Law and Buddhism

Youngest of the three religions to evolve in BCE India, Buddhism has taught itself from the follies of its predecessors and as a result charts out ‘an equitable path to lead life’. Thus from the point of view of a law student, a study of Buddhist mores and culture presents a unique scenario where one can delve into ancient religious texts and sanctions and impute a contemporaneous legal understanding to them. This short treatise would analyze the fundamental teachings of Gautama Buddha and try to evaluate as to how it has or may affect the myriad of law, morality and legal system that we adhere to today.

Buddhism evolved from the teaching of a ‘sheltered prince turned ascetic’ Siddhartha Gautama who one day ventured outside his palace and set his eyes on the ‘four sights’. Troubled at heart he renunciated princely life and sought the meaning of life, he meditated under a fig tree and achieved spiritual awakening and came to be known as Buddha or the awakened/ enlightened one. Buddhists believe that there is an eternal cycle of life and rebirth, this cycle causes suffering from attachment and the only way to get out of this cycle is by eliminating desire by following path of Buddha. Aware of varying levels of commitment, Buddha laid down the Five Precepts of the basic code of ethics for a common man, for those who wanted to lead more ascetic lifestyle there was the Noble Eightfold Path represented by the eight spokes of the Dharmachakra, for the novice monks and nuns there was the Ten Precepts and finally 277 rules for fully ordained monks and 311 for nuns.

Let us analyze these Buddhist rules and precepts and try to glean out the ‘God particle’ out of it. The Five Precepts or the pañca-sīla in Pali refers to the very basic of Buddha’s teaching and lays down commitments to abstain from killing, stealing, sexual misconduct, lying and intoxication. The Noble Eightfold Path builds on the pañca-sīla and adds abstinence from overindulgence in eating, decorative accessories and luxurious abode. For the novice monks and nuns apart from the eight precepts there is bar on attending entertainment programs and accepting money. For the ordained Buddhist ascetic living at the monastery the rules were contained in the Patimokkha which lays down in detail how a monk or nun should carry out his/her daily activities, it contains varied rules from expulsion, probation to a step by step account of dispute resolution processes that concern monks only.

A quick review of the stair case approach followed by Buddhism shows the innate understanding of Gautama Buddha and subsequent Buddhist sanghas that even to lead righteous life and attain nirvana unequals must be treated unequally, thus while for a common person there are five guidelines to follow for an ordained nun there are 311; but the magnificence of the scheme lies in the fact that the core in 5 and 311 rules are same ‘to encourage the relinquishment of harmful mental qualities and the nurturing of beneficial mental qualities’. Buddhists try to attain this by wisdom, ethical conduct and proper concentration. This forms the bedrock of Buddhist understanding of Middle path.

Question arises as to how we can use such high placed idealistic edicts and moralistic concepts and accord them their correct position in our so called contemporary legal structure or how is it different from various other religious dictates on similar issues. We find lot of encouragement in the writings of Colleen Walsh, Rebecca R. French, Vesna Wallace to name a few. The most important inspirations that we can draw from Buddha’s teachings that have direct bearing on our law, morality and legal system today would be the principles of non attachment and open-mindedness in ADR proceedings especially negotiation and following restorative instead of retributive justice. Buddhism teaches one to remain unattached to ones surroundings; this is the soul of every successful ADR proceeding where an open minded approach would make wonders in solving a dispute. Also given Buddhist abhorrence to violence it is natural that it would propagate ‘a version of’ universal love and would try to reform the offender and restore the victim. 14th Dalai Lama has tried to describe the existence of law as a compassionate way to protect people which essentially contains the precept that we look at greater social concern and the effect on society by punishing the offender, thus where a victim offender mediation can bring out the best possible result Buddhist teaching would encourage us to follow that path instead of blindly adhering to the retributive form of criminal justice system.

Thus we find that Buddha taught us to empathize, practice non violence and lead a life of wisdom, if we had indeed followed that path then we would hardly need any law, but given that we live in an imperfect world we must have law to restore order and to protect people albeit in a ‘compassionate’ manner. We find reflection of Buddha’s teachings in many aspects of our present day law like professional ethics, legal sanction against adultery etc.; but the main foundation of Buddhist thoughts resonate with love and respect for others, this can be the elusive ‘god particle’ which can be given a contemporaneous legal interpretation to champion the cause of ADR mechanisms in both criminal and civil dispute. It is perhaps in this area of contemporary law where Buddhist tenets may have their greatest practical impact.

Who are my leaders – some musings

In January 2011, Outlook magazine published a book excerpt from Patrick French’s ‘India: A Portrait – An intimate biography of 1.2 billion people’. The book was immensely readable and moderately enjoyable. However the excerpt in Outlook focussed on the hereditary nature of our leaders especially in the parliament. It was aptly titled ‘The Princely State Of India’. I especially liked the quantitative analysis (which on Indian political genealogy is always in short supply) and was mildly surprised when it was revealed that all MPs aged less than 30 are hereditary linked to a previous leader/MP. The usual scenario the previous MP dies and the son (or in some instances daughter) steps in to fill the ‘void’. The elections are merely a formality or a ‘rajyabhishek’ (coronation). The excerpt gave a number of examples of such lateral familial entry to politics, and even if someone is completely ignorant of what happens at the level of parliament one does not need to look further than the 'First family' to know how political succession works in India.

Being a proud Bengali (and like most Bengalis thinking rest of India as uncultured, steeped in ‘aya ram gaya ram’ political culture) I decided to check how do MPs from Bengal fare. Remember this is 2011, the time when the Red citadel is about to be breached in state level elections, the Lok Sabha votes of 2009 have been plentiful and TMC candidates were winning at many places (but the state was still run by communist parties). As per the data mined by Patrick French only 1 out of 15 communist MPs from WB had any hereditary linkages, around 3 TMC MPs out of 19 had family connections (basically second generation political leaders), for Congress 4 out of 6 elected MPs had direct family connections with previous leaders. TMC also had three non-political inducted MPs who were either actors or singers. One of these later rebelled and started abstaining from parliamentary proceedings leading to almost no political representation from this constituency. Two others were show caused by the party for siding with a tainted Rajya sabha MP.

How is the situation for 2014 election, well the hereditary MPs have been retained and new ones are being inducted. A young man whose only qualification is that he is related to our dear leader. He seems to have run a political platform which is web based and in recent days have been censured by supreme leader for excesses in promoting himself. Being a political junkie (like most Bengalis) it seemed that there is a sure shot formula to deduce a median Indian MP – male, 45-50 yrs, worth over 5 crores and a strong family background in politics. Unfortunately this trend, to some extent, is also being manifested in Bengal, it is indeed sad that people like me who voted for change are being increasingly saddled with a nepotistic list of MPs and it seems that there is no way out of this vicious cycle of hereditary rule in India.    

Why the hoopla about The Hindus?

A lot of controversy is going on about 'pulping' a book 'The Hindus: An alternative history' by Wendy Doniger, a professor at University of Chicago. What I can gather from various news reports - the book was published in 2009, in 2010 a group of people who thought that the book offends religious sentiments of Hindus in India filed civil and criminal cases (and in cases like these throws every possible accusations and the kitchen sink) for withdrawing the book from India. There was an online campaign as well to banish the book worldwide. Nothing much happened since 2010 except perhaps courts giving dates and the case progressing in a glacial pace (if at all). In 2014 Penguin in an out of court settlement decided to withdraw the book from India and pulp it.  

Being a firm believer in Streisand effect and being proffered several links (I shall not provide them so as not to fall foul of DMCA) to download the book on Facebook, I decided to read the 'controversial' book and like a good lawyer, on an amicus brief, form my own opinion. It was no easy read - quite voluminous and not really scholarly in nature (my comparable frame of reference would be Halsburys for law and Winfield for torts), but then again I am no expert in religious study in general or Hinduism in special. However I did read various editions of Ramayan ranging from children's illustrated edition to a heavyset volume (which claimed to be authoritative) and of course watched the Ramanand Sagar TV series on the matter. Thus you would say that I have an average (and definitively no scholarly) knowledge on the epic. But one important difference for me was the presence of my militant atheist economics professor grandfather (who frequently clashed with my overtly religious grandmother) who always tried to instil in me a critical de-constructive spirit - questioning the status quo and upending the establishment. So I was always a bit miffed that Ram after fighting ferociously for Sita, abandoned her in name of keeping the people of his kingdom happy. Something did not gel well with my idea of equity and justice. This is a deconstructive ideology of interpreting the epic (and some say that there are over 200 versions of the epic), Karunanidhi (for whom I have no love lost) once said 'Who is this Raman? In which engineering college did he study and become a civil engineer?' and berated the epic as 'a piece of fiction that allegorically represented the conflict between Aryans and Dravidians'.

So I decided to read and compare Wendy's interpretation of Ramayan (Chapter 9 quite forebodingly titled Women and the ogresses in the Ramayana 400 BCE to 200 CE); well for a casual reader like me I could find that her deconstructive (which she calls alternative) narrative was more feministic and definitely more critical (than my children's illustrated version). She talks about sexuality (something of a taboo in India, conveniently blamed on the forceful imposition of Victorian morality by our former colonial oppressors) and interprets part of Ramayan focussing on the sexuality of Sita and other major characters. Sita is one of the holiest of holies in Hindu mythology (at par with the virgin birth or messenger of God for Christianity and Islam) and understandably the fringe attacks this 'phoren' misinterpretation of our beloved religious icons (who by default have to rise above base instincts like sex etc.). 

So the question to be asked is Wendy right in her opinion or should it be stopped from corrupting the mind of impressionable young (to misquote and misuse Hicklin), and the answer can be who cares - if Dashrath was a sex crazy guy (which is quite self evident with multiple wives, easily manipulated by one of them, scientific hypotheses about monogamy being unnatural and then the adecdotalyet rational examples of sexual indiscretions of people in power from Tiwari to Clinton to Hollande etc.); the crux seems to be of a person writing about something, if you do not like it criticise it by writing a counter-piece but instead muzzling by pulping seems to be an utter shortcut (to quote Atal Bihari Bajpayee 'If you want to make a line appear short, do not erase it but draw a longer one beside it.'). And alternative narratives are always controversial because by default they have to depart from the mainstream (if you are still with me and want to explore a similar controversy look at Ramanujam Ramayana or the Mahishashura Martyrdom)

What I can personally take away from this is if a book is banned 9 out of 10 times it is not an interesting read (I read satanic verses and it gave me a headache but then Dr. Zhivago also gave me a headache, so I guess the problem has to be with me rather than the book) and 10 out of 10 times it is useless to have a ban. Without going into further spiel about free speech v hate speech v right to offend or magnanimity of Hinduism what I can summarise is that for Indian readers (if brought up solely on a diet of Ramanad Sagar and Amar Chitra Katha's sanitised version of Ramayan) Wendy's chapter on Ramayan would be engaging (i.e. if you open your mind to it you would have some opinion at the end of it) or if you did have a deconstructivist grandad you would say meh why the hoopla? 

In the end I will leave you with two cartoons from the indomitable Amul girl.

    

Why we should welcome Indian Judicial Service – ways to innovate and implement

Surprising to many Indian Judicial Service (IJS) is quite an old concept, Article 312 of the Indian Constitution specifically mentions its formation. Multitude of judicial commissions, reports etc. recommends its institution, yet we find the idea of IJS is on an eternal backburner. 

A variety of reasons can be ascribed for this. 

• First Article 312 itself specifies that no one who is being recruited through IJS can be appointed below ranks equivalent to a district judge. This stipulation makes it imperative that the applicants have some experience, usually in state judicial exams for entry at this level the usual experience period is seven years. This effectively makes it impossible for fresh graduate to compete for the jobs. Most of the other all India services (like Indian Administrative Service, Indian Forest Service etc.) allow fresh graduates to take part in the exam. 
• Second Indian states feel that it is a state prerogative to recruit judges for lower judiciary and IJS would take this privilege away. 
• Third IJS cadre officer would always be at a disadvantage vis-à-vis judges elevated from bar to bench because they would have to work for at least 10 years before they would become eligible for promotion to High Court (HC), this means a law student who practices for 7 years to become eligible to sit for IJS have to then work for 10 more years to be eligible to be elevated – this comes to a total of 17 years. While under article 217(2)(b) a person who has been practicing at a high court becomes eligible for elevation in 10 years. 
• Fourth at present system of elevation from bar to bench, from lower judiciary to HC, from HC to Supreme Court (SC) is at best murky and at worst nepotistic, it is not in the interest of the incumbent to innovate to bring in fresh talent in the lower judiciary which would potentially upturn the century old practice of SC judges being solely from those who have been elevated from bar to bench at HCs.
• Fifth some states would claim that judges who would come from different culture would not be able to understand the nuances of local customs which is fundamental in delivering effective justice.

However there are ways in which the above reservations some legitimate (others imaginary) can be set to rest by some tweaking and some radical thinking. At present the debate on increasing the number of lower judiciary judges to combat the astronomical pending litigation gives the incumbent government a huge leeway in implementing lasting innovative and efficient solution. 

• First IJS has to be seen in a completely new light as an entry to a professional judicial cadre which would one day encompass all the judges in India. This would mean first posting of IJS cadre should be as a judicial magistrate second class and not equivalent to district judge. And there should be hope for this young hopeful cadre to reach the pinnacle at SC. This is possible by having a time and point based system for promotion. At present the hierarchy of Indian judges is as follows – judicial magistrate second class, judicial magistrate first class, assistant district judge, associate district judge/district judge, high court judges/chief justice of high court, supreme court judge/chief justice of India. So there are 6 steps, in a time and point based system let us assume that an IJS cadre would be eligible for promotion into the next level after a period of 5 years, the points would be allocated on the basis of number of cases disposed by orders, judgments, number of lok adalat cases, reference to ADR mechanisms, plea bargaining and affirmation or rejection of order/judgments by higher courts. So whenever a vacancy arises in the upper post, promotion would be given to those who are at the top of the point list among all those who are eligible. Promotion till high court should be completely point based with no interference of any other subjective consideration. However for elevation from HC to SC some amount of executive consultation is necessary, best way would be to have a committee comprising of CJI, senior most judge (who would not become CJI), Prime Minister, Minister of Law and Justice and Leader of Opposition. 
• Second article 217 should be suitably amended so that to be elevated from bar to bench one has to have minimum of 20 years of experience in courts out of which 15 years should be in a high court; also the pool should be widened to include jurists etc. Also once the IJS officers become eligible to be elevated to HC (which under the proposed system as above would be 20 years from the date of implementation) the proportion of promote to appointee in HC should be 9:1. This would ensure that there is a hybrid of civil law and common law culture and increase vibrancy and outside the system thinking. If indeed this formula is taken, it would be a slow process but would help in ushering the change at a pace where it does not conflict with the present system. Effectively for the next two-three decades there would be a dual cadre judicial officers, the IJS and the judges who came in through the state judicial exams. Almost all the states have to change their laws relating to lower judiciary to ensure that there is no or little conflict in promotion, remuneration etc. between the two cadres. As a transition measure for a decade or so there can be 25% quotas in the posts of associate district judges for  state cadre judges. 
• Third the retirement age of the HC judges should be increased to 65, at present there is some amount of lobbying to get into SC thereby increase the employment by 3 years (underarticle 224(3) HC judges retire at 62). This has been proposed in the 114thConstitutional amendment bill but like many of the unwanted bills it is waiting with one of the parliamentary committee (the graveyard of bills) when the present parliament dissolves (sometime in 2014) the amendment bill would also lapse. Such an increase in retirement age would decrease the unhealthy competition etc. which goes on at present. 
• Fourth with proper training and some basic understanding of local language it would be possible for the IJS officers to dispense justice even at the basic level. A cursory glance at the district court judgments on JUDIS would show that 99.9% of the judgments are in English, so indeed is the language of pleading and conveyancing. Under CPC even the oral witness testimony is recorded, thus with a dual translator cum court stenographer (most of the courts already have people who type the oral testimony from local language to English) this problem can be superseded. Also the state judicial academies can have accelerated language courses which would help the IJS officers to get working knowledge of the languages of the state. The national judicial academy would prepare the associate district judge cadre for elevation to HC. 
• Fifth there has been a growing sense that the National law universities have not delivered any change in the litigation framework of the country. With IJS many of these bright young graduates would be attracted to judiciary.

IJS should be conducted by UPSC, there should be two preliminary papers first a two hour MCQ based test of static GK, current affairs, logical reasoning and numeracy skills second an hour test on English language skills through composition, legal writing skills and legal comprehension. The main paper should be a two hour MCQ test on legal knowledge with an extremely wide syllabus. Finally there should be an oral test/interview. Such an intensive process would allow for the very best to aspire for and become judicial officers who would be fit to work at the highest echelons of Indian judiciary.

Whose logo is it anyway

Recently saw the NLUO logo, somehow it seemed eerily similar to the NLUD logo, you decide?

Oh dear – Mumbai/Khopoli as Peshawar/Abbottabad? What have you done NG?

Few hours ago National Geographic (NG) broadcasted a drama-documentary titled ‘Seal Team Six – The raid on Osama Bin Laden’. Before its broadcast the documentary attracted controversy as it was perceived that the timing of the broadcast (which the Republicans thought would be pro Obama) may influence the outcomes of the US presidential polls (which happens in less than 48 hours). Many news sources wrongly put that the NG documentary is the first on Osama’s death, the first would probably be 'Bin Laden: Shoot to kill' broadcasted on 7 Sep 2011 by Channel 4.

However this spiel is about something different - NG is known for its rigorous authenticity and is the watchword for trustworthiness and accuracy (I have been a long fan and subscriber of MGM and utterly in love with the map supplements). And that’s why I was a bit let down by some sloppy mistakes in filming on location. The documentary opens with covert HUMINT surveillance on Al-Kuwaiti (courier of Osama) in 2010 Peshawar. But lo and behold the shop signboards are in Hindi, the roads are full of Bajaj autos and cars with Maharashtra number plates (everyone drives with them from Al-Kuwaiti to the policemen, I suppose if Bin-Laden had driven a car then the documentary would have shown him driving a MH number-plated car), skyscraper in Peshawar and people too speak in Hindi (not Urdu or Pashto).

I can go on with the inaccuracies - women mostly wearing sarees, proliferation of ‘Indian make’ cars like sumo, omini, wagonr etc. (which are not available in Pakistan), Mumbai Police vans, people using Indian currency notes. It started reminding me of the infamous photoshoping of the pyramids (Re: NGM cover of Feb 1982).

The dashboard camera on the vehicle following Al-Kuwaiti shows coordinates: 17°23'36.68''N 78°29'20.95''E, one would guess that it would be near Peshawar/Abbottabad somewhere on the Karakoram Highway where the chase is purportedly being on, however surprise surprise the coordinates are of a petrol pump in Hyderabad, Andhra Pradesh, India wrong road, wrong state and wrong country.

According to the newspaper reports the Pakistan portion have been shot in Khopoli, Maharashtra (but some of the scenes especially that with the omini cabs, police van and the skyscraper is of Mumbai). To see what Peshawar look like have a look at the clip ‘Bin Laden’s cash flow’ which shows the background and extra feature to the main documentary or some YouTube video.

Well, one hopes that Kathryn Bigelow’s (of the Hurt Locker fame) Zero Dark Thirty a feature length movie due to be released in a month and a half time would be more authentic. The Pakistani portion was recreated in Chandigarh and Patiala, news report suggested that there were some overzealous idiots who protested that Pakistan locations being portrayed on Indian land with change in shop board language, flags and attire of extras and actors.     

In spite of such mistakes Seal Team Six is a commendable documentary which tries to look into the nitty gritty of the operation - actual and intelligence. It is one of the few documentaries which shows the help provided by the Pakistani doctor Shakil Afridi in genetically tagging Bin Laden’s presence and the intelligence gathering teams on ground. A Raymond Allen Davis moment for one of the local agents (I guess its fictional like perhaps the infights between seal team members, but notches up the drama quotient). I must still say that there are scenes which show that the directors may not have altogether forgotten the small things – when one of the agents drink from a coal can it is in inscribed in Urdu, the policemen are wearing Pakistani uniforms (or at least they don’t look Indian).

Overall the drama-documentary is quite good and one of the best ones in the market, but perhaps the drama part could have been suppressed a bit and paid a lot more attention to details (little things that matter much).