When we seek to do the right thing without adhering to both the form and spirit of the rules we have created for ourselves, all of us undermine the very ideas we believe we are upholding.
Even economically savvy voters who never bought into the Aam Aadmi Party’s 1960s style teeny-bopper socialist manifesto – but prayed for transformation through its disruptive politics – must lament the spontaneous self-combustion of the Delhi Government in a haze of pepper spray last week. As for me, after 33 years of law practice, I can confirm that the path to ethical hell is always paved with the best intentions wrapped in crusading rhetoric. When you’ve kept the appointments I have, it’s hard to be a believer.
The angst is all too plain though. When corruption combating crusaders sleep on pavements protesting the actions of cops who do not arrest African women without warrants in the middle of the night, do we question their bona fides? When the Apoplectic Aam Aadmi announces that he is going to deliberately bypass due process of law so that he can have his Lokpal Bill the way he likes it, should we be alarmed? When the Government of Delhi files an FIR against the Union Law Minister, the Union ex-Director General Hydrocarbons and one of India’s foremost businessmen for hatching a conspiracy to double gas prices in India, ought we to stand stunned in horror? As far as I am concerned, its three strikes and I am out.
As a lawyer, I am always preoccupied with questions of ethical choices. To say ‘never mind the rule about not arresting women at night so long as we end up with a sinless city’ is indefensible. To say ‘never mind the obligation of every legislator to follow the law in creating the law he hopes will catch those who break the law’ is self-defeating. We have all heard that ghastly story about ‘the Congress being a Reliance dukaan’ but to say that ‘state governments have jurisdiction to file FIRs against Union functionaries because they don’t like Central Government policy decisions’ is truly surreal. Means and ends are convertible, Gandhiji warned us: “Our progress towards the goal will be in exact proportion to the purity of our means”. To me, this is self-evident. To shoot someone down in the street to rid ourselves of evil is wrong: it’s wrong in Kashmir, its wrong in the Ansal Plaza basement in south Delhi and its wrong in Gujarat. I don’t like encounter killings and I don’t like people who break laws because they think it’s good for the country.
This is not an error unique to the exalted Apoplectic Aam Aadmi himself: it’s an epidemic. We regularly hear calls for the castration of rapists, the summary execution of politicians and the arrest without trial of the corrupt. What happens when someone from a radically different ideology makes these same calls against immodest women who bare their legs, dissenters from the ruling party ideology or people from a religious minority? After all, cutting off hands and noses, stoning people to death, sending people to the villages for cultural re-education or deporting them to Siberia after a populist kangaroo trial is only another ideology at work using the same logic. When we decide that due process does not matter, that we can pre judge and condemn anyone based on our own ideological position, we are indistinguishable from the Taliban. As I read the stuff I do on Twitter and Facebook, we Indians have indeed all become Taliban.
Behind this mind-set though is an even larger problem: we seem to have lost sense of the limit of our jurisdiction. Everyone is neither competent nor entitled to be the judge of everything. Processes, procedures and institutions are created to balance the social choices we make: to drive consensus amongst latent contradictions. To argue that we should bypass these processes for a larger objective is only one step away from the Wild Wild West, where every man is only as good as the gun he has. In this, it’s not just the Apoplectic Aam Aadmi who falls short. All of us – even our judiciary – misses the target.
I am not ungrateful for the moral compass the judiciary sets us from time to time. Nevertheless, the fact is that the judiciary is far better at hurling well aimed ethical principles at its subjects rather than the dysfunction in its backyard. When you get past the systemic failures, the inevitable obstructionist defence tactics, the impossibly prolix procedural rules, the excessive pressure on a creaking infrastructure, the tardy professionalism of the cogs in the justice machine and a thousand other things besides, you still have to deal with the basic fact that very often, the judiciary can’t make up its mind on the limit of its own jurisdiction! What is going on in the world of alternative dispute resolution is a very good example.
I do freely admit that I am no believer in Arbitration. In the Fineprint Bleeding By Arbitration, I argued that privatising justice by outsourcing it to independent service provider is an unmitigated disaster. The disaster has magnifies immeasurably over the years because Indian courts have never been able to decide where they stand on a variety of arbitration law related questions. Take first the question whether Indian courts have jurisdiction to interfere arbitrations being held outside India. This is an important question for corporate lawyers because we set up international cross border agreements all the time and we need a dispute resolution mechanism which works for both sides. In 2002, the Supreme Court settled this question in Bhatia International v Bulk Trading [(2002)4SCC 105)] when it decided that Indian courts did have jurisdiction over arbitrations being held anywhere in the world unless parties had specifically agreed that India courts will not have jurisdiction. Subsequent judgments expanded on this theme. In Venture Global Engineering v Satyam Computers [(2008) 4SCC 190], the Supreme Court said that an Indian could always challenge an award made outside India in the same way that it could challenge a domestic award. In Citation Infowares v Equinox Corp [(2009) 7SCC 220], the Supreme Court said that Indian courts could appoint arbitrators in foreign arbitrations as well. Then came the great turnaround of 2011. In Videocon Industries v UOI [(2011) 6SCC 161], the Supreme Court now said that when parties have decided to arbitrate outside India and be governed by a foreign law, Indian courts have no jurisdiction at all. Next year, in Bharat Aluminium v Kaiser Aluminium [(2012) 9SCC 552, the Supreme Court agreed with the two judges and held that if an arbitration is held outside India, Indian courts have no jurisdiction.
So, what about all those sorry suckers who had taken the Bhatia International decision seriously and written their contracts on that basis? The Supreme Court understood the issue. It ordered that this new law would only apply to contracts made after September 6th, 2012! Whether judicial fickleness can be addressed by conjuring magical cut-off dates out of the air is one of those existential question which blows without answer in the wind. Since it takes forever to have a court decide anything in India, parties will, for a long time, have a law applied to them which the Supreme Court clearly thinks is wrong to begin with!
Here’s another example. When a judge appoints an arbitrator because the parties fail to agree to appoint one, is he just appointing an arbitrator in an administrative sense or should he go into the hotly contested questions in a judicial sense? If he is acting judicially, he will have to examine whether the parties had an arbitration agreement, whether the disputed question is arbitrable, whether an arbitrator should be appointed at this stage and so forth. Conversely, if he is acting administratively, he simply appoints the arbitrator and lets the arbitrator decide whatever the parties are arguing about. Now, back in 1999, two judges of the Supreme Court decided in Ador Samia v Peekay Holdings [(1999) 8SCC 572] that a judge acted administratively. In 2000, this was reaffirmed by three judges of the Supreme Court in Konkan Railway v Mehul Constrution [(2000) 7SCC 201] and then again by five judges of the Supreme Court in Konkan Railway v Rani Construction [(2002) 2SCC 388] in 2002. You would think that was judges enough! Not so. In 2005, seven judges of the Supreme Court decided in SBP & Co v Patel Engineering [(2005) 8SCC 618] that in appointing an arbitrator, a court acts judicially.
This is a repetitive pattern in many areas of law, especially in taxation. For as long as I have been in law practice, eminent benches of the Supreme Court have unsettled settled principles of law. Lawyers advise clients based on the latest judgment, but judgments reverse themselves all the time: what does that do to the quality of legal advice we give? The problem is that many of these judicial U turns are motivated by a genuine desire to alleviate the specific plight of parties based on a subjective perception on who has been wronged. In doing this, the judiciary twists the law one way and then another, undermining the objective application of the very dispensation it is here to uphold. Law then becomes not a principle to be objectively applied, but an instinctive and subjective application of “the right thing to do”. No one stops to ponder the perfectly obvious point that your wrong may not be my wrong and your sense of what is right may not be mine. Do we want a society run by rules, or one run by emotions and subjectivity?
You don’t have to be Mahabali Vetaal to understand how this plays out in other areas of our life. A judge may passionately believe it’s ghastly to be gay, but if as a society, we wish to retain the fundamental right to personal liberty in our private space, then by what logic can we protect that right in what we eat or wear but not in who we consensually have for a sexual partner? Surely, the right to pursue our spiritual faith as we see fit should include the right to patiently hear out Wendy Doniger’s alternative history of Hinduism. In both these cases, the judicial system has failed us just this year because it has paid homage not to the objective rule, but the presiding judge’s own sense of what is the right thing to do.
If it’s not perfectly obvious already, allow me to repeat that this Fine Print is not about judicial fickleness: it’s about the risk we run in acting on our subjective beliefs rather than the objective rules we have all collectively rightly or wrongly established. When we seek to do the right thing without adhering to both the form and spirit of the rules we have created for ourselves, all of us undermine the very ideas we believe we are upholding. Therefore before we set out to change India, let us at least agree to abide by the rules we have already agreed on, and use the right means to get to the right ends.