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Democracy- A Muse

By Atreyee Majumder

27 February, 2007

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,

[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.


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