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.
Recent Posts
The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.