Thursday, November 22, 2012

Hands-off Justice Delivery

An earlier post on Disincentives to Bad Litigation.

There are various models of justice dispensation.  India, like many modern states, has adopted the Adversarial System.  If one files a suit or a complaint, the court allows the warring parties to argue and the judge finally decides based on the merits of the arguments.

Unfortunately in India, due to the already strained system of law and other historical-cultural factors (more on this later), the judiciary has misused this principle to epic proportions.  It is the norm, and not the exception, for judges to NOT read the petition or an application and decide on an issue.  The norm is for the courts to ask someone: "So what do you have to say about this?"

If you submit an application, or a complaint, to the court, the court will check it for technical correctness (court fee, the margin being wide enough, double spaced typing, and so on) and issue "notice" to the "respondents".  It will not verify, except if the respondents are biggies, if the petition has any worthwhile content.  The "maintainability" of a petition is in most cases limited to checking its legal maintainability (for example, whether a bail application in the High Court has earlier been filed in the Sessions court), not whether its content makes any sense.

So, here's what happens in Indian courts:  A person is aggrieved.  He wants to petition the court.  For technical and legal correctness (the rules of which are labyrinthine and sometimes even anecdotal, instead of formalized), he has to engage a practicing lawyer.  The lawyer files the petition.  The court "admits" it.  Almost universally, the court then sends "notice" to the respondents named in the petition without so much as looking at what the petition contains.

The respondents then file a reply.  The court then asks the petitioner to file a "rejoinder".  Then, if one is lucky, in a few years the lawyers get a few minutes to convince the judge to read a few choice sentences or paragraphs of the hundreds if not thousands of pages in the case file.  The judge decides the case, and then later writes a judgment in which the large mass of the writing is to paraphrase what each party has argued, and in the end give a one or two line judgment.  Most of the judgments of lower Indian courts end with this statement: "I find no weight in the arguments of the respondent hence the petition is allowed," or "The petition is without merit.  Dismissed.  No order as to costs."

Alas, even this is an ideal scenario.  Most cases get a bunch of intermediary applications (IA) arguing one little technical point or the other.  Again, a notice is issued to the "respondent" to reply to the application.

I think this can justly be called "hand-off justice delivery".  The judges don't read anything on their own.  The judges only sit and listen and read when the lawyer asks them to go to page x, para y.  The lawyer presents the case law (selectively of course).  The judges are sometimes surprised to learn of a certain historical case, but they in no event will thumb the case law themselves to figure out the history or current status.

The judges are not interested, and nor have the time for, reading the petitions and applications.  They do not have the time to go through case law.  That job, and bread-and-butter, is for the lawyer community and the clerks and the typists.

I know an Indian lawyer whose modus operandi is only far too common, unfortunately.  Suppose he is engaged by a defender to respond to a petition.  Before responding to each point, he asks his clerk to type a response denying each and every sentence in the original petition.  "It is wrong and denied that x.  It is wrong and denied that y."  The "x" and "y" are taken verbatim from the original petition.  The substantive rebuttals can wait.

I repeat, the judges don't read the petitions but routinely shift the burden of the work to the respondents.  Even for applications whose illogic or conclusion is obvious, a few months have to pass necessarily because of the to-and-fro between the lawyers: Notice, Time to file reply, Reply, Time to file rejoinder, Rejoinder.

And obviously, there is generally no cost imposed for filing frivolous IAs.  Because "frivolity" is not for the judge to judge.  How can the judge decide on the frivolity of the application if he doesn't even read it?

This kind of charade in the courts suited the British well.  After all, why bother with listening to or reading of the arguments of a slavish and illiterate and smelly and emotional populace?  The judges listened only to the big-shot lawyers, who spoke in British English and usually got their training in London.  It was all good fun.

Judges and Lawyers formed a fraternity in that era.  And that continues to this day in India.

In the Supreme Court of India, I know for a fact that on a "date" when the judge is supposed to give a reasoned order or instruction about the case, thick files dense with documents and arguments are thumped to the other side without so much as a glance at their contents.  Some curt order is given granting more time to the respondents or suchlike.  Hearings on a thick file sometimes last 2 minutes.

The judges do not bother themselves with the details of the case or even of reading through the basic prayers  in the application (prayer = what is being asked for) asked for before issuing "notice".  It is probably too much work for them.  Let the respondents, and the lawyers that they engage, worry about the prayers.

If you get an unassertive lawyer who doesn't know how to outshout his opponent and make the judge read the relevant parts of your supposedly well-reasoned arguments, you will not get justice in India.

In the same vein, if someone counts (for Indian courts) the pages of documents unread by anyone except by the writer, that astronomical number will raise the very Gods from their slumber.

Saturday, November 10, 2012

The Risk-Averse Indian

Indians are risk averse .  And that is because of the threat of violence in case they don't follow expectations of others.

Our conformity and mediocrity is not an inborn personality trait, it is a survival strategy that has proved viable in an atmosphere of intimidation and oppression.  India suffers from a severely oppressive state machinery which makes sure its citizens always stay docile and grateful for any little freedom that they are allowed.

Let's go over some aspects of our lives and how they are subject to control:

Speech and Freedom of Expression: Not only the society, but the state will come after you with sticks and guns if you say anything which offends someone.  There are strict laws against blasphemy and against saying something objectionable in India.  We have a censor board for movies which is a law unto itself.  Sending an email with a sarcastic cartoon as an attachment can get you sent to jail.

Relationships: Not only the society, but the state will come after you with sticks and guns if you fall in love with the "wrong" person.  The police is too happy to arrest you based on your in-laws' statements.  And you better make sure you get married to the "right" person the first time.  If your wife doesn't like you, well, the police is too happy to arrest you on her complaint.  If you want a divorce, well, good luck with that!  The courts will take decades to decide on your case.

What if you decide to just be on your own and to hell with the family and community?  If you decide not to support your old parents, in many Indian states you can be sent to jail.

If you are in a live-in relationship or are single beyond a "reasonable" age, you may be hard pressed to find a rented accommodation because landlords are a law unto themselves and a tenant cannot ask for non-discrimination.

Dispute Resolution: If you get into a conflict or a dispute with the wrong person, you will be subject to state terror.  The police will arrest your parents on some trumped up charge.  That person will come to your home and threaten you with goons and guns.  So better keep your head down and don't get into even a verbal fight with a guy who looks like he may be "connected".

If you are a businessman, don't hope for contract enforcement from the courts (India ranks pretty much on the bottom in the world on that).  You have to just trust that person and keep him in good humor.  In general, remain in people's good books otherwise they will not honor their obligations to you.  I wonder what that does to your free-thinking spirit.

Food and Drink: If you eat the wrong kind of meat in the wrong place, not only the society but the state will come after you with sticks and guns.  If you want to have a drink, you have to go to state sanctioned shops and watering holes.  You cannot keep more than a few bottles at your home.  You have to close your bar at 11 pm in most locations otherwise the police will come after you.  If you try to party at a place outside the city, the police can arrest you on suspicion of drug use.  You cannot buy eggs and meat in certain cities.

Health:  Public hospitals are dysfunctional and private hospitals are unregulated.  So you better not fall sick in this country.  Since eateries and shops are unregulated when it comes to non-adulteration and hygiene, you better just be safe and cook at home.  That leads to the attitude of not wanting to try out a new food/cuisine.

In general, don't do anything which may be a health risk.  Rock climbing, racing, athletics/sports, swimming are only for the rich.  Chess and Cricket are OK since they don't strain the body so much.  Since emergency response services are non-functional in most areas, don't try any physically risky adventures like gliding, skiing, surfing, skateboarding...

Business and Entrepreneurship: It is notoriously hard to start a business in India due to the multiplicity of regulatory agencies which want to oppress you instead of offering easy processes and guidelines.  So it is much safer to take up a salaried job, especially with the government where YOU make up (or enforce) the policies, and where pension is assured.  And in clear violation of Article 16 of the constitution of India, most state jobs are offered only to a certain age group.  So you better gather your degrees and figure out what kind of salaried job you want to do in your twenties.  After that, you are on your own.  You can't easily take a "risk" with your education and career.


These are just a few examples where our attitude to be "rather safe than sorry" is driven by explicit laws and state policy in India.  We are a subservient and mediocre population because the ruling classes have framed laws and policies which force us to be that way.

It is safer for them, too.