The Subtle Art of Inception

The leading litigation expert of India, Senior Advocate Mr. Harish Salve believes that when a lawyer is arguing a case, he is doing nothing else, but selling an idea to another human being. And that is why he has to be sensitive of not only what he is saying but also of what the other person is hearing. According to him, a lawyer’s job is to convince another person to do something, and for that he has to draw out that other person to a common ground. He can’t afford to be dogmatic, because to convince another person to do something, you have to bring them around to yourway of thinking. That is what good advocacy, according to Mr. Salve, is all about.

But as Christopher Nolan reminds us early on in the Inception (2010) the problem with planting an idea in someone else’s mind is that, that person can always tell that someone else gave him the idea in the first place. He can always trace the genesis of the idea. True inspiration is impossible to fake.

But Nolan is also quick to present us the solution: The only way you can give someone else an idea is that he must believe ‘that he gave himself the idea’ ; it must seem self-generated. And this con of self generation is a very subtle art which lies at the heart of good advocacy to which Salve refers.

So the greatest advocacy is when the argument which the lawyer wants to present falls from the judge’s mouth and the lawyer only enjoys the show. Complicated you say. Well let me give you of an illustration which I borrow from Lord Halisham‘s Memoirs:

‘Supposing you were to argue a Case where you had two points to present, both of them bad but one worse than the other, which would you argue first?’

I suppose, as most would say, you would answer that it would be a safer option to argue the stronger of the two points, first. ‘Not quite’, would be my response to that. You must go and argue the weaker of the two points first. And put your very best into it.  Even though eventually the judges will drive you into a corner, and you will have to admit defeat.

But all is not over. On the edge of that defeat say: “My lords, there is another point I wish to argue. But I am not quite sure how to put it.” And then go ahead and put the better of the two points, but not quite as well as it could or should be put. After a while, the judge will himself interrupt you and say: “But surely, you might put it in this way.” And he will put it exactly as you really ought to have put it in the first place.

*Drum rolls begin*

At that stage lay your papers on the desk before you, raise your eyes to the ceiling. And in an awestruck voice, say:  ‘Oh, my Lord, I could not have myself put it better’

And then my dear reader you will be halfway to winning your case. Because once an idea has taken hold in the mind of the judge it is almost impossible to eradicate it, because it was he himself who came up with it and not you.  But not everyone can pull something like that off. It’s advocacy at its finest, and only the best can dare to play with it. 

Hat tips: To Mr. Fali Nariman, Senior Advocate, Supreme Court of India, for bringing the inception illustration to my notice before his memory faded; To Warner Bros for the pic of Cobb’s Totem above.

This is a guest post by Chaitanya Safaya, Advocate, Supreme Court of India.

Knowing your rights – the first step to empowerment

The power of legal literacy and the masses!

Law touches the daily life of every Indian citizen in myriad ways. However, it touches that of the India’s socio-economically weaker sections in a rather ironic manner. From corruption in public distribution system (ration), to getting their share of work under the NREGA, it is they who need to be most aware of their rights and of the entitlements which various government policies offer to them. For them, it is a question of survival and their unawareness amounts to vulnerability; an open invitation to exploitation.  For them knowledge is, truly, the much needed power. And therefore, legal literacy assumes critical significance for them.

I have chosen this section of our population to focus on the importance of legal literacy for three main reasons – firstly, the sheer numbers – this section forms a sizeable chunk of our population.

Around 35% of India’s population is illiterate, with the bulk of our illiterate population living in rural areas. In these areas social and economic barriers play an important role in keeping the lowest strata of society suppressed. Their unawareness only feeds into this vicious cycle. In such a situation, even government programs and other social welfare and empowerment initiatives, in various categories such as employment generation etc. will achieve their intended results only when people are aware of their rights and are able to take advantage of them.

Secondly, it is this section that fares extremely low in access to education, means of awareness and literacy rates; therefore, limiting their avenues for access to information of their rights and entitlements. And thirdly, it is indeed critical to our concepts of rules of law, principle of equality in the eyes of law and notions of justice, that access to them is easily available to even the poorest and the most backward regions of our country. The fundamental rights enshrined in Part-III of our Constitution will be nothing but illusionary rights if people are not aware of them or do not understand them. Democracy has no meaning for the citizen unless the citizen is able to secure his basic human rights, namely education, employment and the right to live a life of dignity and self-respect. Therefore, for all these reasons this set of population becomes the most crucial in terms of reaching out to them via sustained efforts at promoting legal literacy.

Moving on, before we come to devising an effective model to take legal literacy to this vast section of our population, we must understand as to what do we mean by the term legal literacy.

Well, in the simplest terms it can be seen as a tool based on the power of information and awareness to bring about a change at the grass-root level. It is the starting point towards beginning to exercise our rights, demanding implementation and challenging faulty enforcement. In essence it is the common man’s vehicle to question the system and get from it what is due to him.  Article 39A of the Constitution of India gives a directive to the States to ensure that the operation of the legal system does promote justice on a basis of equal opportunity. It directs the State to provide free legal aid with the aid of suitable legislation (such as the National Legal Services Authority Act) or schemes and ensure that opportunities for securing justice are not denied to any citizen for reason of economic or other disabilities.

However, leaving the ball just in the State’s Court is not enough. The lack of legal literacy is a problem that is so acute in both its expanse in the masses and its effects on our envisaged system of rule of law and participatory democracy, that it will require the efforts of all of us, in one way or another. My vision is to bring together the power of the student population’s energy, reach of communication devices and facilitation by various law schools. If law schools adopt such areas close to them, as a part of an internship project for students it will be a starting step. These students can then come up with various ideas such as focus groups of women, migrant labourers, teenagers etc. in these areas, direct home to home counselling, and entertaining information dissemination through street plays etc. to create awareness about issues of relevance to the local population which can range from use of RTI, Right to education, to availing benefits under NREGA, labour laws, medical facilities, women’s rights etc.

The next step can be where law students take the lead. The mobile phone boom has made it possible to reach a wide section of the Indian population, across socio- economic strata like never before. Having arrangements to send daily legal alerts of relevance, besides exploring the possibility of legal literacy videos etc. in these adopted areas can bring a lot of people within the power net of information. These people and other enthusiasts in the adopted areas can then be trained by these students and an assigned member of faculty to be effective first points of contact and information on various local matters of relevance and also for any specific queries that people may have. This will ensure a growing and possibly a sustainable model of legal literacy at micro level, which will in turn feed into the State’s mechanism in terms of information and awareness available at doorstep.

Knowledge is empowerment and it is legal literacy that can ensure that people get food, work and education – the drivers of socio economic progress. It can ensure that their rights are reality and empower them to demand their implementation.

RTI and the ‘whistle-blowers’- A case for protection of the martyrs of the cause of information

Amit Jethwa, a 33 year old environmentalist and Right to Information (RTI) activist was shot dead by two unidentified gunmen opposite the Gujarat High Court in Ahmedabad. His murder came just a few days after he had filed a Public Interest Litigation (PIL) in the Gujarat High Court naming a member of Parliament (MP), as one of the parties involved in illegal mining activities in the protected Gir Forest (home to the last of the Asiatic Lions) in Gujarat. Till that time the country had already seen eight murders and twenty serious attacks on RTI activists. The year ends with a count of near ten deaths. And what is painfully shameful is that this agonizing fate of the whistle blowers continues to haunt the effective use of RTI by the common man.

The causes of this status quo spawn from power imbalance in our society and socio-economic disparity leading to an inherent vulnerability. This chronic failing of our social set up then seeps into the public sphere. With these deaths coming through in cases of critical issues being exposed such as the PDS system (public distribution system) in Maharashtra, investigations into land acquisitions by powerful businessmen, fraud in labour government labour etc.; it is but hard to believe that the people from lower levels of state agencies to top brass are completely oblivious of such impending threats, if not stretching the allegation to the level of their direct involvement and deliberate inaction. In fact, the true number of activists killed could be much higher as frequently the authorities deny a link between the RTI requests and violence, dismissing incidents as everyday crime.

RTI activist Krishnaraja Rao highlights another dimension of this problem. He complains that “By not penalising slippery public information officers and not compelling evasive public authorities to provide information, the State Information Commissioners, too, blunt the RTI activist’s sword and prolong his battle for years, until somebody gets him in the end”. People’s ignorance, indifference and fear of retribution at large, leaves a few brave men to stand up. And this indeed makes it a vicious circle wherein it is not just about the protection of individuals who are acting as whistle-blowers but also about the very purpose, implementation and effectiveness of the RTI Act itself.

The obvious question that then arises is what can be done to avert this tragic fate? Well, there can be numerous ways in which this problem can be approached. In terms of a legislative action, in pipeline is the Public Interest Disclosure (Protection of Information) Bill, 2010 which lays the onus on the Central Vigilance Commission (CVC) to protect the identity of the citizens who provide information about the misuse of governmental authority and funds. The CVC will be empowered to take action against those who reveal the identity of the whistleblowers or those who threaten the whistleblowers. RTI Act has brought about transparency and facilitated ‘whistleblowing’, however, the state has failed in its duty to protect such individuals. It now remains to be seen what this legislation has to offer in terms of strengthening the RTI framework for the common man.

However, such a legislation it will not be enough unless the fundamentals of implementation in our peculiar socio-economic system are corrected and state agencies held strictly accountable by powerful and consistent scrutiny. What is severely needed is strictness and soundness in the framework for implementation of laws such as RTI. Strong and immediate action against uncooperative, slow and errant state agencies including pay cuts and punitive actions for individual officers on the lines of the incentive based reward and reprimand theory can be explored as a starting point of potential multi-fold solution. Facilitating the process getting protection for activists involved with critical investigations in cases of threats and strict scrutiny of the attitude of the law and order agencies towards these issues should also be given priority if RTI is to be made an effective contributory tool to any investigation or in any sort of case. In this way it is not about saving precious life and facilitating the process of taking the disease of corruption head on, but also about restoring the people’s faith in the rule of law and the forces that are employed to protect us. It is about re-instating the common man’s confidence in a system where he can get answers to his queries and fight the wrongs he sees around without either paying bribes or fearing his own life- where exercising one’s rights does not spell danger.

The RTI law was introduced by the Congress party-led government in 2005 giving private citizens the right to demand written answers from India’s bureaucracy and state institutions. In words of Law Minister Veerappa Moily, “It has changed the entire culture of governance.” However let our leaders be reminded that culture of governance was never changed merely by the black letter of law. Unless there is a system in place, wherein every common man can fearlessly use this powerful tool, the letter of law is, in essence, ineffective. And more importantly a system, where whistle-blowers – people performing a critical role in fighting the cancer of corruption that plagues India are facilitated and looked upon as role models for others in the community to follow. Information and awareness are the key to make every Indian citizen realize the power of RTI, but its effective use will only be possible when the system is conducive and not antagonistic to it.

Rise up and take charge!

I recently heard the TED Women talk delivered by the Magsaysay Award winner Dr. Kiran Bedi. It felt just the same as it had on few other previous occasions when I had heard her live: the same power in the voice, depth in the ideas and candidness about being different. And once more it was the same rush of zeal running though my body as it had before. It was momentous in quite a significant sense because in one of my more pensive periods of the year, for many days I had been battling this feeling of insignificance that quite often crops up in the life of a PhD student. I was feeling this lack of excitement about anything and that had been troubling me bitterly. And her talk helped me put things in perspective.

‘Life is on an incline – you either go up or down’, she said.  ‘In life, 90 out of a 100 things that happen to you are your own creations – if good, enjoy them, and if bad learn from them. And the rest 10 percent – you just need to respond to them’. After saying this she talked about how she had been a product of opportunities and how she had turned what others were rejoicing as hurdles imposed on her tough policing into opportunities – like her prison assignment. Put in charge of the largest and one of the toughest prisons in the country, she achieved what others had not even thought of. ‘Do you pray’, was the first question she asked the prisoners there. And then asking them to join in a communal prayer she struck an instant chord with them. Through meditation and education, based on pure voluntarism by people she drew into the project, she transformed the life of many prisoners forever and went on to get recognition in the form of the Magsaysay Award. She had seen what others could – humans in criminals and she had thought what other hadn’t – using the power of meditation and education in transformation. And working step by step, she had achieved what no other policeman has till date in the country- she had made a big difference to the society and to people’s lives!

These ideas instantly made me feel fresh again. Fresh in the realisation of the fact that that to make it big, to make a difference you have to enjoy every step in the process. You must have a vision, but also the patience and perseverance required to work it into reality. You must be able to approach problems with a fresh outlook, you must be ready to test and experiment your ideas and be passionate about them. The thought that you can carve your own destiny and every little step that you take counts, made me feel energised once more. But besides that there was also solace in the acceptance of the fact that in this process there will be many hurdles, many steep inclines, slow curves and blind alleys; but if your determination stays firm then nothing is invincible.

‘Be conscious of the fact that what has been given to you is unique’, Dr. Bedi had said. I believe that this consciousness is two-fold – of your self and of all the opportunities that you have in life. A comforting thought indeed, as it re-assures you that you are the master of your own life. It will shape up the way you shape it. And it is no different from anyone else as everyone has many ‘limitations’ cards in their pack called life. It is how they deal with it that makes them and their lives different. So rise up and take charge!

Justice stifled, sold and scarred

Are delays in the Indian justice delivery system devouring people’s faith in it?

Justice delayed is justice denied. No matter how cliché it sounds it is, indeed, true.  When cases trail in the eerie paths of delays form one court to another, what falls behind or probably even whittles down is justice. Sometimes the key elements in its course are bought, intimidated and even erased. And massive delays in our justice delivery system feed into this already vulnerable system.

Aug 12, 1990, Ruchika Girhotra, a 14 year old student of Sacred Heart School in Chandigarh was molested by the then Director General of Police Shambhu Pratap Singh Rathore in Chandigarh, Haryana. As delays marred the case; the molestor moved freely, only to torment, torture the victims and witnesses. The imbalance of power by way of strong political relations supported him. Ruchika, on the other hand, was expelled from school; false cases were filed against her father and brother, and her brother was taken to prison and tortured:  a series of events that ended in Ruchika taking her own life. Ruchika’s friend Aradhna, the sole witness was harassed with threatening calls. False cases were filed against Aradhana’s parents; her father too was suspended and demoted and eventually given premature retirement. And it took nineteen, frighteningly long years for the court to hand over a verdict of a mere six months of imprisonment and 1000. Even then the accused managed to get away on bail by paying a few thousands. What was this, if not a sheer mockery of justice?

As the above case demonstrates, the practical effects of delays are multi-fold. Firstly and more obviously, it gives the accused and their families a chance to intimidate the key witnesses and stifle the case of the prosecution. Besides the gruesome Ruchika case, an example can be taken of the Nitish Katara case. A key witness in the Nitish Katara murder case, Ajay Katara, recently filed a petition in the court alleging he was being threatened and harassed by Uttar Pradesh government officials for testifying in the case. Ajay is a critical witness who testified that he had last seen the victim Nitish Katara alive in the company of accused Vikas Yadav, Vishal and Sukhdev Pehalwan. Earlier also, Katara had a filed similar application against D P Yadav, father of Vikas and a controversial politician from the state of UP and some others. The accused, Vikas and his cousin Vishal were sentenced to life imprisonment by a Delhi court for killing Nitish, a young business executive, as they did not approve his relations with their sister Bharti Yadav. The Yadavs have challenged their conviction in the Delhi High Court.

The situation is further aggravated in cases where the balance of power is even more skewed. It is then left to the mercy of media voice and public cry to bring the perpetrators, mocking the justice delivery system, to a nation-wide exposé. However the unfortunate part – is that it only happens or has been seen to happen only in some popular cases, such as the Katara case, or the Jessica Lall and Priyadarshini Matoo cases, which caused nation-wide outrage. And even in those the delays were frustrating, often leading the prosecution lost in the tricky alleyways guided by the craft of ingenious defence lawyers and influential accused parties. Also, what is even more depressing is that these cases are not even the tip of the iceberg. Nobody really knows how many prosecutions fail or are made to die out due to key witness(es) being intimidated or worse, -cases even eliminated.

Secondly, delays give influential parties a chance to ‘buy- off’ the witnesses, making it an economically straining exercise for ordinary litigants to pursue the course of justice. The BMW case involving the infamous Nandas and its accompanying sting operation on top lawyers did not only highlight this aspect. Rather its impact went far beyond to the image of legal profession in the society. An entire nation’s faith in its justice delivery system was shaken. Law students saw their idols getting tarnished. The legal fraternity’s head was hung in shame.  If justice is so readily available for sale and the officers of court are happily trading it, then it really does not leave much for the common man other than to resign to his economically decided fate of silent acceptance of the wrongs done to him.

Thirdly, the psychological effects of delays for litigants are even more than apparent. Racing from court to court, from change of judges to delaying tactics of lawyers; – litigants often find themselves in a vicious circle. If justice comes as a relief at one level, there remain gloomy chances of the case being turned in the favour of the other party at another level. It is not only physically taxing but also emotionally frustrating. Priyadarshini Matoo, a 25-year-old law student was found raped and murdered at her house in New Delhi on January 23, 1996.  The accused Santosh Kumar Singh, son of a Police Inspector-General was acquitted by a trial court in 1999.  This lead to a massive public outcry and the CBI, under tremendous pressure, challenged the judgment in Delhi high court on February 29, 2000. It was not before Oct 30, 2006 that the court sentenced Santosh to death; the decision only to be changed into a life imprisonment by the Hon’ble SC in 2010. Fourteen long years and an old and often betrayed by the system father waits tirelessly only to get justice.

Fourthly, an argument can also be made for delays entangling the case in legal loopholes and affecting the quality of decision. Assuming the quality still exists in terms of legal merit; in many cases its effect may be quite diluted to a victim if it comes so late in the day ; such that it is just another judicial pronouncement’ to the aggrieved.  Probably, Chief Justice Warren Burger’s comment best sums up the argument in this regards;

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets”.

As a young Indian lawyer, I feel enraged. Enraged that justice is being sold, stifled and scarred to everyone’s knowledge; yet everyone is quiet. Studies into the causes of these delays have consumed sizeable research resources. Often Law ministers have – flagged it up in their ceremonial beginning of the term concerns. Steps also have been taken, but each time fall short of mitigating the problem. This begs the question- is the problem deeper? Is it the loss of ethics and quality in the profession that is devouring its foundations? Or is it the inherent unsuitability of this colonial legal system for our society, which has outlived itself in many respects, that is affecting us? Will increasing the number of courts solve the problem or a more efficient check on corruption in courts? Or maybe it is time for a radical change implementing a direct attack at all these possible causes of delay. It’s time these questions become a part of wider public discussion. It’s time to ask the right questions and ask them loud enough, for them to flow across from the groups of intelligentsia to the galleries of power.