The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
U. Sarathchandran IN THE HINDU
The provision of legal aid to the poor and the disadvantaged exists in all civilised countries, often guided by charitable and philanthropic concerns. In a democratic set-up, the philosophy of legal aid has acquired a new meaning, with an emphasis on the concept of equality of all human beings, increasingly drawn from the universal principles of human rights. Free legal aid to the poor and marginalised members of society is now viewed as a tool to empower them to use the power of the law to advance their rights and interests as citizens, and as economic actors. Such a paradigm shift in the concept of legal aid gains greater importance when India is viewed as a growing economic power.
Parliament enacted the Legal Services Authorities Act, 1987 in order to give effect to Article 39-A of the Constitution to extend free legal aid, to ensure that the legal system promotes justice on the basis of equal opportunity. (November 9 is observed as National Legal Services Day, to commemorate the enactment of the legislation.) Those entitled to free legal services are members of the Scheduled Castes and the Scheduled Tribes, women, children, persons with disability, victims of ethnic violence, industrial workmen, persons in custody, and those whose income does not exceed a level set by the government (currently it is Rs.1 lakh a year in most States). The Act empowers legal services authorities at the district, State and national levels, and the different committees (legal services institutions) to organise Lok Adalats to resolve pending and pre-litigation disputes. It provides for permanent Lok Adalats to settle disputes involving public utility services. Under the Act, “legal services” have a meaning that includes rendering of service in the conduct of any court-annexed proceedings or proceedings before any authority, tribunal and so on, and giving advice on legal matters. Promoting legal literacy and conducting legal awareness programmes are functions of legal services institutions.
Access to justice
The Constitution treats all citizens as being equal and provides them equal protection under the law. Yet, the common person faces barriers to ‘access to justice.’
Illiteracy, lack of financial resources and social backwardness are major factors that hinder the common person from accessing justice. There are other invisible barriers: lack of courage to exercise legal rights, the proclivity to suffer silently the denial of rights, and geographical and spatial barriers are examples. Such barriers keep people disempowered and subjected to exploitation by powerful people. This results in their being shoved away from the mainstream, and they become constrained in becoming potential economic actors contributing to the nation’s development.
The Act provides for a machinery to ensure access to justice to all through the institutions of legal services authorities and committees. These institutions are manned by judges and judicial officers. Parliament entrusted the judiciary with the task of implementing the provisions of the Act, as the other pillars of the government were neither inclined nor had the expertise to take up the responsibility to provide access to justice to the weaker sections.
One of the problems faced by legal services institutions is their inability to reach out to the common people. This hiatus between them and the common people was perceived as indirectly defeating the objectives of the Act. It is in this context that the National Legal Services Authority (NALSA) has come up with the idea of para-legal volunteers to bridge the gap between the common person and legal services institutions.
The scheme seeks to utilise community-based volunteers selected from villages and other localities to provide basic legal services to the common people. Educated persons with commitment to social service and with a record of good character are selected. The volunteers are trained by district legal services authorities. The training equips them to identify the law-related needs of the marginalised in their locality. Such needs include assistance to secure legal rights, benefits and actionable entitlements under different government schemes that are denied to them. Coming as they do from the same locality, they are in a better position to identify those who need assistance and bring them to the nearest legal services institutions to solve their problems within the framework of law. They can assist disempowered people to get their entitlements from government offices where ordinary people often face hassles on account of bureaucratic lethargy and apathy.
Legal aid clinics in villages
In order to reach out to the common people, NALSA has come up with a project to set up legal aid clinics in all villages, subject to financial viability. Ignorance of what to do when faced with law-related situations is a common problem for disempowered people. Legal aid clinics work on the lines of primary health centres, where assistance is given for simple ailments and other minor medical requirements of village residents. Legal aid clinics assist in drafting simple notices, filling up forms to avail benefits under governmental schemes and by giving initial advice on simple problems. A legal aid clinic is a facility to assist and empower people who face barriers to ‘access to justice.’
Trained para-legal volunteers are available to run legal aid clinics in villages. The common people in villages will feel more confident to discuss their problems with a friendly volunteer from their own community rather than with a city-based legal professional. The volunteers will refer any complicated legal matters that require professional assistance to the nearest legal services institutions. When complex legal problems are involved, the services of professional lawyers will be made available in the legal aid clinics.
Free and competent legal services
There has been a widespread grievance that lawyers engaged by legal services institutions do not perform their duties effectively and that the lawyers are not paid commensurately for their work. In order to solve these problems, NALSA has framed the National Legal Services Authority (Free and Competent Legal services) Regulations, 2010 to provide free and competent legal services. Scrutiny of legal aid applications, monitoring of cases where legal aid is provided, and engaging senior lawyers on payment of regular fees in special cases, are the salient features of the Regulations. In serious matters where the life and liberty of a person are in jeopardy, the Regulations empower legal services authorities to specially engage senior lawyers.
Children’s rights, a neglected field
Juveniles including children constitute more than a third of India’s population. Yet, children and their rights are neglected. The problems of children are often seen through the spectacles of an adult. Consequently, the rights of children who are orphaned, abandoned and in conflict with the law are not properly handled by government officials and juvenile justice institutions. Denied care and protection, they may end up as children in conflict with law. At the same time, children in conflict with the law need care and protection. In October 2011, the Supreme Court, in Sampurna Behrua v. Union of India , a public interest litigation, directed the Directors General of Police of the States to designate one police officer in each police station as juvenile/child welfare officer. The court directed legal services authorities to train such police officials and give free legal services to all children in conflict with law on an incremental basis, starting with the State capital cities.
Legal services to the mentally-ill and the mentally-retarded, to workers in the unorganised sector, and to solve disputes arising out of the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, are other schemes drawn up by NALSA for implementation by legal services institutions. A web-based monitoring system is in place to monitor their activities. NALSA works with civil society organisations, specialised statutory bodies and government departments.
Legal services institutions have until now functioned in uncharted waters, often making their presence felt only at certain ports of call like court-based legal services, organising legal literacy camps and Lok Adalats. Now, with a paradigm shift in the concept of legal services, legal services authorities are reaching out to the people to facilitate ‘access to justice’ to all in the most practicable and economical manner.
(The author is Member-Secretary, National Legal Services Authority, New Delhi.)
Para-legal volunteers can help bridge the gap between the ordinary citizen and legal services institutions.