A Short Commentary on the Law Regarding International Carriage by Air

The law regarding the international carriage of passengers, their baggage and cargo may be said to largely fall under the Warsaw Convention of 1929 and its amendments.  More recently, the Montreal Convention, 1999 has been steadily gaining prominence as more and more states are ratifying it. One of the focal points of these conventions is to achieve a unification of the conflicting rules regarding air carriage in different legal regimes. If it were not for these conventions there would great confusion regarding what law would apply in case of a dispute. Another objective is to ensure that there is a balancing of interests of the carrier and the consumer. The conventions are also applied in domestic carriage by the voluntary adoption by member states although this is usually done with modifications.

The Warsaw Convention of 1929 was enacted with an objective to give the necessary support for the fledgling air industry to grow. Hence the Convention sought to give protection to the carriers in the form of a limited liability clause. This was one of the key factors that gave rise to disputes and unrest among states who felt that the limitation of liability imposed upon the carriers was inadequate. This was naturally followed by several amendments and protocols to the Warsaw Convention that sought to steadily increase the carriers liability imposed by the original Convention.

The Hague Protocol of 1955 to the Warsaw Convention made changes with regard to the liability of the carriers by doubling it to 250,000 francs. In addition, the “willful misconduct” provision of Article 25 was changed to a standard requiring intentional or reckless acts or omissions on the part of the carrier before a plaintiff can claim unlimited liability.

The multiplicity of laws made it difficult for consumers and carriers alike since a single state could potentially have to deal with several different types of rules when dealing with international transportation. This was because different countries were ratifying different versions of the Warsaw Convention. Thus it was obviously troublesome because most of the protocols and amendments had varying standpoints regarding liability clauses, jurisdiction etc.

The Montreal Convention of 1999 was thus an attempt to consolidate and modernize the existing Warsaw System. It is an initiative of the International Civil Aviation Organization (ICAO) aimed at replacing the Warsaw System and this convention has currently 87 member states as of Dec. 2009 which includes the USA, UK and the European Community. India is however not a signatory and is still part of the Warsaw Convention 1929 and the Hague Protocol, 1955.

The future of the Montreal Convention as a means of ushering in global uniformity is dependant on the fact that a sufficient number of countries must become signatories to it. The countries that become part of it must denounce the all previous agreements, both public and private. As long as the Warsaw System is still an option, the Montreal Convention of 1999 will only serve as another instrument that adds to the confusion in the complex system that already exists. Thus, it will simply be an added factor in the defeat of its own purposes.

As a replacement and consolidation of the Warsaw Convention and its amendments the Montreal Convention has brought about a lot of changes. The effect of which is that carriers provide passengers with practically absolute, unlimited, and assured liability in respect of death and injury, and consignors and consignees of cargo with a regime to which all sides have long been happily accustomed. It is however, yet to be seen whether the limitations on the liability will be adequate. It may be argued that a system without limitations may be preferable, but such a system may not offer much protection to the carrier although it is very passenger friendly.

A Short Commentary on the Interpretation of Statutes with Regard to Subject & Object

The interpretation of statutes involves having the courts give meaning to a legislative provision, which it believes is the meaning given by the legislature also.

By interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the Legislature through the medium of authoritative forms in which it is expressed.

There are a number of approaches that may be used in the interpretation of statutes that have been developed by the courts. These approaches may be broadly classified as textualism and purposivism. The former focuses on the symbols on the page i.e. the written words on the statute. The court then proceeds to use dictionaries, maxims and presumptions to figure out the legislation says. Purposivism is when the court goes into finding the aims and objectives of the legislation. The text is then interpreted in a way that fosters its purpose as opposed to strictly adhering to the meaning that appears from the text.

There have been great changes in the method of statutory interpretation by English courts in the second half of the twentieth century. There has been a great increase in the use of a purposive approach to interpretation, particularly in the area of public law, but elsewhere too. This process has been facilitated by recourse to the Parliamentary history of legislation as an aid to interpretation and the modern practice of statements of legislative purpose.

There are, however stringent rules that have been developed in order to interpret statutes that are usually variants of the above stated two general rules. One such rule is the rule relating to interpretation of statutes with regard to the subject and object. Words used by the legislature do not always bear a plain meaning. There may even be disagreement as to whether the words are plain or what the meaning of the word is even it is agreed that it is plain. Thus when this kind of a doubt is created and there may be two or more possible interpretations that may be possible, the subject matter of the legislation and the object it hopes to achieve is to be looked at in order to arrive at the correct meaning.

A competent legal interpretation is one that maintains an appropriate balance between different levels or senses of meaning. In the absence of a single speaker, whose intentions or expectations can be reliably ascertained, a statute can only be accorded an “intended” meaning in the sense of purpose and structure. We can seek the “intention of the statute” by ascribing a meaning to particular provisions that makes sense of its enactment as a purposive communication, consistently construed. The relevant intention is essentially metaphorical, since it does not belong to any particular author, whether draftsman or legislator; but the mode of constructive interpretation its delineation requires is a necessary means of loyal co-operation between judge and Parliament.

The interpretation of statutes with regard to the subject and object is of a general character and it could be said that it is a cardinal rule that must be adhered to while interpreting a statute. The rule is however victim to certain limitations also. The application of this rule is limited to instances where more than two constructions of the language used in the statute are possible. The real question is whether this rule is applicable where the language used is clear and unambiguous. Although it must be taken into account that opinion exists that the contextual background must be examined as a necessity to see whether there is a possibility of two constructions regardless of whether the language seems to be unambiguous or not. Only after examining the language in the light of its context must the meaning emerging from the plain language be used.

Purposive interpretation is increasing in usage in common law although there is an obvious danger of subrogation of the legislative powers. There are also the perils of the purposive interpretation being taken to its extreme. It is noteworthy that purposive interpretation and regard to the context have great usage in the European Community also.

The Community Court relies on contextual and teleological approaches. In the contextual technique, the Court tries to fit the provisions before it into the “grand design” of the treaties in an attempt to divine their meaning. Teleological or purposive” constructions, similarly, attempt to promote what the Court has deduced as the underlying objectives of the provision which might be frustrated by a literal interpretation. The Community Court’s methods of interpretation thus differ dramatically from the British formal approach.

Is there a ‘Right’ to Legal Representation in Administrative Proceedings – A Comparison of English, Indian and American Law.

The topic of legal representation in administrative proceedings has a dubious status in countries like India and England. This is due to several inconsistencies in the application of the right i.e. if it may be termed as a right. The law regarding the right to a legal counsel in India and England is similar but in the USA there is a very different approach.

The Indian Supreme Court judgment in the case of M. H. Hoskot v. State of Maharashtra, delivered by Hon’ble Justice Krishna Iyer, which follows the landmark judgment in the case of Maneka Gandhi v. Union of India, governs subject of legal representation in Indian administrative law.

In the case of Indian law, it seems that legal representation could not be demanded as a right. It is not mandatory in all cases to give the accused a right of counsel but the law is leaning towards the making legal representation a mandatory right. The Courts have in some cases made the requirement of legal representation mandatory and the procedural restrictions in the representation of such party has also been diluted.

There are some Indian statutes that specifically disallow the right to counsel.  With respect to factory laws, some statutes permit appearance of advocates only with the permission of the tribunal concerned eg. The industrial Disputes Act, 1947. However, in some statutes, the right to be represented by an advocate is recognized, eg. Income Tax Act, 1961.

The position in India seems to be that, based on the circumstances of the case and whether the complexity of the matter will render the party unable to understand the issues involved, the counsel should be appointed. If the matter is of a complex nature and a trained counsel is representing the other party, the individual would be denied natural justice. Where the person is unable to understand the problem due to its complex nature and no counsel is appointed, it is a failure of natural justice. However if the case is a fairly simple one and no legal complexity or oral testimony is involved, or the individual is himself able to handle the case, there is no failure of natural justice if right to counsel is denied to him.

In England also, there is no absolute legal “right” to be represented by a counsel in administrative proceedings. It is understood that legal representation may be counterproductive, unnecessary or overly cumbersome in cases where a matter must be speedily resolved. The position in English law has been crystallized by the decisions in these following cases.

In Pett v. Greyhound Racing Association, the Court unanimously upheld the right to legal representation before a tribunal enquiring into matters affecting a man’s livelihood or reputation or other serious matter meriting an oral hearing were at stake. However this decision was overruled and reversed by the appellate court.

In the case of Enderby Town F.C. Ltd. v. Football Association Ltd., the courts have held that tribunals may exercise discretion to allow such representation. The Court may look at the statute and decide if it should be construed that the legal representation be allowed. Thus the adjudicator may not lay down an absolute rule against legal representation in a particular area, but he may reserve the right to allow legal representation if he so deems necessary.

It is clear from the judgments in both these cases that the courts play the final role in deciding whether or not legal representation in administrative proceedings is necessary.

The right to legal representation in the USA is more or less guaranteed as a right. This is because of the “due process” clause in the American Constitution and also because of S. 555(b) of the Administrative Procedure Act, 1946 which runs as follows, “a person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel….a party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding…”The emergence of this right may be seen through its evolution in the following cases. Firstly, in the case of Powell v. Alabama it was held by the US Supreme Court that the right the counsel was essential for the safeguarding of American freedoms guaranteed by the Constitution. However the judgment still gave the states the power to decide just how far this right would extend.

In Betts v. Brady, the Supreme Court held that there would be a “case to case determination” of whether legal representation was required. Legal representation would be allowed only in cases where it was found that denial of legal representation would amount to a breach of the due process clause and render the trial unfair. However this was found to be rather illogical because of the very high standards that were required to prove a breach of the due process clause.

The Decision in Betts v. Brady, was overruled in the landmark case of Gideon v. Wainwright where it the Court praised the judgment in Powell and criticized Betts.  The courts ruling amounted to the effect that no one, regardless of wealth, education or class, should be charged with a crime and then be forced to face his accusers in court without the guidance of counsel. The right to counsel was considered to be essential to the right of fair trial and also to the due process clause.

Thus in the United States of America, the right which extended only to capital cases has been extended to federal and state cases that involve possible loss of liberty in felony cases, misdemeanors where a sentence of imprisonment is imposed, juvenile prosecutions and appeals from convictions. It confirms the sixth amendment to the United States constitution whereby the person charged with a federal crime had the right to be represented by a retained lawyer. The sixth amendment did not however include a right to have a counsel appointed to an indigent person. However, many of the courts in the federal and state legal systems have adopted the rule that they have the inherent right to appoint counsel to an indigent person also. The lawyer will represent the person without any fee.

Thus, on a comparison of the position in Indian, English and American law it is clear that only American law recognizes legal representation as an actual right. The Indian and English law place the ultimate decision in the hands of the courts as they will have to interpret the relevant statute and decide on more or less a case to case basis.

The Silent Men Speak – My Thoughts on ‘Drive’ and ’50-50′

In a time where communication is of such great prominence, sometimes people forget that there is some joy to be taken from silence. Everyone wants to be heard, and they should be in an ideal world. Even our conversations are loud and we state opinions like we are on the verge of professing something really profound. The sound of silence is becoming exceedingly rare. Take a moment. Breathe in deeply and exhale slowly. All is well in that quiet albeit brief moment.

When I went to the theatre to watch Drive I did so with no prior knowledge of the film and no real expectations from it. The tickets were quite easy to get even though it was the first weekend and the auditorium screening the film was also quite empty, which in retrospect was quite fortunate because I’ve had so many films ruined by people in the audience who just cannot keep their opinions to themselves in New Delhi. To add insult to injury most people get offended when you ask them to keep the decibel levels down during the film. However, none of that annoying nonsense happened that day and it was a very pleasing experience.

The film is based on a James Sallis novel also called Drive, adapted for the screen by Hossein Amini. It stars Ryan Gosling as the driver and features Cary Mulligan, Robert Cranston, Ron Perlman and Albert Brooks. The film is directed by Nicolas Winding Refn, who is of Danish origin, and he has previously written and directed films like Bronson starring Tom Hardy and Valhalla Rising which stars Mads Mikkelsen. Incidentally, these are the only two films of his that I have watched. I thought both were slightly disturbing and quite unique at the time (I still do so).

Drive is about a series of incidents in the life of a hollywood stunt driver who in his free time hires out as a getaway driver to robbers and criminals in general (they don’t really specify as to who his clientele generally consists of J). He lives by himself and works at a garage owned by his friend. He then gets emotionally attached to a girl who lives with her young son. They live next door and her husband is in prison. Things go really wrong for them when the husband gets released and falls into a bad situation, which gets worse as he gets killed. The driver is then obliged to rescue the day.

Gosling’s character is indeed a silent one. When the film starts and the credits are rolling, there is a short monologue as he speaks on the phone before going on a job. He gives precise and curt instructions about how the getaway is to be executed. He only speaks as much as he is required to. After the monologue, he goes to his friends garage, gets his car for the job, executes the getaway and escape, then the credits and title song come and go. Now between the monologue and the next time he speaks properly, he does not speak for around10 minutes. He asks Cary Mulligan, “what floor?”, in one scene in the middle of the silent 10 minutes and that is it. Two words in all that time and he is in the center of all those scenes in that time.

He is silent, even to the point where he seems shy, like when he meets Irene (Mulligan) in the beginning. However, Rose (Brooks) instantly recognizes him for what he is. He knows instinctively that there is something simmering under the surface. Something that is dangerous and which should not be disturbed. Irene however, witnesses the violent side of the driver, when he is forced to gruesomely kill a mobster to protect her. His total loss of composure suggests that his latent side is indeed very potent and destructive.

The driver reminds me of Clint Eastwood in the Dollar Series spaghetti western films. The silent, calculating, smart, dangerous, fearless, but ultimately-hiding-a-good-side kind of hero. The anti-hero if you will. Oh, how I admired those guys!

The film builds up at a slow controlled pace. There are very few scenes where the pace really quickens. However, wherever they do quicken, they bolt. The chase sequences, action sequences or scenes depicting violence are frantic and graphic. They delineate from the otherwise mild progression of the film. Some viewers complained of the film being paced really slowly but I personally felt that the film was timed perfectly in conjunction with its theme. In fact the pace helped to heighten the tension in most parts where it was intended to.

The background score was wonderfully executed and I really liked the songs in the film, which are mostly electronic pop. In fact I was really drawn into the film by the opening credits song, Nightcall by Kavinsky. The music has this cool feel to it that makes you want to shake your head to its beat. It’s got a hypnotic quality really!

50-50 is another film that I recently watched after a friend recommended it. The film is directed by Jonathan Levine and written by Mike Reiser. Again, I did not have any prior information about the film. In fact, I thought it was going to be another pointless and not-so-funny Seth Rogen comedy, like Zack and Miri Make a Porno, so I was less than enthusiastic going into the film. However, it had Joseph Gordon-Levitt as a lead actor and I had been following his career for some years, so I decided to go ahead and give it a watch. Thankfully, I was not disappointed.

The film is sensitive, tasteful, and very relevant in today’s world where cancer related cases are becoming more and more prevalent. It makes us feel the emotional turmoil that a person with cancer must be faced with as we are gradually drawn into the character of Levitt. The actor has really matured over the years and still has lots of potential. Seth Rogen’s role as the best friend of Adam (Levitt), is really endearing and it made me ponder if I had anyone like that for me in my life. I will not furnish you with a name at this point in the interests of not hurting the sensitivities of others who are dear to me.

Adam (Levitt) is a soft-spoken, down to earth, cheerful guy who is generally pleasing towards everyone. He has few bad habits and is probably the last guy you thought would get something like cancer. He is a different type of ‘silent’ guy as compared to the driver. There is nothing boiling under the surface here. He is just a nice guy who keeps to himself. However, he is immediately likeable.

The film, like the character of Adam, is pretty low key in that there is no overt drama or fantastic speeches to leave you with your mouth gaping. It slowly creeps up on you and before you know it, you are fully engrossed in the film. It has a subtle and yet effective style of captivating the audience. If you have the opportunity, please watch this film.

These two films are among the most notable that I have watched of late. It’s nice to see protagonists like this on the screen again. The characters are beautifully written but in both cases I’d say the choice of actors is also as close to perfect as it can get. Both the Ryan Gosling and Joseph Gordon-Levitt have done a great job and I hope to see more out of them in the future.

A few thoughts on the Work of Takashi Miike

What makes a person like a film? Is it a convergence of thought processes that stirs one’s curiosity enough to take the trouble of watching it, trying to understand it and in the process enjoy it too? Some people may like a film while others may hate it altogether. Well, I’d like to leave that question unanswered as we all may have different thoughts on that one. On that note, one director whose films I have recently watched and come to really like is Takashi Miike.

Miike is a Japanese director born in Yao, Osaka. The 51 year old has made quite a number of films in his career and hopefully will still continue to be as prolific in the future as well (although there are no indications to the alternative).

What really interests me in his work is the kind of themes that some of his films portray and the way they are shot. He has indeed directed films that have very different themes but the ones that I have watched are mostly centred around the violent, shocking, grotesque, horrifying – all in all films that are very dark and morbid in nature.

The controversial nature of his films have often violated the delicate sensibilities of viewers and censorship officials. Frankly, I don’t blame them. Some scenes in his films are indeed extreme. In Ichi the Killer, there is a scene towards the beginning of the film, where the central character, Ichi, is watching a man beating a woman in order to get himself hard enough to have sex with her. Ichi, is himself, getting turned on by watching the spectacle and is masturbating as he watches. The scene is as graphic visually as is its theme. However, as the story unfolds, it becomes clear that these scenes are windows into the psyche of the characters. They answer the how’s, the what’s, and the why’s of the way the characters behave. These are, however, not your everyday characters and their world is thoroughly bizarre.

Imprint was Miike’s entry for the Masters of Horror series in 2005. The film has a bit of incest, a bit of torture, rough sex, prostitution, violence, desperation, a doomed romance, crushed hope and an overall victory of what one may term as evil. The film was deemed to be so ‘disturbing’ that it was not aired by the Showtime cable network, which had bought the rights to the series. Although Imprint is in fact, a lot more fantastical in its story elements and it has an actual “monster”, it does seem to credit the creation and nurturing of the evil to real world scenarios like the child born out of an incestuous relationship and the subsequent rape of the child by the father.

Audition is another film that leaves a lasting impression on the viewers mind. If true horror is something so jarring to the senses that it is unbearable for a person to watch, then this film is truly horrifying. The killer is a beautiful young girl who is polite and soft spoken. Not really your average psycho killer stereotype at all. However, right from the time that they introduce her in the film, it is clear that there is something wrong with this girl. Its just something that you can feel (all credit to the actor, Eihi Shiina and Miike). The tension builds up all through the film and culminates in the final uber-disturbing torture scene. Indeed, Miike seems to have a real talent for bringing out the nitty gritties of the art of physical torture. The aforementioned film, Imprint, also has a torture scene of comparable brilliance. The brilliance is, in my opinion, in the ability of the director to elicit from the audience the kind of emotional reaction that he desires. Emotions of horror, revulsion, pain, pleasure, fascination – each of which makes the viewer uncertain as to whether he should shut his eyes or keep them wide open.

Miike has also directed the film Crows (Kurozu) Zero, and its sequel, Crows Zero 2, both of which seem to have gone viral amongst teenagers and young adults over the world and in India, especially in the north-east states. The film’s are just ‘very cool’, as most people who I’ve asked would say. The characters are young, tough and everyone has a chip on his shoulder. Right from the word ‘GO!’, the epic streetfighting style battles go on and on. In fact, it wouldn’t be wrong to say that both the films are just two huge brawls with a bit of story in between breaks. Some might say that this makes the films monotonous but I say – ‘MORE!’. The fight choreography is stunning and realistic in that you don’t see the hero beat up a whole gang by himself and emerge from it with his Ray Ban’s still on and his hairstyle intact (case in point – Indian films featuring ‘hero’s’ like Ajay Devgan, Suneil Shetty and of course the indomitable Sunny Deol, to name a few). Of course, there are a few scenes that are larger than life but its just Miike’s style of humour.

One of Miike’s relatively recent films that I watched and greatly enjoyed is 13 Assassins. The story is, as evidenced by the title, that of a group of 13 assassins who are formed to assassinate a cruel and sadistic young lord, Matsudaira Naritsugu, who is the brother of the Shogun. The film takes place in the mid 17th century which is just before the Meiji Empire of Japan was formed and the Tokugawa Shogunate was ended.

The characters in the film, particularly those of Lord Naritsugu and Shinzaemon are very interesting. They are very obviously portrayed as being on opposite poles of morality. While Naritsugu is a young, narcissistic, power drunk and despicable person with no thought of the consequences of his actions. Shinzaemon is an honourable and humane person bound by the Bushido code of the Samurai. Naritsugu randomly inflicts pain and suffering on others without having ever experienced true physical pain himself. In some ways, he is like a spoilt child, manipulative and unmindful of the full extent what he does. As he dies in the end, he thanks Shinzaemon for giving him the most fun day in his life (something wholly unexpected, at least for me).

The character of Kiga, a hunter of animals in the forest who joins the 12 samurai and thus completes the band of 13 assassins, is very similar to characters played by Toshiro Mifune in Akira Kurosawa’s films, notably in Seven Samurai and somewhat in Yojimbo. Whether this is a coincidence or some sort of homage to Kurosawa is unknown to me although the latter is probably true because Miike is apparently an admirer of Kurosawa’s work.

The film also has beautifully created battle scenes as 13 samurai prepare to take on over 200 soldiers. The pace of the film goes at a thumping rhythm and there is never a dull moment as the cuts take you from one scene of the battle to the other. While very brief, there is again a scene of torture and horror in the film, which is mostly narrated, but whatever is shown visually, does unfailingly draw a cringe from every viewer.

These are, I guess, the sum total of all the Miike films that I have watched to date. I do hope to watch more of his work but then again he has been involved in over 50 films and that is a very tall order to fill. Nevertheless, I think I will end up watching most of them. What can I say, I’m a Miike addict! Now what that says about my psychological make up is anyone’s guess but I don’t really care. Sue me! By the way – you should watch some Takashi Miike films too if you enjoy cinema and haven’t watched any of his work. It is definitely an experience. Whether it is a good experience or not is totally up to you.

Domestic Violence is Uncool

Domestic Violence is Uncool – Part 2