Wednesday, November 19, 2014

More Passengers on the Clapham Omnibus! Reasonable man gets company!

"Public opinion, nowadays, is the opinion of the bald-headed man at the back of the omnibus. It is NOT the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind."

When Walter Bagehot included this line in his famous treatise The English Constitution published in 1867, little did he know that it shall lead to the creation of a of a legal phrase denoting the standard of reasonable care, which shall last more than a hundred years.

It was in 1903 that the “man on the Clapham omnibus” made his debut in judicial decisions when his mention appeared at page 109 in the judgement, McQuire v Western Morning News Company Limited.[1] ‘The man on the omnibus’ became ‘the man on the Clapham Omnibus’ with a typical working class London neighbourhood selected as his destination lest anyone mistake him to be from the upper class elite.

However, his moment of glory definitely came in the 1933 case of Hall v. Brooklands Auto Racing[2] when Greer L.J. of the Court of Appeal held "…the man in the Clapham omnibus taking a ticket to see a cricket match at Lord's would know quite well that he was not going to be encased in a steel frame which would protect him from the one in a million chance of a cricket ball dropping on his head.[3] …In my opinion, in the same way such a man taking a ticket to see motor races would know quite well that no barrier would be provided which would be sufficient to protect him in the possible but highly improbable event of a car charging the barrier and getting through to the spectators. The risk of such an event would be so remote that he would quite understand that no provision would be made to prevent it happening, and that he would take the risk of any such accident.”  Poor, Mr. Hall who had obtained damages of 998 shillings from the lower court had the judgement in his favour set aside due to the implied terms in the contract for purchase of the ticket which ‘the man on the Clapham omnibus’ would have known. More than 110 years after its first use, the ‘Man on the Clapham Omnibus’ is still often invoked by the judges across common law jurisdictions.

However, what is uncommon is judges accepting the test for what it really is – judges dictating what ought to be. When the reasonable man test or any tests of like nature are applied, the court judges the situation not by considering what the persons involved in the case thought or not by taking evidence as to what the average view in the country is but by actually subjectively making a decision on the basis of what the judges think the reasonable man’s perspective is or ought to be. Thus the persons on the Clapham omnibus are actually none other than the judges themselves!

Recently, the United Kingdom Supreme Court[4] speaking through Reed L.J.[5] in Healthcare at Home Ltd. v. Common Services Agency[6] has elaborated eloquently about the various new legal fictions similar to the man on the Clapham Omnibus that the courts have come up with in recent times. I am reproducing the first four paragraphs from that wonderful judgement here -

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council[7]

“The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”

 3. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

4.In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer

 



[1] [1903] 2 KB 100

[2] [1933] 1 KB 205

[3] I do wonder if he had been ruling in the present era, Greer L.J. would indulge in this cricket analogy, seeing how often the likes of Gayle dispatch the ball into the crowd.

[4] This is so weird. Since I never have had to cite a post-2009 UK Apex Court case in any of my writings till date, this is the first time I am citing the UK Supreme Court as opposed to the House of Lords. I know and appreciate the arguments regarding strict separation of power but it still feels weird to cite the UKSC.

[5] He shall be one of the last few Lord Justices (L.J.). New UKSC judges appointed herewith shall not be elevated to the House of Lords.

[6] [2014] UKSC 49

[7] [1956] AC 696, 728:




Thursday, November 13, 2014

Giveaway! - Many Lives of Ruby Iyer by Laxmi Hariharan


~~~ 
A girl desperate to rescue her best friend, a cop willing to do anything to save the city he serves, and a delusional doctor bent on its annihilation. When Ruby Iyer's best friend is kidnapped by the despotic Dr Kamini Braganza, she will do anything to rescue him. Anything, including taking the help of the unpleasant Vikram Roy, a cop on a mission to save Bombay. The city needs all the help it can get, and these two are the only thing standing between its total destruction by Doctor Braganza's teen army. As Bombay falls apart around them, will Ruby be able to save her friend and the city? Will she finally discover her place in a city where she has never managed to fit in? And what about her growing feelings for Vikram? 
 ~~~ 


The Many Lives of Ruby Iyer, a YA novel set in Bombay by Laxmi Hariharan, the British-Indian author of the kindle bestseller The Destiny of Shaitan is now available on  Amazon! It is also accompanied by a short prequel titled The Ruby Iyer Diaries and you can also watch and hear her talk about the novel here

Participate in this giveaway for a chance to win a signed copy of her book!


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Here is a free excerpt (chapter 1) from the novel -

Thursday, November 6, 2014

RBI allows reduction of 'free' ATM transactions - Shocking Disregard for Depositors' Welfare

Photo from Wikimedia Commons
Reserve Bank of India, the Indian Banking regulator is often praised for being a tough regulator whose strict policy formulations ensured discipline amongst the Indian banks and managed to (atleast to a significant extent) shield the Indian banking system from the financial crisis in 2008.

However, looking after the banking system from a macro perspective is not the only role of the Reserve Bank of India. Its very own website states that the  Department of Banking Operations and Development is responsible for regulation of commercial banks, which is ‘aimed at protecting depositors’ interests’.

However, if you look at the recent notification (RBI/2014-15/179 DPSS.CO.PD.No. 316/02.10.002/2014-2015) titled “Usage of ATMs – Rationalisation of number of free transactions” it would seem as if the RBI is forgetting its role with respect to protection of consumer interests.

Get charged for own-ATM transactions
Previously the position was that ATM transactions at ATMs other than the card issuing bank’s own, were charged beyond the limit of 5 free transactions a month.

However, the new notification allows banks to charge a transaction fee (capped at Rs. 20) for every transaction beyond the free limit of 5 transactions even for use of its ATM cards at its own ATMs!

This is atrocious and defeats the purpose of having ATM machines in the first place. The advantage of having ATM machines was that individuals could withdraw cash as and when needed. This meant that many people, especially students are in the habit of making several (much more than five) withdrawals every month with each one being of small amounts such as Rs. 100-1000. Such a habit was convenient since one could avoid the risk and hassle of carrying large amounts of cash and at the same time one could continue to earn interest since the money was left with the bank and not in the wallet.

Only 3 free transactions at other bank ATMs
The new notification allows banks to restrict their customers’ usage of other bank ATMs to just 3 free transactions every month for transaction in Mumbai, New Delhi, Chennai, Kolkata, Bengaluru and Hyderabad (at other locations banks must allow for 5 free transactions). In theses cities on every transaction beyond the third one on other bank ATMs, a transaction fee can be levied.

No distinction between financial and non-financial transactions
Furthermore, the counting towards the free transactions includes “non financial” transactions such as balance enquiry and a ministatement. It is not clear whether the change of the ATM PIN shall be considered as a non financial transaction counted towards the limit of 5 free transactions. If they are so considered, it shall be a major step backward for security since it shall act as a disincentive for changing PIN frequently. People would rather save their free transactions for withdrawals than change of PIN.

Banks given discretion and hence, the poor and middle class bears the brunt
The said RBI regulation is not mandatory and imposition of charges has been left to the discretion of the banks. This means that the banks can choose to let the present practice of unlimited free transactions on the home network ATMs continue unabated, or they can impose chares beyond five free transactions. Similarly they may allow more than three or even unlimited free transactions at other bank ATMs.

As of now SBI has already started charging for more than 5 withdrawals on SBI’s own network of ATMs while the other banks are pondering on what to do. However, a more sinister practice which is already in place and is likely to be extended is that the customers with premium accounts, with high AQBs (Average Quarterly Balance) i.e. the well off customers with fat bank balances are allowed to have unlimited withdrawals at even other bank ATMs while ordinary account holders are charged for transactions beyond the free limit. This practice by the private banks and a few of the PSUs is likely to be extended by allowing more than 5 free home network transactions to the premium customers (rich guys) while the ordinary folks have to pay for every transaction beyond the free limit.

Such discriminatory policies which work against the interests of the small depositors is exactly the sort of evil that RBI, the regulator is supposed to prohibit in order to safeguard the depositor’s interests. Indian banks have managed to perform well enough and have earned profits as well for the past several years of providing unlimited free own-bank transactions and five free other bank transactions every month and hence the Indian Banks’ Association’s argument regarding the significant costs of providing such service deserves to be treated with skepticism. Even if there are costs, I am sure that the banks are entirely capable of absorbing them without a hiccup as they have been doing for the past few years.

I hope the RBI shows regard for the depositors interests and withdraws this notification soon.

Do comment and let me know regarding your views regarding this....






Wednesday, November 5, 2014

Book Review : God is a Gamer by Ravi Subramanian

It is worth the hype! (No spoilers here)

Ravi Subramanian is one of my favourite writers and I had extremely high expectations from his latest novel “God is a Gamer”. 

Both his immediate preceding novels, 'Bankerupt' and 'Bankster' have had parallel story lines which meet in a fantastic climax. God is a Gamer carries this model forward and does a fantastic job with it. We have a story unfolding in the USA where the FBI attempts to connect the dots between the murder of one of the President’s closest associates and an online darkweb drug marketplace, CottonTrail while investigators in Mumbai are baffled by the apparent suicide/murder of a bank CEO and the possibility of scandalous political involvement.

The story in the US starts off with the assassination of Senator Gillian Tan when he is on his way to meet the US president. (It can't be a Ravi Subramanian novel if there isn't a murder within the first ten pages.) This is soon followed by the largest ATM heist in New York carried out using skimmed cards. The FBI faced with intense pressure to solve the case seems to be getting nowhere initially till an attack on the senator’s wife gives them more clues and suggests that the crimes could have an BitCoin and CottonTrail connection.

In India, the story is much more complex. Malvika the backstabbing CEO of NYIB India dies in mysterious circumstances and the investigation threatens to reveal her dark secrets which could implicate even the Finance Minister in a major scandal. At the same time, Aditya Rao, head of his own BPO and gaming company is reunited with his son who takes over the gaming business and turns it around. Soon enough though, Aditya's companies start to face a multitude of problems which could be linked to the events in the US. To all this Subraminum adds a quirky plot element of a mysterious blog - 'Confessions of a Hooker'. 

While we are enthralled by the story of how investigators across the globe connect the dots, we are also treated to a side show of how Aditya's son Varun chases love and at the same time surpasses every challenge coming his way to ensure that his company becomes a major player in the gaming sector.  At every point through out the 310 pages the story seems very relatable because of the obvious use of several real life incidents which have been in the news for the last couple of years. CottonTrail is an obvious reference to SilkRoute drug network which was in the news not long ago and Ravi Subramanian has also incorporated events in the novel which are inspired from other real life happenings such as the advent of facebook gaming, success of the book 'Confessions of a New York Taxi Driver' and obviously, the controversy surrounding BitCoins.

The story is extremely fast paced and keeps you guessing about how each of these extremely diverse elements are going to come together at the end. However, even though there are several clues which make it easy to guess the killer well in advance of the end of the novel, nothing can really prepare you for the actual climax. The climax is a saga of never ending twists and turns which had me literally at the edge of my seat. It seems like the shocking revelations shall never end but the actual end nicely ties up all the loose ends to finally present a coherent albeit shocking conclusion. However, that the shock ending is going to contain some element of revenge is unfortunately given away by the tagline 'Is revenge a crime?' sitting right there on the cover page.

I found it interesting though that Ravi Subramanian has resisted from having a perfect fairytale ending. He even treats issues of political-commercial nexus and political interference in investigations, with a level of pragmatism and that realism that I had not expected.

GOD IS A GAMER COVERHowever, the pace comes with its downside too. Unlike his previous books, none of the characters in 'God is a Gamer' particularly stay with you. There is barely any scope for character development. I wish there was atleast one memorable character in the book. Another downside I thought was the cover and marketing of the book. It has been heavily promoted as "The World's first BitCoin Thriller" when infact the novel is about a lot more than just BitCoins and even a lot more than just a novel about gaming. I honestly believe that the publishers could have come up with a title better title and cover. This is the third time (after Bankerupt and Bankster) that a Ravi Subramanian cover features a silhouette of a man standing in some overseas setting. That is getting a tad bit repetitive considering that these novels aren't a part of a series.

However, all this slight shortcomings are easily overcome by the strength of the excellent plot which keeps you hooked and eager to turn the pages like a good thriller should.

Rating : 8/10

Once you have read the book, do comment and let me know what you think!

This review is a part of the biggest Book Review Program for Indian Bloggers. 

Disclosure : I was supplied with a review copy by Blogadda.



God is a Gamer and other books by Ravi Subramanian are available at a discount on Flipkart.com and Amazon.in! Buy them now!

Monday, November 3, 2014

An Amazing Weekend at the TATA Lit Fest!

IMG_20141101_122005TATA Literature Live, one of Mumbai’s foremost literary events went bigger this year and in addition to NCPA (its regular venue), this time it was held at Prithvi Theatre as well! With the venue so close to my house, I was definitely not going to miss it! The star studded line up (see schedule) was also a big draw.

The first session that I attended was The Changing Idea of Romance in India at Prithvi Theatre, where Astha Atray Banan who has authored a Mills and Boon novel and Sathnam Sanghera (British Writer famous for his novel Marriage Material) were joined by Ashish Shakya of All India Bakchod. I honestly didn't expect much realism from a panel discussion on romance but what ensued was a really interesting and pragmatic discussion. Surprisingly enough an author of a Mills and Boon novel was convinced that romance was on the decline while the guy from Britain was making the case about how arranged marriages could be a good idea after all! The discussion veered between various issues ranging from the influence of the internet, moral policing, influence of Bollywood and the changing mindsets of the youth, to much more serious issues such as the institution of marriage, sexism in romance writing/movies and eve teasing. As you would expect when one of the panellists is from All India Bakchod, the discussion was interspersed with great dollops of humour.

IMG_20141101_150534A big fan of military history myself, the session that I was looking forward to the most at Tata Lit Live was ‘An Indian Army in Afghanistan’, a talk by William Dalrymple. The great historian is also a master storyteller who effortlessly transported us back to the 1837 and the first Anglo Afghan war. The talk was his short retelling of the story of his book ‘Return of a King’. He manages to weave together into his story-telling the big macro events such as the backdrop of the Great Game and also funny tales of the vanity of the British Army generals who while trekking 4000 miles across the subcontinent, had 40 camels carrying their wines and liqour. In his crisp voice he managed to hold the attention of the crowd and an hour felt like ten mins. While the story was indeed fascinating, his descriptions of his process of research were also interesting and to an extent, even thought provoking. Dalrymple has gone beyond the British accounts while researching for the book and has delved extensively into the Afghan accounts. He spoke at length about his research and travels into the heart of Taliban controlled Afghan countryside where ordinary people were well versed with the history of the Anglo-Afghan war which they had received orally from their elders. On of the most interesting things about the ‘Return of a King’ is how Dalrymple manages to draw parallels between the Anglo-Afghan conflict and the modern day US led invasion – “It is always possible to conquer Afghanistan but difficult to finance a continuing occupation.”

Dalrymple also emphasised how for several centuries in India including some periods of Maratha rule as well, ‘Persian’ was the language of administration. He expressed his dismay at the fact that very few Indians know about this and that today only a handful of persons who can read and write Persian, survive today in India. He urged the amateur and aspiring historians in the audience (and I am sure that after his talk, many were considering it) to not restrict themselves to colonial historical accounts in English but to read local primary source materials as well! While he was signing his books for fans, I managed to ask him regarding his next project and it is a topic that Indians shall be even more interested in – The East India Company. In hindsight I could have guessed it myself because even while talking about the last book and the story of the Anglo Afghan War, Darlymple who now must be well into his research about the East India Company, could not help himself from making repeated references about the marvel that the company was and how it was a astounding and absurd phenomenon that the fate of a subcontinent was in the hands of a public corporation run for the shareholders’ interests from a single block in London. All in all, it was an amazing session, the only negative point about which was that the venue, Prithvi House was so small that several people had to be turned away

IMG_20141102_111020The following morning, I turned up two hours early at Prithvi to ensure that I got a pass for the most awaited panel discussion of Tata Lit Live – “Gone with the Gandhis- Will the defeat in the 2014 elections leave an impact on dynasty politics in the Congress”. The panellists were Shashi Tharoor, Pranay Gupte and Shekhar Gupta in conversation with Barkha Dutt. I had expected the panel to express significant agreement with the motion express but surprisingly enough it was a rather balanced discussion. Shashi Tharoor began by rightly pointing out that we also see a dynasty effect not only in other political parties but also in other walks of life such as Bollywood (and even the legal profession). The other panellists also for a while seemed to suggest that dynasty is a media favourite hyped issue which doesn’t matter much. They seemed to all agree that the performance of a candidate matters much more to a voter than the candidate’s dynasty. However Barkha and Shekhar Gupta were also quick to point out how Congress is especially addicted to the family and there was a funny moment when upon being asked by Shekhar Gupta, Shashi Tharoor had to admit that he did not know all the members of the Congress Working Committee. While Shashi Tharoor was eloquent as always despite having the unenviable task of having to defend the dynasty as the rightful head of the Congress, it was Shekhar Gupta who really brought the house down with his jokes and very quirky anecdotes about everything. My descriptions really cannot do any justice to how amazing this session was. I just hope everyone gets the chance of hearing these great folks talk atleast once in a lifetime!

While I spent the weekend at the TATA Lit Live’s Prithvi events, there were also a lot of great sessions happening at the NCPA which culminated with the annual TATA Lit Live Awards. This year, ‘Arctic Summer’ by Damon Galgut bagged the Book of the Year Award for fiction writing while ‘Capital - The Eruption Of Delhi’ by Rana Dasgupta won the prize for non-fiction. What I particularly like about the TATA Lit Live is that they also have a Best Debut Award to encourage new writers. The Smoke Is Rising by Mahesh Rao was adjudged to be the best fiction debut while in the non-fiction category it was  ‘A Southern Music: The Karnatik Story’ by TM Krishna.

I hope I shall be able to participate for the all four days next year! Hope it remains as awesome!