Wednesday, June 18, 2008

Truth at what price?

Between life and death, it is the latter that hogs more news. The qualities of even a person unknown are epitomized in a hyperbole more after a person departs than while living. The cause of death itself is of no value except when the process adopted for snuffing out life is so crafty that the perpetrator of the heinous crime leaves no trail. The name of Aarushi, a 15 year old girl, evokes a great deal of sympathy since the prime suspect for her murder is her own father, a dentist and at the same time bewilderment about how there has emerged no tangible clue to nail down by a plausible story of who could be the real culprit. After the CBI has taken over, it has assumed importance for another reason. Like never before, are questions asked whether narco-analysis and brain mapping employed against prime suspects and witnesses legitimate tools of getting at truth in the investigative process. Should a scientific process be immune from critical attack only because it is scientific? Of what value is science if it demeans the value of human autonomy and rides roughshod over an individual preference not to be put through these tests? Is torture objectionable only if it is physical and obtains a different meaning if the exercise against resistance operates only at a mental level?

The Constitution guarantees as fundamental right that ‘no person accused of any offence shall be compelled to be a witness against himself’. A precept recognized as a guarantee against self incrimination has been consistently given an artificial construct by courts at various stages. Perhaps, the most thorough examination on this subject belongs to Bombay and Gujarat High Courts, who while dealing with objections against narco analysis, brain mapping and lie detector tests have held that courts will not interfere with investigative process of police; statements recorded as such cannot be used as evidence, which is what guaranteed under the Constitution and information secured in a state of stupor induced through drugs is akin to statement leading to discovery admissible under section 27 of the Evidence Act; these tests have scientific basis and aimed at securing the truth and hence cannot be objected to; the question of consent is not required to be considered at the stage of investigation process and it would be relevant only at the trial. Each one of the lines of reasoning is open to serious contest, if you know how these tests are performed on individuals.

The Bombay decision in Ramachandra Reddy (2004) explains the technical details of these tests and why it finds nothing objectionable about the tests. It further explicates that brain mapping is a process of data collection that gives inferential knowledge whether a suspect has or has not information about an occurrence which he wants to conceal. Narco analysis does not involve any physical pain by the injection of Pentothal. Lie detectors do no more than reading blood pressure, intestinal movement, heart rate, perspiration, etc and deviations read from the graph from the baseline are taken as straying from truth. The court would say that there is no direct invasion of the body of the person interrogated and hence not objectionable. We have strange logic permeating the entire discussion of what amounts to testimonial compulsion.
Why do you think, we tend to wink at these questionable practices of subjecting a person to tests irrespective of consent, a component so fundamental to concerns for human rights? How are they different from military practices, where from the Nazi atrocities to Iraq war crimes, ‘ends justify the means’ theory is always proffered as providing the complete answer. What is the opposition to death penalty about? Is it infliction of pain to cause the death that is the central theme to objection or the annihilation of life by State agency as a measure of retribution itself that is challenged? If the latter is accepted as the tenable premise, can the issue whether death results from hanging or electric chair or pain-free injection of Pentothal in lethal dose be relevant? Same way, if medical intervention without consent is objectionable at a very fundamental level that it breaches patient autonomy, carrying out medical tests that may not be physically painful cannot be left without challenge only because it may lead to detection of crime. Involving medical science and giving the doctors the edge to get at the truth from the accused himself subverts every idea of justice.

Do not forget the convoluted understanding scientific processes ushered with the help of doctors by Hitler’s Nazi regime and what it resulted. A history of German politics in the 1920’s, 30’s, and 40’s set the stage for the government-sponsored eugenics (so-called “racial hygiene”) movement. Early racial hygiene proponents had little association with anti-Semitism, but this changed when racial hygiene extremists merged with National Socialism. Biology became prominent in Nazi ideals, with Nazi leaders referring to National Socialism as “applied biology,” reflecting its social Darwinist racial hygiene origins. This “scientific” basis attracted many physicians to Nazism. The National Socialist Physicians’ League was formed in 1929 “to coordinate Nazi medical policy, and purify the German medical community of Jewish Bolshevism.”’ By 1942 about half of all physicians in Germany (more than 38,000) were members of the Nazi party. Hitler was even referred to as the “great doctor of the German people”. Nazi racial hygiene goals were carried out through medical programmes. All this is not to compare Nazi practices to these tests but only to bring home the point of utter degradation of administering drugs without consent.

Maybe, the Supreme Court verdict in its reserved verdict will address all the issues and give a comprehensive decision one way or the other all too soon. The debate shall not still rest there, for as the saying goes, the judgment will be final not because it is infallible but infallible because it is final. And lawyers have not yet reconciled that any decision could be final!

Saturday, June 14, 2008

Price for donation of human organ, why not?

Ever since transplantation of human organs from live donors became possible, every living person is a potential property. The most important component of property is its transferability. In a country like India where poverty is prevalent it is not surprising that an individual thinks of trading on his own organs to tide over his financial difficulties. The scope for exploitation of the poor and the reports of commercialization in the trade of human organs were weighty reasons enough for enacting Transplantation of Human Organs Act 1994. The Act authorizes donation only from amongst specified classes of relatives and if the donor is a non-relative, the consent of such a donor shall be evaluated by an Authorization Committee that the donation is ‘for affection or attachments towards the recipient or other special reasons’. The Act prohibits receipt of consideration for donation of any human organ. Pernicious, as the effect of commercialization of human organs could be, one cannot doubt that in its inception when the possibility of organ transplantation was made scientifically feasible, it could have been never thought of as objectionable. Organ transplant is indeed a significant sign-post that registers the advancement of medical care and reflects the symptom of a constant endeavour in medical research to prolong life and improve its quality.

The control mechanism to end commercialization and trafficking in human organs has operated between two extremes: the Authorization Committee invariably views every offer of donation of a non-relative with suspicion, while courts which have been called upon to examine the decisions of the committees have always seen the travails of the patient to be so overwhelming as to adopt a liberal approach with a view to save the life of a patient in the need of an organ. Perhaps the majority of cases knocking at the portals of court for reviewing the decisions of the authorization committees have come only in kidney transplant cases. Take a survey of all cases reported from various High Courts
[1]. You will notice that courts have invariably come to the rescue of the patients and have rejected every instance of suspicion by Authorization Committees as not really relevant. The donor and recipient of non- relatives as servant and master, as poor and rich, as unrealistically charitably disposed and critically ill, respectively, have been found by courts as not sufficiently worthy reasons to doubt that the donor was consenting for donation only out of affection or attachment. It is conceded on all counts that despite the Act, there is a large scale illegal trade in donation of human organs for consideration. The concern seems to be more on the pitiable condition of a patient requiring donation but if an equal measure of concern about possibility of exploitation of donor exists, they have seldom been voiced through judicial pronouncements.

If we expect a non-relative donor to donate his organ without consideration, are we not expecting an unduly unjustified gratuitous altruism from a person who is prepared to undergo a suffering for donation? A patient who receives donation of an organ has a chance of improving his quality of life. He will probably lead a normal life. He will also begin to earn. If the recipient can be benefited, why should not the donor be benefited in some way? If the recipient is benefited materially why should not the donor also receive some material benefit?

There are so many other categories of donation which exist outside the regulation of the Act. Human hair is for a price. Human blood is also taken for a price. All legal regimes accept legitimate costs of carrying a fetus by a surrogate mother as tenable. Perhaps at the farthest end of the tether lies an offer of the human body for pleasure for a price by a sex worker. The person other than a spouse who gifts semen in IVF procedures is usually rewarded and so is a woman who gifts ‘productive eggs’.

The Human Transplantation of Organ Act is significant in that it does not prohibit donation of an organ by a live individual. It regulates it. In the manner of regulation it is admitted that the Act has not been able to do away with commercial exploitation, the presence of middlemen and the existence of a large black market. If all this must go, the first step should be to recognize that there is nothing illegal about fixing a price for an organ and expect the motive of a donor not merely to be gratuitous altruism but compensatory beneficence.

To expect a personal sacrifice only from a donor, while at the same time having profusion of sympathy for an ailing patient does not put the donor and the patient on an even balance. The approach is skewed in favour of the patient to the disadvantage of the donor. If kidney transplants are covertly done by skirting the provisions of the Act, it is time to bust the practice, not by prohibitions or incorporating more difficult parameters to assess the genuine willingness of a gratuitous donor but by bringing these activities out of the closet by introducing governmental supervision and funding to provide equity for the poor , who will get equal access to such transplants. A noted surgeon Amy L Friedmen
[2] states that ‘it is appropriate that living donors, indigent or wealthy share in the tangible benefits of their ethical concern for others. Not doing so, effectively restricting the disadvantaged, is unreasonably disingenuous’.
[1] The most recent one is from Madras High Court by Justice V.Dhanapalan in Simon v Authorisation Committee dated 29.4.2008
[2] BMJ 2006, 7th October, Vol 333.

Tuesday, June 10, 2008

No more trials for martyrdom!

World over, bomb blast trials seem to have one thing in common – long gestation between events and trials. The serial bomb blasts at Mumbai took place on 21st April 1993 and the cases in the Special Court saw their denouement through judgments after a protracted trial in May 2007. The RSS office bomb blast took place on 8th August 1993 and the judgment against the accused was pronounced on 21st June 2007. The Coimbatore bomb blasts that shook the city on 13th February 1998 led to large scale arrests and the judgment in the case was delivered on 6th August 2007. Several hundreds lost their lives in Mumbai. A handful of 12 bright youngsters were consumed in Chennai blast. The Coimbatore devastation took a tally of nearly 60 lives. Perhaps, the worst case of catastrophe through terrorists’ plans were unleashed at the World Trade Center in New York and at Washington on September 11, 2001. If you thought trials in foreign regimes invariably got under way with god speed, you may not be correct. The trial against the principal accused has begun just now at Guantanamo Bay, near one of the US army detention camps.

Probably, we have seen or heard about the course of trials in the bomb blast cases rather dispassionately. There was utmost civility in the conduct of prosecutors and the defence lawyers. The judges treated the suspects with utmost courtesy in courts. The newspaper reports were by and large unbiased and objective. When the ultimate decisions came, the public truly believed that the judiciary had done their best. No one attributed motives against judges. No one called the prosecution agencies of being inept. No one carried hatred against the worst criminals. The philosophical distancing of the event to the persons involved had already taken place. The protracted trials had numbed our sensitivities and it mattered least who were convicted and who were let off. All the same, there was always a strong feeling that justice had been done. All the cases are now before the Supreme Court and when judgments are delivered, there may be a reversal of fortunes for some, there may be confirmation of convictions for some. Honestly, do you care?

The way the case has opened in US amid suffocating military security has not surprised many. The principal accused (where is Osama, by the way?) brought to trial, Khalid Sheikh Mohammed (KSM) is reported to have mocked at a co-accused al-Hawsawi, if he was in the American army for, at first, agreeing to be represented by a US soldier. KSM had been earlier picked up, after the event, from Rawalpindi, Pakistan in 2003. He speaks impeccable English and chants in Arabic and translates to the court the purport of his hymns in English. He has announced that he has decided to defend himself and does not want lawyer’s assistance. When the judge, a marine colonel, asked if he understood the significance of that decision - as he was facing the death penalty – KSM has made clear that he has understood very well. He has said, he had been looking to become a martyr for a very long time. KSM seemed happy at the attention he was getting from the media and the way he handled the judge. BBC reporter claims that at times, it was difficult to tell who was running the proceedings. Another accused Ali Abd al-Aziz Ali sounded off, with equal defiance, any offer of assistance through any lawyer. Yet another accused Ramzi Binalshibh has no problems about assistance through lawyers but says he also wants martyrdom. Now in India, the convict Mohammed Afzal in Parliament Terrorist Attack case, defies the government just to hang him as per the Court judgment but the government is scared to make him a martyr!

The ideological convictions of the accused in some criminal trials could unnerve many a judge. There were times when some districts in Tamil Nadu were in the grips of different kind of terrorism that believed in blowing up bridges and buildings (mostly government property) to get the attention of the public to sell their ideologies against what they believed to be anti-people establishment. When the suspects were brought for trial, they enjoyed themselves. They would deliver long speeches, sang ideological songs, distributed pamphlets to all persons in courts, denounced the establishment and all done, they would sit quietly in the bench in the ‘accused box’. If the judgment was delivered convicting them, they gave further speeches and walked behind the escort police without remorse to the van waiting to transport them to prison. If they were acquitted, they would not rejoice; they would announce that the fight was not over and walked away to resume their work!

A martyr, in Greek martys meant ‘witness’. A secular meaning gained religious overtone gradually, when a person that bore witness to truth by religious convictions was tortured and done to death. Christianity, Islam, Judaism and Sikhism have it in their religious texts that extol martyrdom. In the secular context, the term was applied to those who used violence, such as those who died for a nation’s glory during wartime. It also applied to non-violent individuals whose lives are sacrificed in their struggle for independence, civil rights, etc. A world under one religion, or with or without religion cannot end terror. Court judgments, by taking away the lives of terrorists cannot also end terrorism and cannot assure the guilty, martyrdom. The people like us that stand witness to the end of terrorism alone are the martyrs. Trials, convictions and sentence have meanings only to persons who are afraid of suffering, confinement, injustice or death. If a person sees suffering as a reward for plans adroitly executed, what is there to worry? If confinement is seen as liberation to end worldly pleasures, where is the agony? If the sense of justice is blinded to the sufferings of innocent people why would the killings be averted? If death is the final redemption to reach the Ultimate, what is there to fear?

Monday, June 02, 2008

Work after a long holiday

An enigma as old as the world is, what came first, the chicken or the egg? There have been many more unresolved questions, like for instance ,what poet Kannadasan would pose through his lyrics:
Kodi assainthathum, katru vandada?
Katru vandadum kodi assaindada?
(Did the tendril sway to the wind or
The wind blew, by the swaying of the tendril?)
Nilavu vandadum, malar malarndada?
Malar malarndadal nilavu vandada?
(Did the flowers bloom after the moon appeared or
The moon appeared to behold the flowers bloom?)

An immediate conundrum at a time when the courts in Tamil Nadu are going to reopen after a month old holiday is, did we deserve this long rest because of our hard work; or, do we owe the society strenuous work, because we have had a long spell of rest? It all depends on how you have spent your holidays and how you are looking forward to your resumption of work in courts.
To many of us, holidays are a welcome relief from the tedium of routine. We would have spruced up our office/chamber, cleared many a dead wood, thrown out unhelpful juniors, chucked the office of selfish seniors, sent reminders for un-cleared bills, dispatched spouse and children to native village and enjoyed the freedom of solitude or if you have been an ideal family person, you would have spent quality time with your family, taken them out to salubrious places and come back home, raring to go back to work. If you have been a cricket enthusiast, there were not better times. A 59 -match fixture was played with remarkable competitive spirit, when men attired in different hues rubbed shoulder to shoulder, black and white men rolled and rollicked proving that through their veins ran the same red blood, men of Pakistan and India played on the same side encouraging each other, a Punjabi, an African, an Australian, a New Zealander, a Sri Lankan, a sprinkling of Madrasis, led by a Bihari breathed a homogeneous Chennai spirit, cheered by huge crowds transcending parochial sentiments . All the initial objections to the commercialization of sports (echoed in these columns, as well) seemed to get dissolved and showed remarkable prospects of great entertainment for future. All that SAARC could not do to bring together the countries of this region, cricket promises to do!

See what we always expect of our sports persons,- absolute dedication, keen competitiveness, camaraderie and above all, team loyalty. The cricket game proved one more thing. The teams that made to the finals had the best, inspirational captains for the respective sides. A man, who had hung up his shoes, powdered them white and got back under the arc lights to guide a whole bunch of tyros to perform like world champions; Another captain, a cool guy who breathes icy air through his nostrils at + 40 C, led from the front, seeing the players on level and never adopting a patronizing air to his colleagues. These games seem to be great eye-openers for many a failing that afflicts our profession. We get paid well but our own loyalty to your clients is suspect, when we opt to boycott courts. We turn up at courts ill prepared with shoddy home work. We make possible an easy walk- over, by conceding too meekly to bullying tactics of our adversaries. Our leadership ought to belong to the learned and the well- mannered. When we have good men to lead, we do not cede to them the authority to take responsible decisions and follow them. Our own dedication to our calling requires professionalism.

Nani Palkhiwala said, “in the legal profession, we have not lost the way, but also seem to have lost the map, to quote the words of G.K.Chesterton. What we need are lawyers who are prepared to stand as sentinels of democracy, as standard-bearers of the public cause they believe in. I am reminded of the words of Arethur Koestler, ‘If the creator had a purpose in equipping us with a neck, He surely meant us to stick it out’. The lawyer has to act as a catalyst. The responsibilities which to-day lie on the shoulders of the lawyers are far greater than at any earlier time in world history.” We hear in many of the speeches that our profession is a noble one and get pounded with recurrent advices that we shall strive to help the poor litigants. There is a gross hypocrisy about how we want to project our calling to be and how we fashion our own lives as lawyers and judges. Who does not want a situation when the entire legal fraternity is held in high esteem and we ride on the high crest of public adulation? Between thought and action, between ideal and reality, there will be always a hiatus, but how broad the wedge of difference shall be, is the area of concern.

We may have the experience of constantly breaching our New Year resolutions, but that does not mean, we shall not have the resolutions themselves. Here is again the occasion to start with new resolutions. Some of them could be: keep the quest for legal knowledge high and make a constant commitment to learning through books and journals; be available to clients’ just causes for legal assistance and turn in adequate work for the remuneration that we demand and secure; encourage settlements and minimize litigations; take interest in some community work, be it social, religious, cultural or political, outside the court campus. The first love for persons in legal fraternity shall be courts; his learning, of law; his dedication, the litigants. Shall we then have a check list of what we shall commit ourselves to do when we resume work?