• Law & Order

Poverty and the Exclusive Legal System

Written by Nishita Bais

Third Year. Hidayatullah National Law University, Raipur, Chhattisgarh.


Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Abstract


It is often said that the law is for all. Every person is bound to follow the law. But the clouds of uncertainty appear when it comes to the protection of the law. It is a debatable question whether everyone enjoys the protection of law equally. The answer to this question is reflected in the relationship between poverty and privileges. This article analyses how the poor chunk of the society is devoid of the protection of the law with respect to the Indian perspective. This work further reflects upon the implicit factors which decrease the effectiveness of the law for the poor as well as the society as a whole and explains why the legal system is exclusive in nature and implicitly overlooks the poor.


Introduction


A major portion of the Indian population is poor. As per the Asian Development Bank, 10.7% of the Indian population lives below the poverty line.[1] Poverty comes up with a package of problems. Such problems include, but are not limited to, illiteracy, starvation, low quality-life, lack of basic belongings, etc. These problems are further linked to a lack of legal protection for the poor.


Legal Illiteracy


Research has observed that the basic reason for slow educational progress and low literacy rates in India is poverty.[2] When illiteracy grabs the poor in its clenches, it further results in a lack of awareness. It is difficult for even the educated to know the law in its whole. There is no surprise that it is not reasonable to expect the knowledge of the law from the poor. They are stuck in a vicious circle of poverty which leads to very nominal knowledge of the law. The legal codes or statutes are undoubtedly written in a technical language and no reasonable man can expect someone, who is bound in the strings of literacy, to know the law.


However, the honorable legal system does not excuse the ignorance of the law. “Ignorantia Juris Non Excusat” is a legal principle followed by most legal systems around the world which means that "ignorance of the law is no excuse."


The legal system excuses the ignorance of fact but not the ignorance of the law. Relying on this principle, the legal system presumes that everyone knows or should know the law which in turn holds even the innocents unreasonably liable. [3]

In such instances, the poor, who are not even aware of the existence of any such law, end up being guilty due to a lack of knowledge of the law. Not only is such knowledge important to save the innocent from conviction but also for the protection of the people. The Constitution of India makes certain fundamental rights available to its citizens as well as non-citizens. But, most people in India are unaware of having such rights. This is mostly because of the poverty in India. These rights are of no use to the poor until they are made aware of all the rights and privileges provided to them under the Constitution of India. [4]


In the case of Sukhdas vs. Union Territory of Arunachal Pradesh, [5] Justice P.N.Bhagwati was of the opinion that lack of legal knowledge is the cause behind all the sufferings of the disadvantaged and there is no point of any provision which fails to benefit the targets. He also highlighted the judgment in Husainara Khatoon vs. State of Bihar [6] about the provision of free legal aid and further opined that if the court lays down rules regarding Article 39A of the Constitution of India and the needy ones have no knowledge of the same, then such rule fails in its purpose.


This two way perspective on legal illiteracy reflects how the legal system remains exclusively for a part of the population that the poor people are not a part of. The first exclusion is reflected in the lack of knowledge of the law due to the vicious circle of poverty. The poor are sometimes held liable not because they were de facto guilty but because it appears so, because of the principle of “Ignorantia Juris Non Excusat”. As far as the second perspective is concerned which highlights the exclusiveness of law, which can be seen in the lack of knowledge of the rights and privileges amongst the poor. Reiterating the opinion of Justice P.N.Bhagwati, no rights or privileges can do good to the beneficiaries in the absence of awareness of the same.


Litigation and Monetary Constraints


It is said that the law is equally meant to all, however as we dig deep into reality, it becomes more evident that not everyone can have equal access to the legal system which includes the judiciary. Even if for once we assume that the poor have legal literacy, them merely having the knowledge of law would not be sufficient for the proper working of society. There has to be a proper adjudication. Such adjudication demands legal representation by a qualified lawyer. This is where poor people suffer due to their monetary constraints. Most lawyers charge such high fees that it is not possible for the poor to seek quality legal representation. These poor people continuously suffer in silence in their vicious circle of poverty. Data reveals that more than 800 million people in India are poor. [7] There is a provision of free legal aid under Article 39A of the Constitution of India which was reiterated in the case of Husainara Khatoon vs. State of Bihar [8]. Nevertheless, shreds of evidence show that such free legal aid merely exists on papers. Such free legal aid provisions exist on legal documents but not in actual practice and the poor struggle in receiving any benefit from the same. [9]

There are numerous factors responsible for such failure to the provision of free legal aid such as lack of awareness, lack of arrangements by the central and state authorities, etc.

In some instances, where free legal aid is provided, the quality of the lawyers is not very good and it compromises justice for the poor. It is well-settled that any case rests with the efforts of the legal representatives in the current legal system. The better the lawyer, the greater are the chances of winning the case. One such instance can be seen in the year 2015, where a well-known celebrity was granted bail even after being convicted of culpable homicide. The credit goes to one of the best-known lawyers in India – Mr. Harish Salve. It was his legal representation before the hon’ble court and his skills which saved Mr. Khan from spending the night in jail. The history of this case dates back to 2002 hit and run case when a well-known celebrity Mr. Salman Khan crashed his car onto a footpath and killed one and injured. This case is a strong example of the strength of the influence of good legal representation in the legal system. These instances show that the current legal system is full of struggle for the poor.


Conclusion


The lawmakers intended to create a utopian society. However, certain factors have led to obstruction in achieving such a utopia in real life. This 'ideal society' only appears to be so in legal documents.

The whole legal system keeps on ignoring reality while boasting about what is written. However, if the codification of rules were enough, then we would have already been living in a perfect world. But, this is not the case. The rectification of problems that keep the poor from getting justice is the first step towards making this legal 'utopia' a reality.

Proper implementation of the provisions of the books of law needs to be done. Until what appears on the statutes, the codes, the judicial precedents, the ordinances, and the Constitution, is effectively put into practice, the legal system will continue to be exclusive and the poor will be devoid of the benefits of the legal system.


[1] Poverty in India Asian Development Bank, https://www.adb.org/countries/india/poverty (last visited Jun 4, 2020). [2] Kalathiveetil, Teresa K., "An Analysis of the Problem of Illiteracy in India" (1954). Master's Theses. 1064. [3] Ignorantia Juris Non Excusat Ignorance of Law is no Excuse, http://14.139.60.114:8080/jspui/bitstream/123456789/16179/1/004_Ignorantia%20Juris%20Non%20Excusat%20%2870-78%29.pdf (last visited Jun 5, 2020). [4] Anoop Kumar, National Legal Literacy Mission - An Evaluative Analysis, SSRN Electronic Journal (2013), https://www.researchgate.net/publication/256054889_National_Legal_Literacy_Mission_-_An_Evaluative_Analysis (last visited Jun 5, 2020). [5] AIR1986 SC 991. [6] 1979 AIR 1360. [7] Poverty in India: Facts and Figures on the Daily Struggle for Survival Soschildrensvillages.ca, https://www.soschildrensvillages.ca/news/poverty-in-india-602#:~:text=Two%2Dthirds%20of%20people%20in,they%20are%20considered%20extremely%20poor. (last visited Jun 5, 2020). [8] Supra 6. [9] How well do India’s free legal aid services work? Not nearly well enough Scroll.in, https://scroll.in/article/877225/how-well-do-indias-free-legal-aid-services-work-not-nearly-well-enough (last visited Jun 5, 2020).


Bibliography


Journals/ Articles


1. Anoop Kumar, National Legal Literacy Mission - An Evaluative Analysis, SSRN Electronic Journal (2013), https://www.researchgate.net/publication/256054889_National_Legal_Literacy_Mission_-_An_Evaluative_Analysis (last visited Jun 5, 2020).


Internet Articles


1. Poverty in India Asian Development Bank, https://www.adb.org/countries/india/poverty (last visited Jun 4, 2020).


2. Kalathiveetil, Teresa K., "An Analysis of the Problem of Illiteracy in India" (1954). Master's Theses. 1064.


3. Ignorantia Juris Non Excusat Ignorance of Law is no Excuse, http://14.139.60.114:8080/jspui/bitstream/123456789/16179/1/004_Ignorantia%20Juris%20Non%20Excusat%20%2870-78%29.pdf(last visited Jun 5, 2020).

4. Poverty in India: Facts and Figures on the Daily Struggle for Survival Soschildrensvillages.ca, https://www.soschildrensvillages.ca/news/poverty-in-india-602#:~:text=Two%2Dthirds%20of%20people%20in,they%20are%20considered%20extremely%20poor. (last visited Jun 5, 2020).

5. How well do India’s free legal aid services work? Not nearly well enough Scroll.in, https://scroll.in/article/877225/how-well-do-indias-free-legal-aid-services-work-not-nearly-well-enough (last visited Jun 5, 2020).

Cases

  1. Sukhdas Vs Union Territory of Arunachal Pradesh AIR1986 SC 991.

  2. Husainara Khatoon vs. State of Bihar 1979 AIR 1360.

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