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.

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.

Hirsutism as Holiness

So the interwebs are abuzz with the story of the hirsute Sikh woman who was caught on camera, sought to be made fun of, and who then came onto the thread on reddit to defend herself and offer her religious beliefs as an explanation of her looks.

One of the papers covers the story here.

I grew up in a Sikh family, and I know the custom of keeping unshorn hair rather intimately.  My brother faced a lot of resistance when he sought to cut his hair, and I was taken to task when I tried to trim my beard.

I have a few comments about this custom, and a few comments about the response of the hirsute woman, whose name is supposedly Balpreet Kaur.

The custom is archaic and a lot of Sikhs actually resent it.  It usually makes people look ungainly and makes for an uphill battle in personal hygiene.  Sikhs normally wash their hair only once a week, even during hot and humid weather.  Males are supposed to tie their hair in a bun on the top of the head and cover it using a turban.  It is hard to wear spectacles with a turban, and needless to say, the turban inhibits athletic activity, sports and swimming, and even the wearing of a safety helmet.

This custom (of keeping long hair) and headgear was supposedly introduced by the tenth Sikh Guru about three hundred years ago as a martial uniform.  But Sikhs seem to have taken it a bit too far.  Even trimming of one's eyebrows is enough to get you expelled from certain Sikh religious institutions.  Some Sikhs vociferously protest when some hair is to be removed from their bodies during a surgical procedure.  It is quite funny and tragic at the same time.

I believe most Indian religious customs related to the body are less than aesthetically evolved, and sometimes just tasteless.  People, including ladies, who go to certain Hindu ashrams get their heads shaved.  Sikhs are asked to wear long underwear and never remove even a single hair from their bodies.  Jain monks stay naked and cover their mouths with a cloth which continues to get dirty as the day passes.  Many Hindus tie a red thread on their wrists which is not supposed to be taken off.  It has to wear off on its own after many days while it continues to get damp, dirty and laden with bacteria and assorted filth.  We are asked to take a dip in highly polluted pools and rivers as a means of purification.  People even carry the polluted, putrid water, in which thousands of people are bathing, back to their homes in plastic bottles to be sipped as holy water.  Muslims undertake compulsory circumcision for young males.  Some South Indians roll their naked bodies in leftover food of Brahmins.  And so on and so forth.

We perhaps like to believe that the body is merely a vessel for the soul and so the ugliness or ungainliness of the body is of little concern if it is supposed to uplift our souls, thereby making us do better deeds.

I think this is a rather warped and dangerous view which ultimately ends up reflecting in India being one of the ugliest, filthiest places in the whole world.  Deeds of its citizens notwithstanding (whether they are holier or more moral than of other people is matter of grave doubt, by the way).

To be unattractive by birth is unfortunate, but to cultivate un-attractiveness is a symptom of, I don't know, a serious neurosis?  And before I am sought to be convinced that beauty is in the eyes of the beholder, please, go through this article and the links contained therein and let's talk afterwards...

For those who don't want to read the above article for lack of time, allow me to guess for you which of the below women you find more attractive.  Answer: It is the second one.

Let's say someone has bad body odor or bad breath.  Would you expect this person to remedy that situation for a social engagement?  Would you expect a person to wear clean clothes (or wear clothes at all) and to not have open, festering wounds on his/her skin?  Would you expect someone you deal with to not loudly burp and fart and pick their nose in your presence?  Would you expect your marital partner to regularly brush their teeth and to take a bath?

What if they did not do as you (and as any normal, socialized human) would expect, and then justified their aberrant behavior by citing some archaic religious belief and by asking you to look instead at their "inner beauty" and their "moral superiority" and their "religious loyalty"?

I would ask you to consider such a person a case for psychiatric intervention, even if they are studying neuroscience.

In this particular case, does Ms Balpreet Kaur not realize that her facial hair is going to be the first thing people notice about her, and it will make them uncomfortable?  That any deed that she does, any interaction that she indulges in, any act of service that she renders, will first have to overcome this artificial barrier that she herself has created?  Is this barrier important, or the deed?  If a great deed that can save a life which requires her to shave her face, will she hesitate?

Now that her identity as a Sikh proud hirsute woman is a matter of public history, she is going to have a rather tough time going back on this stance, say, to get married.  Internet popularity cuts both ways.

Facial hair on women, just like a strong bod odor or halitosis, is a physiological problem which negatively affects people that one interacts with.  It makes people repelled.  If she is unwilling to solve this problem (and there is an extremely easy solution to this costing less than a dollar a week), and instead wants other people to look beyond physical attributes, then she is just being delusional and is expecting too much from society.  Society will not look beyond, it will look "at" and will conclude many things based on that perception.

It is similar to someone not wanting to buy a two dollar body deodorant but instead wanting other people to look beyond their olfactory perception.

Granted, there are certain aspects of one's appearance which may be unattractive and which may be hard to remedy.  In such cases, we do silently ask for others' forbearance, and usually others oblige, again silently.  And visual appearance is something that people can get used to after a while (unlike a bad odor which can continue to suffocate).  But why subject others to this inconvenience, if you can help it?

I consider it rude behavior to not care about one's personal appearance and grooming: it is a lack of care and empathy towards people who one interacts with.  It is to place a constant demand on other people.  They may be able to get used to this demand, but many may not.

If she wishes to live in a setting where her looks are a matter of pride and not of jest, then she should join a Sikh monastery.  In other settings, her looks are a matter of concern, not pride.

I was also amused by her quite effort-ful and intellectual response, pat with an explanation about her t-shirt as well (and she also had to mention that the God of Sikhs is gender-less, for some reason that I find hard to fathom).  She obviously considers her appearance and the reactions it causes in others to be of significance (otherwise why bother with a response?), but instead of becoming more aesthetically normative, she wants others to be more tolerant, nay, even appreciative of her stance of ugliness (and it IS ugliness by all normal standards of human aesthetics).

Ms Balpreet Kaur could be a curious exhibit in a study on narcissism and willful denial of social realities.  I am, however, glad, that it brings to some attention a deeply regrettable facet about the Sikh religion - its archaic customs, that is.  Something which needs far more attention, and criticism, than it has received.

Information Sharing and Stress

Humans like to communicate.  I believe we like to share information, insight and stories, especially with people who we love and trust.

We have better tools than ever to do it, but, there is a flip side to this ease.

I find that more and more, there are pieces of information which one is not supposed to disseminate.  The most striking instance of this restriction is the workplace.  The most important information: that of compensation, is kept a closely guarded secret.  Almost all the communication from within the firm are supposed to remain within the firm.  And of course, there are trade secrets, intellectual property and whatnot, which are closely guarded lest the firm lose its competitive advantage.

I believe that when you know something, and when you know that that information is of interest to the other person, but you withhold it, it causes stress.

I find that more and more, information asymmetries are what are deciding wealth or the lack of it in our knowledge economy.

A salesperson dare not tell the customer about the shortcomings in what he is trying to sell.

A job candidate knows his shortcomings, but tries to suppress that information and and hopes that the interview process doesn't reveal him.

A firm advertises its product, highlighting a small subset of its features which are better than the competition, but not talking about the others.

I believe this pervasive environment of information withholding is a massive source of stress in the modern workplace.  It is even more stressful when it is lying not just by omission (e.g. Bill Clinton's evasive replies during his testimony about the Monica Lewinsky affair), but when the lying is blatant (e.g. Yahoo's CEO lying on his resume, Paul Ryan "mis-remembering" his marathon time, and so on).

Consider also the laws related to insider trading.  If you just go ahead and indulge your human predilection to share information with your friends, and they use that information to their benefit, that is a criminal offense.   It is not hard to understand why it should be an offense.  You received that information because of privileged access, and you are therefore abusing that privilege by sharing the information.

But I cannot but help imagine the stress that must be felt by such a holder of secrets.  The more information you have which you cannot share for fear of consequence, the more stressful your interactions are with your fellow human beings.

In Dostoevsky's Crime and Punishment, the protagonist breaks down due to this very stress of keeping a big, guilty secret within himself.

One of my uncles very astutely and pithily commented - and this was many years back - that people are stressed in the modern world because they have to pretend, lie and put up a facade more than ever in human history.  I agree with him.

More and more, we are part of a "market" where the most astute and cunning player wins.  In such an environment, an attitude of transparency, honesty and forthrightness is a sure fire way to lose.

The more you are able to be just "yourself" with someone, the more stress-free that relationship is.  The more you have to be withheld, non-spontaneous, aware, calculative, the less emotionally nourishing the relationship becomes.  If almost all your relationships demand watchfulness and some form of deceit, then it is not surprising that you will find yourself stressed and alienated.

Humaneness and a feeling of kinship makes us want to share interesting information.  But because today there may be valid (and some not so valid) reasons for keeping things bottled up, we cannot but go against our nature if we are to play by the rules.  And this unnatural way of being takes its toll.

Introduction to "Gorges and Demons"

This is my draft, unedited, introduction to my first book that I have started writing.  I hope to finish it by the end of the year.  I am tentatively calling it "Gorges and Demons".

--
Introduction

Does Man need to be saved from his Saviors?

Does Man need to be delivered from the desire for deliverance?

The Buddha, in his famous Four Noble Truths, appeals to all of us for whom sorrow and suffering become too much to handle.  He acknowledges our sorrow in the first truth, explains its causation, provides a way to end it, and then points to its end.

Such is the promise of all messiahs, mystics, Gurus, self-help teachers, new age therapists, evangelists, long-time seekers, the enlightened, the delivered, the ones who are One with God, and of all those who, in their compassion, are driven to save others from the pangs of life.

What is suffering?  What does the way entail?  What is “worldly” life and what is the so-called “transcendental” life?  What do men do when they claim to be free of suffering?

Is suffering inevitable?  Can man be free of suffering, without delusion?

Why do some suffer more, and others less?  Why does continued happiness elude almost everybody?  Why does fulfillment seem to require “many lives”?

This book is an exploration of these questions.

Too many people jump into the pursuit of seeking freedom from earthly life, without first understanding what earthly life is, and more importantly, without understanding what that “freedom” looks like.  In the process, they not only spend a rather significant part of their lives in agony and ambiguity, but cause tears of helplessness and heartbreak in the ones who love them.

The state of Nirvana, and the path to that Promised Land, seem mysterious.  Very few say they are in that state, millions say they are making progress, and even more say they are stuck and need guidance.  Nobody says with any clarity what that state is.  Every sect and every cult has a different story, and a different take on why so many are failing to achieve that state, and where the remedy lies!

It is a cliché by now to say that Life is what happens when you are preparing for it.  So many of us spend so many of our years learning to live rightly, that the occasions to live according to our learnings pass us by.  A great tragedy of life, if one may call it that, is that we get but one opportunity and one time to do things rightly.  After that age is gone, we can but look back in regret and nostalgia.  How we treated our children, how we loved (or didn’t love) our parents, how we broke others’ hearts, how we behaved with people whom we will never meet again, how we renounced something which is only available in youth...

Whether we like it or not, our options to shape our lives diminish with age.  In Youth we are infinitely hopeful and life is a boundless spectrum of possibilities.  We want to break the rules, travel in strange lands, find love at the most unexpected of places, we have ideals and principles which we hold with passion, …

In Old Age, we smile ruefully at what could have been, and we convince ourselves to be content with our little comforts and joys and we look with amusement at the hopeful idealism as well as the naiveté of the young.

If you ask people what they want, they may not be able to list things out, but they will unquestionably say that they want to be happy.  What is this “happiness”?  What theories and tomes have been written about it!  We know we were happy at a certain time, and the present appears not a little unsatisfactory.

When I was young and ignorant and idealistic, I used to look at people immersed as if hypnotized at a busy urban crossing, and wondered: Where are they going? What is driving them?  Why do they not stop and reflect on their lives?  They seemed like robots following orders and not stopping for a moment to question what was going on.  How can they go on like this?  Do they not value their time and their years?  I wanted to stop a few of them and look into their eyes and tell them that they need to wake up.

After many decades, I can hesitatingly say that I understand, to a satisfying extent, the "normal" "worldly" people and why they do what they do.  

But, interestingly, now I have the urge to stop and ask the same question to the seekers of exalted states, who cannot give up on their journey and are ceaselessly driven by something that they consider a holy desire to be free.  To be sure, the seekers are usually ready to talk to you about the “deep questions”.  But the fact that they have chosen a way (or so they think) makes it almost impossible for them to recognize that they could be blindly driven by something that they also may not understand. 

I think I have some ideas as to why they may be pursuing these states, and I want to have a word with them, with you.

This book is not a treatise in pessimism, but a look at a few facets of our seeking a state beyond what we consider “the mundane”.  It is true that blind enthusiasm may make one achieve goals hitherto considered unachievable, but most of the time, it pays to know about the risks and the pitfalls.

Humans are not very different from each other.  There are almost seven billion of us.   We share the same DNA, the same morality (more or less), and given a similarity in our social standing, we suffer from similar discontents.

Others like you have sought inner happiness in its very essence, and might have interesting tales to tell of gorges and of the demons they encountered in their journeys.  

This book is dedicated to your capacity of contemplation and reflection; to what is essentially human in you.