Sep 30, 2023
Sep 30, 2023
by Kamal Wadhwa
The culture of poverty as seen in parts of the Third World is fundamentally a culture in transition and hence, subject to a disproportionate share of violence and mayhem in its midst. The legal institutions present in the culture of poverty hearken back to a not too distant past when they catered to a small minority of people most of whom enjoyed a favored status and a valid locus standi before the Law. It is in the present context of widespread poverty that the legal institutions in the culture of poverty fail to meet the test of relevance and applicability because at last the teeming masses have come to the fore and need immediate relief for their grievances from the courts.
The legal institutions as presently constituted cannot cope with the pressure of numbers and hence justice is delayed and denied. And because the system of jurisprudence present in the culture of poverty does not incorporate native wisdom and cultural lore, justice dispensed by conventional forums is faulty and full of foreign social and cultural elements. The ongoing instance of violence and disorder are only an indication that the neo-colonial system of jurisprudence has failed to bridge the chasm between the privileged few and the dispossessed many. The rule of law is a mirage and will remain so until the root problems of the legal system are addressed forcefully and promptly.
One of the basis problems with the legal system in the culture of poverty is that legal education is cumbersome and extends over a prolonged period of time. As a baneful consequence, law graduates expect a high income upon completion of their studies and starting practice. These novice lawyers can barely survive on the paltry fees dished out by poor litigants. These fees often do not even cover the cost of stationery and typing used in preparing briefs.
The end result is that lawyers tend to prolong litigation on the flimsiest of pretexts. Justice gets delayed and hence denied. Moreover, in view of the meager fees paid by poor clients, the services rendered by counsel are of poor quality; drafting is shoddy and careless and lawyers tend to ignore the full needs of their clients. They merely collect their fees and treat their briefs in a careless and cavalier fashion. As a result, poor litigants never get good counsel or proper legal redress. As a practice, poor clients are treated with disdain and contempt by their lawyers.
The legal system in the culture of poverty is faulty on other counts too. The adversarial system of jurisprudence present in the culture of poverty is expensive, cumbersome and time-consuming. Litigation stretches over years and years so that the ends of justice are thwarted. Appeals to higher forums are granted on the most specious of grounds as are adjournments. Since there is a large backlog of cases burdening the courts, corruption becomes rampant as clients bribe court officials to advance their hearings before the due dates.
The adversarial system of jurisprudence inherited from the colonial era is full of other flaws too. In the contemporary systems of law prevailing in the culture of poverty, poor litigants are often represented by government lawyers at public expense. This free legal help is more often than not rejected by poor clients as a matter of pride and self-respect because of the fear of getting sub-standard service. Generally, most poor people never approach the courts for redress of their grievances and the purpose of justice is thus defeated.
Because of poor remuneration available to lawyers in the culture of poverty, the legal profession does not attract the best of talent from the society at large. Only needy and badly-educated youth take to the law. Since these lawyers do not have any independent source of income, they necessarily must survive on fees procured from poor clients. Fees, not the ends of justice, become the dominant motive in a lawyer’s life. These needy lawyers in time become harsh, greedy and exploitative. They do collect fees but cannot do justice to their briefs in the courtroom. Poor clients are thus worse off than before and many will drop their cases midway because they cannot afford the cost of prolonged litigation.
Poor and needy lawyers as a rule lack self-confidence in dealing with authoritative judges. They also do not have an adequate grasp of the language of the courts. Unable to overcome their inhibitions, they often “freeze” in the courtroom, especially in important cases. Moreover, they are servile and fawning and attract the judges’ contempt.
Judges in the culture of poverty are poorly-paid, over-worked narrow specialists. When complex and important cases come before them, they cannot grapple with their intricacies. The end result is recourse to amicus curiae or “friends of the court” for competent and appropriate advice. This imposes huge monetary burdens on the court finances.
Moreover, when wealthy lawyers argue in the courtroom, judges are easily awed by their good breeding and manners and hence become quite lax in granting adjournments and other favors too. These privileges are not easily granted to poor lawyers.
The State in the culture of poverty does not allocate sufficient funds to the courts to ensure their proper functioning. This means that judges are badly paid, court libraries are ill-stocked with law books and courtrooms are housed in damp, stuffy and antiquated buildings.
Since much jurisprudence in the culture of poverty depends on binding precedents in support of arguments, judges may be compelled to award wrong decisions as they may have ignored the facts of the case on hand. Then, too, jurisprudence in the culture of poverty is grounded in the language and traditions of the colonial era and is not based on scientific precepts. Lawyers, judges and other professionals assisting them are generally ignorant of the sciences and mathematics. Briefs and court decisions run into tomes as a consequence.
In view of the paltry resources available in the culture of poverty, there is no adequate number of law chambers to take in new lawyers. Without this infrastructure, poor lawyers in time become “street lawyers” who do their work near tea stall by the roadside. Since many fresh lawyers do not have access to senior counsel to guide them during their formative years, these lawyers do not succeed in gaining enough experience or income to make it to the top echelons of the legal profession. Those who do manage to get seats in law chambers have to fork out hefty sums for the right to sit in such chambers. Individual lawyers are generally ill-equipped to take up litigation on their own as they lack access to clients or infrastructure such as law libraries, apart from odd crowded and congested court library.
There are other shortages too present in the legal system in the culture of poverty. In this culture, there are few, if any, practitioners of private international law. Those lawyers who do specialize in this branch of law command undue attention and inordinate income. Occasionally, legal work involving elements of international law has to be farmed out to overseas-based specialists leading to huge monetary burdens on clients.
Foreigners who are convicted of committing offences in the culture of poverty are summarily dealt with and they face long and excruciating court battles. Common offences such as pedophilia and drug trafficking that are overlooked if committed by domestic citizen, attract stiff and exemplary punishment if committed by foreign nationals.
Simply put, there is too much rule-making and not enough law in the culture of poverty. This results in quibbling in the courts and ineffective enforcement of genuine laws. Relations between lawyers and the enforcement agencies are often strained with the result that both work at cross purposes thereby undermining the ends of law and justice.
The enforcement agencies and court officials such as bailiffs do not have a long reach; legal notices and summons are easily ignored if the offenders reside in remote or faraway places. Similarly, rural areas have little or no access to law or justice because legal institutions are located in the urban centers and their services do not penetrate the hinterland.
The most fundamental problem underlying the legal system in the culture of poverty is that it is inherited from the colonial period and has few native roots. Essentially, such a legal system was meant to protect the vested interests of the colonial power. Hence, it has scant application to the culture of poverty where at last the teeming masses have come of age.
The legal system in the culture of poverty largely uses the alien language of the colonial power thereby denying the masses the means to appreciate and understand the workings of the court system. This language barrier also denies them access to any legal education. The rural masses are often cheated and exploited on this count. By and large, the legal system caters to a narrow minority in the urban centers of the culture of poverty.
Basically, the legal system in the culture of poverty cannot serve the ends of law, i.e., justice, because of the absence of responsibility in-built within the system. And there is no broad overseeing authority or ombudsman to oversee the functioning of the courts. The rule of law is destined to remain a mirage unless suitable and timely action is undertaken to stem the rot. More and more native wisdom and savvy must be incorporated in the present system of jurisprudence so as to have a broader reach and significance to the culture of poverty.
There is not much of a sense of realism in the legal system as presently constituted in the culture of poverty. Judges and legal professionals to a large extent are highly learned but unaware of the vagaries of the day and circumstances prevailing in the society at large. As a consequence, the legal system is slow to respond to the shifting realities of everyday life and the novel stratagems adopted by well-heeled criminals to escape the clutches of the law.
Law and rule-making by the Legislature in the culture of poverty is slow and dogged by apathy and inertia. Litigation is rarely time-bound. And there is no educative machinery to make the public aware of new laws passed by the Legislature. Since law-breaking is almost endemic to the culture of poverty, enforcement is slow and often non-existent on account of the shortage of trained personnel in the enforcement agencies.
The role of the Press is limited and circumscribed in the culture of poverty. Since newspaper and magazine circulation is limited, it cannot act as an educative medium to impart law awareness apart from reporting on the workings of the courts. Even reportage on the day-to-day functioning of the courts is scant and faulty and the public remains largely ignorant of the law.
Law and order remain a perennial problem in the culture of poverty and the courts are by and large mute witnesses to the mayhem around them. Police excesses abound as a result and the rule of law is subverted.
Lawyers too often instead of aiding the course of justice, actually thwart it. Since Bar associations in the culture of poverty are loosely-organized, poorly-funded and inadequately-staffed, there is no foolproof system to check malpractices by lawyers. In general, lawyers have a bad image and reputation in the culture of poverty. Far from being noble professionals as enjoined by their code of ethics, lawyers are arrogant, offensive and exploitative.
It is indeed sad to observe that the Bar associations have not set any guidelines for the fees charged by lawyers. In the present context they charge as much as they can get out of clients. In the matrix of poverty surrounding them, they cannot appreciate the financial limitations of clients and this leads to much acrimony and haggling thereby reducing the levels of service rendered to poor litigants.
Since the democratic framework in the culture of poverty postulates an independent and free judiciary, there is no motivation on the part of the legal system to change except upon exhortation by the Executive branch of government. The Bar associations are themselves largely forums for routine matters, not remedial action. Law commissions from time to time come out with copious reports on the functioning of the courts but there is no executive and binding authority to take effective action.
A responsible and self-regulating legal system is the need of the day in the culture of poverty. Otherwise, the courts run the risk of being overloaded by cases with no quick disposal in sight. Lawyers have to be disciplined by their respective Bar associations to adhere to their own code of professional conduct. And without a smooth and cordial relationship with the enforcement agencies, the courts stand to lose out in the long run as more and more clients turn away from them.
Since the problems of the culture of poverty are far greater than client-based litigation, there is a compelling need for a committed judiciary that will take up public interest litigation. But who will take up public causes in the culture of poverty where there are so many money-hungry lawyers looking for cheap fees?
Given the fact that hordes of new graduates are entering the legal profession each year, it is imperative for the legal system as a whole to take stock of its predicament. Otherwise, its members may soon descend from their lofty perches and join the ranks of the educated unemployed. A lofty and idealistic system of jurisprudence risks being brought down to the gutter if it cannot come to terms with the limitations and restrictions inherent in a resource-less and destitute environment that is the culture of poverty.
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