India is a land of immigrants

As a lawyer, you cultivate the habit of walking into a room and pretending that your answers have to be the right answer, you hold on to them very hard, resist their demolition, use every available opportunity to press them, substantiate, but invariably there are times when you lose. When it’s a senior that this happens with, you console yourself that it was a tough one. The great amount of time spent arguing and senior airtime received, surely meant there was a balance of probabilities? A tough case where the right and wrong answers did the cha-cha-cha on a sunset cliff, and really, there was no way to know, it became a matter of – right choice, wrong choice, what they call in corporate lingo, ‘taking a call’? All legal method deployed, research material exhausted, turned, overturned and returned to interns, who further exhaust, turn and overturn. The questions of law thus achieving greater importance than the client or more importantly, his budget, and the right answers have to be found.

Legal opinions can be funny animals. There are the straight forward ones, the sneaky ones, some are informative, some wasteful, all depending on the addressee, client (including budget), opposing parties, questions of law and various matters that make legal opinions unfathomable even to their connoisseurs – transactional lawyers. When all these complex matters come together and churn in your gut, red lights go on in your head, you know there are some things that have to be said but you cant say because you are a lawyer. Especially when there isnt anything ‘illegal’ or ‘non-compliant’ but when things smells funny. You take cover and you make noises, squeak but not squeal, do a little hop.

Clients don’t like little squeaks and hops. In a legal opinion, you have to justify noises that you make. One of the wonderful things to the rescue is ‘Obiter dictum’. There is a sea of it, an ocean – blue waters full of little fairies ready to justify the randomest of thoughts and arguments, a lawyer’s damsel in the time of distress. Obiter is that part of a judgment (opinion of a court) that contains what courts actually mention in passing. Picture your mother, dishing out her opinion of your new girlfriend just when she’s about to lock you out of the house (actually, for smelling of rum). This can be useful and important when you can’t find a prior decision to give you an idea of how courts (read mom) would look at a dispute (read girlfriend). To get a flavour of things to come, words mentioned in passing are sometimes all we as lawyers are called upon to make the best of. We twist and turn them over a fire, roast them to a decent brown, and drop them into our opinions.

When legal opinions are cooked up, lawyers are careful to distinguish between ratio decidendi (law on the basis of which courts actually decided a case) and obiter dicta (courts in blah blah mode), thus tempering the seriousness of their conclusions. But sometimes we wonder if courts actually know the difference. There are judges who like to have fun with all parts of their opinions, and often care little about the seriousness of their conclusions. But theoretically, it is imperative that judges get the ratio decidendi right, while the obiter which has no bearing on the matter at hand, can be blah. Judges can blah wrong, blah and blah, blah in peace, all in the off chance that someone someday somewhere will heed their obiter, hail their foresight, alter the law (to suit the blah), and place their names on obscure pedestals in distant law universities. Obiter is a longshot, a lottery ticket to limelight.

For lawyers who yearn entertainment when punished with inconclusive and long-winding legal research, obiter can be an excellent source of entertainment. Obiter can be interesting, random, mind numbing, dumb, philosophical, cynical, religious, patriotic, socialist, stupid and anything else that that you like it to be, you stumble across them everywhere and unlike ratio decidendi, obiter often exceed expectations. Obiter also makes for good conversation. If you want to capture the attention of an attractive lawyer, no better way than to discuss which part of a judgement was funny, and which part disgusting. Lawyers are creepy, but in innocent ways.

But judges? A recent example of entertaining obiters is in this judgment (which some called a ‘historical disquisition’!). I don’t mean to trivialize a gruesome case involving sexual molestation, but this obiter is truly, well -  comedy, unadulterated and unintentional. We recognize judges are extremely well paid in this country, and often have the insatiable urge to create value, but this passage should blow anyone’s mind:

“25. In Google `The original inhabitants of India’, it is mentioned : “A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not the case. The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages”

26. Thus the generally accepted view now is that the original inhabitantsof India were not the Dravidians but the pre-Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand),Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts ofIndia (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27. It is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research his required).”

I wonder where the other 8% of our descendants came from, and who is smoking what. Please read all of it, it makes for good conversation and most of all – it’s a hell lot of fun.