By Kethi D Kilonzo
finclegal@gmail.com
“The court bows to the lessons of experience and the force of better reasoning, recognising that the process of trial and error so fruitful in the physical sciences is appropriate also in the judicial function.” — Justice Brandeis, US Supreme Court.
The painful and shameful reality is that the wretched and hapless sections of society do not possess the financial means or the time and energy to fight in courts for their rights and freedoms. These sections of society therefore largely remain underrepresented and vulnerable.
They are also ignorant of the extent to which the law guarantees and protects and can enforce their fundamental rights and freedoms under the Constitution. The Constitution now guarantees and protects diverse individual rights and freedoms. These include the right to property, the right to life, the right to fair court processes, housing, medicare, consumer rights, and protection from torture, forced labour and slavery and so on.
The court can invalidate any law, act or ommission that denies, violates, infringes or threatens a right or fundamental freedom. Every person has a right to file a claim in court for the invalidation of any such law or action.
The courts have the power to offer assorted and effective remedies including declaration of Rights, issuing injunctions, awarding damages, and quashing of any offending law or decision of a public body.
The courts are called upon by the Constitution to develop the law where it does not protect a right and to adopt the interpretation that most favours the enforcement of such a right. They are to promote human dignity, equality, equity and freedom and advance the rule of law and the rights and freedoms set out in the Constitution and other laws.
The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of all human beings. The Chief Justice has made these objectives easier to achieve by making rules that make access to Courts easier and cheaper than ever.
Any person who is financially challenged and who seeks to enforce his fundamental rights can apply to court to be exempted from paying Court fees. The Rules of Court allow any party to make an oral application for the enforcement of their rights. For instance, if your sister is arrested and detained unlawfully, you can walk to the court registry, ask for a form, fill out the required details, and present it to the Court for her release on the same day without paying a lawyer or court fees.
A simple letter, or an e-mail to the Registrar of the Court will suffice for you to appear before a judge to stop any infringement of your rights.
These are very significant developments in our law, and which the public should take full advantage of.
In India, the Supreme Court can, on its own, without any party filing an application, take notice of and decide upon public wrongs or incidents where there is an unexplained failure to act in accordance with the Constitution or the law.
The court can be moved by a petition sent by way of a letter. Or on the basis of a newspaper report. It can also venture into arenas where they perceive executive action either to be absent or suspect without any party seeking their intervention. As a result, public interest litigation is cheap, effective and an informal means of judicial redress.
When it is all said and done, litigation is a necessary tool for social change.
However, it is never sufficient. It cannot effectively work in isolation from other mobilisation efforts. It cannot be a substitute for picketing, demonstrations and advocacy.
