Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
While vacationing in India last year, I observed a criminal proceeding in New Delhi.
My tour guide considered my request for a tour of the court akin to a request to see a brothel. Indians avoid the courts at all costs, he said. Judges and prosecutors are powerful and curiosity is not a good enough reason to risk intruding upon their turf.
Luckily for me, my guide was not so risk-averse. He suggested a criminal proceeding would be more interesting than the civil “Malawi” court, which mostly hears disputes concerning dowry.
My guide led me and my family through locked gates, beyond which photography was not allowed. We were searched and then permitted to walk the premises freely. I was able to take only a few pictures surreptitiously.
Much of the court was outdoors. I observed winding, paved passages, filled with stray dogs, security guards, lawyers and unfortunate Indians who were snagged by the justice system.
Some lawyers acted as “duty counsel” and waited in hallways for “porters” to bring them petty cases. More established lawyers had their own chambers on the premises, as pictured above.
My guide led me to a proceeding in session. An attendant permitted me to enter and find a seat in a gallery nearly full with about a dozen other onlookers.
At the front of the room, a lady judge nonchalantly flipped through papers while seated at her raised desk. Half a dozen people crowded around her.
To her right, a portly man spoke forcefully and commandingly in Hindi about matters I could not understand. He was around 40 years of age and had dark skin and a jet-black mustache. He wore a sweatshirt and a toque with “CK” on the side of it – which I presume stood for “Calvin Klein”.
The judge mostly ignored him.
Other lawyers wore legal tabs and black vests, so it was difficult for me to understand his role.
I asked a lawyer to my left and he explained that the man in the toque was a prosecutor. Only defense counsel is expected to “dress up”.
The prosecutor spoke to two men who stood with him at the front of the room. One man had a bandage around his head. The other mostly just said “yes, yes”.
The lawyer next to me explained they were both witnesses, being questioned at the same time.
I noticed the defense sat at the front of the gallery in silence.
After a while, two security guards approached me and asked to see my “I-Card”. I explained I did not have one, but their questioning of me was causing a bit of a disruption. At that point, I thought it best I leave.
I imagine most lawyers reading the above will immediately seize upon why I, as a Canadian lawyer, considered what I saw to be odd.
While I feel like an imperialist snob at saying so, I considered the manner of examination by the prosecution “incorrect” and I considered respect for the open-court principle to be somewhat deficient.
In our system of justice, lay people are afforded many protections from prosecution by the government. A prosecutor may not “lead” a witness through a series of “yes” or “no” questions. A witness’s own voice must be heard, and open-ended questions are required to present a true narrative to the judge – rather than a narrative crafted by a prosecutor and affirmed by witnesses.
Transparency also protects people from being arbitrarily arrested, detained, and convicted. While I was permitted to observe proceedings, the reluctance of my guide to take me to the court in the first place and my being questioned by security guards after I was already seated made me wonder whether the open-court principle truly exists in India.
Of course, I am probably biased in presuming our rules are effective at eliciting true narratives and protecting lay people from over-zealous prosecutors.
I don’t have sociological data to show that examination by open-ended questions is more effective at getting to the truth than yes-or-no questions.
I also don’t have data to show people in Canada are freer from arbitrary conviction than they are in India.
I have impressions built on what I was taught.
Our own justice system has its failings. It is often ineffective at achieving justice and uncovering the truth. The fact that a lawyer’s skill matters shows our procedures on their own are insufficient.
I consider it important to remind myself of our failings before judging the system in India. For all I know, the prosecutor with the toque did not secure a conviction that day.