Legal Luminaries Reflect On Law & Story Telling At IDIA Annual Conference

The recently held IDIA Annual Conference on "Law and Story Telling" saw legal stalwarts share riveting insights on storytelling within courts and in the practice of law.

The panel was moderated by Mr. Arghya Sengupta, Founder and Research Director, Vidhi Centre for Legal Policy, New Delhi and comprised of:

1. Justice Srikrishna, former judge, Supreme Court of India,
2. Justice Gita Mittal, Chief Justice of the High Court of Jammu & Kashmir and a former judge of the Delhi High Court,
3. Amarjit Singh Chandhiok, Senior Advocate, Delhi High Court,
4. Rajiv Luthra, Founder and Managing Partner, Luthra & Luthra Law Offices, and
5. Shyam Diwan, Senior Advocate, Supreme Court of India.

Lord Denning, telling it like a story

Mr. Sengupta outlined the broad theme of the purported panel discussion: "(a) how stories can shape an effective legal argument (b) how stories are at the root of all adjudication (c) how stories form the basis of very exciting and high-profile corporate deals."

He then went on to narrate a story of one of Lord Denning's judgments, "ex parte Hook – which was a case in administrative law relating to the doctrine of irrelevant consideration – when a decision can be quashed when the considerations which have been taken into account by an administrative authority are irrelevant" –He  quoted the rather humorous excerpts from Denning's decision, to demonstrate how he simplified the matter by telling it like a story –making it much more interesting than just a dry discussion of administrative law!

Mr. Sengupta then called upon Justice Srikrishna to narrate his experiences while investigating the Bombay riots of 1992-93.

Justice Srikrishna: Impact of words

Justice Srikrishna stressed on the fact that, "When you don the robes and sit in a judicial chair, you do not owe allegiance to any religion, you only owe allegiance to the Constitution and the laws of the country" which he said was the principle he lives by.

 On a lighter note, he quipped that despite having read the original scriptures of the Ramayana, he was never able to locate the GPS coordinates of a place where Lord Ram was born! Yet some Hindus determined Ayodhya as that location and went ahead and destroyed the Babri masjid situated there – leading to some Muslims considering it a threat to Islam, which ultimately caused havoc and the riots of 1992-93 in Bombay followed as a result. He then described how he came to head the committee that was tasked to enquire into the riots of 1992-93.

After having gone through some of the heart-breaking accounts of the people who suffered during the riots, which he felt were a result of people acting out of passion with utter disregard to the law and to human nature, Justice Srikrishna said that, he had two pieces of advice while submitting his report, derived from the Ramayana, the first one being a piece of advice given to Ravana by his brother – which is translated to mean, "it is easy to get a man who speaks to you sweetly, but it is very difficult for a man to speak the bitter truth and more difficult for a person to accept the bitter truth however beneficial it may be". The second piece of advice that he included in his report, was a famous quote by Shankaracharya, translated to mean, "the same law resides in both you and me, so why are you unnecessarily getting angry with me and doing this kind of an injustice to me"?

Rajiv Luthra: Mirza Ghalib's story

Mr. Luthra started with a story about Mirza Ghalib (a famous poet), who fell in love with a fine young lady who wasn't accepting his advances. He said that, one night Ghalib in a drunken state, showed up at her house and kept calling out to her, receiving no response. He then had to answer the call of nature, and decided to urinate on her wall, whereupon a policeman appeared and told him what he was doing was not allowed! This is when Ghalib responded with, "nahi janaab jo aapko dikh raha hain, woh nahi hain, yeh aasoon hain, jagah dhoond dhoond ke nikalti hain!" which essentially translates into "No sir, this is not what it seems like. These are my tears, struggling to find spaces to flow forth from…!"

Re-scripting the Narrative

The key highlight of Mr. Luthra's talk was a big-ticket case, where he ended up re-scripting a commonly accepted narrative. This case involved genetically modified organisms (GMOs), and much like other parts of the world, there was a lot of fear and apprehension with their release in India. Mr. Luthra was tasked by Monsanto to represent them in India's supreme court where one such matter had reached. He decided to fly down to America to get a complete understanding of genomics, thereafter, being convinced that the technology makes sense and that India should give it a chance, he came back and put a team together and they appeared before the court. The opposing counsel screamed about how Monsanto was 'playing with nature'. Mr. Luthra pulled at the gown of the senior counsel and said:  'but she's not saying what is wrong with playing with nature'. Thereupon the senior counsel asked Mr. Luthra to argue the case, and he did, making his point about how 'we are all playing with nature, we are wearing clothes, we shouldn't be wearing clothes…let's take that further, agriculture (is also) playing with nature!' In this way he successfully managed to change the narrative around GMOs by ensuring that playing with nature was not as bad as it seemed!

Mr. Luthra ended with important advice by saying, 'I always believe that when you want to say something, put it across very simply…big words of 'de hors' and 'ipso facto' are wonderful and there used to be a show of it at one time that you have a great command over vocabulary…simplicity and simply explaining...settles the whole point!"

 Shyam Diwan: Aadhaar stories

Mr. Diwan narrated his experiences on how the Aadhaar scheme has affected people from different walks of life.

Surveillance State

He narrated a story from his visit to the small town of Burmu, near Ranchi, where he visited a school, set up by the state government for small Adivasi girls. He said what struck him was that the school, on the instructions of the government, insisted that every child had to give her fingerprints, twice every day and biometrically register her fingerprints on the Aadhaar system; and that on the Jharkhand educational website, there would be real-time attendance reflected, not just of the school he visited but a lot of other schools. He said, "...on that day there were 230 children in school and out of them approx. 190 had Aadhaar cards and Aadhaar registration – but the attendance was showing at only 130 – so there was this huge gap of 60 students." He said the reason for this gap was the failure/inconsistency in the authentication of fingerprints of the students. He continued, "this sort of  got us thinking on 2-3 things, one, the idea was to link this database to the mid-day-meals which is a centrally sponsored government scheme and this was one manner of authenticating whether a child was in school...Second…was that even though you know that biometrics don't necessarily work with children, you are insisting on it. Third, you are maintaining a log and a database of each child's attendance virtually permanently on a centralized database, which can be tracked across her lifetime…all of this was very disturbing…because we thought that if this is extrapolated and extended from this school to various other schools, colleges, employments and across various other gateways that a person walks through in his/her life, you might have what is very close to a surveillance state.."

Creating second-class citizens

Mr. Diwan said that on the same trip, he visited some of the villages around Ranchi. One of the first things he noticed during his trip, was that there were no young men of working-age in these villages, because most of them had gone off to the cities or elsewhere to work. So, it was very largely women and older people. While visiting some of the homes in the village, he realized that there were several instances where an elderly or a disabled person, who could not travel to the ration distribution centres because they were kilometres away and/or the centres required biometric authentication and their biometrics did not match. They were therefore almost reduced to second-class citizens in their own country, dependent on their neighbours and others for the ration that they were entitled to as a matter of right prior to the introduction of the Aadhaar scheme.

The diverse Aadhaar litigants

 Mr. Diwan went on to recount a story about the litigants who got together to challenge the Aadhaar scheme. He spoke about several risks relating to having one's biometric information on a permanent national list/register, how that might affect a person's dignity, lead to fraudulent misuse/duplication, adversely affect India's banking system from a lack of verification/security point of view, even affect national security by disclosing details of defence personnel, etc. from the points of view of scholars, journalists, defence officials, human rights activists, bankers, technologists, etc. that comprised the group of people who filed the Aadhaar litigation. He said that it was technology and the ease of communication that it affords, that got all of these people from diverse fields, with concerns pertaining to the Aadhaar scheme, to come together, organize themselves under the various freedoms guaranteed under the Constitution and to petition the Supreme Court under Article 32 of the Constitution, "with a view to questioning a programme which at the most basic level each of them felt was compromising our freedom and dignity which is assured under the Constitution".

Amarjit Singh Chandhiok: Mediation and settlements

Mr. Chandhiok recounted several instances where he was mediating cases, right from the time when mediation as a concept itself was in its nascent stages to a time when big commercial matters were being mediated. He said that the very first case he mediated, was on a question of values and was resolved quite simply by him suggesting that the parties try something new for a few weeks. The matter seemingly resolved itself!

Insolvency Code

Coming to the Insolvency Code, Mr. Chandhiok said that he felt that, "The greatest thing that the Insolvency Code has done is bring some discipline into the system."

He went on to speak about how through the mediation process, they have been able to resolve disputes with the creditors in the commercial world, thereby saving the company, the relationships, the public money by repayment process and most importantly the employees of the company and their families from suffering.

The Human Element in Court-Rooms

Narrating some incidents from his time in the Delhi High Court, Mr. Chandhiok emphasized the importance of wit, camaraderie between judges and lawyers and the recognition of the human element in the courtrooms. He ended by saying that "Until and unless there is a blending of the Bench and the Bar and this story-telling that we are doing, is made part of it, we will not be able to do what we want to do in justice…give access to justice."

Justice Gita Mittal: Always Learning

Justice Mittal started out by sharing her lessons in life by saying, "it may come as a shock to you that I started studying law in 1978, purely by accident! I came to the bar in 1981, I practiced law for 23 years and I went to the bench in 2004...14 years of judgeship, 23 years of law practice…I am still learning!" She also went on to say that all her learning has come from experiences and people and not big law books!

Am I Invisible?

Justice Mittal spoke about her experience in one of the training sessions on 'sexual violence' that she had organized in Delhi, which was attended by a well-known activist of the LGBTQ community, Laxmi Narayan Tripathi. She went on to describe Laxmi, as spectacular, 6 feet 3 inches tall, who came in wearing either red and gold or black and gold, heavy make-up with deep red lipstick, a big bindi and hair upto her waist. She described how Laxmi walked into the room full of lawyers and judges and asked them, 'Am I invisible?' shocking everyone into silence. When everyone finally answered, "of course not, we see you", she responded with a profound, "So why do you treat us so?" -thereby highlighting the problems of lack of inclusivity in society and lack of recognition of the rights of the LGBTQ community.

Rendered homeless by the State

Relating the story of a man who was rendered homeless, jobless and reduced to the streets with his whole family, after his home was demolished during the Emergency of 1975, despite his right to rehabilitation being recognized by the Government, Justice Mittal went on to speak about how that case threw light on the stark reality of the barriers on the access to justice in the country, because if a man who lived 3 kms away from the Delhi High Court took 30 years to approach the same court for relief to claim his rights, the situation is very bleak and it is not just to do with availability of legal aid, but has much to do with "illiteracy, ignorance of legal procedures, insecurity about legal procedures, fear of ostracization, fear of the process itself.."

She concludes by saying, "Access to justice is not limited to access to courts."

Suggestions to ensure accountability of lawyers and judges

Answering a question raised by an audience member on the accountability of lawyers and judges, the panelists suggested various ways in which the same can be done. Justice Srikrishna said there should be a law penalizing the judge in case of a wrong or a dishonest decision as well as the lawyer who deliberately misleads a judge to make a wrong decision. Justice Mittal suggested the introduction of punitive costs and development of a capacity by lawyers to say 'no' to frivolous cases which have no legal basis. Mr. Luthra emphasized on how ethics and integrity should be brought back into the legal profession – whether it is through punitive measures or self-regulatory measures.

Towards Written Advocacy

Mr. Shyam Diwan ended the session with some advice to young law students, he said that the trend the world over is that, "we are going to have to move from oral advocacy towards written advocacy..." He encouraged young law students to enhance their skill sets to "use words in writing to sell an idea."