Chapter A2

Chapter A2

The True Nature of the Justice Machine

Do human beings have some kind of built-in justice gene? Even the worst gangster movies ride on the assumption that thieves have principles, a sense of right and wrong. In our everyday world, this translates into an app we carry in our heads constantly monitoring the behaviour of those around us on some justice algorithm. No one seems to acknowledge that the untested assumption underlying this app is the idea that if someone does someone wrong, society can and should provide us with a mechanism to right the wrong and ‘get justice’.

There are of course as many justice dispensing institutions as there are societies. Those with a love of Bollywood period films are familiar with the bell hanging below the balcony of Mughal kings. If you tugged at this rope, the emperor would emerge like a puppet in an animated swiss cuckoo clock and decide the matter. In the years since the Mughal Empire, India has evolved a modern ‘judicial system’ on the lines of its English parents. I can this the Justice Machine. I do so because there is more to the Justice Machine than the courts. First, justice is now dispensed by courts, tribunals, regulators and arbitrators. Together, they try and cover the range of legal injuries which citizens face. Second, the relationship between these justice dispensing institutions and their supporting service providers is symbiotic and interdependent. These service providers include judges, lawyers, the police, court clerks, court officials, valuation experts, liquidators, insolvency professionals et al. They work together, and this generates incentives and motivations far greater and wider than would be the case if courts were indeed just plain old ivory towers. This complex throbbing living organism is what I call the Justice Machine.

Why have I chosen to call it the Justice Machine? This is, to my mind, appropriate usage because the Justice Machine a mechanical construct, designed to perform a specific job using many moving parts, more or less oblivious to the ‘value’ of the result it actually achieves. In using the word ‘justice’, I must admit I am being ironic. I believe that whatever else the courts do or do not achieve, the courts do not set out to be just. Most of the time, it does not even make such a claim. At best, what the Justice Machine sets out to do is enforce the rule of law. This is challenging enough. It’s unfair to compel it to engage in metaphysical pursuits.

This needs to be understood in its proper context. It is critical we understand that law and justice are not the same thing. This is almost never true for people who end up in a court case. Given the hard work it takes to go there, you won’t dream of going to a court without this huge perception of wrong, injury, and injustice. If you should find yourself in court one day, fighting a court case, the environment around you would most likely be clouded with a sense of outrage and moral righteousness. You would never admit that you just may be wrong. Even worse, you would probably think the courts are here to right every wrong. Not just that, you would also probably think you are a better judge of what is right and wrong than the court. You would be upset if the court did not totally agree with you. In fact, every party in court on both sides of every case thinks exactly as you do. The result is a very confusing mix of angry clients, bewildered witnesses, cynical lawyer and exasperated judges. Justice is not what always gets done at the end of the day.

Now, I am not suggesting that justice never gets done. I am definitely not suggesting that judges and lawyers are not trying to provide justice. Sometimes they succeed and that is good. But just as often, they can’t succeed. I am not saying they don’t, or don’t want to. I am saying they can’t. There are many reasons why they can’t. First, they can’t because laws are not just as I have said already. Let me try and illustrate my meaning.

On the eve of India’s independence, New Delhi was still a sleepy town with a distinctly laid-back feel of a backwater. Yes, there was action in the walled city but the law-and-order environment had been largely stable for a hundred years. Residents went about their business oblivious to tectonic shifts taking place in the world around them, oblivious that is till the refugees started pouring in from the north and west. Where were these refugees to be housed? The walled city was crowded already and New Delhi was built to the colonial fantasies of our imperial masters. Overcrowding was inevitable and rentals hit the roof. Landlords split their houses, renting them out a room at a time.

Thus far, the law on the subject of tenancy was simple. You pay the rent you have agreed to pay and you live there for as long as you have agreed to live and then you ship out. That’s the way it was and that’s the way it remained till 1958. Then the politicians decided that tenants had more votes than landlords. Why not cherry pick who India should be just to? We enacted the Delhi Rent Control Act. By this law, landlords could let them in but couldn’t get them out. The landlords could let them in at any price, but the tenants then had the ‘right’ to go to a court and the court would decide what the tenant should pay for the room. Sometimes, it turned out to be only a fraction of what they had agreed to pay. The landlord still had to keep the property in fine fettle and if he did not, the tenant could do it himself and adjust it against the rent. Sometimes, the cost of maintaining the property was higher than the rent the tenant paid. Try as one might, there is no construct by which it is possible to argue that there is justice in robbing one citizen and paying another. Still the landlords who got to court and challenged the law were read some lecture about social engineering and protection of the weak. Where was the justice in this? But it was legal.

Meanwhile, a different dynamic played out in ‘rural areas’ but with exactly the same result. Historically, rural land in north India was held by large zamindars who had it tilled by poor tenants and left them a share of the grain in payment. In turn, the landlords collected the lion’s share and paid a part of what they earned as revenue to the government. This system did not do anything for the tenant but it was an efficient way to collect tax! When India became independent, rural tenants got a vote each. There were a lot more tenants than there were zamindars. This new-fangled bleeding-heart government didn’t want to tax agriculture either. It made sense for the democratic government of the day to curry favour with the tenant and abandon the landlords. New laws were now created placing a low ceiling on land holding and redistributing the ‘surplus’ land to landless peasants. The zamindars who worked up the courage to go to court were lectured on the dawn of a new India and the need for them to restrain their acquisitive instincts. Once again, the law had cherry picked who it would be fair to. More significantly, and most fortuitously, the law cherry picked the self-interest of those who had the power to put the law makers back in the saddle the next time the general elections came around. Where was the justice for the zamindars in any of this? But it was legal.

As time went by, the cities started to grow and soon edged up to the villages. Demand for housing kept rising all the time, and in the meanwhile, the cost of democracy kept rising alongside. If you wanted to win an election, you had to spend a lot of money getting elected. This is when voters realised that their ‘adult franchise’ was ‘fungible’ meaning you could convert votes to cash. Where were the politicians to find all this cash? The builders were happy to oblige. Give us the land, they told the politicians, and we will plough the profits back into your election campaigns. This is how it went. The local government issued a notice under the land acquisition law acquiring an entire village for a small price and sent in the police to take possession of it. Taking possession of course means kicking everyone out of their farms. The government then handed over these lands to builders and collected their side deal election funding corpus. In turn, the builders constructed houses on the land and sold the land to urban dwellers for a hundred times the price. Everyone but the peasants were happy. When and if the peasants managed to get to a court, it told them that “due process” had been followed and the land was required for the ‘public purpose’ of generating housing. So the new rich urban guys got their fancy flats in Dwarka, the politicians got paid off and the peasants ended up in slums. Where was the justice in this? But it was totally legal.

There is more to the story yet! In the mid-eighties, the tides had begun to turn again. Rent control laws were threatening the real estate industry. Landlords didn’t want to rent their houses because they didn’t think they would get them back at the end of the rental period. Indeed, a lot of landlords lived as tenants in other people’s houses while keeping their own houses vacant! People who didn’t need a house to live in wouldn’t buy one because they couldn’t rent it and make money out of it. Those who couldn’t afford to buy a house had nowhere to live because no one wanted to rent out a house. Builders were unhappy because the industry faced low demand. Everyone but tenants who had already occupied a rented house was miserable. It was time to redefine what justice meant!

Starting in 1988 or thereabouts, politicians progressively amended rent control laws. They killed these laws using two strategies. First they decided that tenants who paid rent above a certain amount would not be protected by these Rent Control Laws. Second, they allowed rents to rise slowly so that eventually, everyone was out of the rent control net. What did this mean? Richer landlords who had bigger properties and collected higher rents could chuck out their tenants quicker while poorer landlords who had rented small properties with smaller rents could not. Think about this. In Delhi, if the tenant paid rent above Rs. 3500 per month, the courts protected the landlord. If the tenant paid Rs. 3499 per month, it threw the landlord under the bus. How can there be two standards of justice with a line so arbitrary? Tenants who went to court to challenge these amendments were delivered a lecture about coveting the property of another and the changing needs of society. Where was the justice in this? But it was legal.

Maybe we should stop now and ask instead what we think law-making is all about. It is clear already that laws inevitably rob one guy for no good reason and reward another. The question is: how does the law decide who it’s going to rob and who it’s going to reward? The answer is embedded in the examples we have looked at. These decisions are taken by a couple of hundred elected law makers. More often than not, they are paid by interested parties to make these laws. Is this corruption? That’s a big topic embedded with all kinds of ideological biases. For now, I will only say this: unless you are personally willing to pay taxes used to fund every candidate to every election that is ever held in India, someone with an interest in one or another candidate winning will have to pay. This guy is going to pay because there is something in it for him. Now if that is corruption, then we need to redefine our vocabulary. Should we apply a term like corruption to all economic activity?

Which brings us to the next question: if a few hundred guys are going to decide what laws we are going to have, how does India pick who these 500 guys will be? To understand this, we need to recognise that man is ultimately a political animal, and in the use of the expression ‘political’, we speak of the acquisition, control and exercise of power over our fellow men. Societies are structured around those who exercise the most power. We call these dominant guys political elites but it’s really groups of networked individuals who come together and make a joint bid for power using democratic votes as their weapon of choice. If they win, they form a government and that gives them the power they seek.

How is this power exercised? In India, it is first exercised by seizing publicly owned common assets and converting them into private wealth. Second, this power is also exercised by selling new laws and ‘public policy’ to profit seeking business interests for a price. Finally, it is exercised by creating new laws and then using these laws to screw some people out of their money. Once they get their hands on the money, they either transfer it to people they favour or just blow it up as public expenditure. A good example of this would be a foreign trip for a minister, his family and a couple dozen hangers-on. The conclusion is inescapable: laws created by societies are intended primarily to service the paramount interest of those who dominate those societies. It’s the job of the Justice Machine to dispense these laws. What choice does the Justice Machine have? To be fair, it’s possible that these elites may have more than a streak of do goody humanism in them. When this happens, they support all sorts of initiatives to work towards a better society. When these elites do not have more than a streak of do goody humanism in them, everyone else is profoundly pulverised to powder.

Everyone is profoundly pulverised because in any democratic society, the fall guys basically have two choices: take to the streets in protest or go to the Justice Machine for help. If the fall guy protests on the street, he faces a lathi charge, arrest, FIRs, a jail term and perhaps bullets. Shorn of the bullshit, his protest is received with violence which encourages him to give up and go home. If he goes to court, he is told the ‘law’ is against him. A judge may see the injustice, but he has his own challenges. What can a judge do? He can hold that the law is illegal, but he can only do that if there is another ‘higher’ law in favour of the fall guy. Frequently, this ‘higher’ law is the Constitution of India. Think of something like Fundamental Rights. If the Constitution of India says we will take this man’s property, what’s to stop the politicians setting up a law taking his money and pants too? The Constitution would say you can have all the rest but you can’t have his pants because human dignity is a fundamental right. It is on the basis of that fundamental right that the man gets to keep his modesty. There aren’t that many fundamental rights any more. Where even that is not an option, then it’s game over for the fall guy and there is nothing the Justice Machine can do. This is the harsh reality that every cog in the Justice Machine faces, whatever its personal feelings on any subject.

That is not how it is positioned though. Going back to the examples we have examined above, in most every judgment in all these 70 years since Independence on land ceiling, land acquisition, rent control or abolition of rent control, the overwhelming tone is righteous and rhetorical. Everyone always knew that at each step, the law makers were following their self-interest. Yet, no court ever said “look this law may be a crime against one section of humanity and we understand why the politicians are playing the voting numbers game but we must enforce it because that is what courts are here to mainly do”. In every case, lofty language and elevated moral posturing informed the decision of the Justice Machine. This is denial wrapped in moral oratory.

However, neither moral posturing nor moral outrage at moral posturing leaves us any wiser. It’s the bottom line we must recognise so let us summarise it one more time. Most every law favours one guy and penalises another. How we define justice depends on whose trumpet we blow. The Justice Machine enforces unjust laws all the time. Even if we forget about who is favoured by what law and get back to the basics, we still have to admit that the Justice Machine has been established to enforce the law that has been enacted. So you can get a judge to deliver a legally correct decision but unless the law is just, you can’t get him to deliver a just decision. The Judge runs a court of law; he doesn’t preside over a court of justice.

It’s important to understand this. The Justice Machine has been created to enforce the law. Laws flow from agendas of dominant groups of people: society’s elites. These elites create laws in their self-interest. Such laws can’t be fair to everyone, nor are they intended to be. If you are a judge, you work for an institution. You may not agree with the laws that the institution is expected to enforce but you can either do what the institution is set up to do or you can walk away. Either way, you can’t subvert that institution and do whatever you think is just. It does not matter if what you do is just or not. If what you do is not legal, you can’t do it. When the law is unjust, and many laws are, where is the question of anyone approaching the Justice Machine to get justice?

There are several other reasons why laws really struggle to be on the right side of justice, however you define it. The single biggest problem is process.  No matter how you tailor legal procedures for Indian conditions, practical realities make the law onerous and expensive. There are many reasons for this, but the biggest is probably cultural. I will illustrate. Take for instance the Indian love for consultation. We are not an individualistic society. Instead, we are a consultative minded community of people. It’s rare to simply pick a beau, set a date, and get married. There are parents to be consulted, not just on the person to marry, but also on the procedures by which one is to be married. The date must suit a host of ‘key functionaries’ including the family soothsayer. This culture of consultation continues into every sphere of public life, including justice.

Every case has many stake holders – contending parties, judges, lawyers, employees, enforcing authorities and regulators too – and all need to be consulted as is appropriate. What we get is long hearings in court and then some. Woe begets the judge who decides a case without providing opportunity to everyone and his favourite pet rhesus monkey to say whatever rubbish he wants for as long as he wants till he runs out of things to say. It all goes on endlessly. In our attempt to be fair, we are so fair to the guy who is wrong that the guy who is right gets his butt wiped with sandpaper. The procedure makes sure that so much is said that by the time it is all said, no one knows what anyone started out to say. And many of those who did the saying, listening or suffering are dead, long gone senile or bankrupt. Justice delayed by decades is anything but, and India excels at that. We need to accept this if we are to use the Justice Machine to get what we want.

That said, it doesn’t matter if it’s ridiculous. If you go to court thinking that this is where you are going to get your justice, you had just better accept that this is your tool of choice and you are going to have to live with the limitations of that tool. You can’t be buying a bike and then be worrying about it raining all the time. A hammer does not run your arithmetical calculations for you. A computer does not fix a nail into a wall for you. The Justice Machine is what it is, so you have to deal with what is on your plate.

So why do we mouth platitudes about justice? No doubt, larger forces are at play. Perhaps we need to believe that we live in a sane society where there is hope. Life would be unbearable if we did not have this hope. I could argue that we fool ourselves about justice like we do on about every other ugly reality crawling up our spine because we cannot deal with the reality of it. This is true for everyone.

It may also have to do with sugar coating bitter pills in order to swallow. A soldier will not accept that he is fundamentally in the business of inflicting violent death, whatever else he achieves in the bargain. A businessman will not accept that he is basically in the business of selling the cheapest good at the highest price to the most gullible customer in order to make the most money, whatever value gets delivered in the bargain. A lawyer will not fundamentally accept that he is a hired killer (so to speak) of the opponent’s case, whatever justice he may possibly achieve in the bargain. We need to fool ourselves, because we need to believe that what we do is very elevated and principled and high thinking. The problem is that we then go on and buy the bullshit we make up to make ourselves look better to ourselves and everyone else around us. But if you decide to knock on the doors of the Justice Machine on a real or imaginary grievance, there are a whole bunch of bitter realities you have to deal with. The upshot of all this is that if you decide to use the Justice Machine to fix your problem, you are going to have to see both the Justice Machine and your legal problem in the same way that the law and lawyers see it. Only then will you be able to evaluate your options and decide how to go forward.

This is the heart of the matter. The Justice Machine is what it is: it is not what you wish it were, or want it to be. Looking back on my years as a lawyer, I can see now why I struggled to understand the nature of every legal situation and every legal problem. I can see now that I couldn’t understand the problems because I did not understand the true nature of the Justice Machine, or how it looked at legal issues. As I eventually learnt, finding a solution to a problem is never a problem: the real problem is to understand the true nature of the problem and the environment around the tools I wanted to use to get it fixed.

I can now see that I had an inappropriate mental ‘attitude’. Maybe I shouldn’t blame myself. Maybe this is how the mind works. When we see something strange, we imagine it’s only a small variation of something else we know well. Let’s face it: when you get past a certain age, you don’t really have an open mind anymore. You get heavily into pattern recognition. If it stands four feet tall, has four legs and a tail, it must be a pony even though it’s actually an oversized great Dane. You don’t stop and say, okay, let me get the facts and assess them independent of my preconceptions. Life is too short for that. You glance at the thing, you register non-threatening animal, and you move on. There’s evolutionary benefit in this. If we were to stop and scratch our chins about everything we encounter on the average day, we wouldn’t get much done, would we? We use rules of thumb. Most times we come up trumps. Occasionally, we really royally blow it. That’s when we get clubbed on the head by a Neanderthal. That is when we chuck the bullshit out of our head and see the thing for what it is. With the legal world, everyone not already trained in it gets hit by that Neanderthal club!

The legal world is just not one where you use rules of thumb. It most certainly is not one where you use rules of TV soaps, or ‘Aap Ki Adalats’ or any of that infantile “order, order” hammer swinging halfwit-in-a-wig who shows up from time to time in Bollywood movies. This is a world with its own rules. These rules are sharp and they are clear but they are unique. This is why it takes many years to train a lawyer to successfully navigate through this world. The trick is to get a head start on this learning curve by dispensing with preconceived thinking. I recall once an interview I read of the cricketer Lala Amarnath. Asked about the secret of his success, he said that he lived his life without baggage. “In life”, he said “I have lived each day on its merit and in cricket”, he added, “I have played each ball on its merit”.

If you want to seek the help of the Justice Machine, you have to figure out how to play the legal ball on its merit! If you figure it out right, the Justice Machine is a great place to achieve your objectives. If you don’t figure it out, three nights in a tub with full strength sulphuric acid would be a gentle painless death in comparison. So I am going to repeat myself yet again. The Justice Machine is here to enforce the law. The system is very imperfect. It is slow and a lot of the players in the Justice Machine ‘work’ the system to their own personal benefit. The best you can hope for is the enforcement of the law. The guy you are trying to screw over is trying to screw you right back. The system encourages both parties to have a hell of a screw ball party. This is perfectly legal. You may end up having the screw of your life but equally, you may end up having an experience akin to being a football amidst a bunch of seriously deranged hostile aggressive blood thirsty death row inmates. You shouldn’t be playing the game unless you have a very good sense of where the game is at.

So where is the game at? The game is about enforcing the law. How do you judge whether you will be able to enforce the law? To begin with, you have to know what is the law is. You can’t go to court because you are pissed off. You go to court because you looked at the law, and you feel like you have a good case and every expert you talked to thinks you can win. You can’t do any of this if you aren’t willing to spend some time figuring out the law and what it can do to your poor victim to be.

Now, the law has three dimensions to it. First and foremost, there is substantive law. Substantive comes from substance meaning the meat of the law. This is the law which says that you have a right to the land you purchased. If you don’t have a legal right to the land you purchased because the guy who sold it to you wasn’t the owner, your best bet may be to get yourself a good bottle of whisky, go home and drown in it. I am saying that having the law on your side is necessary before you think of cranking up the Justice Machine. We call these things ‘conditions precedent’. While on the topic, let me add that the reverse is not true. If the law is not on your side, the Justice Machine is still a viable option for you just so long as you are not the one who cranks it up. That’s another way of saying that the Justice Machine is very sympathetic to the defending side even as it discriminates against the victim of the claimed legal injury. This is a very long topic and I will come back to it throughout this book.

Second, there is the procedural law. ‘Procedural’ comes from procedure meaning the steps you take to enforce the law. This is the law which says that if someone grabbed your land, you have to file this sort of petition which reads like this, in that court or tribunal and the case will be decided in this way. If the procedure is very elaborate or complicated or no one knows what it is, you wouldn’t want to crank up the Justice Machine because you run the real risk of being lost in the labyrinth of procedural confusion. This is especially important because as I said above, procedure is by definition unfair to the guy who activates the Justice Machine. We will return to this topic throughout this book.

Finally, there is the strategic and tactical side of the law. This is the knowledge which tells you which button to press where and which bullet to fire on whom! You won’t find it in a book and no one teaches it. It comes from experience and it’s the hardest part to grasp. When you go to a very smart lawyer for advice, this is what you go for. You don’t want this smart lawyer to pick up a legal book and read some part of it and tell you what it means. You want him to tell you what to do, and how to do it. You want him to tell you how to go about using the law and the procedure to win.

As I sit down to write this book, it is perfectly clear to me that I am not going to write about substantive law. I have an LLB degree and 42 years so far in legal practice, half of that as the Managing Partner of a law firm.  Still, I understand only a small number of laws! Besides, can anyone write one slim volume on the law when most lawyers store thousands of hefty law books on their chamber walls? I am also not talking about procedural law. There is a lot less procedural law than there is substantive law but it still fills many books. Besides, procedural law has a lot of ‘localisation’ meaning it changes a lot from court to court and from jurisdiction to jurisdiction. This book is about the third dimension of the law: the strategy and tactics used in courts to win cases! This book tells you what to do when you have a legal problem and how to go about fixing it. It reduces the business of successfully beating up your enemy into a series of rules. Follow these rules and more likely than not, you will come up trumps. It’s a handbook for winning and I assure you, it is the only book of its type in India. And then, maybe out of India too.

This book is therefore split into four parts thus:

• First, when you realize you may find yourself in a legal war, you must ask yourself if you should be fighting. Part B deals with rules that help you decide if you should jump into the fight. It’s about Deciding to Fight.
• Second, if you decide that you do want to go ahead and fight, you need to prepare for the fight. In Part C, I cover the stuff you need to do to make sure you have the capacity to fight a legal war. It’s about Preparing for Conflict.
• Third, once the fight has begun, you must prepare and implement your long-term legal strategy. How are you going to beat your enemy? Part D deals with Conflict Strategy: the larger game plan on the basis of which you fight your good fight by doing bad things to your enemy.
• Finally, we deal with the final aspect of legal strategy: the tactics you can use ‘on the street’, in the moment, when you are right in the thick of it. This is what turns the tide at the immediate local level. Part E is about Conflict Tactics.

This book is an expansion of experience gained over 40 years of fighting legal wars. It relies primarily on my experience of fighting legal wars in India on behalf of large global corporations but the lessons learnt may well have wider validity. I would think that many of the lessons here apply to life generally, and not merely to the legal world.

Although the rules themselves apply more or less universally, there are a variety of ways I could have mapped them. Ultimately, maps tell you more about the mind of the map maker than the place he is depicting. You know what I mean when you see a medieval map saying “Here be Dragons”.  I see legal conflict as war without guns and so I draw battle analogies as I share my thoughts. I have used these rules more than a few times.

Naturally, I continue to remain bound to my confidentiality obligations. I would therefore take the liberty of referring my readers to the Disclaimer contained on the second page, of the book