Yesterday I decided to visit an aunt who turned 90 years of age. “There aren’t many 90 year olds I get to meet aunty”, I said to her. Aunty never married- there is little I know about her except that she held a senior government job for many years- one of the few women of her generation who worked.
Over the years, I have met her intermittently and each time marveled at not only her grace, but how much her physical age has simply refused to eclipse her upbeat energy, spirit and humour. A single line could make you laugh, confidence could match, if not outwit, your own, and always a word of warmth to endear you. “Jeethay raho” (long life to you) she reminds me. Yesterday however, something of her had begun to disappear. As if overnight, she was visibly receding into some obscure space where neither past nor future exists and a present is lost sight of.
What is it about age that makes us aware- or not? As my own parents are near or enter their 80’s, the mortality of life which draws them eerily close has in some way come home to me. Time and again, we resist the idea that we too, will grow old. For now, it seems fine to worry about the next acquisition, how I might maintain it, what more can I earn, how my kids will turn out, where to take my next vacation or what the future will bring. Yet as I watch the aging around me, I know that before long, the challenge of a day will no longer be about the future- it will be about now. It will be about reconciling with a retirement that just yesterday appeared like a distant pinhole on a life map. It will no longer be about what seems a critical workplace negotiation but about how to negotiate a set of stairs, where to find those damn reading glasses dangling from a chain around my neck, and how to accept a body which ages ahead of a mind or, vice versa.
And then I ponder, where will I ever find the time between seconds to reflect on the purpose of it all.
There is a lovely ad on television these days (unfortunately about an SUV) which asks a series of truths through poetic visuals:
“If you looked back on your life
What would you remember?
The corner office?
The corporate powerplay?
The VIP lounge?
What would you remember?”
Excited at the possibility of exploring this with aunty, I ask her “So, how does it feel to be 90, aunty”. She pauses, turns to me and says “I never remember”, then turns back lost in unknowingness of a distant expression. She brings home a missed truth for the ad maker- that if we get there, will we even remember?
Each year, we know we are getting older. And yet, we defy and deny the reality of what it will bring- at the very least, it invites the physical challenge of aging. I used to lift all manner of heavy items with ease and prided myself on being among the few women who could do so. Now, I think twice. My luggage is lighter when I travel. Large items in my home are on coasters, and I lift only when there’s no one else around to do it. To deny that physical change is foolish. Many of us realize that. But beyond the physical lays a more deep rooted non-recognition about the quality of life we now wish to live. I am reminded of this fact each day by a wall hanging in my drawing room. It reads- “In the end, all that matters is how well did I live, how well did I love, and how well did I let go”.
I think it is the last “how well” that stays with me. “Letting go”. For many years of my life, ‘holding on’ was the motto of the moment. Be it an ideology, an opinion, a place of work, or a relationship, I held on. I used to be an ‘ideological feminist’ and I clung so hard to what I believed in, I couldn’t see how it largely manifested as anger. Even the sabzi-wallah (vegetable vender) wasn’t spared. Destruction loomed large in the world I hung on to. Then, without notice, that very world suddenly became a messy piece of chewing gum ruthlessly clinging to my hair. No matter how much I struggled to get rid of it, we remained stubbornly stuck to each other.
Rescue came from the most unlikely quarter. It took one of my now favorite films, “The Matrix”, to tackle the gum. A young computer geek is led by a series of events to an Oracle to learn whether or not he is “the One”. In her kitchen (yes, the Oracle has a kitchen), she points him in the direction of a plaque above an archway behind him which in Latin reads nosce te ipsum meaning “know thyself”. A phrase I may have heard umpteen times now resonated so precisely with my own life. “Know thyself”. Implying if I didn’t, then I must live the repercussions of not doing so- Sticky, icky pieces of resin furiously invading my hair forever! My brand of ‘feminism’, as with many of us I think, had turned toxic. It had infiltrated me in a way that could no longer distinguish itself from my true being. As I made myself more and more conscious of that fact I became intensely aware of not liking who I had become and the reality I had created. My worlds were split between who I was, and what I had done. Yet rather than struggle with it, I began, for want of a cliché, to love them both. To ‘Know myself’. Only in that acceptance could we let one another go. I became unstuck.
My father was a senior radiologist in a hospital for thirty years. He retired at 79. For many years, he was a respected man in charge, who held the combined qualities of a short temper and gentleness. He was a leader in his area of expertise. He taught residents in abundance, saved lives, and innovated procedures. At 65 he went to
The danger of non-reflective aging is that it lulls us into a false sense of who we are and how we cope. Denial is that precious window casing we build around a belief system. In one of my windows, success was dressed as plenty of money not quality of being- a belief that still resonates in the wary wonder of a family convinced I’m headed for the monastery! Another window display evokes ‘love thy neighbour’ but ‘only if they love you first’. Finally, the window which fashioned love as the extent to which you own another, not the manner in which you liberate them.
Perhaps it’s the 90 year old aunt, now 82 year old dad, ideology, The Matrix or messy gum- perhaps all of this and more have shown me one truth. There is nothing that prepares you for either a death or a birth excepting how you chose to realize your present. That will determine how you experience the road to growing old- as a transition or an end. Back then, I was 39.
Now I’m 49- a perfect precipice from where, once again, I must learn to ‘let go’.
© Naina Kapur, 2009
An established senior counsel told me the other evening that when clients go to a lawyer in
Litigation is a tool for damage control. It provides band-aid support to an individual person and their individual case. It does nothing to engage or enhance human relationships. Rather, it converts real life harm into legal facts to which we can apply legal rules. In the end, litigation is designed to assign blame. It does almost nothing to alter the system that could have prevented the harm in the first place.
It seems common sense therefore that in a litigious nation such as
What then is preventive law?
Simply put, it anticipates and prevents a legal problem from occurring. In other words it is a proactive mindset.
Most legislation and subsequent litigation are based on solutions to problems which have already occurred. It’s rare to find law that encourages preventive practice. When clients hesitate about going to court, it seems to me that moment is filled with their silent seeking for a more enabling alternative. Something better, less costly, more effective and less time consuming. Where is the guidance which leads them to realize that possibility? Legally speaking- the Constitution. Most Constitutions have a set of rights designed to promote basic fundamental goals for it’s’ citizens and others. And most Constitutional rights are easy to articulate for clients. You don’t need the legal jargon. What’s complicated about ‘the right to life with dignity’; ‘freedom of expression’; ‘freedom of movement’; or the ‘freedom to practice one’s religion’? Rights we experience in our daily life only we don’t call them ‘constitutional’ or ‘fundamental’ or human rights.
More simply still, you only need to understand one of these principles to access the rest. Equality. It is the corner stone of all other human rights and therefore, of preventive law practice. Rarely do lawyers draw upon this common sense principle to advocate problem-solving practices outside of litigation.
Take the case of disability or senior citizens for example. Equality norms call for enabling all manner of persons challenged by age or other disability. I discovered this in 1999 when I invited a person with disability to address a Judicial Institute in the South. There was no wheelchair access to the building. Until the Institute was faced with a person with disability, such a need/right did not exist for them beyond theory. Initially, we built a ramp to allow access to my speaker. After her session however, judicial participants present committed to create like access to their courtrooms. When you alter mind sets, you enable people to think inclusively and practically about others unlike themselves. Consistent with the equality principle, preventive lawyering encourages that brand of proactive understanding.
A more poignant example of late is ragging which resulted in the tragic death of a teenager at a medical college. Lawyers will file a criminal or civil case, endure an unending trial which may or may not lead to guilt and seek a punishment – which is unlikely to prevent the same from happening again. By then, a minimum of 5 years will have lapsed. And more legislation will be sought to ‘solve’ the problem. But human problems crave prompt human attention before life around them wanes and disintegrates. In all this litigation what compels ‘ragging’ to systematically and proactively stop? Where have institutions been made aware and therefore accountable? Where have stakeholders been consulted and engaged to change ‘the way things are’? Where have we created practices that could have prevented yet another tragic episode?
That is where the practice of preventive lawyering becomes relevant, engaging and transformative. Preventive law could create built-in yardsticks to make educational institutes comply with prohibitions. Financial grants and aid to colleges could be made conditional upon compliance. The goal would go beyond ad-hoc band-aid punishment of individuals towards a shared culture of responsibility and accountability by all stakeholders (i.e. the University Grants Commission, colleges, students, leadership and decision-makers). This is where preventive law finds its niche. Rather than address a problem through one of loss, blame and litigation, it engages with everyone to use multi-dimensional practices to solve the problem.
What’s the difference with preventive law?
It fulfills a multi-dimensional role of human relating through equality compliance. And it does this through creative possibilities- around attitudes (training on myths, stereotypes, and assumptions); environmental aspects (which may exclude or include); interacting with the social context of person(s) who are impacted by the problem; better informing the multiple layers of decision-making beyond case law precedents through real life contexts; and challenging the complex jargon of legal language by inviting people to speak and act in ways which give voice to their contexts and concerns. It can be hugely inclusive and certainly less expensive. It makes possible to imagine a number of ways in which a problem can be unpacked and understood- ways which would not have been considered by traditional legal practice.
Where then is our renaissance lawyer who will rescue that client from the procedural escapades of litigation? Who is prepared to swoop into that moments hesitation and suggest at the outset to his or her client - 'shall we try the road less traveled by'. It surprises me how much courage it takes to become the renaissance lawyer. In all my experience with litigation, I can only name a few who were inclined to steer clients to a preventive alternative. The rest would go to court.
I truly believe that when lawyers counsel clients to litigate at the outset, it is an act of sabotage. In that default moment of advice, the lawyer has lost sight of why s/he is there in the first place. I say this without judgment. We have bright talent in our legal community and a young generation who is so willing to aspire for more. Perhaps we owe them a different counsel from what we inherited. Entering a client’s hesitation to guide them towards expansive possibilities is what might make law a noble career choice. Indeed it means we must acquire new skills: receptivity to human experience; engaging with social contexts unlike our own; a larger aspiration to benefit others and ofcourse, deep self-reflection on why we are here. Skills that can be cultivated through practice and if law schools are inclined, through learning.
This is not a call for charity or pro bono work- it is an invitation to rethink our “professionalism”. We are so programmed as lawyers to protect citizens from one another that we have betrayed the skills, function and mindset to facilitate them to cooperate with one another. That is the job of preventive law. To expand the traditional functions and structures of law so as to create openness, understand the emotional, financial, relationship, mental, social and spiritual contexts of problems and the connections between people who experience those contexts. Each time I look at a courtroom and see an inflating race of lawyers ‘battle’ it out, my heart sinks at the lost opportunity and insight of lawyers to help prevent problems from recurring.
I am not advocating the elimination of litigation. There are real occasions when the oppression and dominance of one power over another requires such intervention. But law has to stop being sourced in cases and precedents; it has to come from human interactions which may give rise to a legal problem and not an inevitable court case.
Preventive lawyering is a function whose time has come. Only when we give value to that moment’s hesitation by our client, will the meaning, practice and profession of law be truly served.
In 1997 I was lead instructing counsel before the Supreme Court of India in the case of Vishaka v State of
To have any real meaning, equality as a human rights principle needed to assert its worth in preventive ways. It needed to be rescued from the far flung reaches of an alien International sky and brought into the dust and dirt of domestic life. It had to go beyond International branding- to product value. It had to bind a state not only in words to other states but in practice to its own people.
Vishaka came to be emblematic of not just one woman but most women. It became the reason why I first chose to be a lawyer. To create social change. A possibility that exists if we could just acknowledge that the evolution of human rights is meant to take us beyond the limitations of rules, evidence and adversity which divide us to the values and systems that can enable us. Those subtle areas of life and law which connects us all, where the state of another’s self-worth will invariably enhance or diminish my own. What does that mean? Taking a look at who I am and where I come from and how that determines my response to a life event. I might see myself as a generous and giving neigbour, but still harm a stray dog who seeks occasional refuge in front of my home. It’s all very unconscious- or not. The point is, my own evolution will shape my attitude and conduct towards another’s pain. Only when I am willing to unpack the ingredients that shaped that movement can I perhaps know what it is I never saw.
Before Vishaka, the language of “sexual harassment” remained coded, invisible and frivolous (“eve teasing” is a good example). The “sexual” dimension of “harassment” was disabling and unspoken. We were uncomfortable with it. And nothing short of attempted rape would suffice for making a complaint. Even then, it fell within the moral assessment of ‘criminal’ law. That meant, a person would have to prove in court what no one else saw, submit to a medical test which most of us would never endure and then repeat and sometimes embellish the facts over and over again, until they “sounded” like less of a yarn and more of a truth. In the process, it negated truth. In the case of “B” the outcome at the criminal court determined that she had never experienced the harm she complained of. The basis of its judgment was that:
“It is beyond comprehension that those who live in rural culture would in this manner commit a rape… Indian culture has not fallen to such low depths, that someone who is brought up in it, an innocent, rustic man, will turn into a man of evil conduct who disregards caste and age differences and becomes animal enough to assault a woman…”
In my life experience, criminal law has in the most obvious of cases, disinherited the truth. Equality law embraces it. Human rights exist beyond courtrooms. They are rooted in altering systems. Yet there have been futile attempts to fulfill that aspiration. Most often they have stagnated in the moral, procedural and often linear confines of courts and criminal law. A true aspiration of human rights calls for designing (sometimes re-designing) processes so that they are compassionate and enabling. Systems which enter daily life and prevent harm from occurring in the first place. With Vishaka the aspirations of law matured.
In treating sexual harassment at work as a systemic concern, driven by human perceptions, Vishaka evolved the law as a means to change the way we look at harm as others live and experience it. Sexual harassment was about equality and loss of dignity. Systems (in this case, workplaces) had to assume a shared responsibility to foster change through prevention. That is the goal of equality- preventing the harm from taking root.
Throughout her saga at the criminal court, I frequently met with “B”. It was always clear to me that the absence of any equality yardstick to measure the treatment she met within court (to which I was witness) were at most disabling and at worst, unjust. News of the acquittal by the criminal court was therefore no surprise. Post the Vishaka victory, I quickly made my way to Jaipur to convey the news to “B”. Her joy was uncontained. In all she had risked, she was able to find value through her heart- for “B”, Vishaka was a victory for “all women”. Karma teaches us extraordinary values.
In hindsight, I do realize that Vishaka was a case before its time. The other day, a senior partner of a law firm called and asked me- what does it mean to be an “equality” consultant in law. I explained it to him. His response. “But this is still not something we practice in
But that’s another blog.
© Naina Kapur, March, 2009
Note: the entire experience of Vishaka has been well documented by Avani Mehta Sood. Cut and paste the following link:
http://reproductiverights.org/sites/default/files/documents/media_bo_India1215.pdf
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