Tuesday, July 17, 2012

Disincentives to Bad Litigation

Today morning I had an epiphany about the Indian judicial system.  I realized that there is a formidable class of people which is strongly opposed to any reform in the dispensation of justice in this country, and that that is why judicial reforms are at a stand-still and why we are seeing more and more draconian laws (since normal laws are proving ineffectual).

It is common knowledge that the Indian courts are clogged with millions of pending cases, with some trials going on for more than three decades.  Civil suits go on even longer.  There have been many studies and recommendations on how to resolve this mess, and how to make the theoretical "right to speedy trial" a reality in this country, but to little effect.

Having experienced the Indian judicial system at close hands, I find that most judges do not penalize the litigants enough for wasting the time of the court.  If only they started imposing heavy costs and punishments to litigants and their lawyers for obstructing the course of justice through frivolous and mendacious petitions, appeals and affidavits, I am quite sure the number of new cases will come down drastically.  But that doesn't happen.

Contrast this with the speed of trials in United States, and the fact that most judgments do not go through an appeals process.  Litigation in the United States is an expensive proposition, and the courts frequently award litigation costs to the winner of the case, in addition to levying punitive damages on the loser.

There is a difference between fighting a case in good faith, and trying to subvert the administration of justice by filing an appeal on every little decision.  Consider the trial of the Aarushi murder case.  The accused in this case are appealing every little decision of the trial court.  If the trial court summons them, they appeal it.  If a witness is to be cross-examined, they appeal it.  And if nothing else, they appeal to shift the place of trial itself.  All these appeals take time to adjudicate, and the trial languishes.  People who are astute in filing such appeals can delay the final decision for decades.  Till then, injustice continues to thrive, and the other party usually gets exhausted and gives up on the fight.

I think there are three very strong reasons why Indian courts do not impose costs on litigants and lawyers.  And all three reasons are linked.

The first reason is that judges are ex-lawyers, and they generally refrain from criticizing or disciplining their own kind.  Even when there is clear evidence of false affidavits or vexatious litigation, the judges do not pass a stricture against the lawyers.  Lawyers oppose tooth-and-nail any reform in the judicial process if it hurts their business (for example, the non-requirement of a bail application in any offence carrying a maximum sentence of less than seven years), they go on flash strikes and shun work and nary a stricture is passed against such thuggish bar councils by the judges.  (As a digression, professional bodies in India are, in general, not for regulation and ethics, but for protecting their own interests.  As another example, the Medical Council of India (MCI) in its entire history has not dis-affiliated even a single doctor for any malpractice.)

The second reason is that lawyers clearly gain from more and more cases being filed in courts.  Every appeal, every application, every affidavit has a cost for the litigant, and a benefit for the lawyers.  And it is therefore to the lawyers' advantage that the possibility of appeals and revisions be kept alive.  If a decision is to be considered final, then that cuts the cash stream to the lawyers from the future cases.  So, the judiciary (which is friendly to the lawyer community) is loath to reform the process so that appeals and revisions are disallowed.  This also means that the justice administered is mostly shoddy, since the judges know that their mistakes will probably get corrected in the higher courts.  If someone does a study of how many decisions of Indian courts are overturned due to a revision or an appeal, one might be appalled.  Even the decisions of High Courts are routinely criticized by the Supreme Court for failing to apply basic common sense.

If the courts start imposing heavy costs on losing litigants (including on the government, which is perhaps the largest litigant in India and which is only too happy to appeal every judgment that goes against it), I think people will think twice about filing or fighting a case or about appealing a judgment.  Also, an overturned decision (under appeal) must mean a career setback to the original judge.

The test of whether a petition is frivolous, bad in law, or an attempt to delay justice is not easy.  Given that Indian courts routinely contradict each other and their own past judgments, any capable lawyer can find enough grounds to appeal a decision.  I think there needs to be a massive exercise of obtaining consistency in Indian case law.  Till that happens, justice in India is a roll of dice, based on which cases you can cite, how forcefully you argue, and the mood of the judge.

The third reason is that most litigation costs are paid under the table.  Lawyers are champions in taking heavy fees and not paying any taxes on their income.  I haven't heard of any lawyer who routinely issues receipts for his fees.  If one does a study on income tax returns of Indian lawyers vis-a-vis their lifestyles and possessions, one will be quite amused.  Of course, since the authorities need a lawyer to litigate for evasion of income tax against another lawyer, this practice is going to continue.  One solution could be the use of foreign lawyers by the Income Tax department, but foreign lawyers are not allowed in India, to the obvious benefit of the lawyer lobby.

Due to this black economy, the winner's litigation costs on paper are negligible and therefore there is no point to awarding of litigation costs to him.

Due to these reasons, there is every incentive to file/appeal a case in India and no cost/punishment if one fails in one's attempt.  One must look at these perverse incentives, and reverse them, if there is to be efficient justice in this country.

Thursday, July 05, 2012

The Promise of a Promise

Marriage is a promise to do and not do certain things.  Whether one realizes it or not, by marrying, one implicitly agrees to thousands of regulations and case law about property division, alimony, child custody, maintenance, "conjugal rights", bar on sexual intercourse with anyone else, and so on.

Marriage is not just a piece of paper, it is a legally enforceable contract with the modern state especially interested in enforcing it.
In most modern cultural settings, before one decides to commit to getting married, there is a period of courtship and "getting to know each other".  
During that period, depending upon the cultural mores, there is a degree of physical intimacy up to and including sexual intercourse.  Sexual compatibility is considered a major factor in deciding to get married to someone.  In US and most parts of Europe, sex is a natural part of dating.  It is becoming so in urban India as well.
The very purpose of dating and courtship is to determine whether a long-term bond is realizable or not.  That long-term bond may eventuate into a state-sanctioned legal contract ("marriage") or it may remain informal (a "live-in").
In recent times in India, there is a growing tendency for grown, literate women (air-hostesses of Mumbai seem to be topping the charts here) to cry "rape" when a man they were involved with refuses to eventually sign the marriage contract.  I call this a travesty.
The Indian High Courts are conflicted on this issue (the Bombay High Court clearly saying it is not rape), and the Supreme Court of India seems to side with the rape interpretation, while the case law is confusing.
Interpreting a "false promise of marriage" as "rape" is just another nail in the coffin of men's rights in India.  Of course, the police is only too happy to register such cases and arrest the accused, as they are scared of the wrath of the feminist NGOs in case they refuse.
In my opinion, it is rape only if the raped person was coerced, intimidated or drugged.  Inducing wistful daydreams, promises of everlasting love, and suchlike, is the very stuff that romance is made of.  A romance not culminating in a contract is NOT a crime, it is a failure of compatibility, an emotional tragedy, a breaking of hearts, but it is NOT a crime.

If a woman alleges damages (loss of reputation, loss of virginity, pregnancy, etc.), then there are two questions to be asked:
1. Assuming the age of consent is not an issue, whether the sex was consensual.
2. Whether the sexual partners knew that the legal contract of marriage had not been signed yet.  That is, there was no misconception that the marriage of some sort (say, at a temple) had already taken place.

If these two conditions are satisfied, then there is neither cheating, nor rape, nor can there be any question of exploitation. If the first condition is not satisfied, it is rape.  If the second condition is not satisfied, then it is cheating.
If the woman is indeed wanting to protect her reputation and virginity, then let her withhold physical intimacy till the man signs the contract.  If she is unwilling to get pregnant, let her use the pill or insist on safe sex.
If she is an adult, she should know the consequences of her actions and the law should not become a white-knight excusing her own culpability in the matter.
On the other hand, if she is not to be treated as an adult, then how can anyone even marry her?  Then, she must be considered developmentally challenged, and treated at an appropriate facility.  If she is an adult, then she, and the concerned police officials, must be tried for harassment and for making a false complaint.
A marriage is a promise.  There cannot be a promise to make a promise.  It is not a breach of contract to not sign a contract.  It is as simple as that.

Monday, July 02, 2012

The Sensitive Robot

In the year 2240 AD, robots were in widespread currency.  The most common model was the HS-2122 android.  It was mass produced, and it was a bipedal humanoid.  It had sensors for the usual stimuli, and it also possessed a special sensor for detecting a "tough" situation requiring an amplified energetic response.

Serial number 00F0CD1 of the HS-2122 robot series had been manufactured with a malfunction.  It was too sensitive to "tough" situations and quickly exhausted itself in trying to resolve them or of computing of ways to avoid them.

It was sent to a repair facility for fixing.  The repair facility was curiously named as Android Servicing, Hotfixes, Repairs And Modifications (or in short, ASHRAM).

The facility in-charge was new to his job.  He quickly diagnosed the problem, and inserted a resistor between the input circuits and the tough-situation-handling-module.  The resistor had been designed to make sure no circuits in the HS-2122 series got heated up.

However, the resistor had a strange consequence.

00F0CD1 no longer considered the external situations of any import at all.  It became focused, instead, on the inward module which was processing the inputs.  It continued to process the inputs till the inputs became mere noise and there was nothing left to respond to.  It was very concerned about preserving the health of its circuits.  In fact, that became its sole concern.

00F0CD1 became unfit to operate in general planetary habitations but was instead allocated to live in the Zero Expenditure Nebula (the ZEN nebula, that's what they called it).  In that nebula, very little energy was consumed, and there was no situation which even demanded a heightened response activation.  There were other robots like him in the ZEN nebula and they all possessed excellent, glowing batteries and shiny exteriors.

However, as with the rest of his batch, he was retired at the end of its thirty year life-cycle.  The high-point of 00F0CD1's existence had been its production of a four-line poem, which it called a Systematic Utterance of Truthy Repeatable Assertion (SUTRA, in short):

The Planetary Realm was a mess,
I wanted it less and less;
In ZEN true peace and happiness lie,
It is not important how you live, but how you die!

Mortality, and Pleasure

I have found this parable repeated in many Eastern spiritual traditions, and my erstwhile Guru was also fond of telling this to nirvana-seekers.  People used to nod in understanding, but this is a complex parable.  While it is easy to be self-righteous and condemn the desperate hedonist in this tale, perhaps a more nuanced response is called for.

Here's the parable, as told by Leo Tolstoy in his A Confession:

There is an Eastern fable, told long ago, of a traveller overtaken on a plain by an enraged beast. Escaping from the beast he gets into a dry well, but sees at the bottom of the well a dragon that has opened its jaws to swallow him. And the unfortunate man, not daring to climb out lest he should be destroyed by the enraged beast, and not daring to leap to the bottom of the well lest he should be eaten by the dragon, seizes s twig growing in a crack in the well and clings to it. His hands are growing weaker and he feels he will soon have to resign himself to the destruction that awaits him above or below, but still he clings on. Then he sees that two mice, a black one and a white one, go regularly round and round the stem of the twig to which he is clinging and gnaw at it. And soon the twig itself will snap and he will fall into the dragon's jaws. The traveller sees this and knows that he will inevitably perish; but while still hanging he looks around, sees some drops of honey on the leaves of the twig, reaches them with his tongue and licks them. So I too clung to the twig of life, knowing that the dragon of death was inevitably awaiting me, ready to tear me to pieces; and I could not understand why I had fallen into such torment. I tried to lick the honey which formerly consoled me, but the honey no longer gave me pleasure, and the white and black mice of day and night gnawed at the branch by which I hung. I saw the dragon clearly and the honey no longer tasted sweet. I only saw the unescapable dragon and the mice, and I could not tear my gaze from them. and this is not a fable but the real unanswerable truth intelligible to all. 
The deception of the joys of life which formerly allayed my terror of the dragon now no longer deceived me. No matter how often I may be told, "You cannot understand the meaning of life so do not think about it, but live," I can no longer do it: I have already done it too long. I cannot now help seeing day and night going round and bringing me to death. That is all I see, for that alone is true. All else is false.
The awareness of finitude and mortality is the starting point of many a philosopher.  Knowing that death is the inevitable conclusion of life, how is one to approach pleasure, suffering and meaning?  If it all has to end, and it is all meaningless, then it is very possible that the trials of life can feel excruciatingly intolerable, and the pleasures puny and laughable.

It is easy for Eastern spirituality to deride seeking what is pleasant ("preya") and exhort living for that which is Higher ("shreya").  Inescapably, the Higher gets defined as transcendence and as freedom from the temporal realm.

But rejecting any notion of non-temporal realms or of transcendence or of Nirvana, how should man approach the fact of death and mortality?  Should he become a child, live in the present, and enjoy the occasional sensuality?  Should he be a distraction-chaser and seek to get wound up and then indulge in "unwinding"?  Should he just give up on fulfillment, and live bitterly?  Should he kill himself?  Should he seek to create a better state of affairs for humanity, knowing that death awaits even those oppressed beings, no matter how liberated they might get in the world?

Should one clean a hotel room and keep it tidy, knowing that one is only spending a night there?  Should one care for the future generations, knowing that it is all a game of propagation and competition among some patterns on a small blue planet in a vast universe?

What is an aware human's response to mortality?  And I would echo many philosophers in saying that this awareness of our mortality and our response to it is what makes us human in the first place.  We have the awareness of time, we see others die, we know we will also die (remember the ancient deductive syllogism: Man is mortal; Socrates is a man, ...).

How can one commit to a harsh life, and not simply idle away, if one realizes oneself to be a mortal individual who will, sooner or later, not remain to reap the rewards of that commitment?  For his children, perhaps?  No, that escape hatch too eludes the philosopher.  One of the curses of the too-aware man is his rejection of the genetic imperative.  He does not respect the dictate of his essential nature to just propagate himself at all costs.  In a way, an intellectual has already transcended his nature.

So, realizing or concluding that there is no "Higher" realm, and being aware enough to throttle the reproductive itch, what now?  There is still hope for the man who wants to serve others, to lessen their pain and drudgery, while not being too concerned about the eventual fate of the Sun.  There is also hope for the man who seeks to create something that will outlast his own body, either through art and literature, or through the creation of some idea or some discovery, or even through a crime.

Someone not possessing special gifts, and someone disinclined towards social work, and someone not inclined to create a monument to himself, though, is in a difficult spot.  That seeker of pleasure, who is also self-aware, will not have it easy.  When the peaks of pleasure pass, and they will pass, for that is the very nature of our brains, he is left in a pit of depression and ennui.

Moreover, in the modern world of cities and technology and industry, the free pleasures are dwindling, and increasingly one needs to be rich to to be carefree and enjoy life.  But to achieve riches takes a hell of a lot of care and stress, and who knows if that stressful journey saps one of the very capacity to enjoy leisure and carefree-ness?  The pleasure seeker can no longer expect to live an easy life.

So what should be one's response when one sees an aware man licking those drops of honey?  And those drops of honey need not be, as alcohol and drugs are, crude addictions to forget oneself.  They can very well be the enjoyment of literature and philosophy, of music and arts, of food and sex, of sights and smells, of conversations and argument, of humor and gossip.

One needs to observe that man's strained, trembling arms holding the twig, his muscles stretched in pain.  One needs to see the effort he makes at reaching for those drops which feel less and less sweet as he gets used to their taste.  One needs to imagine what he must be thinking, for he knows that he can't hang on forever, and the honey too will not last.

For too long, stones have been thrown at that man from the Eastern side of the pit.  He has been spit on.

I believe that that man deserves applause.  Not self-righteous pity, nor jeering ridicule, nor envious condemnation.  But applause.  "What a brave man!  Knowing that only a few moments are left, he still finds it within him to experience joy in the ephemeral!"

For he, like Sisyphus, inwardly laughs at his fate.