Democracy-
A Muse
By Atreyee Majumder
27 February, 2007
Countercurrents.org
A
keystone of democracy is an independent judiciary- that keeps a check
on the executive excesses. The judiciary is also meant to be a custodian
of the constitution, and hence, the protector of all rights and entitlements
that the state is suspected to trample over. It is also looked upon
as a significant player in the democratic balance of power.
Insofar as the Indian Supreme
Court is concerned, it has won accolades as well as brickbats, for being
an increasingly activist judiciary, intervening in the executive policy-making,
stretching the constitutional safeguards too far. But the Supreme Court
is not the judiciary in its entirety. The Common Man begins to seek
judicial redress in much less grandiose ways. He does so when he is
not paid minimum wages, or he is subjected to unsafe/unhealthy working
conditions, inhuman working hours, roughed up by cops for taking a wrong
U-turn in his auto, ill-treated by a community for belonging to a lower
caste, arrested every time there is any communal trouble because he
belongs to a minority religion. These are excesses of the state machinery
that routinely amount to violation of some Fundamental Right [1], but
access to avenues of judicial redress are not as Supreme Court rights-friendly
benches.
The question of access begins
in very mundane, un-media-attention-worthy ways, when a man, woman or
child goes to the police station to file a complaint, or a First Information
Report, or to file a writ, they have to take on a much more tyrannical
spectre- that is the 'establishment'. Chances are at a police station
they will tell him it's the job of the traffic police to beat you up
and take all the money out of your wallet (and not, tear out and challan,
and take down your registration number, etc- the way the law mandates
him to do), and why were you taking a reckless U-turn anyway??? And
we all know you fleece your passengers, hence, you have no business
coming here to file an FIR against the traffic cop.
If one such Common Man(or
woman) chooses to go to the High Court, to invoke the writ jurisdiction
[2], against the denial of minimum wages by his contractor, in a project
contracted out by a Government Department, he has to go to get a writ
petition drafted by a lawyer for a fee (which on the lower side would
be Rs. 500-Rs.1500), the daunting litigating journey will then begin,
of which the process is itself the punishment. For a rural construction
labourer it means travel costs, costs of telephoning one's lawyer in
the city and finding out status of the case, fees for lawyers appearing
for hearings. Hence, it is unlikely that it's a battle that a construction
labourer who fights the injustice of being paid less than minimum wages
can afford to take on. Even in a hypothetical situation, where this
citizen who earns her/his living as a construction labourer is aware
of her/his rights, and the right forum to approach, a citizen who's
situated at a considerable distance from the centers of power (be it
judicial or executive), to be able to feature in its imagination.
Even when the judiciary,
inasmuch as it is manifest through decisions of judges, is ready and
willing to redress their grievances, independent of executive pressures,
the real roadblock for the Common Man, is really the question of how
to get to the judge, in haste, and without being choked in bureaucratic
and systemic bottlenecks. The problem areas, of course, include resource
crunch (it's not feasible to have multiple benches of High Courts),
legal aid lawyers are overloaded, filing systems are bureaucratic, too
many backlogs. There may be resource-reallocation solutions to such
problems. There may be streamlining/modernizing solutions. Had it been
a better-resourced judicial system, would rickshaw-wallahs and construction
labourers and sex-workers suddenly become Citizens?
The reality for the Roughed-up
Citizen, is to take things in his stride, rather than get into a more
debilitating exercising of naming and shaming routine violence that
is inflicted on him/her, by calling it 'injustice'. Part III is the
treasurehouse of Indian democracy. Like all treasurehouses, it can be
accessed only by some.
-Atreyee, lawyer and researcher
based in Delhi, [email protected]
[1] Enshrined in Part III of the Constitution of India, which are supposed
to be resonant of the Bill of Rights, or basic human rights accruing
to citizen sin a democracy. A number of positive rights- in the nature
of cultural, economic and social entitlements have been interpreted
to be within the parameters of Part III by the Indian Supreme Court,
reading the provisions of Part III in a broad and imaginative manner.
[2] Under articles 32 and
226, the Supreme Court and the High Court can be moved in case of violation
of Part III Fundamental Rights and other arbitrary actions by the 'state'
or 'instrumentality of state'. This is probably the most significant
mechanism available to the citizen for judicial redress against violation
of rights and entitlements by state.