Something About The Law

My article published in Bar and Bench (yes, finally!). But I must say that it is becoming an increasingly popular platform to discuss legal issues and kudos to the team that started this.

I was fortunate enough to witness the Bombay High Court proceedings in the Ambani brothers dispute. The very fact that the case had the best lawyers in the country arguing over a billion dollar gas agreement was fascinating. The case in the Supreme Court is no less enthralling. Over the past few weeks, I have been faithfully following Salve’s arguments, Ram Jethmalani’s comments and updates on ASGs threatening to quit.

What really struck me, however, is the fast-track manner in which this case has proceeded. The Bombay High Court gave its judgment on the matter in June this year, and less than five months later, the Supreme Court has begun to hear arguments on the appeal.

The pace at which this matter has proceeded is astounding, especially in the light of the much-publicised issue of delays in the judicial system. The Law Minister himself has termed the pendency of cases and delays in judicial proceedings as the greatest judicial problem, and has been calling for a speedy remedy to the situation. How, then, is the Reliance matter proceeding so quickly through the courts?

Allow me to further elucidate on this point. Come December, the Supreme Court would have taken two years to deliver its judgment on the constitutionality of narco analysis (numerous tests being done during this period); cases dealing with the victims of violence in Chhattisgarh have been adjourned time and again, and several PILs concerning the poor tend to be dismissed summarily as such. So unless your case involves billions of dollars and you can spend millions engaging the best lawyers, your case life may barely make the ten year cut off (some argue that the time period is longer- perhaps even 25 years). So can we then conclude that there is a bias against delivery of speedy justice to poor and disadvantaged groups?

The argument that the ‘judiciary favours the rich’ may sound simplistic, but I believe it is nevertheless true. What I shall do is revisit this statement in light of what Professor Marc Galanter wrote in the late 1970s. In an epic article titled “Why the ‘haves’ always come out ahead”, Prof. Gallanter looked at the various patterns of litigation and collected data which explained why those with the resources at hand tend to come out ahead in litigation. In his analysis, the ‘haves’ tend to come out ahead because of factors such as wealth, cultural dominance, favourable rules, due process barriers and most importantly ‘access’. The ‘have nots’ will be left behind due their lack of all of the above, and in the event of a clash, would lose out to the ‘haves’ in litigation.

This proposition is further affirmed by reports of a recent trend in public interest litigations wherein middle class and upper class persons are filing PILs asking for beggars to be wiped out of the streets in Delhi and be put in jails, for action to be taken against street hawkers and, of course, who can forget the handling of the Maoist situation?

A PIL was filed in the Supreme Court two years ago by activists Nandini Sundar, Ramachandra Guha and EAS Sharma against the atrocities perpetrated by the Salwa Judum in Chattisgarh. The PIL is still awaiting a final hearing, and the Court’s directives to the government are yet to be implemented in a just and humane manner. The situation is exacerbated by the shoddy manner in which the Court handled the treatment of Mr. Binayak Sen.

My point then is that the judicial instruments that are intended to effectuate relief for the poor are now being used against them. The Supreme Court appears to be showing a class bias by giving priority to cases involving rich entrepreneurs and billion dollar secret MoUs. This is not the light in which our judicial system ought to be perceived, and to change this perception surely requires a structural change in the manner in which the system is functioning. Perhaps it is time the judiciary becomes a mechanism to enforce the rights of the poor and once more reclaims its status as the champion of the underprivileged.

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