Our uncaring society

31 Aug 2008, 0041 hrs IST, Meenakshi Kumar,TNN

 

On August 21, just a few hours before the eagerly awaited iPhone was launched in the country, a young man was walking the streets of central Delhi, pleading for help. He had been stabbed seven times. Bleeding profusely, his assailants still right behind him, Manmohan Singh desperately tried to flag down cars, buses, anyone who’d help. No one stopped. Finally, a passing autorickshaw driver took pity on Singh, taking him off the streets and straight to hospital.Just three days before Singh’s ordeal on

Delhi’s unquiet streets, Nirmala Kadam died on a busy road in Mumbai. Hit by a taxi while crossing the road, Kadam was then run over by a bus. As she lay in a pool of blood, begging for water, the world turned a blind eye to Kadam’s distress. Even the constables who came ostensibly to help, treated her with callous neglect. She died on the way to hospital.Singh and Kadam are not the only victims of our uncaring society. Almost every other day, on some mean street, in some madding city crowd, someone falls victim to the apathy of his fellow citizens. People refuse to help in the hour of crisis. They turn their backs or remain mute bystanders. What has happened to our sense of compassion? Did we ever have it at all?

TOO MUCH TROUBLE
“It’s not that people are lacking in compassion,” says sociologist Patricia Uberoi. “It’s just that they don’t want to get involved.” That’s because citizens generally fear the cops and don’t want to get embroiled in legal issues. On the streets, it’s hard to enforce the Supreme Court’s guidelines directing lay Indians never to ignore the injured and medical practitioners never to turn away victims of road accidents. Often, bureaucratic formalities engulf the Good Samaritan. Last month, Mumbai businessman Kirit Gada took the victim of a train accident to hospital. Much to his shock, he was fined Rs 1,200 by the police and labelled ‘drunk’ by the hospital authorities after he had an argument with a doctor over delayed assistance to the victim. Gada would now think twice before reaching out to another casualty.

“As long as accident cases involve bureaucratic hassles, nobody would like to help,” says social scientist Shiv Vishwanathan. “A lot of them may be keen, but shy away from coming forward.” If it’s a criminal incident, the legal system may deter people from offering a helping hand. “People in India are the same as anywhere else in the world. But it’s our system that makes them so callous. Our judicial system treats even a witness as a criminal. So why would a common man come forward to help?” asks Ved Marwah, former

Delhi police commissioner. The infamous BMW incident (in which an industrialist’s grandson Sanjeev Nanda ran over six people in Delhi in January 1999) is a striking example — many of the witnesses in the case turned hostile in court.Many believe that Indians lack a strong sense of civic duty. “We have become comfortable in ignoring our basic duty,” says Maxwell Pereira, retired senior police officer. He argues that fear of the cops and the legal system is misplaced. The police just do their duty, he says, but it’s our sheer cussedness and attitude that prevents us from helping out. “It’s sad that when a person is lying on the road, we prefer to look the other way. It speaks volumes about our sense of duty towards our fellow citizens.”

 

 

WE JUST DON’T CARE
At times, it’s about passing the buck — “let somebody else help, I’m in a rush.” Says Harman Singh Sidhu, who was once a victim of an accident and now heads Chandigarh-based NGO ArriveSAFE, which helps people like Delhi’s unfortunate Manmohan Singh. “At least 90% cases (the NGO has helped) are those where people have refused to help the victim,” he says.It’s an alarming statistic. But more shocking by far is the callousness of those the state pays to be Good Samaritans — ambulances, police and hospitals. Sidhu recalls seeing ambulances heedlessly whiz past accident victims. It is common enough to hear of hospitals turning casualties away.

In

Delhi recently, one hospital demanded a Rs 40,000 deposit from the person who brought in an accident victim. When the Good Samaritan refused, he was asked to take the casualty elsewhere. A scuffle ensued and the police were called in. It was revealed that the hospital had a history of denying admission to accident victims.But it’s an incident in Kolkata which takes the cake and shows how far we can fall. When security guard Kadam Prasad Panth was taken ill on a bus, the driver stopped. Panth was brought out of the bus and made to lie on the pavement. People crowded around; no one did anything to help or offer water. Meanwhile, police from two different areas squabbled over which jurisdiction applied to Panth. By the time they sorted out their differences, the old man was dead.

What explains such callousness? “The visuality of the situation forces us into becoming spectators. A complete sense of non-involvement takes over,” reasons Vishwanathan. We switch off and rush away to resume our busy lives.

But some believe it may also have something to do with our sense of social status. “The higher we are in the social pecking order, the lower we are in our compassion quotient,” says Subroto Das, founder, Lifeline Foundation. “In most cases, it’s usually the villager or the poor man on the cycle who will help. The excuse given by big car owners is that the upholstery of the car will get spoilt or that they don’t have time to waste,” he adds.

Das should know. Ten years ago, his car rammed into a tree on a highway in

Gujarat. His wife and a friend in the back seat were badly injured. Though he was badly hurt too, Das managed to work his way out of the car. He spent four hours trying to flag down vehicles on the highway. It was much later that a milkman stopped and helped Das get on a bus. Today, Das’ NGO provides an ambulance service and basic medical aid within the ‘golden hour’ (the hour immediately after an accident). The service covers 1,476 km of highways across Gujarat, Maharashtra, and West Bengal.LIMITED COMPASSION
Natural calamities and riots often produce a crop of touching stories. During the Mumbai floods of 2005, the worst in living memory, residents famously handed out bread and water to the weary and threw open their homes to complete strangers. And yet Mumbai ignored Nirmala Kadam as she lay dying on the street.

Vishwanathan believes Indians are generous when all that’s needed is food and shelter, but mean-spirited if an incident could end in a police station or court of law. Our Gandhigiri appears to stop at donating money to victims of natural disasters. But we would rather not take a casualty off the roads and to hospital. At least part of the callousness may be a habit ingrained by years of clandestine help during communal riots. As

Pereira says, those who help, do it because they don’t want more riots. “But in accident cases, people just don’t want to help.”The fact that people can be caring sometimes and callous at others puzzles Uberoi. “It’s a question that needs to be asked. How can people be so caring with family and friends, but not towards his fellow man, even if a stranger? It’s almost like the need to keep oneself and one’s homes clean but not your surroundings. It’s a strange contradiction,” she wonders.

Everyone agrees it is time the state created institutional mechanisms to ensure the good Samaritan is hailed, not harassed. Till then, we may carry on, turning our backs on civic duty.

(With inputs from Kumar Sambhav, Mumbai and Krishnendu Bandyopadhyay, Kolkata)
Email: meenakshi.kumar@timesgroup.com

 

 From: http://timesofindia.indiatimes.com/Sunday_Specials/Our_uncaring_society/articleshow/3426504.cms

 

Legal Empowerment Vital to Ending Poverty, Commission Declares

Basic legal rights to identity, work and property can break poverty cycle

By Howard Cincotta
Special Correspondent

Washington – What would you call a group of people without legal identity, title to their homes, licenses to conduct business, ownership of their property, records of their work history, or even the ability to appear in court?

You would call them poor.

In the past, efforts to advance the rule of law and reduce global poverty have been seen as equally laudable but largely separate endeavors. No longer.

A report by the independent Commission on Legal Empowerment of the Poor, co-chaired by former Secretary of State Madeleine Albright and economist Hernando de Soto concludes the basic protection and services of the legal system are essential for breaking the cycle of poverty and powerlessness for as many as 4 billion of the world’s population.

“The rule of law is not merely an adornment to development; it is a vital source of progress,” the commission’s June report declares. “However, most poor people do not live under the shelter of the law and are far from the law’s protection and the opportunities it affords.”

COMMISSION CONSULTATIONS

Along with its co-chairs, the commission comprises a panel of senior government officials and former heads of state chosen for their real-world experience in the complexities of policymaking.

“The commission undertook an extensive national consultative process in 22 countries,” Executive Director Naresh Singh told America.gov. “We also recruited local experts to write papers that were examined by local focus groups — leading up to the national conferences.”

In addition, the commission created an advisory board comprising major regional development banks and civil-society organizations.

“The political visibility of the commission’s leadership was very empowering for these organizations,” Singh said.

Although the commission will cease formal operations soon, the United Nations Development Programme will continue its work, and the World Bank has agreed to establish a legal empowerment trust fund.

ACCESS TO JUSTICE

Many of the commission’s findings built on de Soto’s pioneering research into the nature of the “informal economy” in his native Peru and other developing nations.

“At its core, the legal-empowerment agenda is about unlocking human potential,” writes commission member Lloyd Axworthy, former Canadian minister of foreign affairs.

The commission’s recommendations fall into four categories, or pillars: access to justice, property rights, labor rights and business rights. Its findings also emphasize the importance of legal empowerment for women.

“Poor women often suffer the worst forms of discrimination in property law,” writes commissioner Mary Robinson, former president of Ireland, in an op-ed in the Madrid, Spain, newspaper El Pais.

The first pillar — access to justice — addresses several issues, including the need for legal registration, without fees, because approximately 40 percent of all children in developing countries are not registered at birth. That omission can deprive them of education and medical care.

Not only can the poor not afford lawyers or court fees, but in many instances, they often do not even speak the language in which the judicial system operates, according to the commission.

Bureaucracy, too, is an impediment. In India, more than 20 million civil cases are pending before the courts. The average Philippine judge has a backlog of almost 1,500 cases.

The commission calls for simplification of the legal system, stronger legal aid programs and expanded alternative dispute-resolution methods.

PROPERTY, WORK, BUSINESS

Property rights, the second pillar, allow the poor to protect and leverage their assets under the law.

“Poor people already have agreements among themselves,” says de Soto. “What you have to do is professionally standardize these contracts and create one legal system that everyone recognizes and respects.”

Surveys in Russia and Eastern Europe, for example, have found that businesses that believe their property rights are secure reinvest as much as 40 percent more of their income than those that do not, according to the commission.

Rural lands that received legal titles in Brazil, Indonesia, the Philippines and Thailand increased in value from 40 percent to more than 80 percent.

The third pillar, labor rights, covers nearly all of the world’s 500 million working poor, who constitute more than half of all employment in developing nations. They spend their lives in the unorganized informal sector without the basic protections of old-age pensions, accident or medical insurance.

The commission recognizes that it faces a balancing act in eliminating the negative aspects of exploitation while “ensuring that opportunities for livelihood and entrepreneurship are not destroyed.”

The fourth pillar of business rights addresses the barriers to starting or running a legal business.

In Egypt, for example, starting a bakery takes an average of 500 days, adherence to 315 laws and approvals of 29 agencies. A study of 12 Latin American countries found that only 8 percent of enterprises are registered legally; 23 million operate informally.

Without the ability to gain bank loans or enforce contracts, these informal businesses cannot expand beyond a network of familiar customers and partners, much less participate in the global economy.

Although the challenges are daunting, the commission concludes that “Making poverty history cannot be accomplished through legal empowerment alone, but it is hard to see how it can be done without it.”

For more information, see the Web site of the Commission on Legal Empowerment of the Poor.

Source: America.gov.

The Village Court: A neglected but potential rural justice forum

Zahidul Islam Biswas

 

Village level traditional juridical mechanism named ‘shalish’ is active in rural Bangladesh from time immemorial.  An informal justice mechanism, Shalish is: ‘basically a practice of gathering village elders and concerned parties, exclusively male, for the resolution of local disputes. Sometimes Chairmen and elite members of the Union Parishad are invited to sit through the proceedings. Shalish has no fixed dimension and its size and structure depend entirely on the nature and gravity of the problem at hand (Sumaiya Khair: 2001).’

 

While the above description may suggest that a shalish is a ‘calm deliberation, with the parties patiently putting forth their perspectives and impartial facilitators soberly sorting through the issues’ but actual shalish is of peculiar character. Stephen Gloub describes his impression flowing from the observations of over a dozen shalish sessions during the 1990s as follows:

 

‘The actual shalish is often a loud and passionate event in which disputants, relatives, (shalish panel) members and even uninvited community members congregate to express their thoughts and feelings. Additional observers — adults and children alike — gather in the room’s doorway and outside. More than one exchange of opinions may occur simultaneously. Calm discussions explode into bursts of shouting and even laughter or tears. All of this typically takes place in a crowded school room or other public space, sweltering most of the year, often with the noise of other community activities filtering in from outside. The number of participants and observers may range from a few dozen to well over one hundred (Stephen Gloub: 2003).’

 

However, shalish mechanism as a justice forum has some specific characteristics. It is a completely informal mechanism which has no specie procedure to follow. The adjudicators (shalishkar) of  a shalish do not have any legal authority, but they get social authority from their seniority, wisdom, economic and religious status or by way of village politics. For delivering justice, shalish mechanism uses no specific law but the notion of justice emanated from religious guidance and sense of social wellbeing.

 

A shalish may involve voluntary submission to arbitration (which, in this context, involves the parties agreeing to submit to the judgment of the shalish panel), or mediation (in which the panel helps the disputants to try to devise a settlement themselves) or a blend of the two.  ‘Shalish addresses almost all type of disputes- civil, criminal or family. These often involve gender and family issues, such as violence against women whether within or outside marriage, inheritance, dowry, polygamy, divorce, maintenance for a wife and children, or a combination of such issues. Other foci include land conflicts as well as other property disputes (Stephen Gloub: 2003).

 

The purpose of Shalish is to dispose off different type of local disputes locally, speedily and amicably without resorting to formal expensive and lengthy court procedures. While it is undeniable that shalish has been successful ‘in some measure at providing acceptable judgments and solutions (Fazlul Haq: 1998)’,   it is also a bare truth that this purpose of the shalish mechanism has been frustrated time and again due to various socio-economic and religious grounds.

 

In the absence of specified law, process and accountability, the forum has been a vehicle for imposing subjective notion of justice by the socially, economically or religiously powerful people. While socially and economically powerful people have got this forum as a platform for enforcing their dominance over disadvantaged portion of the society, the religious leaders have used this forum as an instrument for practicing their religious dogmas.

 

These malpractices or biases in the shalish system are broadly categorized as class-based and gender-based. One the one hand, the powerful portion of the society have supported their class against disadvantaged group, on the other hand the patriarchal society, sometimes with the assistance of the religious leaders, has uphold their patriarchal notion of justice. The statement gets support from the following paragraphs.

 

‘Although shalish members have the option of engaging in either mediation or arbitration to reach a solution, most commonly choose arbitration. This method involves unilateral decisions made by officiating members, whereas mediation engages opposing parties in reaching solutions of mutual satisfaction…Although the decisions are not always fair and equitable, they tend to carry a great weight within the community because they are issued by well-known and powerful villagers. ..

 

Sometimes solutions are arbitrary and imposed on reluctant disputants by powerful village or community members. Such “solutions” are based less on civil or other law than on subjective judgments designed to ensure the continuity of their leadership, to strengthen their relational alliances, or to uphold the perceived cultural norms and biases. The shalish also is susceptible to manipulation by corrupt touts and local musclemen who may be hired to guide the pace and direction of he process by intimidation. Furthermore, because the traditional shalish is composed exclusively of male members, women are particularly vulnerable to extreme judgments and harsh penalties (Sumaiya Khair: 2002).’ 

 

Against this backdrop, Village Court are created in 1976 with the objectives that poor village shall get easy access to justice without any cost, they can be freed from accepting unwanted decision given by the dominant or elite classes of village in the name of justice and disputant parties can be able to solve their problems by themselves with a little or necessary assistance from these dispute resolution forums.

 

It is mentionable that the Village Courts are statutory courts and are composed of with local government (Union Parishad) representatives (as community leaders) and members from disputant parties.  But these courts are legally required to follow informal procedure of trial or dispute settlement, meaning thereby that the application of Code of Civil Procedure, Code of Criminal Procedure and Evidence Act has been barred.  Also is barred the appointment of lawyers.  The underlying argument is that the disputant parties will be able to discuss all their problems without any reservation or hesitation and can take an amicable and justifiable decision. However, decisions of these courts are as binding as those of any other formal courts of the country.  In a word, both these forums are examples of accommodation of formal courts and traditional knowledge and wisdom.

 

Noticeably, though a long time has passed after introducing this village justice mechanism, the government of the country has not undertaken any research to assess the performance of the judicial institution, or to assess whether the institution is being able to fulfill the aims they were introduced to meet. However, some non-government organizations and some private individuals in the recent years have conducted some small scale researches on the village courts that show that the performance of the arbitration council and village courts is very poor and unsatisfactory.

 

Though this Union Parishad administered dispute resolution forum does ‘not impose the fatwas and harsh punishments that the extreme forms of the traditional practice entail’, often ‘the reality of village courts does not differ substantially from that presented by the traditional process.’  A number of sources suggest that the dynamic and the membership of the Village Courts  often resemble the traditional form of shalish in terms of being either biased or ineffective at providing justice for the disadvantaged, including women (Stephen Gloub: 3003).

 

In the like manner, a Bangladesh Ministry of Women’s and Children’s Affairs paper quotes the head of a local social service NGO as saying that dispute settlement  by Union Parishad  members ‘ignore the rights of (sexually abused) women and girls and either dismiss the case or award them money as compensation.’  As an Asia Foundation report suggests: ‘UP Chairmen, who are often overwhelmed with many disparate responsibilities and little governmental support, tend to view family disputes and other violations of law as low priorities. Many UP Chairmen and members are also ill-informed in the law, and some are reportedly corrupt and politically motivated, causing them to act with prejudice (Sumaiya Khair: 2002).’

 

In this way, various research literatures reveal that the Village Court,  a state-led rural justice institution, has not succeeded to be adequately reliable judicial forum for vulnerable rural communities. Still traditional shalish are rampant, perpetuating the regimes of impoverishment. Hopefully, some NGOs  have been supporting local dispute resolution as an alternative forum of state-led and traditional forums of rural justice. These NGOs supported programmes run by knowledgeable law officers and well prepared documents have been seeing the light of success gradually. But these NGOs legal aid activities cover hardly 1% of around 70,000 Bangladeshi villages. According to a UNDP report, two third of the disputes do not enter the formal court process.  So still two-third disputes are disposed off in traditional Shalish, Village Courts, Arbitration Council or they remain unsettled. 

 

When these traditional shalish system as well as quasi-formal judicial bodies like village courts and arbitration councils are failing to give substantive justice, the socio-economic conditions of majority of the Bangladesh village people and lengthy process of the formal courts are preventing them to move to the formal judicial system.

 

The outcome is that vast majority of the people of the country is still out side the net of ‘access’ to justice, let alone access to ‘justice’. However, a simple reading of the Village Court Ordinance implies that almost all major aspects of an effective justice system have been addressed in the law. A proper implementation of the law could improve the state of ‘access’ to justice dramatically. But that did not happen. Then why the mechanism is not working effectively, is a question to be researched. Though there have been some researches on it, I think those researches are not adequate to address the issue properly. It is time government undertook an in-depth study, not a fly-in-fly-out study, to dig out the problems of the rural justice system and address those problems without delay.

 

The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid.bangladesh@gmail.com.

 

Source: The Daily Star, August 1, 2008

Website: http://www.thedailystar.net/law/2008/08/01/index.htm