Laws are structured to discriminate against the poor, says Chief Justice of Orissa HC

Discussing the statistics, Muralidhar said 21% of the undertrial population of 3.72 lakh in India and 21% of the convict population of 1.13 lakh belong to the Scheduled Caste. Similarly, 37.1% of convicts and 34.3% of the undertrials belong to OBCs. The corresponding percentage for Muslims – 17.4% and 19.5%, respectively.

Raising concern over the quality of legal aid, the Chief Justice said the marginalised who are the recipients of legal aid do not really have a choice.

“The lack of confidence in the legal aid lawyer is a reflection of the general approach to welfare services by the providers and the perception that this is an act of dignity rather than the right of the person who receives such service. I call it the ration shop syndrome. The poor believe that if you get any service for free or it is substantially subsidised, then you cannot demand quality,” he said, adding that a study found that lawyers belonging to Dalit and Adivasi communities working on human rights cases risk being labelled as Maoist/Naxalite lawyers.

Stating that Constitution acknowledges persons who by birth, descent, caste and class have been denied justice over generations, he said it also envisages the State to come up with affirmative actions to redress such historic injustices. “These include those belonging to the SC, ST, Dalits, Adivasis, socially and educationally disadvantaged classes, economically deprived classes and a whole host of others, including religious and sexual minorities, differently abled and children in conflict with the law,” he said. “Then there are status offenders – sex workers, mentally ill and many others whose very existence and every activity is criminalised and, therefore, very often find themselves on the wrong side of the law. Thus, begging, street dwelling, and prostitution are all treated as law and order problems.”

“It is a matter of concern that in at least 20 states in India, there are still anti-beggary laws. Only in Delhi and J&K have these laws been struck down by judicial verdicts. Then there are de-notified tribes who have for long been the victim of police atrocities. Those coming in conflict with the law in these situations are invariably those below the poverty line and high-risk groups for whom legal aid is an absolute necessity.”

Stating that structures that marginalise a sizeable section of the population are yet to be dismantled, Chief Justice Muralidhar asserted that this is why we still have amongst us those engaged in manual scavenging, sewer cleaning or forced labour doing all our dirty work “at the cost of their dignity and right to life”.

Talking about how to meet the challenges, the Chief Justice said that the marginalised largely view the legal system as irrelevant and as a tool of empowerment and survival. “Their experience tells them that it operates to oppress them and they have to devise ways to avoid it rather than engage with it. We need to revive discussions around decriminalising many of the surviving activities of the poor,” he said.

“There is much to be done and it needs to be done now. We have the resources, we must find the will.”