Access to Justice

Sandhya: Hello, and welcome to the DAKSH podcast. I am your host, Sandhya. I work with DAKSH, a Bangalore-based nonprofit working on judicial reforms and access to justice. In today’s episode, we will be discussing access to justice in India. To help us understand the various facets to accessing justice, we have with us, Justice Prabha Sridevan. Justice Prabha Sridevan is a retired judge. She practiced law from 1983 to 2000, and was a judge of the Madras High Court from 2000 to 2010. From 2011 to 2013, she served as the Chairman of the Intellectual Property Appellate Board. Her notable judgments cover various areas of law, including freedom of speech, child rights, gender equality, disability rights, mental health and intellectual property, equality before the law and equal access to the law of fundamental principles in a legal system. What is the true state of equality in accessing our rights? In this episode, we approach this question from various viewpoints. I began by asking Justice Prabha Sridevan, in her opinion, what does access to justice mean in the Indian context?

Justice Prabha Sridevan: Thank you, Sandhya, for asking me to share my thoughts about this, because I have thought a lot about access to justice. And one of the first things that comes to my mind, in the Indian context, is language. That’s a huge factor that we have to reckon with. And see, even I am kind of unable to match the technical savvy that you require. So can you imagine the millions of my sisters and brothers who probably are intuitively much better than me, but I don’t know. So I am not going to take it for granted that these technical advances are going to help them because one, it is just basic language. The other is legal language, which is even more formidable for the ordinary person to understand, then the distance that one has to travel to reach the place where the justice delivery system is located. Not everybody finds it easy to travel, and going one day to court may mean loss of a day’s learning. So I don’t know how many can take that shock to their system, so that’s another hurdle, then nothing comes free in court, right? Even the stamp on the vakalatnama, you need money. And while it may not mean anything to me, it is probably half a day’s income for some. So I’m not even going as far as the lawyer’s fees, even the basic things that one has to fulfill require money. So all these are huge hurdles to cross that I really don’t know how fair the system is. I have my doubts. Though, I have been a lawyer and a judge, I have huge doubts.

Sandhya: Yes, yes. I think that’s a great way for you to just highlight all the challenges you have, because each of these challenges we’ll try to delve a little bit further in this conversation. And I think the point about you saying that you don’t really think the system is fair, that’s really true, because everyone who’s practiced law, myself included, at some point, the years that I practiced, that’s one of the first things we pick up if we are a little bit more intuitive about how the system really works. So I particularly want to deep dive into your point on language because you made two points on technology and language. But the thing is that technology can also assist in easy linguistic access in some ways because the way I have seen it in some jurisdictions, there have been translations, etc. But this also brings us to an important point of discussion because accessing the courts and the justice system is one thing but understanding your rights and when they are violated for you to get that access is another important aspect of access to justice for citizens. In that context, if you actually see, we may have thousands of legislations at the central level, even more so at the state level, so it’s very hard for citizens to make sense of when their rights are violated, what rights have been enshrined to them, first of all? So do you think there is a way for us to have more informed citizenry, not just with the language, but also even otherwise?

Justice Prabha Sridevan: You are talking of the numerous legislations, but I don’t have the data. But if you ask me how many of those Acts I have had to deal with as a judge can be very few. CPC, the Constitution maybe, maybe Negotiable Instruments Act, maybe Domestic Violence Act, maybe Hindu Succession Act, maybe 25, on a regular basis. I’m not going to deal with all the 1000. So I think basic knowledge of what one’s rights are, maybe chapter three and chapter four of the Constitution, and CPC and CrPC. What actually affects when I say the ordinary person, I’m not meaning it in any diminishing sense. I am an ordinary person. So an ordinary person, what do they need to go to court? When should they go to court? Should they at all go to court? Is there a mechanism in place, like mediation or conciliation, which is more friendly to the ordinary person, which is less burdensome financially, and which puts an end, is something that I think we really have to deeply think about. It’s not just litigation.

Sandhya: So now that we are discussing lawyers and litigants also, and you’ve already mentioned geographical access as a point of really hard challenge that people have to overcome. So do you think at every level, whether it is first approaching a lower court, or maybe in the lower court, you don’t have enough options to find the lawyer for you? And maybe in the High Court, the problem is too many options, and you don’t know who to go to, because you always see that many practitioners clamor up in the big cities, also, when you don’t have that many options. And then if you go to the Supreme Court, it’s not just about the options, but it’s also about the financial bandwidth for you to really spend that money. So do you think at each level of the system, the challenges to access and the way to deal with it are very different? Like what are your thoughts on it? And how do you think we can focus on different-different things at different-different levels in such a system?

Justice Prabha Sridevan: When we are talking of access to justice, I would first focus on the first level. So I think most of us would like the case to be over in the first level itself. And when I mean the case to be over, I mean, the best solution and the satisfaction that the litigant has that she has been heard. Very often, she does not even want to win, she only wants to be heard, okay. Once, at a sensitization camp, I met a woman who had gone to the family court, and that she wanted an adjournment. I wanted to tell the judge that how difficult it is for me to come every time. But before I even opened my mouth, the judge did not even look at me, the date was given. She said that I would not have minded if the judge had looked at me and said, “Look, it is a real problem that your husband has. So this time, I will adjourn it, next time, we will see how to determine.” So many times they want to be treated as a person. And I think that at the first court is where there should be greatest sensitivity and easiest of access and the best legal help. After that, they go to the visitors arena, all the judge seizes are the lawyers. So the two ,that is different, I won’t even go to the High Court and Supreme Court, I want the first court to be strengthened.

Sandhya: So that is true that the lower courts should be our primary focus. But I quite found your point interesting that many litigants just want the opportunity to be heard. Because this also brings us to our next question, which is also an important because your example I don’t know if it was particularly focused on their gender. But what I want to ask is that we are particularly focusing on accessing the system. Do you think there are additional barriers when it comes to gender for accessing the system? Do you think women have a particular set of obstacles that they have to overcome, whether it is how they put across the case or how they find the lawyer or how they validate their claim, whatever that is? Do you think, your thoughts on women accessing the system in general from your experience or anything that you’ve observed?

Justice Prabha Sridevan: See, when I say women, I do not mean only women, it is a catch all phrase from any weaker group. It is difficult. First of all, I’m talking about see, I retired in 2010. I became a judge in 2000. So my experience as a lawyer stops with two thousand, but then I do not think there will be a big change from what I saw. I will only talk of marital cases, because that is a good example. The husband came alone to fight his case, the wife was always accompanied by somebody, which means either she did not have the courage or wherewithal to travel alone, or she was not allowed to go alone. It does not matter what. And then leaving the house and going, I do not think women have that degree of mobility that a man has, and of course, the purse, because you know that her work very often is not equated to money. It’s gratis. So she does not have the money. She does not have the mobility. And our women do not easily talk to men, right? And in a court, it’s there, you see, with men in black robes. Do you see how intimidating that can be for the woman? We are urban. I remember Justice Albie Sachs, when he came to the Madras High Court, I was a lawyer then. I was asked to take Justice Albie Sachs around the court. And he told me, I am a judge of the Supreme Court of my country. Even I feel intimidated by your buildings, then what will a woman from the village feel? I have never forgotten what it is. It’s not easy. It’s very difficult. So that is why I say a pre-litigation system should be strongly put in place where women can sit in an equal space and sort out their dispute.

Sandhya: Yeah, yeah, I think I take your point, especially on how intimidating the system is, because it takes me back to my first year as a lawyer as well, because I got all the education that I could but still the system is very hard for you to navigate in general. It says something about how the system is built and how, probably, we talk about access so much in terms of all the rights but I guess it is also time for us to think a little bit about access in our infrastructure and how we make it accessible to women or any vulnerable group. You’re absolutely right. So it doesn’t have to be just gender, it can be any vulnerable group because often they are at the bottom of the table for considering how the system should be designed, even or how laws should be designed even.

Justice Prabha Sridevan: I’ll tell you one more thing, okay, how we do not factor in women in our consciousness. Okay. After I became a judge, I was invited to Trichy to open the Trichy Women Lawyers’ Association. That was the first time one of the district courts had its own Women Lawyers’ Association. That must have been 2001. No, you can raise your eyebrows for something else that I’m going to say. Because there, they told me with pride that just a few months ago, they had opened a women’s toilet in the district court campus. The Trichy District Court is one of the oldest district courts in Tamil Nadu; it was there during the British Raj itself. Then I asked, “What did you do?” Ma’am, we used to run across the compound, jump over the wall to the Central Excise Office. So for us women don’t exist. We are not visible. It has changed now, but it has changed just a bit. Basically, we are invisible.

Sandhya: How do you feel about women or any weaker group within the system as well? Because more often than not, we’re always thinking that the system is just daunting and formidable. And it’s not as friendly as it should be for just the litigants, whether they have women or other weaker groups, but your experiences and thoughts on how the system is for any woman or any other weaker group that you think should be equated as someone facing the discrimination of the system from inside the system, whether it is lawyers or court staff, or even judges, because you rightly pointed out about the restroom, that is very true because many lower courts, the access is, first of all appalling because you don’t have water. There have been restrooms where you would go to a lower court and you will find yourself very often with very little infrastructural support as well. And sometimes it happens in the High Court as well, because I remember, particularly when I used to practice in the High Court, you need to be a member of an association or something like that to use. So I would have to actually go somewhere, which is a five minute, 10 minute detour for me, and then come back to the High Court, if I have a matter and all my other women colleagues were doing the same, because we just didn’t have access in the high court campus, not just to the restroom, even water. And it gets particularly hot in some of the courts that you work. 

Justice Prabha Sridevan: I am overlapping into your next question. What about crushes? What two children two. So that means, I mean, if there is going to be one nurturer in the marriage and one earner, the default is, you know what it is? So that means women, I mean, it’s not really a friendly atmosphere for women to go to work. With a 10 month old kid, what will she do? If you’re surprised that there are very few women who are rising to the top, we must be happy that at least these many women have come to the come somewhere. And in my court, there was just one designated woman senior till I became a judge, after that now there are a few more. So that’s how it is. Whether it is staff, or whether it is lawyers, lawyers, women lawyers may not be able to stay the longer hours that the men juniors can in their seniors office, not because they don’t want to, but because of other constraints. And then it will be, I mean, natural for the senior to allot a particular case to the junior who has been hanging around till 9.30. So which means she gets less visibility, I mean, the way these things fall in place to make it more difficult, you can’t even imagine.

Sandhya: That also brings us to our next question on when we’ve spoken about women in the justice system or trying to access the justice system, and I particularly want to draw your attention to all other marginalized or anyone else who’s vulnerable, because I think we don’t think too much about this aspect, because I can take all the data I want about family courts, but the fundamental fact will remain that it is not accessible to an LGBTQ person. I will probably never think about it when I’m talking about family court efficiency or anything else for that matter. So just legally or otherwise, the courts are not accessible to many people, whether it is the rights that are not enshrined or whether it is about economic and caste inequality or any other form of inequality that we are not aware of. So what do you think we can do to make the system more accessible?

Justice Prabha Sridevan: Yeah, this is something that I have very often expressed. See I was basically a civil lawyer, I had never done, I don’t think I did, I’ve done even one criminal case when I was a lawyer, but you can’t pick and choose once you become a judge. So I was assigned to hear criminal appeals and there is nothing like a criminal case, which tells you about India, in all her facets and her multiplicated layers, yeah. And if you have seen the deposition chart, you will know that first there will be the name, then there will be the father’s name, then there will be occupation, age, address, etc. So you take the confessional statement of the accused. If I have heard 100 cases, I have heard more. But let’s say I have heard 100 cases, I think in five or six, I would have seen an accused who was not a daily wager. So what does that tell us about our system? Which people are not pure as the driven snow, but they get better lawyers. I’m not blaming anybody. But legal aid lawyers are standing between a person and that person’s right to freedom. It’s not an ordinary role. There are two rights. One is the right to life and freedom and the other is the right to property. You can bring all the cases under these two heads. One is a fundamental right, the other is a constitutional right. So every legal aid lawyer is actually trying to uphold one of these rights. God, you dare not take it easy. I think big lawyers can do a big case for a poor man or a woman. I’m just saying a man. So sometimes it depresses you that I am also part of this, which is so skewed. In a country of inequality, I don’t think an adversarial system is the answer, that judge should take a more proactive role. Or, as I said, pre-litigation mediation very effectively and very sincerely done will keep a lot of people out of prisons and out of courts.

Sandhya: I think people just drop out of the system in civil cases, because of no access. Do you think that also happens? Because I understand that criminal law, you will definitely see it because it’s a matter of life or death and sometimes you will come, you will have no choice. But however bad the system is, you will somehow have to knock on its doors. But do you think that is, the way in which our adversarial system or our system is designed in civil cases legally is also equally important? You did mention property? But do you think legal aid for civil cases are also equally important?

Justice Prabha Sridevan: Legal Aid is important. One other aspect comes because you point out the difference between civil litigation and criminal litigation fees. This is something that I have heard before, it’s not my own brain game. Civil litigation is voluntary litigation. Unless I choose to file a case against my brother for my property, it won’t get filed. But if I rob my brother, my brother will file an FIR. So a criminal case is an involuntary litigation. So the trust which the ordinary person has in the justice delivery system is measured by what percentage is voluntary litigation, and what percentage is involuntary? If involuntary litigation is 70% or 80%, then it means your citizen does not have much faith in your system.

Sandhya: But we’ve discussed quite a bit about, you know, infrastructure and other challenges of people in the system or outside accessing the courts, and also how people can access justice, per se. So just for our listeners, I want your thoughts on the difference, because there is often a conflation of if you go to court, you get justice. Not necessarily. If I’m stuck with an execution proceeding for 20 years, I don’t think I’m getting any justice here. I’ve just gotten access to the court because my case has been in the system for God knows how many years, maybe 20 years, 30 years, if I’m stuck in a partition suit. So then there is a difference between the two. So your thoughts on how these two play out in India or what we should think about, when we are making any changes or strengthening existing mechanisms? 

Justice Prabha Sridevan: Yeah, access to court and access to justice are not the same. They’re definitely not the same, because, as you say, the prolonged litigation and also the way some cases go on in the courts, that itself is a denial of justice. Let’s say there is a person with a disability, that person comes to court, but the person probably can come up to court, but what that person gets there may not be justice. That person may not even have a chair to sit down on. So justice is different and courts are different. See, if you ask an ordinary person on the road, who has not read in schools, he will know what ‘nyayam’ is. ‘Nyayam’ is overarching. It came before the Constitution. It came long ago, but ‘nidhi’ is what a man has laid down. And I deliberately use the word man because all laws till now have been laid down by men. Okay. So the two are different. That is why we say principles of natural justice. You know, you know, when somebody has taken your food from you, you don’t need the IPC to tell you that justice has gone wrong, you know that it is wrong. So the two are not the same. What we can try to do is approximate what people get at court as close as possible to justice. There should not be gap between justice and courts.

Sandhya: Yeah, I see that point. Do you have any closing thoughts you want to share about the foreword for access to justice or anything?

Justice Prabha Sridevan: Just yesterday, I was reading an essay by Justice Claire L’Heureux-Dubé. She is one of the greatest judges of equality ever, Supreme Court of Canada. And she writes when you learn a new language, you learn a new culture, you learn a new way of living, only then you can learn the language well and she says we are all learning the language of equality. So that is the translation for you. We have to translate into the language of equality.

Sandhya: That was my conversation with Justice Prabha Sridevan, and you are listening to the DAKSH podcast. If you enjoyed the episode, do consider supporting us with a donation. The link is in the show notes below. Creating this podcast takes effort and your support will help us sustain a space for these quality conversations. To find out more about us and our work visit our website dakshindia.org. That’s D-A-K-S-H india.org. Don’t forget to tap, follow or subscribe to us wherever you listen to your podcast so that you don’t miss an episode. We would love to hear from you. So do share your feedback either by dropping us a review or rating the podcast where podcast apps allow you to. Talk about it on social media. We are using the hashtag daksh podcast. It really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, share the episode with them. A special thank you to our production team at ‘Made in India’, our production head Niketna K, edited, mixed and mastered by Lakshman Parsuram and project supervision by Sean Phantom.