Today, the justice delivery system is for the convenience of the duty holder, who is also a victim. That is a conundrum we have to break
Justice delivery is not getting enough attention as people tend to stay far away from the system thinking it is oppressive.
Maja Daruwala, a barrister by training, is an influential voice among rights and social justice activists and has been actively working on civil liberty issues including police and prison reforms, right to information, legal empowerment and women’s rights, for over four decades. She is also the National Human Rights Commission’s special monitor for police and prison reform and a senior adviser to the Commonwealth Human Rights Initiative, an international non-government organization (NGO). Daruwala edited a report on the country’s justice delivery system’s capacity—which takes a deep look at the police, prisons, judiciary and the legal aid ecosystem across states and Union territories—brought out last week by Tata Trusts and several other NGOs and think tanks. The report highlights serious deficits with under-capacity and gender imbalance plaguing the police, prisons and the judiciary. It also said fund crunch affected state services like free legal aid. In an interview, Daruwala argues that corporate social responsibility (CSR) spending by companies could be used for providing legal assistance to the needy and that public demands for efficient justice delivery is set to get louder as income levels go up. Edited excerpts:
You have said in the report that justice is the business of all. For businesses to survive, ensuring law and order and avoiding social unrest is important. The report also highlighted insufficient budgets for various arms of the government for justice delivery. Law and order may be a state function, but businesses surely can contribute financially to improve government’s ability to deliver justice say, by paying higher taxes or by using their CSR funds to offer legal aid to the needy?
Justice, advocacy and civil rights are not among the areas CSR funds can be used for, at present. This is very short-sighted. CSR funds have got very limited outlets. One of the outlets can certainly be education on rights, giving money towards assistance to those people who are in need of remedies. Going by the work many civil rights groups are doing, they should be able to access funds. When we say justice is the business of us all, what we mean is that everybody should be involved and be consulted in the improvement of justice delivery. You will not have social unrest if people at the local level in your villages feel invested in upholding their own individual right and of their community. Right now, they do not know what their legal rights are, what legal process is or what the structure of the justice system is. Our job is to educate them. One of the reasons for justice delivery not getting the kind of attention health or education does, is the tendency of people to stay far away from the justice delivery system thinking it is oppressive. They feel so because they find it complicated and expensive. That has to change and people have to understand that their happiness rests on the justice system. I am not an economist and cannot comment on taxation.
Recently, there has been friction between lawyers and the police in the national capital. When there is friction between two important pillars of the justice system, it can lead to failure of the state’s justice delivery machinery. Can it not?
We are talking about friction between sub-systems the government has a duty to run. The idea is to bring them together and have processes so that you are not privileging one system over the other, but meshing them together. The wheels of a vehicle cannot be in competition with one another.
The report paints a grim picture of the justice delivery system barring the few trends like the success story of popular Lok Adalats. How should we go about in fixing the justice delivery system?
Where there is no remedy, you can say there are no rights. The duty of the state is to deliver justice. It has to be local, fast, affordable and fair. That is called access to justice. In order to give that to people, there has to be enough manpower, infrastructure and budget. This report seeks to assess if these are there. This report brings the most obvious parts of the justice together—the police, prisons, courts and legal aid. These work like gears of the system. They have to mesh and there has to be coordination. If we have to mend it, we have to start small. By carrying on the way it is, every part of the system remains comfortable with the way they are. Everybody adjusts themselves to malfeasance and bad practice which affects the person who should be getting the service of the system. In order to break that comfort, you have to make some small changes and incentivize people to do the right thing. Central to that must be the user of that system. Today, that is not the case. Today, the system is for the convenience of the duty holder. The duty holder is also a victim. That is a conundrum, which we have to break. One of the trends we noticed is that, the good practices in the justice delivery system are inevitably the good practices set in motion by a few officers. These practices unfortunately do not get embedded in the system. When the officer concerned moves away, then the good practice too seems to fade away. It is very important to incentivize good practices and their institutionalization.
Basic amenities have always been an election issue, but not justice delivery. Why?
We have not educated our people about their rights. That function is now officially with the District Legal Services Authority (DLSAs) and the National Legal Services Authority (NLSA). If they are given the facilities to do their work with provisioning, budgets and people and proper orientation towards rights, you will get demand from the field. People are afraid of demand from the field fearing they may not be able to fulfil it. On the other hand, even if we do not take steps to create the demand, as the country moves from poverty to middle income, litigation will increase. Empirically, we have seen that trend in middle income countries. With more commercial enterprises and more competition for scarce resources, that is bound to happen. We have to make provision for that. Plans can be made only if you have data.
Violence and law and order disruption inflict a price on economic growth. Jammu and Kashmir is one state affected by militancy and instances of violence. The official response obviously involves restrictions on people’s movement and communication for security reasons. But that also results in curtailment of people’s rights. Your comments?
Whether it is J&K, Kerala, Chhattisgarh, Delhi or any other part of the country, people must be able to easily access every single right given to them under the Constitution. There should be no impediment in that.
All rankings of state governments based on performance boils down to naming and shaming the worst performers. Will states take such rankings kindly?
We have nowhere in our report used big adjectives. We have tried to be as factual as possible. If facts show a state to be fragile, or have poor infrastructure, it is what the figures indicate. States may be hurt. We are giving them a tool. I can understand them being defensive. But this analysis gives an idea of areas to be reformed.
What can be done to improve women’s representation in police?
We have to make police service attractive to women. Indian police must become a service, rather than remaining a force. Whether it is the judiciary, the police or prisons, the institution concerned must create the atmosphere, policies and processes to recruit and retain women. The attitude of duty holders should change too.
If the capacity constraints are addressed, can one be sure of getting justice?
It is not a choice, but a compulsion on the state to create a mechanism that can deliver justice. Justice is more than complying with the law. It is about fairness and the weak must have confidence in the system being fair. The system must be designed to be fair and must be held accountable when it gets unfair