October 2005

The Apathy Of The Indian Legal System: Securing Access To Justice…
Ketan Mukhija[i]
(LSS Hyderabad & Intern 2005, National University of Juridicial Sciences, Kolkata, ketanmukhija@gmail.com)

Introduction

The President of America, Lyndon B. Johnson, once commented on the then prevailing bail jurisprudence, and the urgency to have reforms thus:

“The bail system has endured—archaic, unjust and virtually unexamined—since the Judiciary Act of 1789. The principle purpose of bail is to ensure that an accused person will return for trial if he is released after arrest.    

How is that purpose met under the current system? The defendant with means can afford to pay bail. He can afford to buy his freedom, but the poorer cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay on jail because a sentence has been passed.

He does not stay on jail because he is any more likely to flee before trial.

He stays in jail for one reason only—because he is poor…” (Emphasis added)

The Bail projects in the United States such as the Manhattan Bail Project and DC Bail Project have clearly divulged the irony of the system in their reports, in this fashion:

“The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pretrial detention. Both these consequences are fraught with great hardship for the poor, namely:

• Though presumed innocent he is subjected to psychological and physical deprivations of jail life;
• He loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of his family;
• He is prevented from contributing to the preparation of his defence; and
• The public exchequer has to bear the cost of maintaining him in the jail.”[ii]

Judicial independence and integrity, the sine qua non for achieving justice, remain constantly tested by the changing political scenarios of a region living through times of turbulence and unprecedented change. The access to justice by the disadvantaged is an integral part of the Rule of law, and in order the dignity of this norm, steps are necessary to counter the threats posed to the effectual functioning of the legal system. Infact, the very efficiency of the legal system can be tested, trusted and tried on the touchstone of the degree to which the doors of justice are friendly to the litigants, who knock them with great expectations.

Conceptualising the Problems and Impediments

In the terminology adopted by Upendra Baxi, a large section of the society is simply disarticulated, that is, it is not in a position to voice its claims and obtain the apt redress. Yet the Courts continue to be the repository of people’s expectations, and are seen as a final recourse, where otherwise unequal power relationships can be adjudicated in an unbiased manner. Judges all over have struggled to recognize the difficulties of accessing justice and dilemmas associated with working in essentially under-resourced environments. Given the current social, cultural, economic and political context, it becomes highly incumbent on our part to first identify the extent to which anomalies within the legal system operate to block access to justice, and then examine how the Courts have responded in finding means to overcome these and other obstacles to deliver justice to different sectors of the community.

In order to capture the true and comprehensive import of the problem, it is essential for us to appreciate the inextricable linkage between the politics of poverty and the poverty of politics. The former is the process of class practices which focuses on the poor as a political resource. “Poverty of politics” refer to processes and practices where political actors fail to perceive that inherent in the “politics of poverty” is a logic of performance which cannot, for too long, be repudiated without serious threats to the prevalent modes of the organization of distribution of the political power in the society. This phenomenon is highlighted constantly in excessive and mindless use of repressive force against the movements of the impoverished; each occasion of use of such massive repression is an acknowledgment that the holders of political power are running short of legitimacy. 

Over 60% of the people in South Asia live below the poverty line on less than $2 a day. For many, the process of development itself contributes to imposing disproportionate burdens on those least able to protect their rights. Judges are required in this context to protect those who are most vulnerable from the pressures of those who are more powerful, especially the State. The effort must be concentrated to analyze ways to deliver justice effectively within a context of poverty and development, and articulate the factors which can assist in adjudicating where there is no level playing field. 

Governments must ensure adequate access to justice through institutions, so that citizens can enjoy their basic human rights. In order for this to be achieved, existing laws should be reformed so that the necessary institutions and legal infrastructure could be put in place. The governments should improve legal aid programmes so that persons who felt aggrieved about the violation of their rights could have legal representation to assist them in vindicating their claims. “Governments... have a duty to repeal existing laws which obstruct the effective enforcement of human and fundamental rights. Laws must not only speak human rights but they must deliver human rights” is the opinion of former Attorney-General of Trinidad and Tobago, Ramesh Lawrence Maharaj.  

Since access to justice is important, the endurance of political democracy is dependent on social democracy that recognized liberty, equality and justice. He added that the role of the media in protecting human and fundamental freedoms was an important one, and that its members possessed the right to criticize the judgments of the Courts and the administration of justice if it was warranted. “The media have a duty to assist in creating public awareness of the importance of human rights,” he contended.[iii] The legal profession must be conscious of its social responsibilities and must be keenly aware of its need to mould the law, creatively and imaginatively, in the service of the weaker sections of humanity. 

Moreover, there is a wide gap between people and the legal sector.  Mr. Arun Jaitley, the former Law Minister affirmed that over two crore cases are pending in the lower Courts and thirty-five lakhs in the High Courts. The Government was trying to speed up disposal of pending cases before subordinate Courts through various legislative measures like the enactment of the Code of Civil Procedure (Amendment) Bill, 2000. The massive docket explosion is a major deterrent and impediment in the effective redress of grievances, whereby the citizens gradually grow disenchanted and disillusioned by the nitty-gritties of the system. Justice Thomas once remarked that computerisation provided the only solution to the problem of mounting cases. He noted that because of computerisation, the Supreme Court was able to bring down 1.1 lakh cases in the 1980s to about 18,000 by the mid-90s. Computers helped in “clustering together similar cases”.  

Justice delayed is Justice denied. The social ramifications of this are grave. In order to cater to the increasing demand for legal services and prompt justice, the Judiciary must explore the option of using advanced technology to increase the efficiency of the Courts.[iv] Transparency in the functioning of Indian Courts is the need of the hour. Serious questions have been raised regarding the efficacy, impartiality and integrity of the Judiciary at certain levels. There is an increasing unease and disquiet about the functioning of the Judiciary and the character, competence and commitment of several judges, particularly in the subordinate Judiciary. The use of information technology will, to a great extent, bring regimentation in functioning of the Judiciary. It will curb adhocism because of safeguards built into the software. By bringing IT to lower Courts India will save millions of man-hours wasted every day, tens of thousands of litres of petrol and diesel consumed every day on commuting to Courts and lawyers. The environmentalists should also participate in this effort to save this for future generations.[v] 

Inadequacies in the Bail System 

The Hussainara Khatoon decisions also point to the unsatisfactory bail system that exists in the country. The bail system suffers from what can be called a property-oriented approach which seems to proceed on the erroneous assumption that the risk of monetary loss is the only deterrent against fleeing from justice.[vi] Apart from this, the Courts mechanically, and as a matter of course, insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail. Moreover, the bail fixed by the Courts in several cases is unreasonably excessive, which serves as a huge deterrent to the poor. They find it extremely hard to obtain a bail and consequently end up languishing in the prisons. So, although they are ‘presumed innocent’ they are subject to the psychological and physical privations of jail life. This is one of the ways in which the poor find the legal and judicial system oppressive and heavily weighted against them.

The practice of fixing the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before trial is harsh and oppressive and as observed before, discriminates against the poor. The risk of monetary loss is not the only deterrent against fleeing from justice, but there are other factors which act as equal deterrents. If the Court is satisfied after taking into account on the basis of the information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. The following factors have to be considered in this case- the length of his residence in the community; employment status; history and financial condition; family ties and relationships; reputation and character; prior criminal record including any record of prior release on recognizance or on bail; identity of responsible members of the community who would vouch for his reliability; the nature of the offence charged and the apparent probability of conviction and the likely sentence insofar as these factors are relevant to the risk of non-appearance and any other factor that has a bearing on the risk of willful failure to appear. 

In Common Cause v. Union of India[vii], the Supreme Court held that in instances where cases are pending for offences under the Penal Code or other laws punishable with imprisonment for specific periods and the trial has not yet commenced or the accused has not been released on bail and is detained beyond a certain period, the Court shall release the accused on bail or a personal bond imposing suitable conditions in the light of Section 437 of the Criminal Procedure Code. Further, in respect of offences which are non-cognizable and bailable and in certain other cases where trials have not commenced for specific periods, the Courts shall discharge or acquit the accused and close such cases[viii].

The (im)potency of laws?! 

The extent to which the law has proved a guarantor of adequate living conditions in prison is limited. The law intervenes in this area by policing the application of particular rules and standards relating to matters concerning prison administration and by examining whether conditions fall below minimum human rights standards of protection from torture, inhuman or degrading treatment or punishment. Both these modes however, turn out to be either too general or of such legal force as not to be of much value.  

Article 9(3) of the International Covenant for Civil and Political Rights (ICCPR) lays down that persons awaiting trial should be released subject to guarantees to appear for trial. This is in conformity with Article 28 of the Draft Principles on Equality in the Administration of Justice which pertains to national laws concerning provisional release from custody pending trial. Article 10 of the ICCPR directs that people deprived of their liberty shall be treated with humanity and respect. Article 10(3) lays down that the penitentiary system shall not compromise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Article 1 of the UN Convention against Torture and other cruel, inhuman or Degrading Treatment or Punishment defines torture as any Act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or intimidating or coercing him or a third person; or for any other reason based on any discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in public capacity. Article 4 calls for making torture an offence under domestic law. Such adoption of like principles shall definitely and unmistakably lead in the building up of a legal regime that is more litigant friendly and efficient.[ix] 

Hence, there is a need for opportunities provided by the jail authorities to stimulate the creativity and sensitivity of the prisoner[x]. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime.  

Towards a Capability Building Measure: The Legal Resources Approach 

Law has always been considered as a resource for the rich and powerful. Numerous studies show how dominant groups have used law to further or safeguard their own interests. Such groups have been able to institutionalise transactions and relationships which produce impoverishment through law, as has been clearly demonstrated through the analyses of bonded labour and rural indebtedness. Similarly, dominant groups have maintained the poor in dependency relationships through abuse of legal process, for instance, by harassing peasant leaders with false criminal charges or with long-drawn-out civil litigation. 

There is a growing trend in rural areas of abuse of power and utter lawlessness on the part of those charged with administering the law, namely the police and the local judges. Possible solution to this over pervasive menace is that of the legal resources approach, which starts from two basic concepts. The first is the concept that law is a means of empowerment and that groups of the impoverished seeking to develop countervailing power through mobilization and organization, can also use law as one of their means of empowerment. The second is the concept that law is a resource either as a source of rights and remedies, or as a means for ‘buying more time’ and harassing the oppressor. The legal resources approach envisages the ‘capacity’ to use ‘law’ to advance shared interests. By the term ‘law’, we mean more than official state law; the term also refers to widely shared perceptions of justice—perceptions rooted in custom and culture, or in popular conceptions of ‘natural law’ or derived from principles set out in international declarations of ‘Universal’ human rights: all of these different kinds of law can certainly be invoked by groups to expose contradictions between exploitative practices and law, to denounce oppressive administrative, to articulate claims for recognition of rights and demands for legal reforms, to structure new collective activities and otherwise advance or defend shared interests.  

The famous sociologist, Iris Young, in her theorizing about the faces about the five faces of oppression, has aptly pointed out that the poor and the vulnerable suffer the oppression of systematic violence. Given the frequency of such systematic as well as systemic violence prevalent in our society, the theories of justice are still often silent about it, probably because the theorists do not consider such incidents of violence and harassment as matters of social injustice. Hence, it becomes highly incumbent on our part to realise the nature and gravity of the problem, and cut at its roots, so that the disarticulated ones get articulated, whose claims are as authentic as those of the non-vulnerable groups.    

A Critical Insight into the Existing Scenario 

‘The low-income people experience tremendous unmet legal needs which involve fundamental human concerns,’ stated Court of Appeals Division One Chief Judge Mary Kay Becker. ‘Access to justice cannot be denied based on the ability to pay. The poor and vulnerable individuals in our society must have representation in order to protect their legal rights.’ According to a survey, it was evident that on matters of sentencing, the report condemns the decisions of the federal Department of Justice and provincial and territorial legal aid administrations to deny legal representation to low-income people accused of minor criminal offences that do not normally bring sentences of imprisonment. A conviction on a first offense can have severe consequences in the longer term if the person gets into trouble with the law a second time. At the very least, first-time defendants should get legal assistance from paralegal personnel or law students. As well, all legal aid plans should perform studies to find out the proportion of defendants who are not represented and the consequences of their lack of representation.[xi] 

In the Preamble to the Constitution of India, the people of the country resolve to ‘secure to all its citizens justice social, economic and political.’ It also speaks of promoting ‘fraternity and assuring dignity of the individual’ Even if this Preamble is perceived aspirationally, the truth remains that we are no closer to rendering it real. Instead this aspiration seems to be getting eroded. It is therefore important that we find out how all these choices teammate in Indian law, if these choices accelerate the process of impoverishment and what are the strategies, contentions and arguments that can alter and reimburse the process. In order to understand the various laws affecting vulnerable groups we would have to closely look at legislations, executive orders and judicial decisions which deal with the rights and status of vulnerable groups. Such analysis would bring out the machinery of implementation of these laws and their potentials and limitations. Perceiving the same as instruments of impoverishment and empowerment, suggestions for legislative amendments and explorations on more effective legal arguments can be undertaken.

Recommendations and Proposals for Effective Functioning of the System 

Considering the urgency of the existing plight, it is high time that measures be taken in order to develop and adopt a coordinated plan to prevent crime and make the criminal justice system fairer and more efficient, with detailed steps and a timetable for implementation.  

This scheme should contain steps to diminish reliance on ineffectual and often harmful criminal justice solutions instead of more productive interventions, such as family support programs and community youth activities and employment. It is well-known that police is the state agency which is responsible for maintaining law and order in the society. But the stark irony lies in the fact that illegal acts and omissions have become part of police’s daily routine throughout India. The reports of National Human Rights Commission and Amnesty International narrate the same story. The main reason for the growth of torture in police custody is the investigating officer’s ‘overzealousness’ to secure conviction and it is this element which gives rise to various Human Rights violations in police lock-ups.[xii]

In this kind of backdrop, it is recommended that all jurisdictions adopt a general policy of minimal police intervention except when absolutely necessary. This rules out overzealous policing and aggressive enforcement programs that target poor neighborhoods. Moreover, it is worthwhile to have in place multidisciplinary teams so as to deal with the multiple problems of many street people who end up in the criminal justice system with substantial abuse and mental health problems.[xiii]

Apart from the aforesaid general safeguards and provisions, it would be indeed efficacious to consider some specific policy measures, which have the potential of rejuvenating and revamping the whole system. The ideals enumerated in the laws of our nation, can be realised by implementation of the various guidelines adumbrated and envisaged by the Apex Court of India in a host of judicial pronouncements. To illustrate, a police officer who arrests and detains a person be required to explain in writing why the person was not released; the officer in charge should counter-sign this statement. The accused must be told these reasons these reasons and afforded a reasonable opportunity to give a response, thereby acting in consonance with the principles of natural justice. Legal aid plans should ensure that all duty counsel who represent people at the hearings have experience in the field of criminal law and meet minimum standards for adequate performance. The judges should take the lead in setting up multidisciplinary research projects taking up issues such as to evaluate bail criteria, to develop well-thought-out policies about their use, and to examine the effects of granting bail with conditions.

The practice of authorities to deny legal representation to low-income people accused of minor criminal offences that do not normally bring sentences of imprisonment must be firmly curbed. The states ought to provide sufficient and ongoing funding to services in remote areas, bail support services, treatment programs, half-way houses and other services in order to provide equal treatment to low-income people in the criminal justice system and to maximise the chance that ex-offenders will stay out of the justice system in the future. 

By Way of an Epilogue 

Equality before the law in a democracy is a matter of right. It is not a subject of charity or magnanimity, but an entitlement strictly afforded to one and all. Proper access[xiv] to justice is only possible with the attainment of the endeavors like engaging the poor in a dialogue for empowerment; coordinating the participation of all role players in the law reform process; fostering linkages to regional and international networks for the purposes of advocacy, training and capacity-building within existing institutions and, where necessary, the creation of new ones; advocating for lay participation in the justice system so that the Courts are better informed;  advocating for the establishment of such offices as that of the Ombudsperson in order to promote an accountable and transparent legal and judicial environment; encouraging lawmakers and the legal profession to use local language and simplify language in the justice system and inform poor communities how the formal system works; and initiating pilot studies tracking cases in the civil, criminal and administrative Courts thereby also monitoring and assessing the quality of judgments and the delays in their execution.

Only thus, we can make this world a better and more peaceful place to reside in.           

Centre for Civil Society
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