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Imposing an inequality:-

In an extraordinary order that reverses the fundamental constitutional guarantee of equal access to justice, the Supreme Court, late last month, directed parties to an ongoing civil litigation to each pay a fixed sum of money to enable them to have their cases heard, and potentially disposed of, at an early date.

This move, initiated by a Bench headed by Chief Justice of India T.S. Thakur, is altogether unprecedented. To impose costs on one of the parties at the end of a protracted litigation is common; it is meant, among other things, to act as a deterrent against litigants abusing the process and the system of the law.

But to seek pre-deposits with a view to prioritising a certain kind of case over another, by granting early dates of hearing to those that are capable of paying huge sums of money, is simply staggering. It reinforces a scheme of classism that ought to have no place in any court of law, let alone the apex court of the land.

A capitalistic approach

Ostensibly, the imposition of a pre-deposit as a requisite for securing a form of fast-tracked justice is aimed at thwarting corporates from approaching the court for the settlement of mundane issues of little public consequence.

The Story

“Litigation should become expensive for your big clients,” Justice Thakur told senior advocate Abhishek Manu Singhvi, who was representing Star India in a dispute concerning the ambit of broadcast and information rights for cricket matches. “The learned Attorney General had suggested it to us yesterday as one of the steps which can be adopted to reduce pendency and discourage litigation. This is a beginning. Only those big clients who can pay deposit shall file cases here.” But, as is clear from what subsequently transpired in the court, the idea of imposing pre-deposits, were it to fructify into anything resembling a set norm, would serve to deeply burden the ordinary litigant.

According to news reports, having suggested the imposition of a pre-deposit, it was after what can only be really described as a process of haggling over the costs that the court ultimately quantified the amount. It enjoined both the appellants, Star India and the Board of Control for Cricket in India, to pay Rs.50 lakh each, and, what’s more, rather curiously, it directed the three respondents in the case, Idea Cellular, Akuate Internet and OnMobile Global — who may have no particular interest in a quick hearing — to also collectively cough up the sum. In exchange for these amounts, which were to be defrayed within a period of four weeks, the court acceded to the appellants’ request to have the cases listed in July for final hearing, once it returned from its summer vacation, thus arriving at a quintessentially capitalistic conclusion.

The Constitution, wrote Justice S.N. Dwivedi in his separate judgment in the famous Kesavananda Bharati case, “is not intended to be the arena of legal quibbling for men with long purses”. But that is precisely the implication of the court’s latest move, which places a gargantuan burden on those common litigants for whom the price to be paid for an early hearing would simply be out of reach. Were this order to put in motion a convention of imposing deposits, it could quite conceivably lead to a situation where those parties with the deepest pockets alone would have their cases heard on priority.

The court’s neo-liberal turn

The crystallisation of such a rule would neatly bookend the Supreme Court’s truly neo-liberal transformation, from a court that had majestically metamorphosed itself in the early 1980s into a court for Indians, in the words of the scholar Upendra Baxi, into a court that now stands to serve only for the benefit of a few Indians, or the “big clients”, as it were.

Article 14 of the Constitution guarantees to all persons a right to equality before the law and the equal protection of the laws. This notion of equality, expressed in its abstract, is undeniably a contested concept; it requires an exercise in interpretation to understand its full purport and meaning.

But it is also just as patent that under any process of construal the idea of providing equal access to justice inheres both in Article 14 and in any reasonable notion of the rule of law. To achieve a perfect model of equal access would require every person to be possessed of an equal ability to defend his or her rights. This is therefore a concept that is easy to theoretically defend, but in practice, in a society that is intrinsically unequal, far harder to achieve. It was to this end, with a view to expanding the right to legal access, that the Supreme Court in the 1980s loosened its rules of standing, allowing claimants, whose rights were not directly affected by actions of the state, to approach the court on behalf of the larger public.

“The legal aid movement and public interest litigation seek to bring justice to these forgotten specimens of humanity who constitute the bulk of the citizens of India and who are really and truly the ‘People of India’ who gave to themselves this magnificent Constitution,” wrote Justice P.N. Bhagwati in People’s Union for Democratic Rights v. Union of India (1982).

“It is true that there are large arrears pending in the courts, but that cannot be any reason for denying access to justice to the poor and weaker sections of the community. No state has a right to tell its citizens that because a large number of cases of the rich and the well-to-do are pending in our courts, we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford is disposed of.”

This promise, which elevated the Supreme Court into a more egalitarian institution, was unfortunately too short-lived. In the ensuing decade, with the advent of liberalisation, the court’s underlying philosophy also experienced a sea change. The same power that the court had arrogated to uphold the needs of the poor was now used to further the state’s new economic policy, often on the face of the most basic civil and socio-economic rights of the greater populace. The nadir of this new avatar, as the collection of essays in The Shifting Scales of Justice: The Supreme Court in Neo-liberal India, edited by Mayur Suresh and Siddharth Narrain, points out, was reached on February 15, 2000 in Almitra Patel v. Union of India. Here, in a public interest litigation filed to regulate solid waste disposal in the city of Delhi, the Supreme Court wound up chastising the slum-dweller instead.

“The promise of free land, at the taxpayers’ cost, in place of a jhuggi, is a proposal which attracts more land grabbers,” wrote Justice B.N. Kirpal. “Rewarding an encroacher on public land with free alternative site is like giving a reward to a pickpocket.”

While this decision in Almitra Patel no doubt occupies a position of extreme insensitivity, the more general trend of the Supreme Court acting virtually as a forum for governance — as a super executive — has continued unabated; if anything, its appropriated role has been augmented by today’s culture of 24/7 media coverage, where the court often comes across as a deliverer of justice that is most akin to a form of moral proselytisation, as opposed to a judicial reviewer of state action.

Public interest litigation, therefore, presently serves a role distinctly opposed to the rationale behind its fashioning. In the process, the idea of securing greater access to justice, to those for whom the mere act of approaching a court is often an insurmountable barrier, has suffered a grave dent.

The case for equal access

Ensuring equal access to justice, as a practice note released by the United Nations Development Programme shows us, requires much more than improving an individual’s access to courts and the guarantee of proper legal representation; it compels a definition of access to justice that partakes a necessity for just and equitable legal and judicial outcomes. While achieving such an end might be a utopian endeavour, it serves little purpose to dilute the right to equal access by imposing newer and further obstacles to justice.

“When dealing with a question of court fee,” wrote Justice D.A. Desai in a 1978 judgment of the Supreme Court, “the perspective should be informed by the spirit of the Magna Carta and of equal access to justice which suggests that a heavy price tag on relief in Court should be regarded as unpalatable.” Today, the court appears to be treading a path where the ability to pay costs, in the form of pre-deposits, might virtually come to represent an indispensable condition for securing quick justice. This practice, if not immediately disavowed, to borrow an illuminating phrase used by the U.S. Supreme Court, would tantamount to “an imposition of an inequality”, thereby making illusory some of the Constitution’s most cherished promises entrenched in the Preamble, of justice, social, economic and political, and of equality of status and of opportunity.