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| Edited By: Sanjoy Ghose |Source: DNA |Updated: May 08, 2015, 07:49 AM IST
Upheld nearly 16 times since Plessy vs Ferguson case, the “Separate but Equal” legal doctrine came under the US Supreme Court’s scanner in the Brown vs Board of Education case in 1954. It was then that Chief Justice Warren had his “driver moment”. During the Court recess, he drove South. After a nice overnighter at a local inn, Warren was horrified to find his driver shivering in the icy car. Black drivers back then were not entitled to a room! The rest is history — the Court overturned decades of discrimination; the trigger for that transformative moment going to one driver. This Wednesday evening, I, too, had my ‘driver moment’. I am no Justice Warren but my moment was no less epiphanic!
When I asked my driver Akif what he feels about “Salman the driver” getting away with snuffing out a life — whereas he undoubtedly would not — Akif says: “Kya saab, kaha yoh 60 crore ka aadmi, kahan mein.” The Salman Khan affair sends out the very message an equal access judiciary would do best to avoid: my driver is a lesser being in the eyes of the law than Sallu-bhai! There is a growing perception in our society that some “cases” awaiting justice are more equal than others. Salman committed the crime in 2002 and the case took 13 years to reach a verdict. The sentence was delivered at 1.15pm this Wednesday. And by 5pm, the superstar had his breather. I certainly know that my driver Akif would not have been able to engage a legal luminary like Harish Salve to ensure that he does not have to spend even a single night at Arthur Road!
Our constitutional courts are vanguards of our freedom and we do not realise the yeoman’s service our upright justices render to the nation in the most trying conditions: a daily case docket touching a hundred, lack of support staff and infrastructure and a total absence of incentive! With mounting vacancies and accumulating cases, our courts surely need an image makeover. The question is — how do we go about changing the system?
The fact is Salman had a state deputed police guard in his Land Cruiser who had a full view of the horrific tragedy on that fateful night of September 28, 2002. And yet, the accused was able to delay a verdict for 13 years. Such delays only demonise the system in the eyes of potential consumers. The case history would indicate that Salman’s legal team has spared no opportunity to work the multi-tiered appellate system, at every opportunity. And why not? The law does provide them the right to do so.
Wednesday’s verdict should be seen only as an after-shock; the epicentre — perhaps — is lodged in the Sanjeev Nanda or the Alistair Pereira’s case. Or should I venture to say — the “Case that dares not speak its name but all of Mumbai is aware of!”
While the law of drunken/rash/ negligent driving needs a serious re-visit, I am more affected by the perception of a differential justice system that is confronting us. It may, perhaps, be conceded that the Hon’ble Courts are not conscious players in generating this perception. But by ignoring the “elephant in the room”, they are only doing our judiciary a disservice.
The essence of this “client-state” mentality of the uber-class is the ease with which our colonial bureaucracy and adversarial justice system have thus far met the needs of this class — either by expeditious action or, when suited, through strategic prolongation. The “Preambular” Guarantee of “Equality of Status” and “Justice” seems to be in jeopardy as the singer and Salman’s friend Abhijeet gets away by condemning the pavement dweller for sleeping on the streets like a dog and hence deserving a ‘dog’s death’.
The sad reality is that the common person today is finding it increasingly difficult to access justice. I give a simple example. The Protection of Women from Domestic Violence Act was crafted with the cognisance that battered women cannot be expected to access remedies on their own. The solution was to create “Protection Officers” who would assist in accessing service providers such as doctors, lawyers, short stay homes, counsellors, etc. Guess how many such officers have been appointed in a city like Mumbai? Approximately 39. Other cities are no different.
The result is that ordinary women find it difficult to access the law which appears to work only with the well-heeled who can hire top lawyers to ‘activate’ the system. The Legal Services Authority Act, ostensibly, provides free legal aid to all women, irrespective of their means. The reality, however, is that many women in crisis situations languish in deprivation of legal aid put off either by the bureaucracy or the quality of the legal aid available. The pendency statistics of cases of industrial workmen, pensioners, tribals, etc, are truly mind-boggling. Their cases are rarely fast-tracked, if ever. Some high courts have cases pending for over a decade. The reason why Jayalalithaa gets her bail and why Salman, in all likelihood, too, will get his regular bail this Friday, is that a criminal appeal may also take a decade to pass through the portals of high court.
The proposed constitution of Commercial Divisions of High Court wherein commercial cases such as arbitrations, company disputes would be segregated and invested in special courts, might institutionalise an apartheid where cases of pavement-dwellers, freedom-fighters, war-widows, workers and their less glamourous lawyers would have to make way for the “cases that matter”. All, however, is not lost. Media and social activism in the recent past have led to fast-tracking of certain cases — for instance, the Nirbhaya, Nitish Katara and Jayalalithaa cases. Also, Chauthala’s early hearing plea stood dismissed by the Delhi high court, which asked Tau to queue up.
Simply criticising is not acceptable, so here are some suggestions:
This is a wake-up call for India. Or else we stare at our own version of “Separate but Equal”.
The writer is an advocate practising in the Supreme Court and the Delhi high court
