Affluenza defences: Friday, 8 May 2015 – 8:56am IST | Agency: dna
How the influence of affluence and privilege as a defence seems quite suited for Indian courts.

Isn’t it painfully bewildering that a legal defence in a criminal trial for culpable homicide committed in a drunk haze and murderous disregard for human lives, becomes an occasion to ask if the lot of a pavement-dweller also come with the inalienable and foreseeable risk of getting mowed down by speeding vehicles? Even more painful is the question my editor posed- why were Salman Khan‘s defence lawyers adopting such an inhuman defence–that a dangerously inebriated man at the wheels was rendered utterly helpless in the face of the homeless littering that corner of Hill Road? And, why was such an argument, taken and trashed in Alister Pereira’s case, still being taken in this case?

Before answering this substantially, a couple of things need to be clarified at the very outset. First, Pereira’s case wasn’t exactly about pavement dwellers, because the seven construction labourers he killed on the wee hours of 12 November, 2006 were living in temporary huts provided by their employer, the New India Construction Company.

Second and this brings us to the heart of the matter– stop berating the lawyers, for they are only doing their legal and ethical duty of defending clients. In fact, they are only saying what the judges want, or like to, hear.  Now, do judges like to hear about pavement-dwellers and other variants of the indigent homeless being slammed for, well, being poor and homeless? Didn’t the Supreme Court in Olga Tellis (1985) wax eloquent about the right to shelter and livelihood being integral to the fundamental right to life under Article 21?

Sure he did, but in the same judgement, the court also directed the slum-dwellers to clear out within a month or face the violence of the Bombay Municipal Corporation‘s demolition bulldozers. Contradicting itself, the court refused to hold that forced evictions, although resulting in loss of livelihood, were a violation of the right to life.

Then in 2000, the Bombay High Court entertained the Bombay Environmental Action Group’s PIL to evict illegal settlers from Borivali’s Sanjay Gandhi National Park. The court was so incensed about protecting the environment, flora and fauna that it directed the corporation to evict human beings in such a manner that they are rendered unable to regroup again, even if it meant the decimation of even basic utensils.

The court did okay the government’s resettlement policy, for which the displaced had to shell out an exorbitant sum, besides of course, ruling out any immediate judicial review of the government’s corruption-ridden arbitrary selection process.

So, do the poor and dispossessed of the rural areas have the right to migrate to urban areas, not to seek their fortune, but to scrounge around for a livelihood? No, if one goes by the observations of the Supreme Court bench hearing the Nagli Machhi (Delhi) demolitions and evictions in 2006. A huge swathe of the population, allowed settlement in slums by the ruling dispensation hungry for votes, was directed to vacate the land immediately. Prashant Bhushan, representing the evictees, pleaded for some leniency, given the fact that the cruel Delhi summer could actually snuff out lives. The bench, headed by Justice Ruma Pal, who now sits on the executive committees of quite a few human rights organisations, gave him a geography lesson. There are only three seasons in Delhi– summer, winter, and monsoon, and it’s the migrant evictee’s duty to harmonise himself with the weather. And, the judges pointedly asked– who asked these people to come to Delhi anyway?

Therefore, with judicial indulgence and patronage, the ‘affluenza’ defences continue. The term, popularised by Texan teen Ethan Couch, who in an inebriated condition, ran over two men and critically injured another two, and then pleaded the overwhelming influence of affluence and privilege as a defence, seems quite suited for India’s courts. And it is a lawyer’s duty to defend his client according to the law , of which judicial pronouncements form an essential part.