The Hindu Business Line : Law can cost too much for those who can ill afford it

THERE are many laws in economics. Likewise, there is much economics in law too, if one were to consider the costs involved in getting justice. "Going to law is losing a cow for the sake of a cat," frets Mark Twain, to highlight the difference between cost and benefit.

Thankfully, the preamble to the Constitution speaks of "Justice, social, economic and political," for all citizens. Yet poverty can stand between the aggrieved and justice. Which is why Article 39A promising `equal justice and free legal aid' had to be introduced through an amendment.

It reads: "The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

A number of other countries such as the UK and South Africa have "extensive and expensive provisions to help those who cannot afford to buy the right to justice at the heavy price of the legal profession," writes Justice V.R. Krishna Iyer in his foreword to S. Muralidhar's Law, Poverty and Legal Aid: Access to Criminal Justice, from LexisNexis (www.lexisnexis.co.in).

In his preface to the book, the author cites disturbing data from the National Crimes Records Bureau. Every year, half a crore crimes are registered, and 13.2 lakh cops handle this bulk. "The pendency of criminal cases in the subordinate courts is in the region of 1.32 crore," and if you include other cases too and perform an ageing analysis, you'd find that more than 2 crore cases are as old as 25 to 30 years.

"Effective strength of judges is 12,177. The number of undertrials whose criminal cases are pending is 1.44 crore and of these over 2 lakh are in prisons," are further data that can be mind-boggling. Courts are able to dispose of only 19 per cent of pending cases every year, and the balance 81 per cent adds to the backlog.

Around 63 lakh persons get arrested every year and that's equal to the population of Tajikistan; and "over 2,500 are victims of custodial violence including deaths and torture in police custody." Killing statistics!

When tracing the sequence of steps involved after arrest, the author states how the system of monetary bail works harshly against the poor, citing the apex court's observations in Hussainara Khatoon vs State of Bihar: "The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the magistrate about their solvency." Release on personal recognisance bonds is an alternative that is suggested.

The chapter on the evolution of legal aid, cites Samuel Schmittheneer's account of how when Gandhiji began the investigation into the conditions of the indigo farmers in Champaran in Bihar, he first spoke to a gathering of vakils in Patna seeking `clerical assistance and help in interpretation'.

"For more than a year, the lawyers toured the area and collected statements of 22,000 peasants. This later formed the basis for the satyagraha which was a decisive turning point in the freedom struggle." Bihar awaits a different type of deliverance these days.

Exploring legal aid in the criminal justice system, Muralidhar states that there are laws that criminalise poverty. Persons held in custodial institutions under the Immoral Traffic (Prevention) Act, the Juvenile Justice Act, and the Mental Health Act are exempted from the means test to qualify for legal aid, informs the book. "What unites them is that they are brought within the ambit of the criminal law, not for committing crimes but for belong to a common class - that of the economically and socially disadvantaged."

The author deplores also the tendency to adhere to the procedural requirement, ignoring the spirit of the law. Though as per law a lawyer may be assigned to an indigent accused, "there is no further inquiry about whether the representation is adequate". Also, "there is no inbuilt mechanism for reviewing the performance of lawyers." Ironically, "legal aid does not account for all the costs that an assisted person has to bear, and worse still, each of the assisted persons ends up spending his/her own money".

Legal aid schemes do not account for `hidden' costs, writes the author, referring to "bribes paid to the court staff, the extra fees to the legal aid lawyer, the cost of transport to the court, the bribes paid to the policeman for obtaining documents, copies of depositions and the like or to prison officials for small favours".

Legal aid beneficiaries do not get services for `free' after all, he quips.

One of the concerns that the author addresses is about fees. He narrates an assassination case where Ranjan Dwivedi, a lawyer, was arraigned as an accused. He approached the Supreme Court and stated that though he was not an indigent person, he had neither the capacity nor the means to engage a competent lawyer for his defence. "He pointed out that under the rules framed by the Delhi High Court, the fee payable to a lawyer appearing in the court of sessions as amicus curiae was Rs 24 per day."

Dwivedi sought financial assistance to engage a counsel of his choice "on a scale equivalent to, or commensurate with, the fees that are being paid to the counsel appearing for the State." The apex court said that Dwivedi's remedy lay before the sessions court and rejected his petition.

A similar plea came up from the accused in the Rajiv Gandhi assassination case, before the Madras High Court. The Madhya Pradesh High Court has held that an indigent accused did not have a choice of lawyer, even if such lawyer agreed to appear at the fees fixed by the state.

The chapter on poverty and law notes that the law's treatment of persons without visible means of sustenance as status offenders has remained unchanged for long. "At least 15 states have enacted laws making beggary and vagrancy punishable offences." Begging means "soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune telling, performing, or offering any article for sale," defines the Bombay (Prevention of Begging Act), 1959.

The word also means "having no visible means of subsistence and wandering about or remaining in a public place in such condition or manner as makes it likely that the person doing so exists by soliciting or receiving alms". Muralidhar comments that the law's characterisation of every form of beggary and vagrancy as a crime is inconsistent with the constitutionally guaranteed right to life, liberty and dignity; yet, the validity of the law has not yet been seriously challenged.

"If the state is unwilling to provide the conditions in which the person can earn a livelihood, should it be permitted to criminalise the person's activity, and punish such persons for what may, at its worst, be viewed as a nuisance?" he asks.

"To leave poor me thou hast the strength of laws," is a wail from one of Shakespeare's sonnets, as if in sympathy with the deprived. And the statement of Titus Andronicus, that the law `hath ta'en revenge on them' may also be apt for the poor. Perhaps, as Derek Bok said, "There is far too much law for those who can afford it and far too little for those who cannot." Or, is it that the converse is also true, so law costs too much for those who can ill afford it?

Essential read about the economics of justice.

Economics@TheHindu.co.in

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