dailyO
Voices

Is the law an ass, or the men who administer it?

Advertisement
Vijayaraghavan Narasimhan
Vijayaraghavan NarasimhanMay 08, 2017 | 14:14

Is the law an ass, or the men who administer it?

What has Stayzilla got to do with an ass? Everything, it would seem. Read on.

The law is an ass. It is a well known expression adverting to the English donkey known for its "obstinacy and stupidity" in "defying common sense". Sticking to the letter of law is attributed as an asinine faculty.

But with a local twist, we have also applied it to suggest that just like a donkey-law can kick you from behind when least expected or anticipated.

Advertisement

The expression the "law is an ass” owes its origins, as is universally acknowledged, to Charles Dickens' 1839 classic Oliver Twist - When Mr Bumble, the unhappy spouse of a domineering wife, in an exchange in court, responds to "... the law supposes that your wife acts under your direction", with "if the law supposes that - the law is an ass - an idiot".

Research tells us that even earlier, in 1654, a George Chapman play, Revenge for Honour, relates this quote - “Ere he shall lose an eye for such a trifle... For doing deeds of nature! I'm ashamed. The law is such an ass.”

Whatever its true origins, centuries later, we are still grappling with this expression and wonder what this asinine quality means to us in our daily lives.

Such thoughts drifted into one’s mind as one read news reports suggesting that the remedy of "mediation” and/or "arbitration" being built into business contracts could save start-ups from facing the "Stayzilla effect" of recent origin.

The founder of Stayzilla, Yogendra Vasupal, was arrested on March 14, 2017, on charges of cheating an ad agency called Jigsaw Solutions to the tune of Rs 1.72 crore. A start-up which went online in 2005 as   an alternate stay aggregator, the Chennai-based company was once thought of as one of the most successful to have emerged from the city.

Advertisement

The company claimed to be India's largest homestay network and functioned in much the same way as Airbnb.com, until it "folded up" in February 2017. It started out as Inasra.com and then rebranded as Stayzilla in 2010. 

On April 11, the Madras High Court granted conditional bail to Yogendra on deposit of Rs 40 lakh. This widely reported issue prompted a community of start-ups to send a letter to the Union home minister, saying: "We are standing up together as a community and believers in the vision of Hon’ble Prime Minister, Shri Narendra Modi for 'Startup India, Stand-up India', to call for a free and fair investigation into the dispute and strongly oppose any abuse of power to subvert the law of the land. We humbly request you to look into this matter and ensure that expeditious justice is provided to Yogendra.”

They alleged that a "civil dispute" and/or business deal gone awry was being "criminalised" - with power and influence - which vitiated the start-up environment and reflected badly on the corporate climate in India.

stayzilla-embed_050817020257.jpg
The  founder of Stayzilla, Yogendra Vasupal. Photo: India Today

Let’s not get specific. Honestly, one wonders whether there is any such "protection" that can be built into business contracts or commercial dealings when the line that separates the offence from "civil" to "criminal" is too thin, with no objective or arithmetical standards to draw upon.

Advertisement

Just read this observation of 2000 origin from the verdict of the Supreme Court in Sanjay Suri case. “This court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressure parties to settle civil disputes. But, at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.”

While the earlier part may enthuse start-ups in trouble, the latter part is pregnant with dire possibilities, sending a shiver down the spine of Stayzillas and Yogendras. But equally, you are comforted with this observation from a 2005 verdict from the Supreme Court in Anil Mahajan case: “A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.”

One can multiply such instances. The ordinary litigant facing the "wrath of law" may call it an "ass" from his perspective. The asinine nature in such instances does not reside in the law, but in the "men who administer it".

Recall the orders of the Supreme Court in 2004 when it quashed the bailable arrest warrants issued by an Ahmedabad magistrate against then President APJ Abdul Kalam, the Chief Justice of India VN Khare, and two others, holding that the complaint was "ex-facie fraud". 

A three-member Bench, comprising Justice N Santosh Hegde, Justice SB Sinha and Justice SH Kapadia, expressed shock and anguish at the manner in which a magistrate issued the warrants without even examining the complainant. The Bench promised to proceed against the magistrate independently.

Or magistrates' "mechanically" taking on file criminal defamation complaints laid by a late CM of Tamil Nadu against opposition and news media, which the apex court was critical of. One can multiply such flights of fancy by thousands if not millions.

To be fair, it would be unfair to blame the law as the ass. The fault lines lie in the men who "administer law”.

Right?

You be the judge.

Last updated: May 08, 2017 | 14:24
IN THIS STORY
Please log in
I agree with DailyO's privacy policy