Peoples’ convention on judicial accountability and reforms held successfully!

March 15, 2007

(Click here for Presentation made by Dr.Venkatesh, Lok Raj Sangathan)

The first peoples’ convention on judicial accountability and reforms was held at the Indian Social Institute in New Delhi on the 10th and11th of March 2007. The Committee for Judicial Accountability, Action Aid, Lok Raj Sangathan, Centre for Media studies Hazards Centre, National Alliance of Peoples’ Movements and Transparency International were among the many organisations which organised this convention. This convention was held at a time when the judiciary is increasingly being used to significantly attack the rights, property and livelihood of the toiling people in Delhi and all over the country. Over 200 people from Delhi, Mumbai, Lucknow, Indore, Pune, Bangalore and several other towns took part in this event.

During the inaugural session, Mr Prashant Bhushan, senior advocate of the Supreme Court, pointed out that economic liberalisation had led to accentuation of the anti poor bias which was already existing in the judiciary. The judicial system is such that most people cannot afford to seek relief through it. Poor people who are caught up in this system, either as defendants accused of some social crime, or as litigants, find that they have to either languish in jails or are frustrated by the delays and callousness inherent in the system. Discussion on judicial reforms had so far been confined to the legal fraternity, but now that it is clear that common people are the stakeholders who are losing, it is necessary to organise public campaigns for its renewal. Justice Sawant pointed out that except for an unworkable system of impeachment, no action can be taken against the higher judiciary. The manner in which judges are appointed has also made the judicial system a law unto itself.

In the session on “Appointment and Accountability of the Judiciary”, Mr Shanti Bhushan noted that none of the institutions of governance, including the judiciary, changed when the British left India 6 years ago. However it is the people who have to decide what kind of system they want to have. Dr Bhaskar Rao of the Centre for Media Studies presented the results of studies to show that the amount which people are made to pay as bribes in the lower courts is as high as Rs 2500 crores per year! Besides, big corporates are known to pay several tens of crores to have even individual cases decided in their favour in the higher courts. Ms Arundhati Roy said that the language used by the judges showed that they held ordinary people in contempt. She was of the opinion that the judiciary was not unaccountable – it had showed itself to be completely accountable to the super rich, in controlling 70% of the population on their behalf. In the session on “Access and Delays”, Mr Mihir Desai, Advocate, said that of the 2, 59,000 people in jails in 2004, over 72% were under trials, most of them too poor to afford proper legal representation or bail. Legal aid for the poor has largely remained on paper.

The session on “Values and Attitudes of the Judiciary towards the Poor” attracted a lot of discussion. Mr Prem Krishan Sharma, who has been practicing as a lawyer for over 40 years, said that the attitude of the judges is either one of contempt for the common man or at best one of pity. Baba Adhav an Mr Hiremath gave several instance of anti poor bias, while Mr Pradeep Prabhu, a lawyer working with adivasis in Maharashtra, related a shocking instance in which three of his clients were actually convicted of murder by a trial judge merely because they could not afford to pay a bribe of Rs 10,000 each as demanded by the judge! Dr Venkatesh of the Lok Raj Sangathan made a detailed presentation on “How can the judiciary be made sensitive to the toilers?” in which the genesis of the present judicial system was traced to colonial times. The “order” which colonial justice sought to enforce was really maintenance of conditions for colonial plunder of the land, resources and labour of the Indian people. The same colonial laws are being used today to forcible acquire land for Special Economic Zones, for example. The people of India are struggling for empowerment in all fields – political, economic and social. The struggle to reclaim the judiciary and make it responsive to the needs of the people rather than act an instrument of oppression is part of the overall struggle for empowerment.

There were over thirty interventions from the floor. Representatives of various peoples’ organisations related incidents of how the courts and the judiciary had not only not tried to given them justice, but in fact had increasingly been acting to suppress those who are fighting for their rights. We must free ourselves from the Eurocentric concepts of rights and justice which are being sought to be imposed on us – and develop our own models. Why cant’ all public officials, including judges, be elected, provided the candidates possess the qualifications and experience needed to fulfill their duties, for example?

Many participants came up with suggestions on taking the campaign forward. One of the important suggestions was to build up pressure of the people all across the country. People must definitely not be cowed down by the law of contempt and mass contempt of the court must be committed in a concerted manner if courts try to use this law to suppress criticism by the people. It was proposed that a website be created to keep a watch on anti people actions of the judiciary and to encourage people to demand justice as their right. Similar conventions were also proposed to be organised in Hyderabad, Mumbai and other cities in the near future.

How can the judiciary be made sensitive to the toilers?

Presentation by Dr Venkatesh, Lok Raj Sangathan, made at the Peoples Convention – Campaign for Judicial Accountability and Reform, New Delhi, Mar 11, 2007

We are all aware that the toiling people of this land do not regard the judicial system as one which will provide justice to them. Speaker after speaker has expressed as much yesterday and today. It is clear that it does not serve the interests of the common Indian people and is crying for thorough going reforms. We have all met here to discuss the situation of the judicial system and how we can change it, “reclaim” it, from being a tool of the powers – that – be, from a system which upholds the injustice of exploitation and oppression into something which provides justice to the poor and toiling people.

What is justice? Dictionaries define it as “fairness, exercise of authority in maintenance of right”. The concept of rights itself, however, has undergone change through the ages. Early English law had as its basis, the “divine right of kings”. According to this concept, sovereignty was vested in the crown. It was this sovereignty which gave the crown the right to make the law of the land and to rule over its subjects.

Law and justice under colonial rule

A hundred and fifty years ago, in 1857, the massive revolt of the peoples of this land had shaken the foundations of the agency for colonial exploitation, the British East India Company. The Sovereign of England appropriated the sovereignty of the nations and peoples which then constituted India. When India came under direct rule of the Crown, the laws and system of governance which the colonialists put in place were meant primarily to safeguard the colonial system of exploitation of this land and its people. Waging war against the King – for independence of the motherland – was a most serious crime. The people were completely disempowered under colonial rule.

The Judiciary was one of the important creations of British colonialism when they took over India as a crown possession. One of the important aims of the laws of the land was to ensure the supremacy of British interests in India. “Maintenance of public order” was actually maintenance of orderly conditions for the exploitation of the people, their natural resources and the fruits of their labour, in other words for colonial plunder. However, the colonialists propagated the Eurocentric notion according to which the proud peoples of our country, in which civilizations commenced thousands of years ago, in which statecraft and mature systems of governance developed over the ages, were little better than uncouth savages who would tear at each others throats were it not for the ‘order’ brought in by the white man.

The right to private property, and in particular the right of the British colonialists to freely exploit and plunder the land and labour of India, formed the basis of colonial law. The judiciary and legal system were expected to uphold this colonial law. Justice in the colonial judicial system meant the maintenance of the colonial order of plunder. It meant the judicial murder, incarceration and the dispossession of tens of thousands of patriots and toiling peasants, tribals and poor people. The situation was indeed essentially no different in all the countries colonised by Britain or, for that matter, other colonial powers like France or Spain.

The Judiciary was the arbiter of disputes between individuals, parties, and indeed sometimes the State and its subjects. An important feature of British system of governance is that the judicial system is seemingly impartial and independent of the government of the day. It was supposed to part of a system of checks and balances, to prevent excesses. Its purpose was however to uphold the patently unjust colonial law and order in the land while giving the appearance of dispensing justice.

However, the patriotic people of India and other countries brought under colonial control by the British and other powers were not of course fettered either by the police and armed forces of the colonial states, or by their laws or by their judiciary. They fought might and main to free their lands from the yoke of colonialists. They fought for freedom – freedom not only from external rule, but from want. They fought for the empowerment of the toiling people. Their epic struggles had as their basis a more modern definition of rights. They fought for the rights of individuals and collectives, for the rights of tribals and toilers, for the rights of nations and peoples. They fought for to wrest sovereignty from the “crown” and to vest it in the people.

The situation after 1947

When the massive upheavals in the world made it impossible for colonialism to continue in the old way, India and many other countries became independent. However, power was not transferred from the colonial authorities, to the toiling people. People did not have the right to decide what kind of economic or social system they should have.

Elaborate, seemingly democratic, systems of governance which were essentially suggested by the departing colonialists were put in place. The Westminster model was adopted – a model which provided for talk shop legislatures at central, state and local levels where the anger of the people could be ameliorated while the real business of government was carried out by the executive, the cabinet, behind closed doors. Most of the laws inherited from the British colonialists, that had colonial exploitation as their basis, were left untouched. Witness the struggles of the peasants today against land acquisition and handing over their lands to big capitalists for setting up plants or SEZs – they are made using the land acquisition acts enacted by the British colonialists! The judicial system indeed inherited in 1947 from the British colonialists too was largely left intact. Just as the judicial system was fashioned by the British to appear to be impartial and appear to be dispensing justice while actually upholding the inherent injustice of colonial exploitation, so also, post – 1947 dispensation in our land fashion the judicial system was fashioned to make it seem impartial and just while upholding an innately unjust system in which the masses of people remained disempowered, dispossessed and distraught.

In the Nehru and Indira Gandhi eras, the state was touted as being “socialist”. The massive investments made in the state sector and nationalisation of key industries like oil and banking led credence to this. But while the investments were made by the government, the benefits of these did not really go to the people, but to the new elite whose power was growing by the day. Meanwhile the struggles of the people led to many rights being recognised by law, especially for the organised working class. Minimum wages, employment security, social security etc were initiated and developed in this period and the right to collective bargaining of the workers was upheld. Several pieces of “social” legislation were enacted. The judicial system too was persuaded to uphold “social justice”. Slowly but surely, however, all of these did not translate into real benefits for the toiling people – the gap between the haves and have – nots, between the property owning and property less people widened with every passing year.

This façade was also thrown away in order to keep the struggles of the people in check. Draconian laws such as ESMA too were enacted. The period of the emergency, for example was one in which even the basic functioning of the judiciary was paralysed. Even the fundamental rights of the people were not recognised and people did not have recourse to the courts. Besides, the rights of indigenous peoples, which were not safeguarded under even the “socialist” dispensation. This was particularly true in the case of Kashmir and the North East. The Armed Forces Special Powers Act, against which almost the entire people of Manipur have protested – continues to remain in effect, making a mockery of the claim that democracy exists in our country.

Justice in the era of economic liberalisation

In the Narsimha Rao period of the nineties, the ruling elite no longer wished to be fettered by conceptions of socialism and social justice. Fattened by years of protection and license Raj, these were seen as chains limiting the growth of their wealth and power.
Concepts of social security and of the state being responsible for the welfare of its citizens were thrown overboard.

The impact on labour courts has been particularly dramatic: in the words of Mr Prem Krishan Sharma, Senior Advocate of the Supreme Court: “During 70s and 80s, the success rate was 95 percent in the labour courts and the Rajasthan High Court. It was not necessary that the worker always got the relief but the judgements were upheld by High Courts and even Supreme Court in favour of the worker. But gradually after 90’s the success rate has dropped to 5 percent.”

The drive to become a superpower and exacerbation of injustice

After the completion of the first phase of “reforms” more and more pretences were thrown to the winds. In recent years the drive of the ruling class to make India a regional ‘superpower’ has led the country down a dangerous path and further accentuated injustice faced by the toiling people. Every sector of the economy – from agriculture to retail trade – is seen a source of profit by the big corporations, Indian and foreign. Laws are being made to open up more and more sectors to foreign capital – and the rights of the people are under severe attack. When Tata takes over Corus, the government would have us believe this is a matter of pride for every Indian. But the Tatas are actually counting on unfettered access to the iron ore reserves of this country to export to the Corus plants in Europe and profit firstly from the exploitation of the resources of this country and also from the labour of others. The already dispossessed tribal and indigenous peoples are going to be under further attack. Recall the manner in which tribal people protesting against handing over natural resources to Posco have been massacred in Orissa. The brutality of the Orissa government is perhaps outdone only by the authorities in Bengal, in opposition to the peasants fighting against forcible evacuation and handing over of their land to the Tatas, using the colonial laws.

The government seeks to ally itself strategically with US imperialism, one of the most dangerous forces on earth today. Using the so – called “war on terror” as a pretext, the US has abrogated to itself the right to attack and overrun countries at will. It freely uses torture, as evidenced from Abu Ghraib, and incarcerates people at Guantanamo without trial and without recourse to any legal remedies for years on end – in short it negates all human rights which mankind has enshrined today.

The drive to refashion Indian cities, especially Delhi, into “world class” urban centres has seen the dispossession not only of the urban poor, but of the middle classes as well. Tens of thousands of shops and small businesses have been sealed and shut last year.

What is the response of the judiciary to all this? Is it coming out on the side of the toiling people or on the side of the big capitalists and corporations, Indian and foreign? Is it upholding justice for the toilers, the tillers, the tribals and indigenous peoples? Or is it throwing its weight behind the increased loot and plunder of the nation, its toilers and tillers, tribals and indigenous peoples? It is, as we have seen, showing itself more than ever to be an arm of the state – just like the government and police and the rest of the anti – people repressive machinery. In this drive, the judiciary is turning out to be the most obnoxious element, heartily decreeing the destruction of tens of thousands of dwellings and small and medium businesses. While political parties would dread to enact or implement legislation which earns the wrath of million, the “independent” judiciary, insulated and ensconced as it is, has issued order after order destroying the property and ruining the lives of tens of thousands in this city alone. It is performing the same function for the present – day plunderers of our land and its labour which the colonial judiciary did for the plunders of that time – namely maintain order so that loot and plunder can continue unobstructed. It upholds the “right” of the big corporates, Indian and foreign to profit at the expense of the people. Moreover it has the advantage of not have to fear popular dislike as the political parties have to before election time.

While it functions as an arm of the state, appropriating to itself legislative and executive powers which are not expected to be in its purview in a state with proper division of powers, the judicial system has further become a "law unto itself" - it does not even want to have a modicum of accountability either in appointments of its members, gross and rampant corruption, or review of its actions by the people or even by quasi official bodies.

This is perhaps the appropriate place to comment on judicial “activism”. In recent times, the judicial system has actually been "activated" to achieve much of what the powers of the day would like to ordain and achieve, but are reluctant to do so for fear of adverse public reaction. Activism is thus a readily available means to unpopular ends at the disposal of the powers of the land. A few cases here and there of "judicial activism" in which the government or authorities are pulled up for failing to perform their duties have been used to create the impression that the judiciary can be relied upon to protect the interests of the people from "corrupt or negligent officials" and the government. In fact, "judicial activism" is thoroughly anti - people, arbitrary, unjust, not subject to review or scrutiny, and does not have a legitimate basis in a modern state with proper division of powers between the legislature, executive and judiciary.

Empowerment of the people – the way ahead

In a modern state, in which sovereignty vests with the people, the legislative and executive arms actually derive their power from the people. The laws promulgated in a democracy are expected to be an expression of popular will. Laws repressing the people would have no place in a modern state in which sovereignty vests with the people. Laws to ensure protection of the rights of the toiling people, of the nations and nationalities which constitute India would be enacted. It needs to be recognised that the judiciary, which is supposed to oversee the implementation of these laws also derives its power from the people. In such a state, it is entirely possible that important officials could be elected by the people themselves, just as is in the case of legislators today. Judges too could be so elected – provided of course that they meet the stipulated requirements with regard to education, qualification and experience. Arbitrariness, nepotism and favouritism in appointments could be fully avoided.

The toiling people of this land are struggling for empowerment. They want to have the power to decide what kind of political and economic system should prevail in this country. They need to be able to decide how the resources of this rich land of ours are to be allocated. Right at this time in this city, LRS, together with several other people’s organisations, is involved in a struggle to break the stranglehold of the established political parties in the MCD elections. Rather than political parties controlled by selfish interests, it is the people who ought to b able to decide who is worthy of representing them. They need to be able to recall those who do not represent them properly. They need to be able to initiate legislation. They need to be able to oversee the administration of justice in order that the rights of the individual, the community, the peoples and nations which constitute India and protected. In short, sovereignty needs to be vested with the people, rather than with the ruling elite as it is today. The struggle to make the judiciary sensitive to the toiling people is an important part of the overall struggle for empowerment.

This struggle, to make the judicial system sensitive, to make it actually provide justice for the toiling people instead of protecting the “right” of the rich and powerful to plunder, needs to be waged at various levels on a continuing basis. We need to be able to make judges and judicial officers of conscience speak out. We need to arm the people with the idea that justice is their right, and that a system which denies them this right, by any means – including delays, corruption, arrogance, insensitivity – has no place in modern India. We need to expose and condemn every act of injustice by the judiciary. We need to free ourselves from Eurocentric notions of rights of individuals and of peoples. The notion of rights and duties and the concept of justice inherent in Indian thought needs to be rediscovered and adapted to modern requirements of the times. It is necessary to evolve modern and engaging definitions of these concepts. I am sure that Lok Raj Sangathan would be proud to be associated with this honourable aspect of the struggle of the people for empowerment along with all others who wish to end the inherent injustice of this system.

Conclusion

The struggle to sensitise the judiciary to the needs of the toiling people is an important component of the struggle of the people to empower themselves. It is the wresting of sovereignty by the people which will definitely be able to ensure that the judiciary is indeed sensitive to them. This will, in fact, lay the conditions for the banishing of several of the ills which are so visible today. The toiling people of our land have walked down an eventful and tortuous path since 1857 when the British crown formally appropriated the sovereignty of this land. One hundred and fifty years later, we must rededicate ourselves to the task of vesting sovereignty with the people – of empowering them to decide their future so that people can live in this land with their heads held high, free of oppression and exploitation! This is the way forward, not only to “sensitise” the judiciary to the needs of the poor, but to real freedom for all the toiling people!