Monday, March 14, 2016

What if...

This process of making legislation seems to involve a lot of thinking up What ifs. Lawyers seem to revel if thinking up possibilities which need to be covered by the law. You know how it goes - "What if this happens? Put in a clause for that. What if that happens? Put in some condition to cover that..." My first brush with this was when I had to put up the implications of the ordinance that the Government issued to put in place the 'Employee's Pension Scheme 1995'.

There was this curious clause in it that haunts me to this day. The law provided for the possibility on the lines of 'If the widow of an employee gets remarried before the death of the employee...'. Since the law was curiously silent about how someone can become a widow of someone who is yet to die, I was flummoxed. I had to admit that my acumen fell far short of these lawyers, considering that something that struck them as too obvious to explain puzzles me to this day.

Anyone who has tried to hack his way through the thickets of 'What If's in any law - and, obviously, given up within minutes of starting the attempt - knows how difficult it is. AND we have not even started on what they call the fine-print. After putting in sustained and concerted efforts at ensuring that the law is as incomprehensible as it can be made by human effort to any ordinary, they turn around and tell you,"Ignorance of the law is no excuse", thereby creating a market for their ilk in the private sector.

It is difficult, though, to blame them. Especially when it comes to business laws and fiscal legislation. They have to put in place as closely-knit a piece of legislation as possible because they know an equally, if not more, brilliant lot of their ilk will be paid to be hard at work trying to find what they love to call a 'loophole'.

My understanding of this 'loophole' is what irrevocably qualifies me as certifiably insane. First let us see what this insane view is, so that you can then better understand the proper sane view. (Oh! I SAY all this but which insane person has ever really understood that he is actually insane, except if he has some sporadic sane moments.)

Let us say that a law is put in place to prohibit certain actions. It is possible that, when you read the law and all its what-ifs, you do not realize that what you intend doing is also intended to be prohibited. A genuine error, which cannot even be covered in the "Ignorance of the law..." since the law does not SAY so. A loophole, though, literally means that you are intending to find a hole in this net of what-ifs to do exactly what the law is there to prevent you from doing. In other words, you KNOW what you are doing is what the law is there to prevent and deliberately decide to find a way to do it. AND at the end of it, if you are called on it, you can always throw up your hands and say, "How was I to know? The law does not SAY so."

When the normal way to enter a house is through the gate and the front door, if you are jump over the wall, cut a hole in the window-pane, open the latch and contort your way through, you could claim that you thought that the fact that the gate and doors were locked only meant that you were not allowed  to enter the house through them but were allowed to do it otherwise. In my insane mind, though, the intent to force illegal entry is clear and I further seem to assume that it is clear to YOU as well.

The problem is, as must be readily apparent to you, that I have lost the sanity to see things the right way. I seem to assume that the laws are put in place to safeguard the interests of society and the chap who bends his efforts to finding a loophole is actually working against the interests of society. (I know! I know! You are rolling on the floor laughing at this absurd idea. When you are done...)

You, of course, know that the fact of the matter is that it is only a game of what-ifs. The government and its team tries to find all possible what-ifs to prevent the corporate team from doing something. The corporate team, then uses all its ingenuity to find a way to do exactly what the government is trying to prevent them from doing. When the latter manages to do it, we - who are the spectators - applaud their ingenuity. The government, poor loser that it is, horrifies us by changing the rules of the game, retrospectively. It IS part of the game for the government to change it for the future and for the corporate world to shrewdly find a way through this new net of what-ifs in the next game, but retrospectively? If that is not changing the rules of the game to declare a victory for itself, then what is?

You can see how far gone I am, when even after having been told all this and having seen that Society does not even decry the immorality and has only praise for the ingenuity, I am still not convinced. If you see white when everyone around you sees white, it is YOU who are insane - unless you happen to be the lone sane inmate of a lunatic asylum.

But, then, how could I be sane after spending a decade and a half trying to parse what-ifs?


  1. Well said, Suresh. The game is rigged, isn't it? But I wish you had brought in an expert, such as Vijay Mallya.

    1. What can I say? He vanished to London before I could get him :)

  2. hey. Read this as a lawyer and of course I would like to digress.
    I would exactly call them loop holes as I would call them 'Interpretation of law'. I do not know of anything in the Employee pension scheme that says that. But please show me because that would be a fun read!
    Yeah ignorance of law is no excuse but ignorance of a fact is :P And talking about finding a different route to enter a house especially when the doors were locked, the intention or motive would come to play then (mens rea).
    Yes I work for corporate and yes we do try to come up with interpretation of law that works in our favour, but let me tell you, it is mostly never in our favour unless it is actually allowed by law.

    Sadly the entire legal institution survives on this aspect.

    1. THAT clause I mentioned was in the first ordinance that was passed to bring into effect the EPS. When the law was finally passed by Parliament, someone had noticed this interesting clause and rubbed it out :)

      My point is very simple. When the corporate knows that what it wants to do is exactly what the law is present to prohibit and still finds a way, it is trying to find a 'loophole' no matter what it chooses to call it. AND finding a loophole is nothing but circumventing the law deliberately while seemingly being on the side of the law.

      I have no doubt that there are a lot of cases where there is a genuine misunderstanding of what the law is there to prohibit. I am also sure that a lot of times a loophole is not found at all.

      For me, this whole attempt to find a loophole is immoral. But that is my opinion. (AND no holier than thou here. I worked in the corporate sector too and I have done my share of 'finding loopholes', albeit as a manager and not a lawyer.)

  3. I have never understood law. To me most of it makes no sense. So many of them are archaic and hardly seem to apply in the current scenario. Had a brush with law and lawyers for a rent case. There was no loophole to find at least there. All the laws seemed to favor the defaulter. :/

    1. He found the loopholes then? The basic concept of a loophole is to allow someone to do what he is not supposed to do NOT to help someone do what he is supposed to do :)