenly more or less in my hands, my entire attitude changed.” The gravity of the situation, the sombre activity of the court, and the “absolute finality” of the decision of the jurors made a deep impact on him. He felt that since no one other than the jurors had any idea of what went on in a jury room, “a play taking place entirely within a jury room might be an exciting and possibly moving experience for an audience”.

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Opening pages of the stage play book

The result was a taut, gripping story about a jury that must decide the fate of a young Hispanic boy who has been accused of murdering his father. Eleven of the jurors believe that he is guilty, but only one man is unconvinced, and what proceeds is a tense debate on the facts of the case, a dismantling of all the ostensibly damning evidence, and also an airing of social stigmas and ingrained prejudices. A play written in the ‘50s will obviously have its attendant problems of representation; it might as well have been called “12 Straight White Men”. There are no women or persons of colour in the jury. But the plot allows for a range of characters fitting various archetypes. This becomes especially clear from the notes on characters and costumes in the stage play adaptation. Juror No. 2 is “a meek, hesitant man who finds it difficult to maintain any opinions of his own,” whereas Juror No. 3 is “very strong, forceful, extremely opinionated […] intolerant of opinions other than his own, and accustomed to forcing his wishes and views upon others.” Juror No. 7 is “a loud, flashy, glad-handed salesman type who has more important things to do than sit on a jury,” and is, basically “a bully, and, of course, a coward”, whereas Juror No. 11 “is a refugee from Europe […] who speaks with an accent and is ashamed, humble, almost subservient to the people around him.” There is the “man of wealth and position” who feels “a little bit above the rest of the jurors and whose “only concern is with the facts in the case”, and there is a “slick, bright advertising man who thinks of human beings in terms of percentages, graphs and polls”. Our hero, Juror No. 8 is a “quiet, thoughtful, gentle man”, a man “who wants justice to be done, and will fight to see that it is.” In other words, he is a lone warrior fighting an uphill battle against a room full of men opposed to him; an underdog fighting for another underdog. These are all tried and tested archetypes and they work really well.

Film Adaptations

The teleplay was adapted into a film directed by Sidney Lumet and starring Henry Fonda. Although the film didn’t fair very well at the box office, it gained almost universal critical acclaim, and is considered one of the most influential films ever made. The American Film Institute ranked it second in its list of the top 10 courtroom dramas of all time, just behind To Kill A Mockingbird (1962), an interesting decision given that an actual courtroom only appears in the film for less than 2 minutes; the rest of the film’s 96-minute running time plays out in an increasingly claustrophobic jury deliberation room. But there is no doubting its influence. It was remade as a television film forty years later by acclaimed director William Friedkin starring George C. Scott, Jack Lemmon and James Gandolfini. In fact, it has been repeatedly remade in various languages in various countries around the world, including Germany, Norway, Japan, Russia, France, China and, of course, India, despite the fact that most of these countries do not even have a judicial system that mandates jury trials.

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The Indian version, Ek Ruka Hua Faisla, directed by Basu Chatterjee and starring Pankaj Kapur, M.K. Raina and Annu Kapoor was made in 1986. At a run time of 127 minutes, it is half-an-hour longer than the original, but is a more-or-less faithful translation. And I do mean that quite literally. The jurors have the same personalities and even correspond to the same numbers as in the original. Many of the dialogues are direct Hindustani translations of the original English lines. Even some of the jokes are repeated. The racism and prejudice against Hispanics, immigrants and slum-dwellers displayed by some of the jurors in 12 Angry Men have been cleverly reflected in Ek Ruka Hua Faisla as upper-caste bigotry against minorities and the rising hatred for South Indian immigrants in Bombay that was being fuelled by right-wing groups at the time.

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Scenes from 12 Angry Men (left) and Ek Ruka Hua Faisla (right)

The Jury Is Still Out

But the thing to note here is that by 1986, the jury trial was long dead in India. There is nothing in the film to suggest that it is a period film based in the ‘50s when jury trials still happened, and yet there is no explanation for a jury in this case. In the Chinese adaptation, 12 Citizens (2014), the twelve men are assembled from different walks of life to form a mock jury as part of an experiment in a law school, a set-up that makes sense. As we had discussed in our video on the Nanavati trial earlier this year, the East India Company had introduced the jury trial in India as Englishmen considered it their right to be judged by a jury of their peers. However, even under the British Raj, English lawyers felt that Indians did not make good jurors as they were deemed to be irrational, swayed by superstition and religion and incapable of understanding the English language in which court proceedings were conducted. Various law commission reports suggested the abolition of the jury trial, the final one being the 41st Law Commission Report published in 1969. The Nanavati case is widely regarded as the nail in the coffin of the jury trial, which was done away with in the Code of Criminal Procedure, 1973.

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Justice Y.V. Chandrachud (Image from supremecourtofindia.nic.in)

The public prosecutor in the Nanavati trial was Y.V. Chandrachud, who would go on to become the Chief Justice of India. It was during his tenure as Chief Justice that he was a part of the five-judge bench that presided over the landmark case of Bachan Singh vs. State of Punjab AIR 1980 SC 898, in which he and three of his brother judges upheld the validity of the death sentence under Section 302 of the Indian Penal Code, 1860. The only dissenting voice was that of Justice Bhagwati who felt that the death penalty was unconstitutional. However, the most important aspect of the judgment was the court’s pronouncement that the death penalty should only be given in the “rarest of rare cases”. In Ek Ruka Hua Faisla as in 12 Angry Men, the judge tells the jurors that if they found the accused guilty, he would be automatically sentenced to death. While this certainly raises the stakes in the films and makes the decision far more difficult, one wonders if a boy would be sentenced to death in India for killing his violent, abusive father keeping in mind the fact that there have been only 56 death penalty cases in Maharashtra since 1947. There are other basic inaccuracies that a layman might miss, but are glaring errors for lawyers who are familiar with the jury system. For example, in Ek Ruka Hua Faisla, one of the jurors is shown casually reading a newspaper just before deliberations begin. Anyone who is familiar with jury trials knows that jurors are completely sequestered during the pendency of the trial and are denied access to newspapers, television and any form of mass media in order to keep them absolutely unbiased. Similarly, while I am not an expert in American criminal law, it seemed improper of the judge in 12 Angry Men to tell the jury that a guilty verdict would necessarily attract the death penalty. It is my understanding that once the jury has given its verdict the judge sets a date for sentencing. Before that date, a pre-sentence investigation is carried out to help the judge determine the appropriate sentence. The pre-sentence investigation may consider the defendant’s prior criminal record, background, possible mitigating circumstances of the crime, the likelihood of successful probationary sentence, and suggested programmes for rehabilitation. It seems a little presumptuous of the judge to offer a foregone conclusion to the jurors before any of this has been done.

Flawed Greatness

Official Portrait of Justice Sonia Sotomayor

Official Portrait of Justice Sonia Sotomayor

But ultimately, there is no point in getting hung up on legal inaccuracies in a film, where the aim is to build tension and keep the audience engaged. While all the characters in the films are interesting, arguably the most important character is mostly invisible: the court. And while 12 Angry Men is a great film that had a positive impact on many people, it is not without its flaws. Justice Sotomayor, who counts the film among her major inspirations, admitted that, as a lower-court judge, she referred to it to instruct jurors on how not to carry out their duties. While speaking about the film in Fordham University in 2010, she said: “I would bring up this movie and explain to them that some of the things that happened, shouldn’t have happened. There’s an awful lot of speculation in the film.” The courtroom proceedings in the film are portrayed as a complete shambles. The defence attorney is described as incompetent and uninterested in the case. However, Sotomayor went further and also criticised the unseen prosecutor, stating that the job of the prosecutor is not merely to convict people, but also to investigate thoroughly beforehand to ensure the defendant’s guilt.

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Scenes from 12 Angry Men (left) and Ek Ruka Hua Faisla (right)

Like many other films based on the law, 12 Angry Men is suspicious of the judicial system and reposes more faith in the efforts and ingenuity of one bright individual warrior for the cause of truth. The largely absent courtroom in the film is cast less as a facilitator of justice and more as a hindrance, where lazy, bored and cynical officers of the court do a shoddy job of conducting a trial, subverting the judicial process, making it a farcical exercise. Rather than bringing some clarity to the case, the courtroom manages to mislead all but one man, making it the largest red herring in the history of crime. The twelve men, it would seem, have every right to be angry.

Written by myLaw

Inherit the Wind (1960) – The Courtroom as Soapbox

SayakDasgupta_InCameraIn 1960, John T. Scopes, a geologist, returned to Dayton, a town in Tennessee where 35 years earlier, he had been convicted of a crime. Instead of being scorned and spurned, he was celebrated and awarded a key to the city. He had returned to attend the premiere of Inherit the Wind, a film that had been made on his trial. The film, boasting of some of the biggest names in Hollywood, was supposed to tell the true story of the Scopes ‘Monkey’ Trial, but it didn’t. Its intention was to use the trial to make a very different point. Then again, even the original trial was not much more than a farce.

The making of the film trial

On January 21, 1925 Rep. John Washington Butler introduced a bill in the Tennessee House of Representatives “prohibiting the teaching of the Evolution Theory in all the Universities, and all other public schools of Tennessee, which are supported in whole or in part by the public school funds of the State, and to provide penalties for the violations thereof.” The Butler Act, as it came to be known, was enacted six days later. This ban on teaching evolution in public schools in Tennessee was reported in newspapers all over America and came to the notice of a young organisation in New York called the American Civil Liberties Union (ACLU), which advocated for freedom of thought and expression regardless of political leanings. It put out a notice in newspapers inviting any teacher from Tennessee to challenge the law. “We are looking for a Tennessee teacher who is willing to accept our services in testing the law in the courts,” it said. “Our lawyers think a friendly test can be arranged without costing a teacher his or her job. Distinguished counsel have volunteered their services. All we need is a willing client.” Enter George Washington Rappleyea.

George Rappleyea, the man who wanted to put Dayton on the map.

George Rappleyea, the man who wanted to put Dayton on the map.

Rappleyea was the Superintendent of the financially floundering Cumberland Coal and Iron Company in Dayton, Tennessee. He read ACLU’s notice and the very next day, met a group of influential men of Dayton and suggested that the law should be challenged in their town. He foresaw that the resulting trial would bring national attention and definitely put Dayton on the map – something that must have appealed to everyone as Dayton was going through hard times. Rappleyea convinced a young schoolteacher called John T. Scopes to be the challenger even though Scopes couldn’t remember if he had actually ever taught evolution in his classroom.

None of these events leading up to the trial are shown in Stanley Kramer’s Inherit the Wind. The film begins with Bertram Cates (Dick York), a fictionalised version of John Scopes, teaching evolution openly in a Southern town called Hillsboro. While Scopes was ambivalent about the law until Rappleyea convinced him to challenge it, Cates is presented almost as a heroic crusader completely unwavering in his noble convictions. None of the prior machinations that led to the original trial are even alluded to.

A well-known reporter named E.K. Hornbeck (Gene Kelly) comes to Hillsboro to cover the trial. Amidst his sarcastic quips and witty one-liners, he informs Cates that his employer, the Baltimore Herald, is willing to finance his defence. The acerbic, cynical Hornbeck is the fictional cognate of H.L. Mencken, the famous and influential reporter who covered the Scopes ‘Monkey’ Trial. Mencken was a staunch atheist and detested fundamentalists and “southern yokels”, calling them “ignoramuses” and “morons”. He was also a racist and anti-Semite who distrusted democracy deeply, which made him a natural opponent of the prosecution attorney: William Jennings Bryan.

Above, Gene Kelly and Dick York playing E.K. Horseback and Bertram Cates in Inherit The Wind (1960). Below, H.L. Mencken the journalist and John T. Scopes the geologist (right), the real-life figures that these actors portrayed.

Above, Gene Kelly and Dick York playing E.K. Hornbeck and Bertram Cates in Inherit The Wind (1960). Below, H.L. Mencken the journalist and John T. Scopes the geologist (right), the real-life figures that these actors portrayed.

The prosecuting attorney in Inherit the Wind, Matthew Harrison Brady (Fredric March) is a Bible-thumping, chicken-devouring, moralising caricature of Bryan. Everything about the look of the character – from his baldpate to his pince-nez to the cut of his shirt – is modeled to be identical to that of Bryan’s. In many ways ahead of his time, Bryan had spent a lifetime fighting for farmers, women’s suffrage, and campaign finance reforms, and raising his voice against imperialism and corrupt corporate practices in the early 1900s. But all we see is a screaming blowhard trying desperately to cling to his woefully outdated beliefs. A Bible literalist, his distaste for the theory of evolution came not just from his religious views but also from his mistaken conflation of Darwin’s theory of natural selection to the concept of Social Darwinism – a system of thought that often rationalises racism, eugenics, fascism, and imperialism.

Above, Spencer Tracy and Frederic March playing Mathew Harrison Brady, the prosecuting attorney and Henry Drummond, the defense attorney in a scene from Inherit The Wind (1960). Below, Clarence Darrow and William Jennings Bryan, the lawyers who came up against each other in the Scopes 'Monkey' Trial.

Above, Spencer Tracy and Fredric March playing Mathew Harrison Brady, the prosecuting attorney and Henry Drummond, the defense attorney in a scene from Inherit The Wind (1960). Below, Clarence Darrow and William Jennings Bryan, the lawyers who came up against each other in the Scopes ‘Monkey’ Trial.

Cates’ defense attorney is Henry Drummond (Spencer Tracy), a fictionalised version of Clarence Darrow, who, in 1925 was perhaps the most famous lawyer in the country, having argued a number of high profile cases. Like Mencken, Darrow was a modernist and atheist, inspired by the writings of Nietzsche, Darwin, Marx, Freud, and Voltaire. He had once been a friend of Bryan and had even supported him in his first presidential campaign, but the two had later parted ways due to the stark differences in their thinking (a fact that is reflected in the film as well). When he heard Bryan had joined the prosecution team, Darrow immediately decided to join the defence to battle “the idol of all Morondom”.

The greatest show in America

Scenes from Inherit The Wind (1960)

Scenes from Inherit The Wind (1960)

The film accurately portrays the media circus this trial became. In an unprecedented turn of events WGN Radio managed to obtain the rights to rearrange the way the courtroom was set up. Despite a burning heat wave in Dayton that year, hundreds of people crowded into the courtroom to witness this clash of titans and their ideas. Journalists sat with typewriters and microphones recording every instant of this great show as if it were a boxing match. Outside the courtroom was a veritable carnival centred around the trial. Shops sold monkey-themed memorabilia, songs written about the trial were sung on the streets, and a pet chimpanzee named Joe Mendy was brought out in a new suit everyday for the amusement of one and all. This fanfare is faithfully portrayed in Inherit the Wind. The people of Dayton, however, are not.

The film paints the residents of Hillsboro (read Dayton) as an angry, ignorant mob ready to lynch Cates. This was, by all accounts, patently untrue. Even Mencken wrote, “The town, I must confess, greatly surprised me. I expected to find a squalid Southern village, with darkies snoozing on the horseblocks, pigs rooting under the houses and the inhabitants full of hookworm and malaria. What I found was a country town full of charm and even beauty […] Nor is there any evidence in the town of that poisonous spirit which usually shows itself when Christian men gather to defend the great doctrine of their faith. […] On the contrary, the Evolutionists and Anti-Evolutionists seem to be on the best of terms, and it is hard to distinguish one group from another.”

From the beginning, Judge Raulston had instructed the jury, prosecution, and defence to keep the trial about the case in hand – Scopes’ contravention of the Butler Act – and not to argue whether the law itself was just or unjust. Of course, neither Darrow nor Bryan had any intention of obeying the judge. As far as both were concerned, this was the most important philosophical and cultural tipping point in their lifetimes. It was the debate that would decide what civilisation itself stands for. Scopes’ ultimate fate meant very little to Darrow. In fact, he hoped that Scopes would be found guilty so that he could appeal to a higher court and argue the merits of the Butler Act there.

The verdict

In the end, the jury in the film, like the one in real life, returns a verdict of “guilty”. And, like the judge in the actual trial, the one in the film goes easy on the defendant, keeping in view the mood of the nation. Cates, like Scopes, is fined $100 and given no jail time. In a sense, both Bryan and Darrow got what they wanted. Bryan got a guilty verdict and, hence, a moral victory, even though he was displeased with the inadequacy of the sentence. Darrow got the opportunity to argue the validity of the law at the Tennessee Supreme Court.

In the film, as indeed in real life, the trial was not really about the case at hand but an opportunity to argue about differing viewpoints, the lawyers on both sides representing not the state and the accused, but two opposing schools of thought. The courtroom became a venue for debating ideology, a soapbox atop which each lawyer, acting as the spokesperson for his side, could stand and deliver loud and impassioned political speeches. So impassioned, in fact, that Brady quite literally screams himself to death. He collapses in the courtroom and dies of a “busted belly”. It is the death knell of an ideology whose time has come. In real life, Bryan had died five days after the trial was over. This too, is a minor liberty.

Charles Darwin, the title page of The Descent of Man and Selection In Relation to Sex (1871) and a figure from the book.

Charles Darwin, the title page of The Descent of Man and Selection In Relation to Sex (1871), and a figure from the book.

The film, therefore, takes all the liberties it deems necessary to make its statement. A lot of the complexities in the characters are done away with in order to reduce them from fully-fleshed people to mere archetypes, the nuances in the arguments and ideas presented are erased to tell a more straightforward story, and a number of important facts that are necessary to contextualise the story correctly are conveniently sacrificed to make a point. And what was the point?

If your answer to that question is something along the lines of “scientific and rational thought is superior to blind faith”, then you’re wrong. Inherit the Wind was adapted from a 1955 play of the same name written by Jerome Lawrence and Robert E. Lee. In an interview, Lawrence had said, “We used the teaching of evolution as a parable, a metaphor for any kind of mind control. It’s not about science versus religion. It’s about the right to think.” And why did the writers suddenly feel so compelled to make this point about the right to think? The answer, in a word, is McCarthyism.

McCarthy vs. Free Thought

In the late 1940s, Americans were gripped by the fear of that giant, looming, faceless threat advancing from around the globe: Communism. The Red Scare sent shivers down the spines of patriots and lovers of the American dream. In the 1950s, Senator Joseph McCarthy entered the scene, took that latent fear and whipped it up to the highest levels of mass hysteria and moral panic by painting communists as traitors and Soviet spies living among Americans and infiltrating positions of power and influence. He began a fearsome campaign to identify and convict them. Thousands of Americans would be publicly named, questioned, interrogated, and threatened based on next to no evidence. It was akin to being labeled a terrorist today – they were put on a watchlist, their private lives were investigated, they lost their jobs and became social pariahs. It was one of the darkest moments in modern American history, much like the Emergency was for India.

Joseph Raymond McCarthy, who served as a U.S. Senator between 1947 and 1957, was noted for his claims that there were large numbers of Communists and Soviet spies and sympathisers inside the United States federal government and elsewhere.

Joseph Raymond McCarthy, who served as a U.S. Senator between 1947 and 1957, was noted for his claims that there were large numbers of Communists and Soviet spies and sympathisers inside the United States federal government and elsewhere.

In 1953, Arthur Miller, who was investigated by McCarthy, used the 17th century Salem witch trials to make a lasting statement on McCarthyism in his play The Crucible. This inspired Lawrence and Lee to write Inherit the Wind. Speaking of the Scopes ‘Monkey’ Trial, Lawrence said, “We thought, ‘Here’s another time when there was a corset on your intellectual and artistic spirit.” It was, therefore, perhaps fitting that director and producer Stanley Kramer hired Nedrick Young, a blacklisted screenwriter, to assist in adapting the play for the big screen.

Fact and fiction

At the end of the film, it is revealed that Drummond is actually a practicing Christian. Hornbeck is taken aback and berates him strongly. Drummond says he pities Hornbeck and asks him, “You don’t need anything, do you? People. Love. An idea just to cling to. You poor slob. You’re all alone. When you go to the grave there won’t be anyone to pull the grass up over your head. Nobody to mourn you. Nobody to give a damn. You’re all alone.” Hornbeck replies: “You’re wrong, Henry. You’ll be there. You’re the type. Who else would defend my right to be lonely?” This Voltaire-esque reply is one of the most poignant parts of the film, and in a way, its most moving comment on the McCarthy era. The loneliness of having an unpopular opinion is frightening, but the right to have an independent thought is one that should be defended zealously. The film closes with Drummond picking up a copy of the Bible and Darwin’s The Descent of Man, thumping them together and walking out of the courtroom, showing in no uncertain terms that it is possible for two opposing ideas to live together.

The Tennessee Supreme Court overturned Scopes’ conviction on January 15, 1927, not on the grounds of the unconstitutionality of the Butler Act, but on a relatively minor technicality. Judge Raulston had imposed the $100 fine. However, under the constitution of Tennessee, any fine in excess of $50 has to be assessed by a jury. Reversing the lower court’s judgment, the Tennessee Supreme Court stated, “We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the State, which all criminal prosecutions are brought to redress, will be better conserved by the entry of a nolle prosequi herein. The Butler Act would remain in force for 40 more years. It was finally repealed on May 17, 1967.

Inherit the Wind is, therefore, a film about an actual trial, but it isn’t really about the trial. The actual trial was about a man who was accused of committing a crime, but it wasn’t really about the man or the crime. It was a platform for the voicing of opinions on larger questions. With the help of carefully planned and calculated moves made right from the beginning, the trial had ceased to be a process of dispensing justice and was turned into a dais for making political speeches. In much the same way, Inherit the Wind took the events and personalities that shaped the trial, shaved off the inconvenient bits that came in the way of the point it was trying to make, and ultimately presented an inaccurate version of what happened.

It is perhaps the only instance of the real trial being as much of a fiction as the celluloid trial.

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

Written by myLaw

Awara (1951) – The Courtroom as Ivory Tower

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

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

The context

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

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

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

SPOILERS AHEAD

The story

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

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

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

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

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

The conflict

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

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

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

The message

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

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

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

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

Written by myLaw

Trek to Everest Base Camp – Part 1

It was the month of April, and Delhi had become a cauldron. Tired of the circadian rhythm of city life and its dull quotidian routines, I yearned for some fresh mountain air. Borrowing a leaf from the colonial handbook, I decided to head for the mountains. My last sojourn to the Himalayas had been over two years ago, when I had wandered along the Sikkim-Bhutan Himalayas with fellow vagabond “The Shome”, and I could feel the itch again.

Kathmandu Valley seen from a Dornier 228.

Kathmandu Valley seen from a Dornier 228.

Mount Everest had fascinated me for a long time. Aside from its most obvious distinction of being the tallest peak on earth, referred to as the ‘third pole’, it has provided the scrim for some of the most fantastic stories of struggle and achievement; and not too infrequently, tales of doom and despair. It has the ability to inspire and terrorise at the same moment. Men the likes of Hillary-Norgay, Mallory-Irvine, Messner, and others had pitted their strength and wits against the mountain and forever etched their names on its slopes.

Mount Everest lies east of Kathmandu along the Sino-Nepalese border in the Sherpa valley of Solu-Khumbu region. There are two versions of the trek to the base camp of Everest. The original twenty-one day protracted route beginning from Jiri, lies a bone-shattering twelve hour bus journey to the east of Kathmandu. The more concise route beginning from Lukla (2860 metres), excises around a weeks worth of walking from the itinerary. The Lukla route has become popular during the last four to five years due to the existence of an airport housing a small short take-off and landing (STOL) strip, which provides a direct air-link with Kathmandu airport. However, the Lukla airport (renamed the Tenzing-Hillary airport around 2008) is not one for the faint-hearted and regularly features on lists detailing the most dangerous airports and landing strips in the world. The airport’s alarmingly small runway, which was recently asphalted, services small helicopters and twin turbo prop aircrafts, mostly Dorniers and Otters.

I booked my ticket to Kathmandu, packed my rucksack, negotiated my way around the lack of a passport, and soon found myself sitting in a quaint little café on a beautiful Saturday morning in the backpacker ghetto of Thamel in Kathmandu, a once unmissable stop on the world flower-power map of the 1970s. Following a government crackdown on this bohemian hovel in the late 1980s however, its beatnik status has withered. Thamel still survives as the unparalleled first stop for weary travellers in Kathmandu looking for cheap accommodation and food.

The resident touts of Thamel immediately sized me up to be a seeker of drugs, alcohol, women, or some combination thereof, and I was bombarded with propositions as I made my way into the back alleys looking for a place to stay. Finally, having rid myself of the pesky intercessors, I found a nice inexpensive room in Jochhen, or old Thamel. A quick shower later, I divested myself of my bags and plunged into the inchoate alleys pullulating with sights, smells, and a sea of humanity.

Kathmandu, despite its wonted pollution, population, and chaos, is a beautiful city filled to the brim with touristic sites and places of interest. I was not however, interested in any of those at the time and only had the trek in my mind. Even though I had managed to arrive in Kathmandu, I was still quite far away from being in a position to undertake my trek. I was still in lacking in provisions, permits, and tickets.

After getting lost at least thrice in Thamel market, I zeroed in on some travel agents and got busy organising permits and tickets. The travel agent while doing so also undertook an unsolicited audit of my preparation and back-up plans. “Are you trekking with a group?” No; “Are you trekking with a guide?” No; “Porters?” No; “Do you have travel insurance?” No; “Do you have any friends and family in Nepal?” No; “Do you know there are no roads in the Solu-Khumbu area?” Yes I do; “Are you carrying any altitude sickness medicine with you?” No; “Do you know there are virtually no hospitals in the region?” Well, now I do; “Are you willing to reimburse any expenses incurred in the eventuality of a helicopter rescue?” Umm… I guess so; “Do you know that there are no ATMs or banks anywhere on the trek?” Yeah, so I have heard; “Are you carrying enough cash? Do you know a bottle of water can cost up to 300 NPR on the trek?”; I think I’ll drink from the tap! After being catechised in this manner, I finally walked out of his office with a ticket to Lukla and an Individual Trekker’s Permit. I had another day of planning in hand and after that I’d be on my way to the Everest.

The next day was spent mostly in combing the market for essential gear such as gloves, jackets, thermals, a sleeping bag, and other requirements. After at least three shopping trips to the market, I finally spread everything around my room and started to pack carefully. I resisted my natural urge to just dump everything into my bag in a giant indistinguishable ball of “stuff” and instead packed diligently, maintaining a healthy centre of balance and utility. I finished packing and lay in my room to wait for either sleep or the electricity whichever came first.

The next morning, I awoke in a state of panic. I had woken up at eight in the morning for an eight-thirty flight. I hurriedly gathered my pack and hailed a cab for the domestic airport. I urged the driver to hasten through the morning traffic and violate every possible traffic rule on the way. I reached the domestic airport at about eight-thirty, dashed to the check-in counter, and hoped for the best. The lady at the check-in counter gave me a perfunctory look and informed me that due to inclement weather in Lukla and Kathmandu, all flights had been grounded and that there would be a delay in departures. For the first time since morning, a smile appeared on my face, and I settled into a broken chair at the extremely chaotic airport.

As the hours ticked by however, my initial delight turned to trepidation. The airport was filled with trekkers and climbers on their way to Everest, and the exasperation on their faces was palpable. Most had flown almost halfway across the world, arranged finances, put jobs on hold, and annoyed spouses and girlfriends in order to be able to undertake this trek, and the wait was clearly killing. Lukla is notorious for its mercurial weather and it is not unheard of that passengers have to wait for days on end sometimes, in order to have a clear weather window to fly in or out.

Finally, after about eight hours of waiting, the speaker cackled with the words I had been waiting for. “Passengers please note; Agni Airways Flight 112 to Lukla Airport is now ready for takeoff, Thank you”. I hauled my bags and finally made my way to the aircraft. My steed was a picayune Dornier 228 twin-turbo prop STOL aircraft, which had been bought by the present company from Tasmania Airlines.

A few minutes later, the aircraft’s propeller engines sputtered to life, and the aphid-like craft barrelled down the Tribhuvan airstrip and took off eastwards for the twenty-five-minute flight to Lukla. The Dornier slowly groaned over terraced green-top mountains and paddy fields. The craft can accommodate around twelve people with two pilots and one Namaste (a rather cheeky local term for the air hostess!). Soon the treacherous Lukla airstrip came into view, and a white-knuckled landing later, I was standing at the tiny Tenzing-Hillary Airport surrounded by magnificent views of the Kusum Kangru (6369 metres) range.

Lukla airport (above) is frequently rated among the world's most dangerous.

Lukla airport (above) is frequently rated among the world’s most dangerous.

At Lukla village

At Lukla village

Lukla is a small village and like most other villages that one encounters along the trek, is completely geared to cater to the horde of trekkers passing through. A great advantage that the Everest base camp trek offers solo trekkers is the option to stay in teahouses and simple lodges all through the route. Accommodation is simple and inexpensive, usually consisting of small bunks with rooms separated by thin plywood. This is a boon for trekkers who like to travel solo, but don’t really want to deal with the hassle of setting up camp every night and worrying about food and water after a hard days walk. Even though the accommodation is cheap, the food on the other hand can seem exorbitant, with prices steadily increasing as you head up the trail. This however, is due to the fact that since there are no roads in the region, almost everything has to be flown in at Lukla and then carried onwards on foot.

It was already pretty late and I had no option but to stay in Lukla for the night and begin my trek early in the morning. I took a small room in a friendly teahouse, ate some dinner, and logged out for the night. The trailhead was just at the end of Lukla town, marked by a small concrete arch dedicated to Pasang Lhamu Sherpa, the first Nepalese woman to climb the summit of Everest. The trail runs along the Dudh-kosi river and switches over it many times. It descends to the town of Phakding (2600 metres) while crossing numerous mani walls and images of Buddhist deities and scriptures etched onto various boulders.

(To be continued.)

 

(Jiten Mehra is a New Delhi-based advocate.)

All images are courtesy the author.

Written by myLaw

Curriculum can be tweaked to teach mediation theory and have practical sessions

AbhinavSekhri_NationalLawSchoolofIndiaUniversity

At every district court in Delhi today, you can see banners urging litigants to consider alternate methods for dispute resolution. Section 89 of the Code of Civil Procedure, 1908 empowers a court to send parties for an out of court settlement where it appears possible. Such a settlement may be arrived at through arbitration, conciliation, judicial settlement, or mediation. The preferred method, judging by the frequency of the banners, is mediation. Given the clear systemic importance given to this method, one must ask whether law schools are acting on this cue. I spoke with Suveni Bhagat, an associate at Khaitan & Co. Excerpts from our conversation follow.

Abhinav Sekhri: What was your exposure to mediation activities in law school?

Suveni Bhagat: I was the Joint Convenor of the Alternate Dispute Resolution (“ADR”) Board of my college for a year during college and actively participated in ADR activities like client counselling, negotiation, and mediation. I also undertook a course on negotiation and conflict resolution during my exchange spell at the Singapore Management University. Organisational experience apart, my first participation in a mediation competition came at the International Academny of Dispute Resolution (“INADR”) Mediation Competition organised by NLIU Bhopal in 2011. The INADR delegates from the USA undertook a two-day training programme for us, and I found out later that they are also involved in training the mediators at various district courts in India.

AS: How much value, according to you, does the law school environment attach to mediation activities as against other co-curricular ones? Where does it rank?

Suveni Bhagat

Suveni Bhagat, associate at Khaitan & Co.

SB: Well, while mooting and debating had independent activity-based committees across law schools, I wasn’t aware of ADR having the same standing. The ADR Board at NLS Bangalore was also part of another committee when I was the Joint Convenor. I think that is also a product of the nascent stage of the relationship between law schools and ADR competitions. There are very, very few mediation competitions organised in India and most of them had their first edition just 2-3 years ago. The growing popularity of these activities is bound to change that. Another thing I found problematic was the way in which students considered these activities ‘easy’ requiring little skill, as opposed to something like mooting. Of course you don’t need to read tons of cases for mediation, but there is a different kind of skill involved. Persuasion requires training and practice. The good mediators know a lot of different techniques and approaches, and are quick on their feet because they go through a lot of practice scenarios.

AS: What (if any) opportunities did the law school academic curriculum offer to students for learning mediation skills, both regular courses and credit courses?

SB: We did have a course on ADR in our third year. However, around 75% of that course was dedicated to arbitration, and the rest was spent on negotiation and mediation. We did have mock negotiation sessions, but not for mediation. I think the course did not provide any insight on mediation as a skill and how it works in practice. During my time at law school, there weren’t any credit courses on mediation.

AS: Currently, most law schools offer a course on court litigation. Do you think the current focus on imparting litigation skills should be relaxed to help students learn mediation skills?

SB: Not necessarily, because at least at NLS, that course taught various practical aspects of the entire legal process. But certainly I think the curriculum can be tweaked a bit to teach mediation theory and have practical sessions. The practical sessions are key, because mediation involves so much more than pure legal knowledge. It is more about handling advocates and their clients, trying to understand their requirements and resolve the issue, without imposing or forcing your own solution on them. This could be well supplemented with an increase in mediation competitions, which always do well to garner student interest.

AS: How do you think students would benefit from this skill-set in their different potential workplaces?

SB: I think the very obvious benefit would be to understand the role of the mediator and more Mediationimportantly, the role of an advocate in a mediation. Considering cases are sometimes referred by the court to mediation, I think it would definitely be useful for law students to know the role of an advocate in mediation is different from that in court, and that the approach has to be different in order to get the best results for the client. Moreover, I think possibly the most important skill set that students can learn from mediation and negotiation is to approach issues with a win-win attitude, as opposed to a win-lose attitude, as in many cases there are joint gains that can be reaped. Splitting the difference, as is commonly suggested by many people, is an approach that actually undermines the results that can be achieved for both parties involved. One of the other important things that it teaches is to focus on the problem at hand, and not the people, so you can avoid ego issues getting in the way of resolving a conflict. The important understanding that negotiation should be not be based on positions but on interests (the classic fight over an orange example) and that it is imperative that you separate the problem from the people to achieve the best results. Further, the skill set developed as a result of training in mediation regarding handling people and figuring out the solution would be useful in any potential workplace, as it would help in not only dealing with an opposite counsel or party, but also your own client and organisation. Overall, I definitely think that mediation training helps you achieve a more well-rounded approach to dealing with conflicts and the acquired skill set would definitely benefit students in their varied potential workplaces.

(Abhinav Sekhri is an advocate practising in Delhi.)

Written by myLaw

Football clubs to start living within their means

Malaga CF, a football club that plays in Spain’s La Liga, was banned from European competitions for twelve months by the Union of European Football Associations (“UEFA”) in December 2012, for violating its Financial Fair Play regulations. The Court of Arbitration for Sport has now upheld the ban. Daniel Geey, a European sports lawyer, spoke with us about these regulations.

Please scroll below to read the edited transcript of Mr. Geey’s talk.

While the UEFA Club Licensing and Financial Fair Play Regulations (“FFP Regulations”) have been in the news, there are domestic financial fair play regulations that are in place in the United Kingdom for the English Premier League, the U.K.’s top football league, and the Football League, the league below the top division.

UEFA is the governing body for a number of European football competitions and regulates them through rules that football clubs have to adhere to. In around 2009, UEFA made it necessary for clubs to live within their means. There was consultation with clubs through the European Club Association, the sole representative body of football clubs in Europe; players through FIFPro, a representative body of football players; national leagues; and other vested stakeholders in football to ensure that everyone had a say in how the regulations would be drafted.

The crux of the regulations is set out in the UEFA licensing criteria document, which includes what is called “the break-even criteria”, arguably the most controversial part of the FFP Regulations. It also sets out the aim of these regulations, which is primarily to ensure that clubs are breaking even.

In the widest sense, “break-even” is a situation where a club’s revenues equal its costs. There are a number of classes of revenues and costs that have to be considered for the calculation of revenues and costs for FFP compliance. Revenues, for instance, may include amounts received from another club for player transfers, stadium ticket attendances, television revenue, and other commercial sponsorships and arrangements. On the other side, a club’s costs include payments made to other clubs for transfers, wages, and other commercial and administrative expenses. Such classification of revenues and costs are important because a number of costs are excluded under the FFP Regulations to incentivise clubs to invest in the long-term and strategic elements and asset base of a club. The FFP Regulations therefore aim for greater rationality of club spending so that clubs organically grow their own revenues. This way, clubs are not completely beholden to either benefactor owners or mortgages on the club and to match their costs with revenues.

Malaga’s troubles

Very recently, Malaga Football Club lost an appeal before the Court of Arbitration for Sport (“CAS”) against a ban on its participation in European competitions for the next season. It was established before the CAS that at the time the club made its licensing application, it had payments overdue to other clubs, tax authorities, and players. UEFA had originally withheld prize money after it asked for additional information to ensure that those overdue payments had been made. Later, they also banned Malaga from next season’s competition. The CAS has now upheld this ban.

Benefactor owners and related sponsorship transactions

Manchester City, an English football club and Paris Saint-Germain, a French club, have entered into very large sponsorship deals with companies that some believe, are connected to the clubs. There is speculation that the reason for these sponsorship deals is to ensure that the club’s revenues are increased in order to cover their costs and comply with FFP. UEFA would have to, sooner rather than later, examine whether these transactions are “related-party transactions”. If so, FFP compliance would become more difficult.

FFP Regulations are now operational

For “break-even” purposes, the FFP Regulations are now in force. This will be based on clubs submitting their 2011-12 and 2012-13 accounts for the 2013-14 season. These two accounting periods will determine whether a club has complied with FFP Regulations.

Lesser sanctions

It is not correct to suggest that if a club breaches FFP Regulations, they will automatically be banned from European competitions. UEFA can choose from a number of sanctions that are proportionate to the behaviour that has occurred. “I am not convinced that for every instance of an FFP ‘break-even’ breach, that club will be automatically banned from European competitions.”

Not strict break-even

In the first monitoring period, which is this season, clubs can show up to forty-five million Euro in losses and still participate in European competitions. That figure is driven down in each subsequent season that a club has to submit its accounts for. In the next season, it is forty-five million Euros over three seasons, and in the season after that, it goes down to thirty million Euros over three seasons.

 

You can follow Mr. Geey on Twitter here or write to him on info@danielgeey.com.

 (Aju John is part of the faculty at myLaw.net)

Written by myLaw

On regulating campaign finance

Discussion about campaign finance has gained momentum with the general elections around the corner. Jhalak Kakkar, an analyst with PRS Legislative Research, spoke with us about the regulation of campaign finance in India and other countries.

The edited transcript of Ms. Kakkar’s talk is below.

During an election campaign, political parties and candidates require funding. An increase in funding could significantly enhance their electoral outcome and facilitate greater access to voters. Candidates therefore, have an incentive to collect higher levels of funding but this behaviour may have negative implications for good governance. Good candidates, unable to raise sufficient funds, may get blocked out of campaigning and the electoral process. Funds from private sources often come with strings attached and this may result in elected politicians taking decisions that benefit special interests rather than the larger public interest. Politicians in power may in turn exert pressure on potential sponsors to contribute to the electoral campaign. Now, to restrict these adverse possibilities, most democracies regulate the financing of election campaigns.

Campaign finance is regulated around two aspects — (1) individual and group contributions to the electoral campaign funds of both candidates and political parties, and (2) expenditure by candidates and political parties. Both expenditure and contributions are kept in check is by disclosure requirements placed on candidates and political parties. There are civil and criminal penalties for the contravention of these regulations. The framework for regulating campaign finance in India is contained in the Representation of Peoples Act, 1951 and the Conduct of Election Rules, 1961.

Regulating campaign contributions — individuals, groups, and direct public funding

Contributions can come from three broad sources — direct public contributions, individual contributions, and group contributions including those from companies, societies, and trusts. Indian regulations focus largely on contributions by individuals and companies.

Individual contributions: There is no limit on the individual contributions that can be made. This is similar to the position in the U.K. It is interesting to note that in the U.S. and in Canada, there is a limit on individual contributions.

Group contributions: Group contributions and contributions made by companies are regulated under the Companies Act, 1956. Corporate contributions have to be capped at five per cent of the company’s average net profits during the three immediately preceding financial years. Incidentally, in the U.S., there is a ban on direct campaign financing by corporates, banks, and unions.

Foreign contributions: There is also a complete ban on foreign contributions to candidates and parties under the Foreign Contribution Regulation Act, 2010.

Disclosure requirements: Political parties have to disclose all contributions received by them and file them in their income tax returns. A donor, who has contributed more than Rs. 20,000/- has to be disclosed, and these disclosure requirements are largely in line with international practice.

Direct public funding: There is no direct public funding of campaigns in India. There is indirect funding for parties through the allocation of time on television and radio networks for campaigning. The time allocated is proportional to their performance in past elections. In addition, pre-electoral rolls and other documents are distributed to political parties.

Countries like Canada, U.K., and France have varying levels of direct public funding for elections. In India, the question of whether we should move towards a system of direct public funding for electoral campaigns has been debated time and again — for instance, by the Santhanam Committee in 1964 and the Wanchoo Committee in 1971 — especially given the concern that there is a significant flow of black money into campaign financing. The Law Commission in 1991, and the Administrative Reforms Commission in 2007 agreed that there should be partial state funding of campaign finance. On the other hand, the National Commission to Review the Working of the Constitution cautioned that state funding should be deferred until there is a fool proof regulatory system that will check violations by political parties of the financial limits that have been set and that this should be broadly subject to the effective functioning of political parties themselves.

Regulation of campaign expenditure

There are limits to the campaign expenditure that can be made by a candidate. At the Parliamentary constituency level, the limits vary from ten lakh to twenty-five lakh rupees from state to state and at the State Assembly constituency level, it varies from five to ten lakh rupees. Incidentally, there is no limit on expenditure for propagating the party. Any other expenditure by the party however, is deemed to have been made by the candidate.

Different countries have addressed this question differently. The U.S. does not have any restriction on campaign expenditure. The U.K. has placed restrictions on campaign expenditure by a political party but not on campaign restrictions by a candidate. There are certain disclosure requirements though, at the campaign contribution level and at the campaign expenditure level.

The Election Commission of India maintains a check on campaign expenditure. Candidates have to lodge expenditure accounts with the District Election Commissioner within thirty days of incurring the expenditure. Secondly, candidates to disclose their income and assets to the Election Commission of India, which puts those details up on its website.

Penalties

There are civil and criminal penalties for non-compliance with both contribution and expenditure regulations. If a candidate has failed to lodge election expenses or has spent more than the permitted amount, he will be disqualified. If a company has made contributions in excess of the specified limit, they will be fined up to three times the amount contributed. A person who accepts foreign funding even though it has specifically been banned can be imprisoned up to five years, or fined or both.

 

(Aju John is part of the faculty at myLaw.net)

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Why we need pre-legislative scrutiny

Last month, a Working Group of the National Advisory Council (“NAC”) recommended a pre-legislative process for all Central government draft legislation. The recommendation announced that it would try to “move in the direction of creating institutionalised space for people’s participation in the formulation of legislations in a systematic manner”. Mandira Kala of New Delhi-based PRS Legislative Research spoke with us about these recommendations.

The edited transcript of Ms. Kala’s talk is below.

Pre-legislative scrutiny involves the examination of bills and legislation before they arrive in Parliament. Mandira Kala said that the questions discussed by the NAC included what kind of information should be made public when a ministry is drafting a Bill, the kind of consultative process that should accompany a draft law, and who should be involved in such a process. The note discussed the importance of pre-legislative scrutiny, especially by citizens and highlighted the fact that citizens of India were rarely able to access information on the legislative proposals from different ministries.

“Typically, this happens within the ministry and the bureaucracy and is not a very consultative process in terms of engaging with different stakeholders and different constituents. As a result, if the government is thinking about bringing in law on land acquisition, we would only know about what kind of law the government is thinking of, when it made it to Parliament.” Another peg in the NAC report is Section 8 of the Right to Information Act, 2005, which talks about pro-active disclosure by the government. Laws and rules made under different legislations is one aspect of it. Some of these issues were also addressed by the Financial Sector Legislative Reforms Commission, which looked at the overhaul of financial sector regulation.

Referring to the current debate on disruptions in Parliament, she said that legislation tends to pass quickly and without effective examination. In the U.K. Parliament, Ms. Kala noted, the government brings out a calendar of the important legislative matters that they propose to enact. “We only get to know this when a Parliament session is starting up. In this session for instance, land acquisition and food security were big bills. If there was a Parliamentary calendar, or a calendar of pre-legislative ideas, then it would be useful for citizens to start thinking about the legislative priorities of the government and how they can engage with it.” That kind of an exercise goes into strengthening the ultimate bill, she said.

There was a consultative process before the current food security bill was brought into Parliament. “The ministry had circulated a draft of the bill for comment and several people had given their comments but when the bill was produced in Parliament, there was no clarity on what kind of comments the government considered, what was the substance of the responses, and what issues were being addressed.” Ms. Kala said that the government could state the problem they were seeking to address with a particular law, their opinion about the most effective way to solve the problem, and the issues up for debate in an explanatory memorandum for bills brought in after pre-legislative scrutiny.

Had there been such an explanatory memorandum to the National Food Security Bill, 2013, Ms. Kala argued, it would have mentioned the existence of the Public Distribution System, discussed whether it had worked, and discussed the best way to allocate food resources to those who need it. Such cost-benefit analysis is an important part of strengthening the pre-legislative process. Currently, none of that happens.

Pre-legislative scrutiny could also reduce the likelihood of subsequent amendments to legislation. The government would have thought through the draft law with more care and more consultation with stakeholders and political parties. “It would be more of a consensus building process from the very beginning rather than a controversial and at times hostile process that happens when Parliament considers passing the law.” Ms. Kala added that this would not be entirely new for the government. Some laws require that draft rules under those laws should be placed before the Parliament before they are enacted. The important part of the pre-legislative process is the documentation of the costs and benefits of the proposed legislation and how the proposed intervention in a policy problem is expected to work out. If these guidelines are published ahead of the legislation coming in to Parliament, citizens and stakeholders will be able to engage more fruitfully in the law-making process.

 

(Aju John is part of the faculty at myLaw.net)

Written by myLaw

“Nothing wrong with setting high standards of patentability”

On April 1, 2013, the Supreme Court of India upheld the decision of the Intellectual Property Appellate Board to deny patent protection to the beta crystalline form of imatinib, the compound marketed by pharmaceutical giant Novartis as Glivec, a popular drug for fighting certain forms of cancer. In the Supreme Court’s judgment, the modification made to imatinib did not satisfy the standard of inventiveness required under Indian patent law. Srividhya Ragavan, a Professor of Law at the University of Oklahoma College of Law, spoke with us in this context about the standards of inventiveness required under various patent regimes.

Scroll below to read the edited transcript of Ms. Ragavan’s talk.

Imatinib was patented in the United States in 1993. In 1998, when India had the mailbox facility in its patent law because the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) required developing countries to institute a mailbox facility during the transition to the TRIPS standards, an application was made to patent the mesylate form, which is the form of imatinib treated with methane sulphonic acid. When India eventually transitioned to the new patent regime in 2005, the Indian Patent Office looked at the patent application for imatinib mesylate. At that time, the generic drug makers opposed the patent application as lacking the “efficacy” requirement, which is necessary under Section 3(d) of the Patents Act, 1970 after it was amended in 2005.

The inventive step

Section 3 of the Indian patent statute outlines exclusion from patentability. Anything that falls within Section 3 cannot be patented. “In the U.S., it would probably have been something called a threshold requirement. This basically means that you would look at the requirements of Section 3 first and then look at all other aspects of patentability, that is, novelty, utility, and non-obviousness. In India, we look at Section 3 almost always after looking at the non-obviousness step. We call it the ‘inventive step’ here and we look at it after we determine that the invention is useful, novel, and non-obvious.” Section 3(d) states that the discovery of a new form of a known substance cannot be patented unless it shows “increased efficacy”. A new form of a known substance could be anything from a salt form to an ester form or from a pure form to a metabolised form or a mixture of isomers, all of which are examples given in the statute itself. None of these can be patented unless it also results in increased efficacy. Now courts have basically said that the term “increased efficacy” means “increased therapeutic efficacy”. It is not enough that there is non-therapeutic efficacy, for instance, if the compound is more bio-solube. “The only exception is if it differs significantly in properties.”

In the Novartis application, after looking at the “inventive step” criteria, the court looked at whether imatinib mesylate exhibited increased therapeutic efficiency compared to imatinib itself. “That is the one point that most people miss. You don’t look at imatinib mesylate independently. You look at along with Novartis’ earlier invention, the free base of imatinib.” Ms. Ragavan highlighted two points made by the court — firstly, that proof as to whether there is increased therapeutic efficacy will be sought on strict and narrow standards, and secondly, that properties inherent to that form would not qualify for enhanced therapeutic efficacy. “So basically, if the new form is a salt form, you cannot say that it is more soluble in water. That won’t help. You have to show that the more soluble form has more curing or therapeutic properties compared to the earlier patent.” Considering this, the court said that it was not patentable, and with that, Novartis hit the wall. They tried arguing that Section 3 itself was not TRIPS compliant and the court did not agree to that.

Secondary patents — Pfizer and Schering

Finally, Ms. Ragavan said, we can say that India will not allow patents for what are known as “secondary patents” in the United States. In the United States, “secondary patents” are allowed under some circumstances, that is, if you can prove “enhanced utility” from the base compound. When “secondary patents” are questioned, the question, almost always, is whether it exhibits enhanced utility. In Pfizer v. Apotex, Pfizer, an originator company, sued Apotex for infringing a patent on the besylate form of amlodipine, which was used to treat hypertension and forms of angina. Apotex alleged that Pfizer’s own earlier patent on amlodipine anticipated the latter patent on the besylate form. The Federal Circuit agreed with the generic drug company and said that the besylate form lacked enhanced utility.

Schering v. Geneva is another case where the court held that the later patent was not patentable in view of Schering’s own earlier patent on its drug, claritin. These are some cases where the court has not allowed “secondary patenting”. In Schering however, the court said that if you can claim appropriately, then the United States is not per se opposed to patenting secondary material. As a jurisdiction therefore, the United States is not opposed to patenting secondary material. “India however, because of Section 3, is clearly opposed to the patenting of all kinds of secondary material. How does it make a difference? Secondary patents are usually obtained when there is a primary patent on a free base. In Novartis’ case, it was imatinib. Much later, after continuing research, a second patent is taken on another form of the free base. It is usually a mesylate form, a besylate form, a salt form — a variation of the free base. Because it is a variation, it takes some new properties that are particular to that form. If it is treated with methane sulphonic acid, it takes some properties from that acid, or if it is treated to get a salt form, it takes some salt properties. Nevertheless, the basic properties remain the same time. Now how does it help these companies to pack patents one above the other? When the patent on the free base expires, it allows the company to continue to hold the market using the secondary patent for much longer than the original intended form, a concept that we call “evergreening”.

The Schering case is interesting. The original patent was for a compound called loratidine. The second patent was for the metabolite created in the patient’s body when the drug reacts with the acids in the patient’s body. Once the original patent on loratidine expired, Geneva, which is the generic drug company, wanted to create a generic form. Schering argued that while Geneva can create a generic form of loratidine, because of the patent for the metabolite form, every time a patient ingests loratidine, an infringing compound would be produced inside the patient’s body, and therefore, Geneva would be contributing to an infringement. Geneva sued Schering and argued that the second patent was invalid in light of the earlier patent. The Federal Circuit Court agreed with the generic drug company and held that the later patent was invalid. This is the situation in the U.S., which allows secondary patents. The concept of ‘evergreening’ is an increasing concern because of the length of time that the patents are held by the originator companies. To some extent, I would say that in the U.S., it has caused what is called “reverse payment settlement”, where the originator company pays the generic drug company to not introduce the generic drug for five years after the payment has expired. This is an attempt to use the law of contract to extend their monopoly for longer than intended by the patent law. It is yet to be determined whether these agreements are valid.

Come to India. Get your gold standard biotech patent.

There have been two types of responses to the Supreme Court’s decision. One has been that the judgment and Section 3(d) are fantastic. India, known as the “pharmacist of the world” because of their generic drug capability, has taken the lead in looking at the Doha Declaration and ensuring its dominance in the generic drug field. “I look at it as, it is hard to get a biotech patent in India but if you do get one in India, it is gold standard. This means that you have crossed pretty much every threshold.” India is not the only country to have done this. Only fourteen per cent of the patents granted in the U.S. would be granted in Japan. There is nothing wrong with a country having a higher standard. Further, other developing countries can follow this, establish a higher threshold, and have provisions like Section 3(d). The biggest benefit of this is that you allow competition. Since imatinib besylate is not patented, generic drug companies can create different versions of the same drug and put that in the market, which means that you will get the drugs at a competitive price. That is one line of thinking.

Come to China. Get many patents.

The other line of thinking is that what India is doing is absolutely unacceptable. By keeping a higher threshold, they are not allowing companies that invest a lot in research and development to stack these patents. Companies that stack these patents are typically those that are ready to invest in research and development and therefore the Indian patent regime is not conducive to innovation. This theory basically equates the number of patents with innovation — the more patents there are, the more innovation there is. So if there are fewer patents, there is lesser innovation, which leads to less money spent on research and development, which leads to lesser foreign direct investment. The United States subscribes to this view and it is home to a lot of innovator companies. This is part of the reason why the Special 301 Report is so critical of India in general and the Novartis case in particular. “The people who criticise India’s stand on intellectual property tend to think that China is doing a better job, partly because China is the leader in the number of patent applications.” China has a subsidy for patent applications, which encourages people to apply for more and more patents. The number of patents granted is also much higher. Innovator drug companies are trying to shift at least a part of their operations to China because they feel that they can get enough patents and prevent copying. However, when you stack minor patents, for instance, a patent on imatinib, another patent on the besylate form, another patent on the mesylate form, and another on the salt form, it diminishes the value of each individual patent. “The wriggle room you get is very less. Once there is a separate patent on the besylate form, the original patent holder has rights only over the original imatinib because the besylate form is covered by another patent. It shrinks the area of each patent. By doing that, it improves competition.” The beautiful part about China and India now is that they are taking exactly the opposite roads to reach the same end goal, which is to improve competition. China too has a lot of competition in the pharmaceutical market. Obviously, this increases the price of basic research because the more you do research, the more you stumble upon patents that slow your research down, which increases costs for the consumer. Ms. Ragavan said that a lot of scholars now believe that the U.S. system should look at India instead of diluting itself by allowing many, many, minor patents.

 

(Aju John is part of the faculty at myLaw.net)

Written by myLaw

Recruiter’s dilemma

By Sabareesh Gopala Pillai

Vice-President Hamid Ansari with the Indian Administrative Service probationers for 2010. Image above is from the website of the Press Information Bureau.

Vice-President Hamid Ansari with the Indian Administrative Service probationers for 2010.
Image above is from the website of the Press Information Bureau.

There was opposition from various quarters to some of the major changes to the Civil Services Examination (“CSE”) announced in a recent Union Public Service Commission (“UPSC”) notification. Protests in Parliament were vocal and the Centre acted quickly to place the notification in abeyance.

The CSE comprises the preliminary — objective-type — examination for the selection of candidates for the main examination, and the main — written and interview — examination for the selection of candidates for the various services and posts under the UPSC. The first, known as the Civil Services Aptitude Test (“CSAT”), consists of two papers of multiple choice questions for a maximum of four hundred marks. This examination is meant to serve as a screening test since the marks obtained in the CSAT by candidates who qualify for the main examination, are not counted for determining their final order of merit.

The main examination consists of a written examination and an interview test. Until the notification came about, the written examination consisted of nine papers of conventional essay-type questions that could be attempted in any language listed in the Eighth Schedule of the Constitution of India. These included two General Studies papers common to all candidates, two papers based on two subjects each that had to be chosen from a list of subjects provided by the UPSC, a general essay paper, and two qualifying papers of English and a language to be chosen from the list that consists of thirty Indian and other languages. Apart from the compulsory language papers that would not matter to the final rank of the candidates as they merely served the purpose of qualification, the seven other papers were worth three hundred marks each.

Candidates, who obtain a certain minimum mark in the written examination, are called by the UPSC for an interview, which also carries three hundred marks. Marks obtained by the candidates in the main examination (written and interview parts) would determine their final ranking. Candidates will then be allotted to the various services keeping in view their ranks in the examination and the preferences expressed by them.

One of the most significant changes in the recent notification was the introduction of English as a compulsory paper worth one hundred marks. Previously, English had merely been a qualifying paper without any weightage in terms of marks. The move has been seen as an acceptance of the fact that basic proficiency in English was an essential skill to govern in a modern day bureaucracy. In Parliament however, emotionally charged slogans such as “Angrezi me kaam na hoga, Phir se desh ghulaam na hoga” (“There will be no work in English; the country will not be a slave again”) were raised.

Secondly, the notification introduced a new condition for candidates who wanted to choose a regional language other than Hindi as their language of taking the examination and for candidates who wanted to choose a regional literature subject among their optional papers. The condition was that the candidate must have graduated in the study of that language. As part of these proposals, the number of optional papers was also reduced to one. They also introduced a new condition that for a candidate to be able to choose a subject of regional literature as an optional subject, at least twenty-five people should have made the same choice. This provision appears bizarre since it decides a candidate’s fate on the basis of how other people choose their language of examination.

The UPSC seems to have been motivated by the desire to create a level playing field and to respond to a tendency among candidates to flock together on regional literature papers because of the perception that the evaluation of those papers would be more liberal since the evaluator would be a person from the same state as the candidate. An overwhelmingly large percentage of students choosing regional literature as their optional paper come out successful every year. Further evidence that the UPSC was motivated by similar reasons can also be observed in the removal of Pali from the list of optional subjects in light of the proliferation of coaching institutes that have “manufactured” successful candidates after offering month-long courses in the optional language subject of Pali. Further, subject experts such as a professor of psychology may not be comfortable evaluating papers in some regional languages and this would set different standards even among candidates who have chosen the same optional subjects.

The academic fraternity and rights organisations have argued that the new pattern “systematically discriminates against candidates who use Indian languages either as medium of examination or as a subject” and that “this decision is not just unjust and unfair, it goes against the spirit of democracy and swaraj that inform our republic.” On the other hand, some senior civil servants wholeheartedly welcomed the UPSC’s reforms, stating that it was necessary to recruit people who can structurally fit into a bureaucracy that has constant interaction with not only different parts of India but also the rest of the world. English is a great unifying force among people from different parts of the country and even overseas. The Common Aptitude Test conducted for admissions to the IIMs, where English is given about one-third weightage, was a commonly cited example. The Bank Probationary Officers Examination, which recruits people to public sector banks, also gives English prominence. English would be a very vital skill for future bureaucrats in many Central services.

It needs to be noted however, that the CSE not only includes the Indian Administrative Service, the Indian Police Service, and the Indian Foreign Service, but about twenty other Central services from Revenue to Railways. Some of them, like the Indian Foreign Service, would definitely require people who are good at English, but in others like the Indian Police Service, that would not be a necessary criterion. Separate examinations would probably be an innovative solution in the current context.

As the premier recruiting agency of the Government, the UPSC faces the fundamental dilemma of choosing between two direct beneficiaries of its policy decisions. On the one hand, the Commission should consider the changing needs of an old bureaucratic apparatus that is under pressure to change and perform differently in a globalising world. On the other hand, it is much more than a corporate manpower consultant. It is a constitutional body working under a democratic government. The genuine aspirations of the young adult population, speaking different languages and belonging to a wide and varied spectrum of society should also be considered. In the long run, even though one compulsion here would ultimately feed the other, justice would not be done to a large section. There is also the risk of alignment of the social profile of future bureaucrats in favour of the current elite. Perhaps we can hope that when our democracy becomes more advanced and the majority of our young adult population and not just the urban middle class, become equally proficient in the qualities acceptable to ideas of modern day global governance, the demand that such changes are essential for the Indian civil services, would have a wider appeal.

Written by myLaw