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Meeting the law halfway

By Abha Singhal Joshi

Most people dismiss the law as tangled, futile, expensive and biased. But legal literacy trainings can help citizens negotiate the legal system and restore their faith in justice

You can avoid it, break it, invoke it, challenge it, repeal it, amend it, stretch it, and call it an ass. Yet, its spectre shadows you wherever you go. Like a friendly ghost helping you out in unseen ways, or even a scary tormentor waiting to boo you around unseen corners. The ‘Law’.

Working in legal literacy and legal training has been about giving form and shape to this ephemeral presence, to learn that the only way of exorcising the law from your life is to turn around, grab its long arm as it reaches for your collar, and shake it warmly.

There is great resistance among all classes of people to the idea of meeting the law halfway -- to not duck it but make a friend and ally of it. For the law, in the form and shape known to most people, is something to be dreaded, avoided and shaken off by dubious and illegal means -- bribery, or settling scores through violent methods. The idea of ‘law’ as relating to ‘justice’ is alarmingly weak in the common mind. To many the law represents a tangled web, a connection possibly born of the unfortunate and complete identification of ‘the law’ with the legal profession!

Interacting with hundreds of people over a range of different laws and legal problems and situations throws up interesting patterns of socio-legal thinking, including people’s needs and aspirations which are or need to be reflected in the law, and about gaps in implementation because of a lack of knowledge and understanding on the part of the beneficiary as well as the duty-bearer. It also throws up the shame and sham of the kind of ‘democratic governance’ that not only denies the value of the law underpinning all social and political activity, but also actively resists the following of law as ‘impractical’.

How people respond to neutral, just, stand-alone propositions set down in the law, or support the notion that the idea of justice has universal appeal which cuts across classes and even frontiers has very little to do with an academic or intellectual analysis of the form or the provisions themselves.

The job of the structures of justice-delivery -- informal or formal -- is to facilitate and bring to fruition this inherent belief in justice. What they actually do is the opposite -- resulting in people confounding the notion of justice with the engrafted structures of justice and labelling it ‘useless, unfair, expensive and biased’. The refrain ‘Nyaya jaisi koi cheez hi nahin hai,’ (There is no such thing as justice) from every corner of society is something everyone should be worrying about.

Over two decades ago we encountered an old widow in Chhattisgarh whose sons were depriving her of the basic necessities even though there was a fair amount of family land. On learning of the provision in the Hindu Succession Act that allowed her a share in her late husband’s property, she sat her sons down and told them calmly that either they support her properly or they should hand over her share with which she could manage her life. They resisted initially saying, “Auraton ka koi hissa nahin hota,” (Women don’t have any share in property). But the woman checked with the patwari who confirmed the right and -- surprise! -- the sons turned into ideal offspring. And so a gentle but anxious and neglected mother was able to reclaim her life. In Bihar, a woman explained how she was constantly being bothered by the local policeman who kept calling her and others to the police station on pretext of questioning them. She was told about Section 160 of the CrPC, which puts a complete embargo on summoning women to the police station for any kind of questioning. The woman noted down the provision carefully and when we went back for a review session some months later, she reported with glee the dialogue between her and the policeman. “Chalo thane bulaya hai,” (You have been summoned to the police station). “Aurat ko thane nahin bulaa sakte,” (Women cannot be asked to come to the police station). “Achcha? Kaun kehta hai?” (Is it? Who says so?) “Kanoon ki dhara kehti hai -- nahin pata?” (The law. You don’t know that?). “Achcha, tujhe kaise pata?” (How do you know this?) “Pata hai, tujhe nahin malum to sikha deti hun, aur tere thanedar ko bhi,” (I know it. If you don’t, I could teach you, and the other police officers too). A mutually abusive exchange then took place, and the policeman retreated with threats of “Dekh lenge tujhe aur tere kanoon ko!” (I’ll show you, and your law!) She admitted that she had been very nervous for the next few days but gradually realised that this had worked, as the visits from the thana stopped!

As our own experiences have been incrementally gleaned from similar experiences across the country, we now temper our sharing of legal information with caveats of expecting some amount of aggression, threat, delay and refusal. We also point out how each of these can be dealt with.

The results of this tutoring have been good. People have reported high levels of verbal aggression in the initial stages of interaction, of having the law flung in their faces whether in personal relationships or with state agencies. This gradually turns into threats of unspecified ‘serious’ consequences, and then to a stiff-backed retreat. There are many who are cowed down by the legal danda. Notable amongst these is the ration dealer who tells claimants who cite sections and allied orders from the Essential Commodities Act to him to be quiet if he promises to send double the quota of rations to their homes every week! Violent husbands, on seeing legal pamphlets on the living room table, first resort to threats of more violence -- “Kar le kya kar sakti hai. Le aa jisko lana chahti hai,” (Do what you will. Bring whoever you want to bring). But that is followed by abstinence from violence.

The law, when explained to people in the language of justice, will find resonance with all but the extremely obdurate. A young tribal man in Andhra Pradesh’s East Godavari district sat through a legal training workshop sullenly and came out with an outburst on the second day. Roughly translated from the Telugu, he said: “I don’t think the law is any good. It only scares people -- it is used to extract money from innocent people. The police have been troubling me for days and are asking me to pay Rs 20,000 to my neighbour whose few trees got burnt when I burnt the stubs of my crop. It wasn’t my fault that the wind blew in that direction and his trees got burnt.” Besides explaining to him that unless it was a deliberate case of causing mischief by fire, the police had no business to be involved in the case, least of all to be negotiating the damages to be paid to the neighbour, a panchayat was simulated in the workshop and he was made to argue out his case with another trainee acting as his neighbour. After an excellent round of both trainees presenting their cases with passion and reason, the roles were reversed. He was told to be the neighbour whose trees had been burnt, and to ask for compensation. After initial confusion and resistance, he started arguing against himself and for his neighbour with equal passion and reason! Deep into the argument, he suddenly turned around with a weak smile… Got it! At the next workshop, a smiling face met us. He had settled the matter with his neighbour by mutually calculating the loss and promising to pay him in instalments. Moreover, both of them told the police to stay out of it.

The stories are many and varied. They may sound like small and negligible successes. They may even suggest a certain naive romanticism to those who want ‘larger’, ‘systemic’ or ‘policy’ changes so that people get justice from ‘the system’. Yet, there is a power to them that suggests that a massive push towards enabling people to negotiate in this manner will bring about a change in negotiating justice and correcting the perversity of crassly exploitative, corrupt and even criminal behaviour on the part of individuals and state. It is often said that there is no point telling people who are in weak and vulnerable situations about the law. Yet, it appears that these are precisely the people who need the law and who will negotiate with the law simply because they have no money or power.

Which brings us to the downside of the quest for justice through law, since the law no longer operates from the fundamentals of human relationships but in a man-made system gone badly awry. Were we to follow these upbeat stories through, we would find that many of the pacts do not last long, taking us to the next step in the search for justice -- litigation. For those seeking a remedy for a wrong done, this is a harsh experience that both attracts and repels people. This is what builds the case for reforms in the judicial system -- to make it worthy of the belief in it that makes the poor trudge miles for their dates in court; that makes people mortgage and sell bits of their jewellery and land; that makes people pay their lawyer even in the face of dire poverty. The philosophy behind this strange faith seems to be the same as that of the villagers of Assam who, when asked why they worshipped the Brahmaputra when year after year it destroyed everything they had, said it was because the river also gave them life!  

Despite its drawbacks in terms of delays, expenses, even outright cheating, people feel a comfort in the neutrality of the law courts. Men and women, and surprisingly women vehemently, have said that they prefer the law courts to community mediation. This trust and hope possibly comes from seeing the law courts as the most objective in environments that are unacceptably subjective. The courts are the resort for all those who would cock a snook at the jat panchayats, the qazis and the khaps. Thus it is that you find dozens of reported cases from the high courts, of Muslim women challenging the oral talaq, denial of maintenance, denial of custody of their children. Likewise, many people who have been unjustly or inhumanly treated have approached the courts and fought it out. A random look at the nature and numbers of relief sought by people through the courts concludes the argument in favour of a structured system of justice. The fact that it is also a system that is abused and misused only underlines that it needs cleaning out and rejuvenating. Its demise would mean a slide into anarchy and distress.          

Over the years, state agencies have touted ‘justice at the doorstep’, but what is on offer is cheap, fake versions of mediation and adjudication by tackily-put-together ‘lok adalats’, in which the desperation of struggling and tired litigants is converted into numbers that satisfy the budgets for ‘justice’. This curious concoction is a ‘shortcut’ version of justice with all the rigmarole of ‘regular’ justice -- lawyers, files, bribes, unfair orders. Again, it will be a doughty litigant who will once in a while challenge this hegemony of the legal ‘system’ and drag it back to what it was meant to be -- an instrument of justice, not a ‘marketplace’ for justice.

For every debate on law and justice which rages in outraged righteousness and spreads itself over reams of precious paper, there is a simple fellow back in the boondocks making a simple statement to an earnest law researcher eager to know the worst from the horse’s mouth: “Nahin, judge achche hain, sab achche hain. Jab kismet aur kanoon mein hi aisa likha hai to bechaare judge kya karenge?” (No, the judge is good, everyone is good. If destiny and law don’t favour us, what can the judge do?”)

(Abha Singhal Joshi is a lawyer working in the field of legal literacy for over 25 years. At present, she is Consultant Professor (Law) at the National Police Academy, Hyderabad)

Infochange News & Features, March 2013