'The Legal System Works Differently For The Poor': Orissa High Court Chief Justice Muralidhar

"The system works differently for the poor," said Orissa High Court Chief Justice Muralidhar while pondering over the hurdles faced by the marginalised section of the Indian population who have been subjected to historic injustice over decades while attempting to access legal aid services. 

Justice Muralidhar was speaking at a lecture organized by the Community for the Eradication of Discrimination in Education and Employment (CEDE) to mark the 131st birthday of Dr. BR Ambedkar on the topic 'Appearing In Court: Challenges In Representing The Marginalized'.

While speaking in detail about his experiences as a practising lawyer and as a member of the Bench, the Chief Justice made several noteworthy remarks and observations that convey how much the legal system is yet to develop to accommodate the needs of those who are desperately in need of its services. 

Before parting, Justice Muralidhar said, "There is much to be done. And it needs to be done now. We have the resources. We must find the will."

Here are the four angles the lecture elaborated on: 

1) Who is a person in need of legal services and in that context, who is a 'marginalised' person?

Justice Muralidhar opined that at a very basic level, every person denied justice in the broadest sense of the term, and who has to perforce engage with the legal system for redressal, is in need of legal services. He added the Constitution acknowledges persons who have been denied justice over generations, including those belonging to the Scheduled Castes, Scheduled Tribes, Dalits, Adivasis, socially, educationally and economically disadvantaged classes, religious and sexual minorities, differently-abled, children in conflict with the law, de-notified tribes, etc.

During the course of the lecture, Justice Muralidhar also emphasised the marginalization of 'status offenders' like sex workers, vagrants, mentally ill, and many others whose very existence and every activity is criminalised. He added that it was a matter of concern that at least 20 states in India still have anti-beggary criminal laws while adding that these laws had been struck down only in Delhi and Jammu & Kashmir by judicial verdicts. 

At one glance, it could be gathered that those coming in conflict with the law in these situations were invariably those below the poverty line and a 'high-risk group' who are to be acknowledged as unwitting consumers of legal services. However, he clarified that poverty need not be understood only in economic terms, thereby stating that the definition of 'marginalised' may not be as easy as one believes it to be.

"For instance, a married woman belonging to the higher or middle-income group who is a victim of domestic violence and finding herself incarcerated in her marital home in an upper-class neighbourhood may still be deprived of legal services. The definition of 'marginalized' it would seem is thus not as simple as one might want to believe it to be. It is thus entirely possible that a person in India on account of her social or economic disadvantage is denied legal services. We may be creating a set of 'social' and 'economic' outcasts' through law."

Justice Muralidhar also dealt with the issue of certain kinds of offenders being statutorily disqualified from receiving legal aid and bar associations resolving that no member lawyer will defend a certain kind of 'accused': a person accused of committing what is termed a terrorist act, despite having been outlawed by the Supreme Court. Therefore, he opined that the Indian criminal justice system provides, for those willing to see, a stark depiction of the intersection of law and poverty.

"We are yet to dismantle the structures that marginalise a sizeable section of our population. Thus, we still have many among us those engaged in manual scavenging, sewer cleaning, rag picking and in forced labour or begar, doing all our 'dirty work' at the cost of their dignity and right to life," he said. 

2) Barriers that a marginalised person encounters in the legal system and how the system has responded to the problem.

The marginalised enter the legal system in a variety of ways, very often involuntarily but mostly as persons suspected of committing crimes. Yet their access to legal aid services is the least when compares to others, Justice Muralidhar noted. 

"21% of the undertrial population of 3.72 lakhs and 21% of the convict population of 1.13 lakhs belong to the Scheduled Castes. 37.1% of the convicts and 34.3% of the undertrials belong to the OBCs. The corresponding percentages for Muslims is 17.4% and 19.5% respectively. And yet, these are the persons who are likely to find it difficult to come forward to fight for their rights."

It was also pointed out how for many a 'marginalised' person, navigating the formal legal system is a nightmare since the laws, rules and processes are mystifying and befuddling even for an educated, literate person. Therefore, he opined that the laws themselves were structured to discriminate against the poor. The fact that several undertrials continue to remain in jail despite being granted bail because of their inability to arrange surety bonds proved this view.

To tackle this inequality in the formal legal system, the delivery of legal services was institutionalised through a four-tier mechanism with the National Legal Services Authority, the State Legal Services Authorities, the District Legal Service Authorities and the Taluk Committees. The objective of this system was to provide not just legal representation but legal services at both the pre-litigation and post-litigation stages. 

However, at this juncture arose another problem: the quality of legal aid. This lack of confidence in the legal aid lawyer, Justice Muralidhar opined, is a reflection of the general approach to 'welfare services' by the providers and the perception that this is an act of 'charity' rather than the right of the person in receipt of such services.

"I call it the 'ration shop syndrome'. The poor believe that if you are getting any service or benefit for free, or it is substantially subsidised, then you cannot demand quality. Beggars can't be choosers is the stoic response that keeps the poor going."

Therefore, he concluded that the laws and the legal system appear to work differently for the marginalised. On another note, the Chief Justice added that where the trial can be insulated from the local pressures, there is a greater chance of reaching the goal of justice with illustrations to prove it. The issue of `hidden' and other `costs' that have to be inevitably borne by recipients of legal aid was also addressed in the lecture.

Even in the case of non-formal systems, which are perhaps the first choice for the rural and urban poor, it is doubtful if they are truly representative institutions when it comes to some of the critical issues concerning the marginalised, Justice Muralidhar said. Particularly, when it comes to cases of crimes against women, caste-based discrimination and violence, cases of inter-caste runaway couples, the track record of the informal systems has not been encouraging, he added.

"For the marginalised, traversing the legal system whether formal, alternate or non-formal, is a daunting task, full of uncertainties and perils."

3) Challenges faced by those who seek to represent the marginalised or espouse their causes.

To answer this question, the Chief Justice first looked into the issue of representation in the Bar and pointed out the lack of diversity therein. He opined that the lawyers belonging to the marginalized have experienced indirect discrimination, being asked to perform relatively unskilled tasks in law offices. Lawyers belonging to Dalit and Adivasi communities working on human rights cases risk being labelled as 'Maoist' or 'Naxalite lawyers', it was pointed out. 

"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 'token' joy ride. Occasionally, you will have a top-notch senior lawyer do a case or two completely pro bono, and with positive outcomes."

During the lecture, it was also emphasised that unfortunately, there is a tendency of late to view appearing for the marginalised as making a political choice. These decisions have the potential of marginalizing those representing the marginalized. Some of them who stand up for such causes face stiff resistance: they face threats to their lives, boycotts and expulsions by the Bar Associations, and even unwanted intrusions by law enforcement agencies.

However, their presence in the court does lend legitimacy to the legal system which is essential for upholding the rule of law. The Chief Justice also appreciated the efforts put in by the civil society groups and para legal workers in this field while adding that a larger and less intimidating space has to be provided for these non-state players in the system.

4) How do we enable the marginalised to meet the challenges?

It has to be acknowledged that the marginalised largely view the legal system as irrelevant since their experience tells them that it operates to oppress and they have to devise ways of avoiding it rather than engage with it. Only fundamental systemic changes that can erase this negative perception of the legal system can enthuse them to engage with the system without suspicion.

This can be initiated by reviving the discussions around de-criminalising many of the survival activities of the poor including pavement dwelling, encroachment, hawking, begging, sex work and by acting more on legal institutional reforms. Test-case litigation can also be an effective tool for bringing about systemic changes. The NALSA judgment of the Supreme Court that recognises the full citizenship and personhood of transgenders is another such test-litigation that is yet to witness the tangible effects on the ground, Justice Muralidhar said. 

Several suggestions were made on the issue of improving the quality of legal services in India. Some of them included getting better legal talent for legal services and paying them the deserving fee. Further, it was recommended that the legal representative attempt to understand the issues from the perspective of the marginalised by consulting them at every stage of the case. Offering services pro bono or at state expense does not entitle the lawyer to make concessions and statements in Court, that do not correctly reflect the client's position or ends up compromising their position, said Justice Muralidhar.

"The legal aid lawyer would do well to remain aware that legal aid is not charity: it is the basic right of the marginalised."

Finally, it was suggested that to increase the representation of the underprivileged and marginalized in the legal profession, one has to begin early, from law colleges. There has to be mentoring of young lawyers belonging to marginalised groups by the more seasoned lawyers, the Chief Justice said. He proposed that the BCI float a scheme offering stipends to promising young lawyers for the first two years of such mentorships, to help them find their feet in the profession.

"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."