Categories
Litigation

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

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

Discovery under the CPC

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

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

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

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

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

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

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

Bar raised by Commercial Courts Act

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

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

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

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History Lounge

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.)

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Litigation Lounge

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

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

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

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

Categories
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.