It seems that the default way to enforce resolve disputes these days is to employ the services of swashbuckler Station House Officers and file criminal cases in order to intimidate or imprison those with whom you do not agree.
The great tragedy of our democracy is not that 22.1 per cent of the members of the last Lok Sabha had criminal cases against them (of which about 60 per cent were accused of violent crimes such as murder, robbery, kidnapping, extortion, rape, and so forth). The great tragedy is that our system of administration of criminal justice is unable to convict a politician in less than 17 years or keep him in jail for longer than 75 days. Feel free to call these the ‘Laloo Limits’. In this, the criminal courts are not alone.
In recent months, unable to enforce its rules, a top level regulator has been compelled to invite the Supreme Court to intervene in its ongoing battle with Sahara. So, while resentful bystanders may gleefully rub their hands as they see the Supreme Court slowly but relentlessly push India’s tenth most powerful man back on the Lambretta from which he launched his career selling salted snacks, the law only allows the court to jail Subroto Roy for six months in an attempt to make him disgorge Rs. 10,000 crore to Sebi. If Saharasri survives the long hot summer without a cooler, he would be free to leave in early September. There are of course a hundred other penal sections of a hundred other statutes to keep Saharasri alternately boiling and freezing in jail indefinitely but if this does happen, how can you not conclude that the law would have been misused in the bargain? To me, this irony is a befitting illustration of what has become of the rule of law in my motherland.
Think about it: what has happened to the way the law is applied circa 2014? When I became a lawyer 34 years ago, if a mining tender was incorrectly awarded, you invoked the principles of Administrative Law, approached a writ court and had the award quashed. Today, if you award a coal mine incorrectly, everyone agrees that the best ways to deal with it is to hand it over to the CBI! Again, if you engaged in an electoral malpractice – like using a government employee to run your campaign – your rival went to the Allahabad High Court under the Representation of People’s Act and overturned your election, even if you were Indira Gandhi. Today, if you engage in electoral malpractice – like shooting your selfie outside a polling station and putting it on social media – everyone agrees that an FIR should be recorded. Yet again, if you sold a new car that started to disintegrate rather faster than the Ambassadors of the time did, your customer went to a consumer court and forced you to repair the car for free till it came up to your customer’s standard. Today, you should not be surprised at all if the local Thana registers a case of fraud and cheating and then pressures you into giving him a different car. It seems that the default way to enforce resolve disputes these days is to employ the services of swashbuckler Station House Officers and file criminal cases in order to intimidate or imprison those with whom you do not agree.
Here is a little primer on the risks you run when you run your business these days. I will give you two examples. A seriously wealthy Punjabi client of ours who has not lived in India in 50 years decided that he needed to give something back. So he created a trust and started to construct a large college campus. As usual, he ran into building contractors who did not quite share his philanthropic ambitions. They cut corners, saved on cement in the sand, switched Rs 150 marble for Rs 60 marble, and hired coolies for masons. Inevitably, the building began to look like it came out of one of Salvador Dali’s nightmares. Inevitably, the contractor was sacked. In retaliation, the contractor sent in a legal notice demanding the remaining value of the whole contract as damages, not the profit he would make on the deal if he had actually finished the construction of the building. The client treated it with the contempt it deserved. Next thing you know, the contractor has a warrant issued against the philanthropist who now feared for his safety and couldn’t come to India till the dastardly document was recalled. No luck. The magistrate in Ludhiana could probably see the publicity potential of parading a celebrity before his court in full media glare. The application to recall the warrants made no headway and it wasn’t till the High Court intervened that the wolf retreated from the door. You can imagine the cost of that legal action in comparison with the contractor’s total dues!
Here’s another example from the same illustrious state where this kind of thing seems quite the fashion. One of our clients licensed a distributor for its products. The partnership didn’t do too well and business volumes were dissatisfactory. Our client terminated the license. A week later, the local SHO summoned half the board of directors after registering a case of Misrepresentation and Cheating. He wanted them in his office next day and let it be known that he would nab any accused who didn’t show up in 24 hours. The client hired a retired inspector to liaise on this one. The SHO revealed to him that the local MP was pressuring the cops to play opening bat for the distributor. Where do you go to fix this one? Since a complaint has been filed, a court would expect the cops to investigate. Why should the court interfere? Going to the cop was not an option. Isn’t it normal to summon someone to a cop station and then arrest him? I mean at the very least, it saves on fuel for the Maruti Gypsy. The client did not want half his board of directors behind bars. Guess what the client did? He went to the MP! The cop went out of the loop, the politician became the loop, the hoop and the coup, and in time, the case got withdrawn.
On a really blunt and angry day, this is the way I would put it: the dysfunction in our civil courts has reached a point where SHOs have replaced judges as the first port of call when a citizen’s grievance needs redressing. Inevitably, somewhere in the shadow, there is always a politician lurking with intent, and a bit of lip licking salivation. The question I find a little bit harder to understand is this: for all its sagacity, maturity, capacity for structured strategic thinking, why does our judicial system and all those who serve it not see that their own dysfunction is one of the biggest challenges facing our society? We know these are some of the brightest minds our country has. Is this reality really so hard to see? Is it that nobody cares? Or are we a nation of sophists highly skilled at rhetoric but incapable of coming up with an implementation plan. I mean, we have invented our own rocket science so we can get stuff done if we want to, right?
Here is the other irony. As officers of the court who drive the delivery of justice as well as impede its delivery, if they want to, you would expect that lawyers would have a pivotal role in fixing this systemic problem. As it turns out, lawyers have not responded to this problem by lobbying to make courts more effective, faster, better, or more. Instead, every constitutional lawyer in the hallowed portals of the Supreme Court has now become a criminal lawyer !