Wanted: Prabhu-Salman joint debacle

Prabhudeva attempts directing. Salman tries acting. Both fail, and call the mess Wanted. My expectations with Wanted were fairly low anyway, and the movie didn’t disappoint me on that front.

To begin with, Superman Salman Khan looks a little too beefy with bad muscle definition to be performing the stunts he does in the movie. His movements are, apparently for that reason, laboured and least bit convincing. Besides, the Matrix-kind semi-frozen action sequences are now a bit too oft-repeated and are now used with too little discretion to hold interest.

The movie treads the well-beaten track and mixes several formulae to come up with a stale concoction that expects the viewers to don their masala-movie hats and doggedly keep the real world out of the picture so long as they watch the Khan-uixotic circus.

Khan plays Radhey, who, despite some shades of the Tere Naam Radhey, is no lover boy but a hardcore contract killer who works for just one thing – money. He is a one-man army of the Rambo kind. He kills not only mercilessly and remorselessly but also with unusual brutality.

The crime backdrop is a regular one with two warring groups, one of which is eventually joined by Radhey. And it is later revealed that he is an undercover cop and an IPS officer. So, Radhey is no uneducated hooligan, but an able police officer doing some cleaning up. The problem is that no IPS officer has even been known to have gone undercover in India.

Undercover operatives are police officers hardened in the ways of the criminals, who are well-conversant with the underworld and the world of organized crime. In short, they are the closest thing to a real criminal without being a criminal. Minor crimes, like stealing and fighting, are pardoned and covered up, but no undercover operative is allowed to kill, or cause harm to any innocent person or even a criminal except in self-defense.

The skills and expertise of an IPS officer is of no use to an undercover operative because he is not to deal with matters of police administration or try to formulate a new crime-fighting mechanism or improve upon the old one. After all, John Rambo is a war-hardened solider and not a General with the ability to strategize and execute a military operation. He fights with his raw, animal instincts and does not believe in the talk of ‘change’ and reformation. If truth be told, educated brains are often incapable of the studied indifference to crime that is an indispensable requirement for an undercover operative. So, it is useless to try using an IPS officer for the job these officers are just not fit for. Besides, why risk a high-raking officer anyway?

Furthermore, Indian police depends far more on informants than on undercover operatives for intelligence on organized crime, and it works perfectly well because organized crime is not as advanced a threat in India as in the West. So, much of the fodder for Indian undercover movies actually comes from Hollywood. Kaante was the last successful undercover cop movie, and was an almost frame-for-frame remake of Quentin Tarantino’s much-appreciated Reservoir Dogs. Doubtlessly, it was a superbly made and neatly packaged movie with all technical details taken good care of. Of course, none of that is to be found in Wanted.

When it comes to movies on undercover operatives, Donnie Brasco is one of the most successful and realistic ones ever made with Pistone alias Brasco very convincingly played by – who else? – Johnny Depp. Based on the undercover life of the world’s most successful undercover agent in history, Joseph Dominick Pistone, the movie religiously documents Pistone’s infiltration of New York City’s Bonanno Crime Family, which ultimately led to more than 200 indictments and over 100 convictions.

Pistone became a Special Agent of the FBI in 1969, and was transferred to New York in 1974. It was in 1974 that he went undercover the first time and infiltrated a gang that stole 18-wheel trucks and bulldozers. The infiltration of the gang made the arrest of 30 criminals possible.

A great deal of background check was undertaken before Pistone was given the name ‘Donald Brasco’, which became the well-known Donnie Brasco over a period of time. He went undercover as a jewel thief. The undercover operation was originally planned to run for six months and was not intended to penetrate the mafia, but only to investigate people who were fencing stolen property from a great number of truck hijackings taking place in New York during that time. But Pistone ended up penetrating the mafia deep and the operation stretched for as long as six years.

Naturally, when it was revealed that one of their own, who they knew as Donnie Brasco, was actually an FBI undercover operative Pistone, the gangsters were furious and a $500,000 prize was announced for killing Pistone. But none succeeded and Pistone continues to live to this day.

Unlike Radhey, Pistone did not kill anyone, and did not commit any major offences. What he did at best was to stage crimes with the help of the police and other authorities so as to convince the mafia of his being a genuine criminal without causing any real harm to the common man.

To kill willfully is a crime unless done in self-defence, and killing criminals or murderers is no less a murder than killing innocent citizens. No undercover operative of an investigation agency is ever ‘licensed to kill’. And normally Hollywood plays it close to reality, which is why in Kaante – it being a remake of Reservoir Dogs – the undercover agent carefully and cunningly avoids committing any crime himself and does not kill on any occasion except to save the life of a police officer, and killing to protect someone else’s life is covered within the legal definition of ‘self-defence’.

But Wanted is a different ballgame all together. Director Prabhudeva takes as many liberties as possible with the reality and packs in brutality reminiscent of Ghajini with no explanation of the kind that is central to Aamir’s character in Ghajini. Radhey is neither a convincing contract killer, nor a believable IPS officer and, what’s worse is that he also does not stand between the two. He is just Salman Khan and this time it’s not just his ever-questionable acting skills to blame but also Pradbhudeva’s failure at creating a character on the screen. The same Salman was far more convincing as the other Radhey in Tere Naam.

So, Wanted is a miserable failure of attempted Prabhu Tarantino and Salman Depp.

Originally written for and published in LAWYERS UPDATE [November 2009 Issue; Vol. XV, Part 11]

Public Enemies: Fledgling FBI’s historical struggle with John Dillinger

With Johnny Depp playing the flamboyant John Dillinger under the direction of Michael Mann, one could easily expect a sleek, visual treat, which Public Enemies certainly is. However, the movie does not go beneath the very surface of the times it deals with. It does not tackle any issues other than the robberies, love life and death of John Dillinger. The movie has been criticized by some critics for not dwelling upon the Great Depression at sufficient length. But that is possibly because Dillinger was not among those criminals who could be seen as product of their times. The Depression did have some impact on his life but was not really instrumental in making him the extremely dangerous criminal that he was.

Dillinger was a natural rule-breaker. He had problems with the authority in the school and was known to bully younger kids. As he grew up his problem grew with him and he frequently found himself at the receiving end of the law. Joblessness caused by the Great Depression made it worse for him although it is unlikely that he would have been a law-abiding citizen even otherwise. However, the movie does not deal with the circumstances that went into the making of Dillinger, but zooms into the thick of Dillinger’s escapades opening with the jailbreak engineered by Dillinger to free some of his gang members.

It was in the 1930s that John Dilligner perpetrated around two dozen robberies and killed several policemen. He was swift and left no leading clues behind. The police with their conventional methods found it increasingly difficult to get anywhere close to him. He struck at will making a mockery of the law enforcement agencies. The pressure on the government to apprehend Dillinger kept mounting by the day. Dillinger operated across the states, which meant that to effectively deal with a threat as potent as him, the authorities needed a force that could keep up with this movement. So, a federal investigation was the need of the hour. Therefore, in a way, FBI owes its existence and its present day influence to the likes of Dillinger.

The task of putting together a federal investigation agency came to a young bureaucrat called J. Edgar Hoover. He roped in his field commander, Melvin Purvis, who having joined the Bureau of Investigation in 1927, was given the charge of Chicago office of the Bureau in 1932 in view of the daring crimes that were being committed by Dillinger and his gang during that time.

Public Enemies focuses on the struggle of the Bureau of Investigation, which later became the FBI in 1935, to get to the criminals like “Baby Face” Nelson, Kate “Ma” Barker, Alvin “Creepy” Karpis, George “Machine Gun” Kelly and, above all, John Dillinger.

A shrewd criminal becomes a much greater threat when he catches the fancy of the people. Dillinger was not only a dangerous bank robber with no qualms about killing policemen, but was also gradually notching up in public estimation with the people beginning to see him as a modern day version of Robin Hood.

Although the movie keeps Dillinger at the very centre but still manages to indicate that apprehending Dillinger involved a thorough revision of the procedure and investigative techniques that the investigators of that time followed. At one point in the movie when the Bureau fails to get hold of Dillinger, who manages a narrow escape leaving behind a couple dead officers, Melvin Purvis tells Edgar Hoover in no uncertain terms that if more seasoned lawmen and investigators were made available to him, he would prefer relinquishing his position because he could not have his men slaughtered. Hoover, on the other hand, was of the opinion that young officers could do a better job of hunting Dillinger down. But Dillinger was not a deer who could be chased out of breath and taken down.

Therefore, the bureau had to employ an organized approach to the investigation. The movie indicates that gradually it dawned upon the investigators that a manhunt for some like Dillinger did not just call for following the leads and conducting raids but also required skilful application of detective techniques. While addressing his staff at Chicago office, Purvis underscores the importance of employing ‘scientific approach’ to the investigation if they were to succeed in nabbing Dillinger. By ‘scientific technique’ Purvis meant a systematic approach in which, based upon the available information, a certain hypothesis or theory is evolved, which serves as the starting point for the elimination of possibilities until a time comes when there are only two or three highly probable positions. This kind of approach is adopted not only to proceed with the clues but also to reconstruct the stages in the commissioning of a crime.

It was during this time that an organized information storage system was evolved because Hoover emphasized the importance of document information and progress so that the record is readily available for anyone to peruse and get a hang of the work done in any particular case. It seems that the information storage system gave birth to the criminal profiling that the FBI is now well known for.

However, the ability to get close to such dangerous criminals as Dillinger is one thing and to arrest them is quite another. Therefore, it was also felt that field operations were equally important and these operations required a different set of skills than investigation. So, field officers entrusted with the duty of apprehending criminals were differently trained for the purpose. Earlier, the investigation officers doubled as the arrester, which is still the case in normal police investigations.

Thus, during the time of Dillinger and on account of his daring escapades, the Bureau of Investigation had to take a hard look on its own workings and had to make major, necessary changes. The movies does hint at all of the changes made but it keeps Dillinger at the center at all times.

Public Enemies is the movie adaptation of Bryan Burrough’s non-fiction work, Public Enemies: America’s Greatest Crime Wave and the Birth of the FBI, 1933–34, and the movie religiously follows the book.

On July 22, 1934, as Dillinger exited Biograph Theatre after watching Manhattan Melodrama, he was nearly surrounded by the bureau agents, and he moved to pull his gun out three agents opened fire. Dillinger was hit thrice. He was hit in the chest twice, but the fatal wound was caused by the bullet that entered the back of his neck and exited right below his right eye. Dillinger fell on the ground, face first. In the movie, Dillinger mumbles lying in the pool of his own blood, “Tell Billie for me, ‘Bye bye Blackbird.’”

However, as per FBI records Dillinger died without a word, which is very likely in view of the nature of the bullet injuries.

Originally written for and published in LAWYERS UPDATE [September 2009 Issue; Vol. XV, Part 9]

Consent to abort: Supreme Court in error?

The Indian Apex Court has ruled that a physically major and mentally minor girl, who has no concept of sexual intercourse, pregnancy or motherhood, has the right to decide whether or not she wants to give birth to a child conceived of rape.

Since under the Medical Termination of Pregnancy Act, 1971 (MTP Act) pregnancy cannot be terminated without express consent of the mother, the moot question was whether a mentally retarded woman is capable of consenting to the termination of pregnancy or not.

High Court of Punjab and Haryana had had an Expert Body to obtain an independent expert opinion on the issues in question. The Expert Body concluded that victim suffered from mild to moderate mental retardation, was “incapable of making the distinction between a child born before or after marriage or outside the wedlock” and was “unable to understand the social connotations attached thereto.”

Therefore, the victim is incapable of forming an opinion in the social context, which means the social acceptability or otherwise of the child has no relevance for her. A normal woman may undergo abortion solely on account of the social stigma. So, the woman in question is simply incapable of applying a decisive criterion that a normal woman in her circumstances is very likely to. The incapacity to take into account all relevant factors indicates that the victim’s willingness to deliver the baby is not an ‘informed decision’, and is, for that reason, deficient. And since, in this case, ‘willingness to deliver’ necessarily means ‘not consenting to abort’, it follows that the latter is also deficient. One could argue that if the victim was capable of fully understanding her circumstances, she would have elected to abort because that is what many – if not most – of the women would do in her situation.

Furthermore, the pregnancy in this case is not just outside wedlock but is a result of forced intercourse. Regarding the victim’s understanding of sexual act, the Expert Body concluded that:

She has a limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.

Since she has limited understanding of the sexual act and pregnancy, she cannot possibly connect the rape and the pregnancy as cause and effect, which means she has no understanding of the true nature of her pregnancy itself, much less of its social connotations. This does not mean that on account of her mental retardation the rape was not as mentally devastating to her as it normally is. Just that in the victim’s mind the rape and the pregnancy are two distinct, unconnected events. Human conception of any event is incomplete and inadequate unless he has some idea of the cause. Furthermore, when it comes to children born of rapes, the ‘cause’ of pregnancy is the single most important factor that determines whether or not the victim consents to abortion. How far it weighs with the legislature in this regard is quite evident from Explanation 1 to Section 3 of the MTP Act, which reads as follows:

Explanation 1. − Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Therefore, in the opinion of the legislature pregnancies caused by rape fall in a class different and distinct from ‘unwanted pregnancies’ of other kinds, and the victims in such cases would in all probability want to undergo abortion on account of the cause of the pregnancy alone. But in this case the victim is incapable of factoring in the cause of pregnancy making her ‘willingness to deliver’ or ‘unwillingness to abort’ inherently deficient.

Therefore, if the Court was to step into the shoes of the victim employing the test of ‘Substituted Judgment’, it would have found ruling against abortion extremely difficult. However, the Court was of the opinion that it was not a fit case for the application of the abovementioned test for want of complete mental incapability on part of the victim. In this regard the Court observed:

The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the ‘Best Interests’ test alone which should govern the inquiry in the present case and not the ‘Substituted Judgment’ test.

The Court seems to have attached undue weight to the expression ‘mild mental retardation’ without considering that it is a relative expression incapable of quantifying retardation. She is not ‘mentally incompetent’. Understood. But that does not answer any relevant questions either. Simply because she has ‘learnt to perform basic bodily functions’ and is ‘capable of simple communications’ does not make her mentally competent to take a decision pertaining to unwanted pregnancy. She is mentally 9-years-old, and this is the only age relevant to the question of ‘consent’. Her physical age is of absolutely no consequence in this regard. So, the question actually is if a 9-year-old girl competent to ‘consent’ in law? Under the MTP Act the consent of a minor is irrelevant. In this case the Court could – and should – have acted as the guardian to decide on behalf of the victim. The rationale put forth by the Court against the use of ‘Substituted Judgment’ is, without doubt, severely inadequate.

This does not mean that no ‘mentally retarded’ woman is competent to ‘consent’. A 35-year-old woman whose mental age is around 20 years is competent to consent under the MTP Act despite being mentally retarded. So, mental retardation alone does not render someone incompetent to consent. This is where the distinction between ‘mental retardation’ and ‘mental illness’ becomes relevant under the MTP Act. The Court, after analyzing the distinction between the two expressions, concluded:

While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy.

This is not a very correct understanding of the legislative intent because, as discussed above, the distinction between ‘mental retardation’ and ‘mental illness’ exists simply because if one’s mental retardation does not render one incapable of consenting to an abortion, the woman’s being mentally retarded has no bearing on the issue at all. And if one’s mental retardation makes one incapable of ‘consent’ for want of mental maturity, one would automatically be treated as a minor and the consent of the guardian would be necessarily required. The issue of ‘personal autonomy of a mentally retarded woman’ does not arise because the ‘mentally retarded’, so long as they are capable of making an informed reproductive choice, do not make a distinct class for the purpose of the MTP Act, as they stand in the same position as any normal person despite their mental retardation.

The other two factors that weighed with the Court were that the victim was very willing to give birth and was physically capable of delivering the baby. Both of these factors are irrelevant in the present case, as the victim is mentally a minor. A girl of around 15 years of age, born, brought up and educated in a modern day metropolis is physically capable of giving birth and may also be willing to do so with a far better understanding of the nature of her pregnancy and the consequences of delivering and aborting compared to the victim in the present case. However, no amount of willingness and physical ability to give birth would be able to substitute the legal necessity of the competence to consent.

The Court also said:

It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy.

Incapacity to consent works both ways. The one incapable of consenting to abortion is necessarily incapable of ‘consenting’ to giving birth because ‘consent’ implies the ability to choose consciously. So, if one is only capable of saying ‘yes’ and not ‘no’, the ‘yes’ is meaningless.

Since the victim in this case was demonstrably incapable of making an informed decision, there was no way the Court could avoid employing ‘Substituted Judgment’ to decide if a normal woman in the circumstances of the victim would choose to abort or keep the baby. The Supreme Court could have decided against abortion in this case for any reason other than ‘lack of consent’ to abort, which is where it seems to have made a grave error.

Originally written for and published in LAWYERS UPDATE [November 2009 Issue; Vol. XV, Part 11]