Orissa High Court Chief Justice Muralidhar while addressing the issues faced by the marginalised section of the Indian society said that the “system works differently for the poor”. He added that laws are structured to discriminate against the poor and that the system works unequally for the poor and the rich.
“There are many barriers to accessing justice that a marginalised person faces. The laws and processes are mystifying even for an educated literate person. The laws are themselves structured to discriminate against the poor.”
Chief Justice Muralidhar was addressing a lecture organised by Community for the Eradication of Discrimination in Education and Employment on “Appearing in Court: Challenges in Representing the Marginalised”.
“The lack of confidence in the legal aid lawyer is a reflection of the general approach to the welfare services by the providers and the perception that this is an act of dignity rather than the right of the person who receives such service. I call it the ration shop syndrome. The poor believe that if you get any service for free or it is substantially subsidised, then you cannot demand quality”.
He concluded that the laws and the legal system appear to work differently for the margins. On another note, the Chief Justice added that where the trial n be insulated from the local pressures, there i a greater chance of reaching the goal of justice with illustrations to prove it.
He added that the lawyers belonging to the marginalised section have experience indirect discrimination, they were asked to perform unskilled tasks in law offices.
Chief Justice mentioned that a study found that lawyers belonging to Dalit and Adivasi communities working on human rights cases risk being labelled as Maoist/Naxalite lawyers. The marginalised, who are the recipients of legal aid do not really have a choice as the quality of legal aid is very concerning.
“The legal profession to a large extent mirrors the inequalities and the biases of the society. The cab rank rule by which the legal profession purportedly operates, does not work for those who cannot afford cabs in the first place. The marginalised, to use a rough analogy, traverse the legal system by foot or in overcrowded buses or trains, very often at personal risk to their life and safety. The luxurious sedan that charges a higher tariff is largely out of reach, even when infrequently they do get a ‘taken’ joy ride. Occasionally, you will have a top notch senior lawyer do a case or two completely pro bono, and with positive outcomes.”
Chief Justice stated that the Constitution of the country provides justice to the persons who by birth, caste, descent and class have been denied justice over generations, it also motivates the state to come up with affirmative actions to address such historic injustices.
“These include those belonging to the SC, ST, Dalits, Adivasis, socially and educationally disadvantaged classes, economically deprived classes and a whole host of others, including religious and sexual minorities, differently baked and children in conflict with the law”.
“Then there are status offenders-sex workers, mentally ill and many others whose very existence and every activity is criminalised and therefore, very often find themselves on the wrong side of the law. Thus, begging, street dwelling and prostitution are all treated as law and order problems.”
“It is a matter of concern that in at least 20 states in India, there are still anti-beggary laws. Only in Delhi and J&K have these laws been struck down by judicial verdicts. Then there are de-notified tribes who have for long been the victim of police atrocities. Those coming in conflict with the law in these situations are invariably those below the poverty line and high risk groups for whom legal aid is an absolute necessity.”
Chief Justice suggested some ways to improve the quality of legal services in India. Some of them were:
- Getting better legal talent for legal services and paying them the deserving fee.
- Consulting the marginalised to understand the legal issues from the perspective of marginalised.
- Offering services pro bono or at state expense.
- Increase the representation of the underprivileged and marginalised in the legal profession.
- Mentoring young lawyers belonging to marginalised groups by more seasoned lawyers
Chief Justice said that the marginalised largely view the system as irrelevant and as a tool of empowerment and survival.
“Their experience tells them that it operates to oppress them and they have to devise ways to avoid it rather than engage with it. We need to revive discussions around decriminalising many of the surviving activities of the poor. There is much to be done and it needs to be done now. We have the resources, we must find the will.”
He concluded by saying that, “if the system appears broken, we are part of it and we need to do our bit to fix it. When the marginalised still have hopes of the system, lawyers who care can hardly afford to give up hope.”