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M J Antony: Justice below poverty line

Source : BUSINESS_STANDARD
Last Updated: Tue, Jul 31, 2012 19:30 hrs

Some appeals that reach the Supreme Court unravel such grim stories that judges find it difficult to write a decent finale. Two such cases in recent days relived Kafkaesque nightmares.

The first one, New India Assurance vs Gopali, showed how insurance firms not only deny just compensation while raising technical objections but also tire dependents out through endless litigation. The road death in this case occurred in 1992. The victim’s aged parents, wife and five children had been seeking the insured amount since then. Looking into the case’s history, in which courts below had applied wrong formulae, the Supreme Court exercised its inherent, discretionary powers under Article 142 to award Rs 15 lakh. The tribunal had granted only Rs 2.55 lakh.

What is significant in this judgment is the insight into the judicial system through the eyes of the judges themselves. “If the claimants had been members of economically affluent sections of society,” the judges wrote, “they would have engaged an eminent advocate and taken steps for hearing of the matter at an early date but they do not have the financial capacity and resources and energy to engage any advocate.”

In a lengthy preface to the judgment, which also annexes four pages from the National Sample Survey, the judges lamented that “in a country where 36 per cent of the population lives below the poverty line, deficiencies in the justice delivery system prevent a large number of the population from availing legal remedies. The disadvantaged and poor are deprived of access to justice because of litigation costs, both in terms of actual expenses and lost opportunities. The infrastructure of courts and the processes which govern them are simply inaccessible to the poor.”

It is a cliché that courts are open to all, but a graffiti writer added, “like the Hilton”. How the cases of corporations and businessmen get priority over those of ordinary people is still a mystery to court watchers. Some time ago, there was a furore over bail granted to a renowned businessman late night on a Supreme Court holiday from a judge’s residence. In one instance, the then Chief Justice, who was in Argentina to attend a conference, constituted a bench to hear the bail application of a noted film star.

This is not the first time the judges wrote such jeremiad. In one judgment, D Navinchandra vs Union of India (1987), the then Chief Justice wrote: “My conscience protests to me that when thousands of remediless wrongs await in the queue for this court’s intervention and solution for justice, petitions at the behest of diamond and dry fruit exporters where large sums are involved should be admitted and disposed of by this court at such quick speed.”

The late jurist H M Seervai noted several such cases in an essay and asked judges “to make sure that people do not feel that there is a short and swift road to justice for the wealthy, the powerful and the well-connected, and another long, weary and heart-breaking road to justice for others.”

A case just concluded in the Supreme Court has another dimension. Cabinet minister and political heavyweight L N Misra was killed in a bomb blast in 1975 at Samastipur railway station. Several members of the Ananda Marg sect were arrested and the case went on for 37 years. One Supreme Court lawyer, Ranjan Dwivedi, who was 24 when he became an accused and is now a sick man, has moved the court asking it to quash the prosecution. According to him, the excruciating delay has violated his fundamental right to speedy trial. Only eight of 39 defence witnesses are alive. The case has passed through the hands of 22 trial judges. (Another case of the same vintage, an attempt to murder former CJI A N Ray, is gathering dust in the Delhi High Court.)

The Supreme Court faces a dilemma. Though it has declared speedy trial as a fundamental right of every person under the Constitution, it has not quashed any trial on this ground. In an earlier judgment, it expressed its apprehension that if prolonged prosecution is made a ground for quashing the trial itself, many unscrupulous people might engineer delays to take advantage of this escape window.

The central government has argued that the court has no power to set a time limit for completion of criminal trials. This can be done only through legislation. The arguments are currently going on, and the court’s decision will affect thousands of people who are on bail or in jail awaiting trial. Though it is apparent that there is violation of a precious fundamental right, no clear remedy is in sight. Imagine, one of the first maxims taught in law colleges is: “Where there is a right, there is a remedy.”




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