Confessions of an ‘Outlaw’

A paralegal view of lawlessness

(Image Source)

The big problem

Conservatively speaking, the number of pending cases in Indian courts is close to 50 million. This is not a temporary glitch, but a entrenched state of affairs that will persist indefinitely.

There is justifiable frustration among the public. It's perplexing to see convicted criminal masterminds and crooked politicians receiving five-star treatment even in prisons, while the common man is punished by the court process itself.

The public sees a select group of lawyers garner enormous sums of money by defending public offenders and delaying the court process. They watch as the judiciary debates the rights of international migrants, while their own rights are trampled on daily.

The judiciary oversees this mess like a WWE referee, while acting morally superior to the common man. While the common person may not possess the tools for articulate expression, they can still understand blunt truths. They watch as western-educated "liberal" lawyers point to a Constitution that very few people can read. They wonder why they need to be lectured about secularism, women's rights, etc., when they already know it from their own dharma.

The big question

Who is responsible for the dysfunction and stagnation in India's judicial system?

To the Nationalists, the root cause appears to be the specter of British colonists living on through their (brown) intellectual descendants in the legal field along with their nepotism and “collegium system”. As the saying goes, "When all you have is a hammer, every problem looks like a nail."

The big picture

Former CJI Ramana spoke of a mischievous Indian epidemic called "luxurious litigation," where rich people abuse the legal process by filing numerous fake cases in multiple courts, which simply lie there and can never be decided.

(Justice N.V. Ramana, Image source)

I would like to add that the less wealthy also have added their fair share of fraudulent litigation in personal and domestic matters. The company law courts are clogged with family disputes in family-owned companies. Not far behind are various incompetent government agencies, subjecting the public to unwarranted harassment.

Ramana delicately mentioned political, economic, social, cultural, and religious factors as the roots of these problems. He referred to the Mahabharata and observed that perhaps "mediation" is more suited to the Indian ethos than the British adversarial system.

His comments are a polite way of saying that the majority of the 50 million cases are fake, and that our ethos, culture and value system (i.e. our present state of “dharma”) is not suited for British courts, and we are fit for "mediation" at best.

(Graphic source)

I can confirm this from my own experience. The typical defense I hear from clients, when confronted with their own faults, is to point to the faults of others and fabricate lies and half-truths. I constantly remind them that we are before a court, not a Panchayat.

(GIF source)

The entire country operates on an ad-hoc, corrupt system where bending the rules and unofficial "mediation" through bribery and political influence are common. The newfound enthusiasm in law enforcement has taken the country by surprise.

(Justice J.R. Midha, Image source)

However, the larger point is that all these false cases are the handiwork of lawyers themselves. In my work, I am horrified to see these false pleadings, poorly written, full of denial and dispute, misrepresentations, misleading statements, irrelevant facts, and arguments. In any civilized country, one such document could have a lawyer disbarred for life. The same situation prevails inside a courtroom. As Justice J.R. Midha famously said in his farewell speech to the Delhi High Court:

“In the Court of Justice, both the parties know the truth, it’s the judge who’s on trial.”

Who’s law is it anyway?

We are incapable of adhering to even basic Western laws. For instance, honking horns is illegal in the entire civilized world. We fail to keep our streets free of garbage, stray cats and dogs, elderly and disabled people, street vendors, and other squatters. At the street level, we are a dysfunctional, "lawless" society.

(GIF source)

We are an "illiterate" culture rooted in oral promises rather than written contracts. I often see clients land in problems when conducting business and settlements without proper written agreements. In the past, honesty was maintained by caste laws and the fear of family shame and ostracism. However, in modern India, "money talks and bullsh*t walks" and oral promises are hardly kept (or even written contracts, because law enforcement and judiciary cannot deliver timely justice). With corruption being pervasive, no one feels ashamed; they just point the finger at others. It is unclear who holds the moral authority to convict whom.

(Lord Macaulay, Image source)

As Vishwa-gurus, we reject Lord Macaulay's education and his 1860 “Sepoy mutiny” IPC. However, we are stuck with their court system, and can’t do without copy-pasting their business laws. Most people have no clue how to apply these laws in the Indian context, where the “corporate veil” has been reduced to a cover for widespread illicit activities.

The big difference

It is pretty clear that the issues within the judiciary are not solely its own fault and can only be resolved with the full cooperation of the public, especially lawyers. 

So, why does the court system work in Britain but not in India? Here are a few insights from their “dharma” that might provide a clue.

(Sermon on the Mount, Image source)

For instance, in His sermons, Jesus told the common man that "Puja" would not be accepted unless he reconciled with his brother (Gospel of Matthew, 5:21-26; 5:37; 5:40; 7:3-5).

"You have heard that it was said to the men of old, You shall not kill; and whoever kills shall be liable to judgment. But I say to you that everyone who is angry with his brother shall be liable to judgment; whoever insults his brother shall be liable to the council, and whoever says, 'You fool!' shall be liable to the hell of fire.

"So if you are offering your gift at the altar, and there remember that your brother has something against you, leave your gift there before the altar and go; first be reconciled to your brother, and then come and offer your gift.

"Make friends quickly with your accuser, while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison; truly, I say to you, you will never get out till you have paid the last penny.

"Let your ‘Yes’ be ‘Yes,’ and your ‘No,’ ‘No’; for whatever is more than these is from the evil one.

"And if anyone wants to sue you and take your cloak, let him have your tunic as well.

"Why do you see the speck that is in your brother's eye, but do not notice the log that is in your own eye? Or how can you say to your brother, 'Let me remove the speck from your eye,' when the log is in your own eye? You hypocrite, first take the log out of your own eye, and then you will see clearly to remove the speck from your brother's eye.”

So, please reconcile with your brothers and avoid unnecessary cases by making misleading statements. Before your brother sues you give him what he wants. Don’t blame others before first acknowledging your own faults.

The big solution

As a guild, lawyers have much to reflect upon. If they do not even have the decency to pay their interns and juniors a minimum wage, expecting them to champion the rights of the average person would seem unrealistic. However, the daily chanting of the following mantra may provide a much needed solution:

Today, I swear to tell the truth, the whole truth and nothing but the truth. Indeed, I am so obsessed with truth that it would be true to say, “I am the Truth”.

(St. Thomas More, Image source)

Practically speaking, lawyers should face severe consequences for constructing fictitious cases by presenting misleading or irrelevant arguments. Once a case is accepted, the written pleadings could be sent for anonymous initial evaluation or mandatory mediation to eliminate irrelevant aspects. This process would provide a summary and evaluation of the case's merits before moving on to trial or hearing. If parties choose to proceed before Court after this initial stage, significant costs may be imposed on the losing side.

Here are Harish Salve's thoughts on the "night and day" difference between law practice in London and the "hit and run advocacy in India".

What about our own laws?

Before stepping into the field of law, I naively thought that judges would be well-versed in law. However, this doesn't always seem to be the case. Whenever a minor issue arises, everyone is scratching their heads trying to understand what the British would have done. This, combined with the constant “googlies” thrown by lawyers, contributes to the slow pace of the process.

(GIF source)

It's very odd to see recently enacted laws like the CAA and Electoral Bonds being challenged in the Supreme Court. Such legislation is typically drafted by experts and approved by parliamentary committees and the Law Ministry, among others. Their roles include ensuring that legal arguments about their constitutionality are thoroughly weighed before enactment. 

While public opinion or morality can change over time, such as the recent decriminalization of same-sex relations, etc. it's a significant system failure if laws go directly from Parliament to the Supreme Court. All branches of government have a duty to prevent public displays of institutional power struggles. Making good laws is tricky business. As Otto von Bismarck aptly noted, "Laws are like sausages; it is better not to see them being made.”

Unfortunately, we as a people are unable to work together without resorting to bullying. Recently, 600 lawyers have written a funny letter to the CJI, with the PM adding fuel to the fire, questioning why the court is being bullied by politically motivated group of lawyers who pretend to be fighting corruption, while simultaneously defending the corrupt in court. In polite, lawyerly fashion, the letter’s subject states: “Judiciary under Threat - Safeguarding Judiciary from Political and Professional Pressure.”

Dharma in limbo

In essence, courts, like any other institution, mirror our society. Evidently, we seem to be a society more concerned with group allegiance than truth, willingly condoning lies in favor of our party. This behavior is not just reflected in our personal lives, but also on TV shows, in Parliament, and in courts. We often resort to shouting, hiding our own faults behind angry emotional outbursts, interruptions, using intimidation as a form of argument (and assault as proof).

(Graphic courtesy of Kushagra Sharma)

The "why" question is easy to answer — they are Indians, not British. However, "what to do about it?" is a million-pound question!