Soon after Franz Kafka’s death in 1924, the writer’s literary executor Max Brod ignored his friend’s instructions, and published a slim novel written a decade earlier. Der Process (The Trial), now acknowledged amongst the seminal modernist literary texts, is about the travails of Josef K, who finds himself inextricably trapped by legal bureaucratism. He doesn’t know why he’s been arrested, or how to defend himself, or even whether it’s possible to escape. A prison guard points out the irony, “[he] admits he doesn’t know the law and at the same time claims he’s innocent.” That kind of oppressive, surreal and nightmarish predicament has come to be known as “Kafkaesque”.
In ‘Comeuppance: My Experiences of an Indian Prison’, James Tooley outlines a similarly labyrinthine experience down the rabbit hole of India’s legal system, after being unexpectedly accosted at his hotel in Hyderabad in 2014. Mrs T Mantra, Deputy Superintendent, Criminal Investigation Department, showed up in a sari “draped so low that it often fell off her shoulder” and after asking about her subject’s marital status says “Then you can marry me.” Very much like Josef K had been told “stop being intransigent… you just have to confess. Confess at the next opportunity”, Tooley is initially urged by his interrogator, “Don’t worry. Make a statement from memory. We just need something to close the case.” But then the next day she showed up with “six men in a triangle behind her” and took the aghast 54-year-old off to jail.
At the time of Tooley’s arrest, he was already a well-known libertarian academic (at the University of Newcastle on Tyne) and entrepreneur (he is Chairman of chain-school companies in both Ghana and India), was being accompanied by an Indian girlfriend, and had “more or less” lived in Hyderabad for years, where he gleaned insights about what he calls “grassroots privatisation” of education, ie low-cost private schools. Given all that experience, it’s hard to compute the succession of tactical and practical blunders he made after falling into Mrs. Mantra’s clutches, purportedly for failing to realise it would be a problem that he’d previously set up (and then disbanded) a trust which received funds from abroad in contravention of Indian foreign currency regulations.
Whether or not Tooley is actually as much a guileless naïf as portrayed in ‘Comeuppance’ there is no denying the utmost plausibility of his descriptions of naked, pervasive venality, inertia and extortion in India’s judicial apparatus. Mrs Mantra wants a sizable chunk of cash and is unwilling to back off without getting it. Everyone else in the system is fully aware, “she was quite open about demanding bribes from me, and did not mind doing so in front of her junior colleagues or my lawyers”. The hapless Brit finds abysmal representation in a series of inattentive, deficient advocates, who repeatedly prove themselves incapable of navigating due process. Then he gets physically threatened. “You have no fucking choice,” he’s told by his blackmailer’s goon, who “opened his jacket to reveal a handgun tucked in his belt.”
‘Comeuppance’ proceeds to underline many of the most shameful aspects of India’s overburdened and antiquated legal framework, where some 67% of all prisoners languish “undertrial” for up to three years without ever facing court. The overwhelming majority of these unfortunates is Muslim, Dalit and Adivasi, far out of proportion to their numbers in society. There is also a desperate deficiency in legal aid, which is needed most by precisely this segment of prisoners. Meanwhile, bribery and corruption run rampant. As Tooley is eventually told by a friend, “That’s the only way you get things done in India. Money or power. Those are your only choices.” That is when our protagonist realized, “I too had to go the power route.”
Tooley has influential friends. Gurcharan Das told him “corruption is our scourge” and “promised that he would think of ways to help me.” Though none proved effective, his blurb on the cover of ‘Comeuppance’ is a strong endorsement of “a man who came to India to do good but fell afoul of police corruption, extortion and wrongful imprisonment. Multiply his misery by a million undertrials and you have the gravest indictment of India’s corrupt rule of law.” There was local influence exerted too, by Mr. Haridevan, “a businessman with a strong involvement in national and regional politics” who spoke with his friends in the police, but the case continued to lag in limbo.
Finally – and here again it is hard to imagine why Tooley didn’t immediately make the necessary phone call at the beginning of his saga – the stalemate was broken by I. V. Subba Rao, the current secretary to Vice President Venkaiah Naidu, who was then “mooted to come back to India as chief secretary for one of the two new states that was being carved out of Andhra Pradesh”. He knew Tooley well, and his entry changed everything in the scenario, “now, with both Haridevan and Subba Rao on my side, it seemed as though I could see the light at the end of the tunnel. I felt exhausted but positive.”
By that point of ‘Comeuppance’, around 200 pages in, the reader is well accustomed to encountering raised spirits, which become inevitably dashed a few paragraphs later. Thus there is a disheartening shuffle of papers from one officer to another, that persists until a hair-raising denouement. This gives Tooley, somewhat inevitably and tediously, the space to wax libertarian. He quotes David Boaz, “those who administer the law should have minimal discretion, because discretionary power is the very evil that the rule of law is intended to protect.” This leads to his own realization, “if there was less discretion given to the police over the ‘who, what and when’ of prosecution, then police corruption could begin to wither on the vine.” Dubious as that analysis may be, it’s impossible to ignore the other bottom line in ‘Comeuppance’, that “India’s affront to the rule of law” causes untold misery and anguish.
Vivek Menezes is a widely published writer and photographer, and co-founder and curator of the Goa Arts & Literature Festival.