Chapter A3
Sex and the Justice Machine
No matter how young or old or rich or poor you are, there is a universal category of ‘Indian’ experience you may never stop having till the day you die.
Test this. You are a young executive and have just entered the job market. From your first salary cheque, you reward yourself with the latest snazziest mobile phone. It’s pretty! Two weeks later, it goes on the blink. You go back to the shop and ask for a replacement. The shopkeeper declines. He directs you to the company’s service centre. You protest. But there is a warranty! Of course, there is a warranty, the shopkeeper confirms, but it’s for repair or replacement! The company would like to know if this was a defective phone or you just misused it. Misused it, you ask? Sure, he shrugs, like flush it down the toilet. It strikes you then. You never did read the warranty fine print at the point of purchase!
But that is not what makes you angry. You are angry because you think you purchased a communication solution while the shopkeeper thinks he sold you a commodity, like a sack of onions. He doesn’t care what happens to the onions after he gets his fingers on your cash. It may anger you more if you realised that the fine print has a loophole. What stops the seller from claiming you misused the phone when you know you didn’t? The more you think about the fine print, the more you come to see that the seller can simply throw you under the bus, even though he might not want to necessarily throw you under the bus only for the sake of his reputation. It gets worse if the seller is a faceless company. If Covid-19 should hit or the National Company Law Tribunal should issue notice to the seller on a bankruptcy action, the seller can throw all its customers under the bus. This is then that you come to realise that your seller is one person before the cash changes hands and another after it does.
I could multiply these examples endlessly. When my daughter entered college, I bought her a shiny red second hand car from a well-known company specialising in ‘reconditioned cars’. The promoter of this company is a very charismatic visionary corporate automobile Czar. The image of the man transformed (in my mind) into brand equity of the company. One month after the purchase, the clutch began to give way. I took it back to them. But this is a ‘wearing part’, the company protested. I was bewildered: which part of the expression “reconditioned cars” is hard to understand? They dug in their heels. How long clutches last depend on how you use them and besides everyone knows they will wear out. It seems I hadn’t read the fine print. I was pretty flummoxed: which part of a car does not eventually wear out? What is this distinction about wearing part and non-wearing part anyway and why should I care? But no, the money was in their pocket, the damaged baby was mine and that was that. Despite thirty years of cynical law practice at the time, I had been had.
The real question is this: if you have been had in India, what do you do about it? Nine people out of ten believe this is what law courts are for. Nine out of those ten wouldn’t have the time or energy to take this to court. But of the very few who do, the end results are not what they expect. What they really experience is a very slow kind of choking to death in the belly of the Justice Machine as they are painfully smothered, then digested. This is when they come to realise that our Justice Machine works to a unique desi system of law which I call the ‘Buffalo School of Jurisprudence’!
Before I go there, allow me to formally state a disclaimer. I first explained this principle in my book ‘Bullshit Quotient’ (Hachette 2012). If you have read that book, you could skip the rest of this chapter. If you haven’t read the book, I will be rewriting it next year and you may want to give it a go when it is re-released. Bullshit Quotient debunks a great many beliefs we all hold dear. These are beliefs my naani called ‘nek khayals’ . These are noble ideas commonly flaunted even if they are rubbish! Ideas like it is hypocritical for politicians to claim they will rid India of corruption because even they know corruption is necessary for the good health of Indian democracy. Ideas like the absurdity of talking about corporate social responsibility when the law is concerned only with the well-being of company shareholders to the exclusion of everyone else. Ideas like the value of a brand is the difference between the intrinsic ‘value’ of the product and the price at which it is sold!
This brings us to the Buffalo School of Jurisprudence. Consider this scenario.
Thanks to your semi-rural grand-parenting, your love for dairy products is matched only by your passion for organic, uncontaminated free-range avian food products. It seems inevitable that you would one day buy a buffalo for your farm and enjoy home supplied milk. In your excitement you don’t really stop to notice that your son-of-the-soil neighbour owns a bull already. Tethered close by across the barrier of a low wall, these horny young neighbours fall in love, pretty much as I am sure some of my readers did in their time! And where there is love, sooner or later, there is inevitably some steamy sex. And as a thousand Hindi movies will tell you, where there is steamy sex without marriage, a ripple becomes a tsunami!
Your troubles begin when your buffalo delivers a calf in due course. In the beginning, your neighbour only glares at you across the boundary wall, his eyes hostile with menace. He tells you soon enough that the pretty baby calf belongs to him, or at least one half of it does. He wants money. You are not amused. Your buffalo has been seduced without your consent, and now he wants his bull to receive gigolo fees! The cheek of the man!
It goes downhill from there. Loud arguments become open threats of violence till finally, one Monday afternoon, while you are in the city, he trespasses your farm and abducts the calf. Your caretaker calls you. You abandon your board meeting, rush to the farm and gate crash his buffalo shed; only to find his two brothers pointing a shotgun at you. They tell you they know their Chambal ravines. You know you are in way over your head. What do you do now?
The local sarpanch is your first natural port of call. You expect him to be sympathetic, not least because he has received more than his fair share of Diwali largess from you. But he is above all a politician. His primary interest is to preserve his own position by keeping both sides engaged without committing himself to either. Then again, he may have blood and kinship ties with the other side and your Diwali largess may not be quite equal to that. No matter how you see this relationship, all he wants is to understand what he gets out of fixing this.
Once it is clear that recourse to ‘local self-government’ is not a solution, you really have no choice but to approach the Justice Machine. This brings you to a fork in the road. One branch of this road takes you to the civil court system. The other l is much closer to your farm: the local police station. This route is by no means as outlandish as you may think. A calf borne of the womb of your buffalo has been abducted by your neighbour. It is your calf. Indeed, even if the calf was human, the mother is the natural guardian of a Hindu child! What we have here is theft of property. It’s the cops’ job to restore stolen goods.
That’s not how it turns out. You realise that all cops are severely overworked. There are too few of them policing too many unruly subjects. Their default instinct is to do nothing about this unlawfully acquired carnal knowledge. While you are regaling them with your tale of woe in the buffalo shed, they are trying to figure out if you have enough ‘jack’ (a.k.a leverage!) to pressure them to lose the few hours of sleep they do get in a day. You may choose not to relent. All Indians are networked. If you spend long hours meeting politicians and top cops, you will succeed in making the cop lose sleep over your case. This does not mean that your problem will be resolved.
Once you get past the inertia, you will deal with the natural tendency of every human being to fish in troubled waters for a little profit. You come to realise that when you introduce a ‘neutral’ outsider to a two-sided dispute, it suddenly becomes a three-legged grease ball stool. The cop may proposition you for some ‘chai paani kharcha’. This may not bother you but then, what can you pay him? A calf isn’t worth that much. It may not even matter whether you pay him or not. He will sooner or later visit your neighbour, there will be a lot of to-and-fro, and then the cop will tell you the hard facts of life. What you have brought to him is a title dispute. You wish for him to decide who owns the calf, the mother or the father. That is the purview of the civil courts. Yes, if you and your neighbour start brawling, then it’s a different matter. He is here to keep the peace and he would have to arrest you both, book you for petty crimes and force you to sign bonds to keep the peace, at least till he’s there.
You may consider yourself fortunate if you encounter a saintly cop in the local ‘thana’. This would be false hope. The bottom line is the cop still has to get rid of a potentially explosive situation in his territory. You are unlikely to appreciate his methods.
I have real life experience of this. Many years ago, I had a dispute with a former business partner in my law firm. Neither of us were big believers in the substance of the dispute, or particularly outraged by each other’s conduct but we both had big egos and hated losing, as lawyers should. He started sniffing around looking to entrap me in a case and I got wind of it. I called up my network and soon had a meeting with the local top cop in Gurgaon. It was a sweltering July afternoon. The bemused cop could barely suppress his chuckle.
“How much money can he accuse you of misappropriating?” he wanted to know.
“Perhaps fifteen-twenty lakhs”
“What’s your car worth”, he hooted derisively. You don’t need an advanced sense of irony to get the point!
“What do you do in such cases”, I insisted. His sides started shaking with silent laughter. He drew up his chest and announced in his chaste Haryanvi accent.
“You are a suit-boot vakeel”, he reminded me, “How many minutes a day do you spend without air-conditioning?” I didn’t understand his meaning.
“Look vakeel sahib, it’s very ‘straight for me’. I will call you both at noon, put you in a room without a fan and invite you to resolve your dispute. In my experience, you will last till three-four pm!”
By now, I was smiling right back, as amused as I was relieved.
“This is the thing vakeel sahib. You all pretend to be tigers, but when it comes to genuine physical discomfort, your nose is much longer than your tolerance. Resolving your disputes is child’s play!”
If you contextualise this story to your own visit to the local cops, you know you will end up in similar circumstances. This is when many of your friends will advise you to pursue your ownership dispute in the local civil courts.
When and if you do go as far as the local civil courts, you find yourself in the chamber of the local hotshot lawyer. He claims to have the inside track. He is most encouraging. Being a little worldly wise now, you can’t shake off the feeling that he is broadcasting his business development sales pitch. Still, you need a lawyer and you keep talking to him. You move forward even when he tells you that he wants his fees in advance. He then tells you that the court would also like you to pay the court fees in advance. Even the computer guy who punches out your petition wants his fees in advance. The photocopy guy wants his money in advance. The oath commissioner who attests your affidavits also wants his money in advance. To file the case in court, you have to pay the court registry some speed money to accept your case, in advance. By the time you file anything, you are substantially cashed out.
This is only the beginning. Your case is listed before a court but the Reader of the court wouldn’t “put it up” to the judge without a tip, in advance. The Court issues notice to the other side returnable in 4 months time but then the guy who has to type out the order wants a tip, in advance. The order is typed out but the guy who has to deliver the Court Summons to your neighbour wants to be tipped, in advance. You manage to get the Court Summons sent out, but it comes right back with the notation that your neighbour was ‘out of station’, ‘not available’ or ‘addressee not found’. Four months later, when the case is listed for hearing, the judge re-issues the court summons returnable another three months later. You then start tipping everyone again, in advance. It is already clear that you will now be funding every service provider in the Justice Machine just to create activity, with no expectation of any result.
It only goes downhill from there. Your case gets listed three or four times a year. More often than not, at these hearings, the judge is on leave or on deputation elsewhere for an urgent job under order of the High Court or has been transferred and the new judge has not yet taken over. When the Judge is in court and presiding, your lawyer is sick or busy elsewhere. When your lawyer is present, key court staff who are in possession of court files are on strike over their salaries, sick at home or busy elsewhere doing election duties or whatever. Your neighbour is able to avoid appearing in court over many scheduled hearings. When he eventually runs out of available evasion tactics and is forced to appear, he too acquires a lawyer who is sickly. When everyone does finally show up and court records are available, there is a bomb threat or a pandemic shuts down everything for months together. Months become years as your case drags on. You keep funding your litigation, throwing good money after bad and see no solution on the horizon. Meanwhile, the calf has grown into a nice fat Buffalo and the milk tastes good, only you are not doing the drinking! You may have law on your side, but your rural neighbour has a stick to beat you with.
This is when the old Indian homily comes back to strike you full across your gobsmacked face. When it comes down to the love of mother earth, it’s the stick that decides who owns the buffalo.
Jiski lathi uski bhains!
And that my friends is the heart of the Indian school of Jurisprudence.