Serving the justice needs of the poor

THE SC TABLEU IN 2004 REPUBLIC DAYBY N R MADHAVA MENON – PUBLISHED IN THE HINDU

To be able to deliver appropriate legal services to the rural and tribal communities, we need an alternative delivery system with a different model of legal service providers

Delivery of legal services to the rich and the corporate class is organised not through individual lawyers but through a series of networked law firms. These firms employ hundreds of lawyers and domain experts all over the country to provide highly specialised single-window services to their clients, of course at prices determined by the market. The middle class, which cannot afford their services, go to individual lawyers or publicly-funded legal aid services organised under the Legal Services Authorities Act. In this scheme of things, it is the poor and marginalised rural and tribal communities who are left out. They suffer injustice or seek justice through informal systems, including the so-called “khap panchayats.” It is this sort of situation prevailing in the countryside that provides a fertile ground for the exploitation of the poor and for the growth of extremist forces, undermining the rule of law and constitutional governance.

Myth of legal aid

The 1973 Expert Committee on Legal Aid, titled “Processual Justice to the People,” which eventually led to the enactment of the Legal Services Authorities Act, discussed the futility of the court-centric litigative aid to the poor and marginalised sections, and recommended a series of alternative strategies. Obviously, the emphasis was on legal empowerment and mobilisation, preventive and strategic legal services intended to avoid victimisation, and the development of a public sector in the legal profession capable of responding to the problems of the rural and tribal communities. Unfortunately, when the legal aid law was enacted, the focus again was on assigning a lawyer to the needy client who took the task in a traditional style of protracted litigation with its attendant costs, uncertainty and delay — much to the dismay of the poor. Moreover, the system was premised on three assumptions which were contrary to ground realities — that the victim was aware of her rights and knew how to approach courts; that legal aid offices were available in far-flung villages and tribal settlements; and that the lawyer assigned had the right values, attitudes and competence to do a professional job appropriate to the justice needs of the rural/tribal population. These assumptions did not hold good in a majority of villages and, as such, conventional legal aid became irrelevant to the rural population. Language and communication compounded the situation, alienating the marginalised from a court-centric justice system. One alternative the Legal Services Authorities Act provided was the “Lok Adalat”, which lawyers disliked. The judges, honourable exceptions apart, turned it into an exercise to reduce arrears in courts through what some people call “forced settlements or hurried justice.”

Nonetheless, the Lok Adalat did serve the cause of justice for those who could reach the court despite all the odds. For others, legal aid had very little to offer. The Supreme Court did help them in a big way in the 1980s and the 1990s through the instrument of public interest litigation (PIL), which later lost its importance because of wide abuse by the urban elite and vested interests. Although it is difficult to generalise the legal needs of the rural poor because of the diversity of population, the need for food, shelter, education, health and work are admittedly the priority. The Constitution has left it to the legislature and the executive to progressively realise these needs through laws, schemes and special measures.

At the same time, the Constitution promises to all its citizens equality of status and opportunity, as well as equal protection of the law. Finding that large sections of the poor are unable to fulfil their basic needs even after decades of democratic governance, the Supreme Court sought to interpret socio-economic rights (Directive Principles) as civil and political rights (Fundamental Rights), compelling the state to come forward with laws empowering the poor with rights enforceable under the law. The Right to Education Act, the Food Security Act, and the Employment Guarantee Act were promising initiatives in this direction. However, the poor continue to be at the receiving end of an indifferent administration because of the difficulties in accessing justice through conventional legal aid.

We, therefore, need an alternative delivery system with a different model of legal service providers in rural and tribal areas. How can one fix the land rights of the poor when they have neither ‘pattas’ nor other valid documents? How do water rights and forest rights get protected from exploitation? What happens to government-sponsored schemes for food, sanitation, health and employment, aimed at alleviating the misery of the poorest of the poor? How to ensure that children are in school and are not abused and exploited? What can be done to prevent atrocities against the Scheduled Castes and the Scheduled Tribes in villages, and their forcible displacement? Where do they get credit for their livelihood activities and how are we to prevent victimisation in the process? Do they have fair market access for their produce? What happens to the bio-diversity of rural and tribal areas? How best to preserve and protect traditional knowledge and other intellectual property rights of the rural poor?

What about the labour rights of the unorganised rural poor? How are the rights of farmers to be protected against profit-hungry multinationals’ monopoly on seed, fertilizer and pesticide business? Are the villagers being exploited by state agencies like police, forest officials, banks, revenue officials and mining lobbies with impunity because of the inaccessibility of the justice system? Why is it that the Gram Nyayalaya Act, supposed to extend quick and cheap justice to the rural poor, is neglected by lawyers and judges?

Need for an alternative

When these questions were raised in a professional development workshop recently at Bilaspur in Chhattisgarh, the consensus was that we need an alternative model of legal service delivery to rural and tribal communities, for which a new pattern of legal education needs to be developed. The mainstream law schools are not clear in their mission. Legal educators blindly follow the Bar Council-prescribed court-centric curriculum, producing law graduates unfit to serve the justice needs of the tribal and rural communities. With such advocates, even a well-intentioned legal aid scheme cannot deliver justice to the marginalised sections.

The Bilaspur Workshop evolved a framework of an alternative LLB curriculum for the education and training of legal service providers, appropriate to rural and tribal needs. While the mandatory part of the BCI curriculum is accommodated, the alternative model identified over 40 subjects relevant to rural needs to be included in the optional component of the curriculum. However, the workshop felt that the new type of legal service providers proposed under the alternative model is not distinguished on the basis of knowledge of law only, but in terms of a different set of skills, attitudes and values relevant to the rural/tribal communities. It was proposed that the final year of the five-year LLB programme be devoted to experiential learning through social justice and legal aid activities in rural areas under the supervision of NGOs, self-government authorities, collectorates, and legal aid committees besides law school professors. The experiential learning is through clinical courses developed by law schools for appropriate credits.

Lawyers’ cooperatives

Students seeking to set up practice in rural areas will form themselves into what may be called lawyers’ cooperatives or rural law firms, and train in advocacy before public bodies, administrative authorities, Gram Nyayalayas and regulatory agencies, besides courts and tribunals. They will be assisted by trained para-legals from among school dropouts and social activists of the area. The fee for each legal service will be fixed and notified by firms and they will be affordable. These rural law firms will be organised professionally on the lines of urban law firms in terms of technology and quality of services. Cheap, prompt and reliable services will be the hallmark of rural law firms. The law school will give the successful candidates not only an LLB degree but also a diploma in rural legal practice, which will distinguish them from the rest.

It will be the endeavour of law schools adopting this curriculum to assist the graduates to set up their practice in rural and tribal areas, organisationally and financially. Towards this end, the law school will approach the large urban law firms to extend their help as part of their corporate social responsibility. Besides, State governments and the National Legal Services Authority will be asked to give them subsidy in locating their offices in villages and recognising them as public defenders for identified services. Some law schools in Chhattisgarh, Jharkhand, Orissa, Madhya Pradesh and northeastern India have shown interest in adopting this model of legal education. The immediate problem, of course, is to find the right kind of teachers who can deliver under this alternative curriculum. To meet this challenge, there is a proposal to offer a one-year diploma in Law Teaching and Research to teachers of law schools in these States, with a view to augmenting the available resources.

To conclude, the Bilaspur Declaration offers the hope that Indian legal education will turn round and look at the constitutional mandate on responding to the unmet justice needs of the large body of rural and tribal communities in the near future. Professions are, after all, for the people and no profession can survive without their trust and support. The earlier this is recognised by the organised Bar and the government, the better it will be for the country and the professions themselves.

(Professor Madhava Menon is IBA Chair on Continuing Legal Education at National Law School of India, and a Member of the Advisory Council to the National Mission on Justice Delivery and Legal Reform, Government of India.)

Keywords: legal aidLegal Services Authorities ActGram Nyayalaya ActBilaspur DeclarationIndian legal education

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Upholding judicial independence

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

BY ANIL DIVAN PUBLISHED IN THE HINDU

It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.

The provisions of the Constitution (120th Amendment) Bill later corrected as the Constitution (99th Amendment) Bill read with the Judicial Appointments Commission Bill, 2013 (JAC Bill), if adopted, will emasculate an independent judiciary and will pose a grave threat to the rule of law. The Constitution Amendment having been passed by the Rajya Sabha on September 5, 2013 is coming up before the Lok Sabha in the winter session.

Our Supreme Court has said “[the] Rule of Law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. The independence of the judiciary is an essential attribute of the Rule of Law.”

The court has also observed: “In India, however, the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. … The constitutional values cannot be whittled down by calling the appointment of judges an executive act.”

The doctrine of separation of powers cannot be stretched so as to set up a mechanism which is capable of being abused by making judicial appointments completely subservient to the will of the executive.

Pernicious features

First, the composition of the JAC is the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons selected by a panel consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha. It can be modified or altered by Parliament by ordinary law (Article 124A). This configuration of six members is not part of the Constitution and is not constitutionally entrenched. The JAC can be ‘packed’ by pliant elements in future by the executive even by an Ordinance and the JAC can recommend non-meritorious persons even on the basis of caste, religion or loyalty to the government.

The appointment of the CJI, the CJ of High Courts, and judges of the Supreme Court and the High Courts and transfer of High Court judges are to take place on the recommendation of the JAC. Thus, a JAC can, even by a majority, recommend a junior judge of the Supreme Court to be a CJI — or even a Chief Justice or judge of the High Court can be recommended to be the CJI. Further, with six members as contemplated in the JAC, a casting vote for the CJI is essential.

Secondly, there is no provision recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI (unless physically impaired) — a constitutional convention adhered to from 1950 except for the two supersessions concerning Justice A.N. Ray and Justice M.H. Beg. Such a provision will prevent lobbying and will preserve collegiality in the apex court.

Thirdly, the JAC Bill provides that the Central government will appoint the officers and employees of the Commission, making its secretariat a government department. This is the most dangerous provision. The officials and personnel of the Commission should be appointed in the same manner as those of the Supreme Court (Article 146), viz. by the CJI or such other judge or officer of the court as he may direct. If the secretariat or officers and servants of the JAC are treated as government departments, there are a hundred ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.

Fourthly, all expenses including salaries, allowances and pensions should be charged upon the Consolidated Fund of India as provided for the Supreme Court and the High Courts (Article 146 and 229). The JAC must be financially independent of executive budgetary control.

Finally and, most importantly, the criticism against the collegium system was lack of transparency, no consultations with the Bar, favouritism, the lack of a level-playing field for meritorious members of the Bar, no list of potential candidates prepared after advertisements and nominations to be put up in the public domain and lack of guidelines and criteria in the selection process. These core concepts must be incorporated in the Constitution Amendment and not left to be addressed by the Central government or the JAC. One opaque collegium need not be substituted by another, raising the apprehension that future vacancies may be shared by internal accommodations within the JAC.

The above pernicious shortcomings are ticking time-bombs which can be detonated at any time by a powerful executive having a parliamentary majority in the future — and we are looking at a future which may extend to many years.

If these flaws are removed and appropriate ancillary provisions are made in the Constitution Amendment Bill itself, the entire judicial reform can be part of the Constitution and the JAC Bill will become wholly redundant.

It is worth recalling that the provisions of the Bills were never communicated to the Bar for a robust debate, in spite of a written request by leading members of the Bar in April 2013. The two Bills were gazetted and tabled in the Rajya Sabha on August 29, 2013. On September 5, 2013, the Constitution Amendment Bill was passed in the Rajya Sabha by 131 votes in favour and a single vote by Ram Jethamalani in opposition. The JAC Bill has been referred to a parliamentary committee. This great hurry reminds one of the amendments passed during the Internal Emergency — the 39th Amendment moved on August 6, 1975, and passed on August 8, 1975; the 40th Amendment moved on May 18, 1976, and passed on May 27, 1976; the 41st Amendment moved on August 18, 1976 and passed on August 30, 1976; the 42nd Amendment moved on August 28, 1976, and passed on November 11, 1976.

Reactions to the Bill

The views of former CJI M.N. Venkatachaliah (who headed the National Commission to Review the Working of the Constitution) as reported mention that it would be dangerous if the primacy of the CJI in the appointment process was done away with — it would be against the basic structure of the Constitution. Two other former CJIs are reported to have strong reservations about the JAC being altered by a simple majority and even somebody other than the CJI being made chairperson of the JAC (Indian Express, September 6, 2013).

If the Bills in the present form are passed without eliminating the pernicious features, a serious constitutional challenge is likely to be mounted on the ground of violation of the basic structure by undermining an independent judiciary and consequently the rule of law. These are not imaginary fears. Who expected constitutional amendments which effectively emasculated judicial review being passed during the Internal Emergency after detaining all Opposition leaders, gagging the press and controlling the media and intimidating High Court judges by punitive transfers?

Modus Vivendi: possible consensus

Is a consensus possible? Dr. Rajendra Prasad in his speech in the Constituent Assembly on the eve of the adoption of the Constitution said: “We have prepared a democratic Constitution. But a successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. … After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…”

The Law Minister in his speech delivered in Hindi in the Rajya Sabha on September 5, 2013, said that Parliament had great respect for the judiciary and that the independence of the judiciary should not be impaired. There seems to be some rethinking by the government in regard to the composition of the JAC being entrenched in the Constitution.

It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.

If the amendment is passed with the pernicious flaws indicated above, it is likely to create enormous tensions between the Bar and the judiciary on the one side and the executive on the other — a bruising confrontation which could well be avoided before the coming general elections.

It is hoped that our political leadership will rise to a level of statesmanship to give substance to the prophetic words of Rajendra Prasad, and bring judicial reforms while preserving the rule of law supported by an independent judiciary.

(Anil Divan is president, Bar Association of India. anildivan@gmail.com)

Understanding Article 370

The Indian Constitution preamble

The Indian Constitution preamble (Photo credit: Wikipedia)

BY AMITABH  MATTOO , PUBLISHED IN THE HINDU

Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.

At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.

Why it was incorporated

First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”

The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.

Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley…” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.

But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising … [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.

Negotiations

Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America … have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.

Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.

Gender bias?

Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.

Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.

Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real sense.

(Amitabh Mattoo is Director, Australia India Institute, Professor of International Relations, University of Melbourne and Jawaharlal Nehru University.)