Thursday, January 13, 2011

Court Ordered Compensation and the Poor

The Times of India has this piece today on how an epileptic woman, Fatema, who received 50,000 Rs in June from the Delhi High Court for giving birth under a tree after being denied treatment at a local hospital has still yet to receive a rupee from the judgment. She continues to live outside with her six month old child in what has been a harsh Delhi winter. The Municipal Corporation of Delhi and GNCTD were held jointly liable in Justice Muralidhar's judgment, but the GNCTD dragged its feet in paying the money until Human Rights Law Network - who had brought the original petition - filed a contempt of court petition against them in September, and finally the money was deposited in October. However, Justice Muralidhar's order states that the money, which has been deposited into a bank account, will only be given to the woman after three years, during which time she can collect the quarterly interest, or about 900 Rs a quarter. It cost her about 500 Rs to set up a bank account to receive this amount, which she had to borrow, so the first quarterly payment that she will receive later this month will largely go to cover that expense. This means she can expect her first full 900 Rs payment sometime in April.

It strikes me that this story points to at least two broader problems with the delivery of monetary compensation after it is given by a court. The first is foot dragging by the government. If the lawyers in this case had not followed up there is a great likelihood that Fatema would not have gotten anything at all. The government delayed in giving payment despite the original order being covered prominently in the press and it knowing that she had the support of a large civil society organization backing her up. Indeed, she gave birth in Jangpura, a Delhi neighborhood which is one of the epicenters of human rights lawyers in the country. If the government delayed in this situation it is likely delaying (or not paying at all) in many other similar cases. It is one thing for the government not to implement, or slowly implement, a sweeping court order in a PIL about reforming the medical system, but when it won't even give a small amount of monetary compensation that has been awarded to one person without the threat of being held in contempt this is a serious concern.

The second problem this case illustrates is how such compensation is structured by courts. Justice Muralidhar has many fans in civil society because of several sympathetic and thoughtful orders he has given to poor persons like Fatema (her case might well have been dismissed by another judge). I assume that the money was given in a fixed account she could only collect interest on for the first three years out of a fear that she might otherwise unwisely spend all the money at one time or someone else might learn she has come into this money and try to steal it from her. Although those concerns may indeed be well-founded, it has resulted in a situation where she still can't put a roof over her or her child's head. Further, it is unclear how the amount of 50,000 Rs compensation was decided and whether this represents not only adequate compensation for Fatema, but whether it will also act as an adequate deterrent against the government.

Constitutional torts where individuals bring complaints against the government seeking individual monetary compensation are often put forward as a potential alternative to PIL for more effectively holding the government accountable (for the record, I don't know what the exact complaint case was in this case). In actuality, constitutional torts are still relatively rare, in part because judgments from such cases give such a small amount of money, and also because of the lack of contingency fees in the country to incentivize lawyers. The merits of PIL vs. constitutional torts is for another post, but it seems that there is a lot of work yet to be done in understanding how such compensation should be given and the effect it has on complainant's lives and the government's behavior. For example, should the Court issue preemptive orders that for each month the government delays in depositing the money the claimant will receive another 10,000 Rs? Is 50,000 Rs appropriate in such a case? How much should the compensation differ from Fatema's case than the same case in a village in Madhya Pradesh, where the cost of living is presumably much lower, but the indignity of such an experience is no less. Should the government hold compensation in trust for poor victims? If so, how should payments then be structured to weigh competing concerns about immediately helping the complainant and the ability of the complainant to handle such a large amount of money all at once.

It seems there is still a lot of room for judges, lawyers, and academics to create useful guidelines or principals to follow for cases such as Fatema's.

1 comment:

abforum10 said...

Thanks for this informative post. It not only mentions about the court order for monetary compensation to the poor, but also highlights on the difficulties to get such compensation.

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