Monday, January 24, 2011

Editorial: Access to justice for the poor

Poor justice
Harsh Sethi / January 19, 2011, 0:37 IST
Business Standard, India

It is somewhat intriguing that in the intense discussions about strategies to ensure inclusive growth and development, both our politicians and policymakers have consistently sidestepped, if not neglected, the problem of the numerous barriers to accessing basic legal services within the justice system. Despite our Constitution incorporating civil and political rights, and the directive principles underscoring respect for human rights and human dignity, it is uncontestable that in our laissez-faire system, justice, like any other commodity, is something that can be bought by those who can afford the cost. Abstract statements about “equality in and before law” cannot hide the ugly reality that the poor and the underprivileged are doubly penalised by our legal system — first on account of the costs of access, poor knowledge of the archaic court procedures, and so on, and because the legal system differentially favours those with greater resources and better social networks. No surprise, then, that in every scheme and programme, the poor feel that they are being squeezed out, often through the working of law. It is, thus, critical that all discussions of development must necessarily contend with the vexed questions of both equality before law and justice if we want to avoid the abuse of power and lawlessness that have become a part of the lot of the poor.

For too often the discussions about access to and equality before law have focused on supply-side constraints — the insufficiency of courts, judges and lawyers — as also procedural innovations to make the legal system cheaper, faster, more transparent and fair. Unfortunately, we have spent insufficient energy on understanding and deconstructing the relationships between law, justice and fairness, concepts that are deeply influenced by history, ideology and culture. In a multi-cultural and plural society such as India, with a multiplicity of legal cultures, with different social segments incorporating different notions of right and wrong, it is hardly surprising that judgments rarely produce any sense of satisfaction. Moreover, as Upendra Baxi so convincingly points out, improving access to law should not be conflated with access to justice. “Further, because law is not exhausted by adjudication and crucially entails law as legislation, implementation and enforcement, a primarily court-centric talk eludes a fine regard for considerations of political justice, that is, critical engagement with the impunity of holders of public power” (p. 75). Nothing exemplifies this better than the fate of riot victims or those displaced by development projects as they struggle to resume “normal” life in the face of continuous opposition from those who had victimised them, and this includes the state.

All of this has only become more vexed in the context of globalisation as now we have to contend with multiple national contexts and a (severely contested) body of international law. Remember Bhopal and the inability to bring the Union Carbide Corporation to justice.

The book under review, a product of the UNDP programme on Access to Justice, a subset of the work of its Democratic Governance Group, brings together a range of essays, both conceptual and empirical, on efforts to improve access to justice in the developing world. There is great merit to such collections, for not only do we learn that our situations and problems are not unique (arguments about Indian exceptionalism) but also because it becomes possible to learn from the experience of others. Most importantly, we learn that issues of law and justice cannot be left to the internal deliberations of lawyers and judges, and to courts, and need to involve other elements in civil society if we are to move towards a more fair and just system.

Of particular interest are the essays on access to justice in plural legal systems, more specifically the role of community justice systems (shades of our khap panchayats) as also communitarian and religious laws and how they undermine the rights and dignity of women (Hudood Ordinances in Pakistan). Equally instructive is the discussion on how public interest litigation or social action litigation, which India can claim as its contribution, has travelled to other countries as diverse as South Africa and Nigeria, and countries in Central and Eastern Europe. R Sudarshan’s overview of the evolution of legal understanding from our initial encounter with western law through colonialism, which resulted in an “individualisation without rights and bureaucratisation without the rule of law” as also the disjunction between state law and the role of non-state legal institutions, deserves a close reading. Equally, the discussion on the limits of both legal liberalism and legal radicalism, particularly in contemporary climes of neo-liberalism, proves once again that even as we may have normatively internalised the new language of human rights, larger economic and social processes continue to disempower the weak and the poor.

It is indeed unfortunate that despite a recognition of the centrality of law and legal processes, so much of our discussion of development choices seems oblivious to the rich literature produced by legal scholars. Equally, it is instructive that in none of our Planning Commissions have we ever thought it necessary to induct a jurist.

For a government never shy of claiming its orientation towards the aam admi, maybe this is a move that might help.

Perspectives on Accelerating Access
Edited by Ayesha Kidwai Dias and Gita Honwana Welch
Oxford University Press
xxii + 678 pages; Rs 895

Sunday, January 23, 2011

The killings of India's information warriors

This has been flagged by Tehelka before, but NYT continues its focus on India. The very prolific Lydia Polgreen narrates the death of an information activist - unfortunately a trend in India.

Read it here

How about some protection mandated by law for these information activists? Else, it becomes meaningless. These activists are laying down their lives to protect people from the tyranny of opacity within the country's borders. No recognition when they die. They are modern day soldiers, fighting enemies within. But they are too ill-equipped to counter armies of well-funded politician-businessman mafias. May force be with them.

Thursday, January 20, 2011

Peruvian villagers want more from Chinalco

FT: Peru village seeks better deal from China mine

This is a multimedia story from the FT.
"The Aluminium Corporation of China, or Chinalco, bought the mining rights for Toromocho, Peru, back in 2007. But as the FT's Andes correspondent Naomi Mapstone found out when she travelled to the mining community Morococha, located in the mountains of central Peru, not all the villagers feel their needs are being met."