New Delhi: The Supreme Court on Wednesday set up a social justice bench to deliver speedy access to constitutional rights, particularly those relating to women and children. The bench will deal exclusively with social matters, including the right to food and medical assistance. The move is designed to ensure that these cases can move quickly through the apex court and, notably, to encourage deeper deliberation on the rights and responsibilities of the state. The Supreme Court said “several cases relating to the domain of ‘social justice’ have been pending for several years” in the apex court, prompting Chief Justice H.L. Dattu to order “that these cases shall be given a specialized approach for their early disposal so that the masses will realise the fruits of the rights provided to them by the constitutional text”.
The two-judge bench comprising Madan B. Lokur and U.U. Lalit will begin sitting from 12 December. The range of issues identified includes access to food for drought-hit people and prevention of premature deaths caused by lack of nutrition. The right to health figures on the agenda with the mandate to make access to medical care a reality irrespective of people’s financial capacity. The bench will also determine availability of night shelters for the homeless and the destitute. “This is an idea that should have been long implemented. The job of judiciary is not just to deliver justice but also to make people respect and fear the law. Right now, people think they can do anything and get away with it,” said Ranjana Kumari of the Centre for Social Research, a non-governmental organization. “I know of two dowry cases which are pending in the Supreme Court for 22 years.
If this body is formed, hopefully justice wouldn’t be delayed any more,” she added.
While the apex court has routinely set up dedicated benches, these have primarily dealt with economic issues. The “forest bench”, later renamed the “green bench”, has been dealing with environmental cases for nearly two decades. Similarly, the lower judiciary has courts dedicated to crimes against children and offences like sexual assault. Having a dedicated bench for matters of constitutional rights and societal concerns will reduce the pendency of cases arising from such matters. The new bench will take up not only pending matters but also new ones in order to “secure social justice, one of the ideals of the Indian Constitution”, the court said. The release also indicated that secure living conditions for women—in the absence of which many find themselves in sex work—are a part of constitutional goals which must be achieved.
Welcoming the move, Supreme Court lawyer and anti-trafficking activist Ravi Kant said, “I think this move will bring more focus on these issues. Different PILs related to the same matter are pending before different benches. This body will bring in more clarity. It will also expedite the delivery of justice.”
However, some experts said that with only a brief announcement made so far, details about implementation, the number of cases to be transferred to the bench and other such matters were unclear. “Definitional questions as to what qualifies as social justice will arise. It might also encourage forum shopping, as each litigant wants to be heard by a sympathetic bench. The other problem is that the concept of rule of law promises equal treatment of all cases,” Rahul Singh, assistant professor at the National Law School of India University, Bengaluru. “Constituting a special bench for a class of cases is antithetical to this concept.” “It’s important that the apex court is talking about these issues. But this shouldn’t reduce to mere tokenism. We have so many mahila (women’s) courts in the country. Crime against women has become a disease in this country,” lawyer Rebecca John said. “If the bench is a response to recognizing that cases related to women and children are serious, then I welcome the move.”
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.
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.)
The unpleasant truth: 90 per cent of Indians are fools
Someone asked me, “Justice Katju, you say you wish to keep away from controversies, but why is it that controversies keep chasing you?” I replied that while it is true that I wish to be uncontroversial, I have a great defect: I cannot remain silent when I see my country going downhill. Even if others are deaf and dumb, I am not. So I will speak out. As Faiz said: “Bol ki lab azad hain tere/ Bol zubaan ab tak teri hai.”
In our shastras it is written: “Satyam bruyat, priyam bruyat, na bruyat satyam apriyam.” It means, “Speak the truth, speak the pleasant, but do not speak the unpleasant truth.” I wish to rectify this. The country’s situation today requires that we say “Bruyat satyam apriyam”, i.e. “Speak the unpleasant truth”.
When I said that 90 per cent Indians are fools I spoke an unpleasant truth. The truth is that the minds of 90 per cent Indians are full of casteism, communalism, superstition. Consider the following:
First, when our people go to vote in elections, 90 per cent vote on the basis of caste or community, not the merits of the candidate. That is why Phoolan Devi, a known dacoit-cum-murderer, was elected to Parliament — because she belonged to a backward caste that had a large number of voters in that constituency. Vote banks are on the basis of caste and community, which are manipulated by unscrupulous politicians and others.
Second, 90 per cent Indians believe in astrology, which is pure superstition and humbug. Even a little common sense tells us that the movements of stars and planets have nothing to do with our lives. Yet, TV channels showing astrology have high TRP ratings.
Third, cricket has been turned into a religion by our corporatised media, and most people lap it up like opium. The real problems facing 80 per cent of the people are socio-economic — poverty, unemployment, malnourishment, price rise, lack of healthcare, education, housing etc. But the media sidelines or minimises these real issues, and gives the impression that the real issues are the lives of film stars, fashion, cricket, etc. When Rahul Dravid retired, the media depicted it as a great misfortune for the country, and when Sachin Tendulkar scored his 100th century it was depicted as a great achievement for India. Day after day, the media kept harping on this, whereas the issues of a quarter of a million farmers’ suicides and 47 per cent Indian children being malnourished were sidelined.
Fourth, I had criticised the media hype around Dev Anand’s death at a time when 47 farmers in India were committing suicide on an average every day for the last 15 years. A section of the media attacked me for doing so, but I reiterate that I see no justification for the high publicity given by the media to this event for several days. In my opinion, Dev Anand’s films transported the minds of poor people to a world of make-believe, like a hill station where Dev Anand was romancing some girl. This gave relief for a couple of hours to the viewers from their lives of drudgery. Such films, to my mind, serve no social purpose, but act instead like a drug or alcohol to send the viewer temporarily from his miserable existence to a beautiful world of tinsel.
Finally, during the recent Anna Hazare agitation in Delhi, the media hyped the event as a solution to the problem of corruption. In reality it was, as Shakespeare said in Macbeth, “…a tale/ Told by an idiot, full of sound and fury,/ Signifying nothing”. (In an earlier piece in this paper, ‘Recreating Frankenstein’s monster’, IE, March 31, I had said, “The Lokpal Bill will create a parallel bureaucracy, which will turn into Frankenstein’s monster.”) At that time, if anyone had raised any logical questions, he would have been denounced as a “gaddar” or “deshdrohi”. The people who collected at Jantar Mantar or the Ramlila grounds displayed a mob mentality that has been accurately described by Shakespeare in Julius Caesar.
After Caesar’s murder, Mark Antony stirred up the Roman mob, which went around seeking revenge on the conspirators. One of the conspirators was named Cinna. The mob caught hold of another man, also named Cinna, who protested that he was Cinna the poet and not Cinna the conspirator. Despite his protests, the mob said, “tear him for his bad verses”, and lynched him.
The Jan Lokpal Bill 2011 defines an act of corruption as punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act vide Section 2(e). Section 6(a) of the bill says the Lokpal will exercise superintendence over investigation of acts of corruption, and section 6(c) empowers the Lokpal to punish acts of corruption after giving a hearing. Section 6(e) authorises the Lokpal to initiate prosecution, and section 6(f) authorises him to ensure proper prosecution. Section 6(i)(j) authorises him to receive complaints.
Section 2(c) of the Prevention of Corruption Act defines a public servant very widely. It includes not only government servants but also a host of other categories, such as employees of a local body, judges, certain office-bearers of some cooperative societies, officials of Service Commission or Board, and vice chancellors and teachers in universities.
As pointed out in ‘Recreating Frankenstein’s monster’, there are about 55 lakh government employees (13 lakh in the Railways alone). There will be several lakhs more in other categories coming under the definition of public servant according to the Prevention of Corruption Act. Obviously, one person cannot supervise and decide on presumably millions of complaints pouring in against them. Hence, thousands of Lokpals, maybe 50,000 or more, will have to be appointed. They will have to be given salaries, offices, staff, etc. Considering the low level of morality prevailing in India, we can be fairly certain that most of them will become blackmailers. It will create a parallel bureaucracy, which in one stroke will double the corruption in the country. And who will guard these Praetorian Guards? A body of Super Lokpals?
All this was not rationally analysed. Instead, the hysterical mob that gathered in Jantar Mantar and Ramlila grounds in Delhi thought that corruption would be ended by shouting “Bharat Mata ki Jai” and “Inquilab Zindabad”.
It is time Indians woke up to all this. When I called 90 per cent of them fools my intention was not to harm them, rather it was just the contrary. I want to see Indians prosper, I want poverty and unemployment abolished, I want the standard of living of the 80 per cent poor Indians to rise so that they get decent lives.
But this is possible when their mindset changes, when their minds are rid of casteism, communalism and superstition, and they become scientific and modern.
By being modern, I do not mean wearing a nice suit or a beautiful sari or skirt. Being modern means having a modern mind, which means a rational mind, a logical mind, a questioning mind, a scientific mind. At one time, India led the world in science and technology (see my article “Sanskrit as a language of Science” on kgfindia.com). That was because our scientific ancestors, like Aryabhata, Brahmagupta, Sushruta, Charaka etc, questioned everything. However, we subsequently took the unscientific path of superstition and empty ritual, which has led us to disaster. Today we are far behind the West in science and technology.
The worst thing in life is poverty, and 80 per cent of our people are poor. To abolish poverty, we need to spread the scientific outlook to every nook and corner of our country. It is only then that India will shine. And until that happens, the vast majority of our people will continue to be taken for a ride.
The writer, a former judge of the Supreme Court, is chairman of the Press Council, firstname.lastname@example.org
BY V R KRISHNA IYER PUBLISHED IN THE HINDU
The concept of judicial infallibility is valid, but a legal pronouncement need not always be the last word on a given subject.
The article in The Hindu by Ramaswamy R. Iyer, “With all due respect, My Lords,” on March 2, a critical study of the ruling of the Supreme Court giving certain directions under the authority of Article 141, relating to inter-linking of rivers was noteworthy. And his request to reconsider the decision deserves serious consideration.
What the Supreme Court decides is final not because it is infallible; it is infallible because it is constitutionally final and structurally supreme. If ignorance is made final, governance becomes chaos. That is why the Montesquieuan theory of the trinity of instrumentalities is accepted by many Constitutions across the world, including the Indian Constitution. What is in the realm of the Executive is decided by the Executive. What is legislative, in the shape of law, is decided by the Legislature. When there is a dispute over a fact or law, the decision of the court is final, and all the other branches of the structure are bound by the judicial decision.
From this perspective, river disputes fall within the jurisdiction of the judiciary. But, for instance, how high an aircraft should fly without the possibility of danger, or how a safe dam should be constructed to store water, are matters highly technical, and hence these do not belong to jurisprudence or judges. I was once a Minister for Irrigation and Electricity (in Kerala) and started projects on the advice of engineers. The court never interfered, nor could they. There may be some areas where submergence by a river may cause risks — and on the basis of clear technical advice a court may pronounce an order. The jurisdictional borders of the Executive, the Legislature and the Judiciary are fairly clear, and one of them cannot interfere with the other. Viewed from this angle, I agree with Mr. Ramaswamy Iyer’s critical observations.
Judges, merely because they wear robes, cannot decide on the course of rivers, whether they should be linked or not, and if at all, how they should be linked — just as they cannot decide on matters to do with the safety of flights or other such technical issues. Judges are not infallible; and they cannot issue executive directions or promulgate legal mandates or punitive impositions in such contexts.
The central flaw of the Supreme Court’s verdict on the inter-linking issue is the failure to realise that a pan-Indian river project may have dangerous limitations. The Ganga and the Cauvery are two great rivers, but they cannot be linked up without first making a careful and exhaustive study of the various features of the terrain through which they flow over a vast territory of India. Otherwise, it may well end up as a horrendous blunder, irreparable after the decision is operationalised. A national debate involving also the great engineers, especially river engineers, that we have is essential before undertaking the implementation of a national project such as this.
The Supreme Court is indeed infallible, but while in its jural specialties it may well be top of the league, it is largely innocent in matters to do with mighty river-engineering. Therefore, great caution with all the wisdom at our command, must first be used to study the implications and the perils of this Himalayan-scale project before implementing a juristic wonder beyond what the Supreme Court has so lightly directed. Where the implications are too great to grasp and the consequences may be beyond repair, “hasten slowly” will be a good piece advice. Never assume that the robed wisdom that is good for jurisprudence will not land us in dangerous waters.
Therefore, never be in a hurry. Study every dimension of this huge project. When the project was announced a decade ago in 2002, one section of public opinion supported it, and another opposed its implementation. It is without taking any note of the conflicting public opinion that the present binding directions have been issued by the court.
- Intervene in dam issue, Krishna Iyer urges PM (thehindu.com)
- Intervene in dam issue, Krishna Iyer urges PM (prepare4ias.wordpress.com)
- High on rhetoric, low on substance (indialawyers.wordpress.com)
- Who should judge the judges? (indialawyers.wordpress.com)
- A case for judicial lockjaw (indialawyers.wordpress.com)
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.
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
NEW DELHI: The Supreme Court on Thursday said pendency of 3 crore cases could not be effectively dealt with unless the government created more courts and filled vacancies because annual disposal of cases by trial courts, high courts and the Supreme Court only matched the numbers filed every year, leaving the backlog untouched.
If a bench of Justices A K Ganguly and T S Thakur questioned additional solicitor general Harin Raval on the Centre‘s policy decisions on judicial reforms including speeding up of justice delivery, another bench of Justices A K Patnaik and Swatanter Kumar was critical of the UPA government’s decision to scrap fast-track courts.
The bench of Justices Ganguly and Thakur accepted Raval’s contention that it would be a mismatch if the government was asked to create more posts of judges when a large number of such posts was lying vacant.
But it wanted to know from the ASG whether any of the policy decisions intended to create more courts in view of a finding that the country would require 75,000 more trial judges in the next three decades.
It asked the Centre to refer to the Law Commission, which is doing a comprehensive study in this regard, to include in its terms of reference the need for increasing the number of courts and ways and means to deal with the vacancy problem.
On the other hand, amicus curiae and senior advocate P S Narasimha drew the attention of a bench of Justices Patnaik and Kumar to the scrapping of fast-track courts from March 31, 2011.
The bench said during the All India Conference of Chief Justices and Chief Ministers, there was unanimity that FTCs had played a constructive role in reducing arrears and should be continued.
It looked into the law ministry’s file relating to discontinuation of these courts and found that a decision had been taken to run morning and evening courts in place of fast-track courts. Narasimha said whenever there was an attempt to hinder speedy justice, constitutional courts had inherent power to take necessary corrective measures to ensure financial grants to sustain existing justice delivery system. The bench reserved verdict on the issue.
Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011
We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.
The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.
Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.
Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the
Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.
I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.
The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.
India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”
- The seven deadly sins of judges (indialawyers.wordpress.com)
- Don’t bring judiciary to disrepute for few erring judges: CJI (thehindu.com)
- National Law Day: Two Constitutional Scholars who upheld the values of our Constitution (indialawyers.wordpress.com)
- Judges must be beyond all suspicion (indialawyers.wordpress.com)
- SC’s activism: Is it judicial overreach or government under-reach? (indialawyers.wordpress.com)
- Judicial secret out in open (indialawyers.wordpress.com)
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.
J VENKATESAN IN THE HINDU
“He shall take care of safety, food and basic amenities of the child”
The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”
According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.
He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.
Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.
Monitoring to continue
The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.
- Court orders for Training of all Juvenile Police Officers (equalityindia.wordpress.com)
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
Anna Hazare’s success reminded the political class about the magnetic effect a fast has on the common man, who suffers hunger on a daily basis and is hungry for good governance that could ensure some sort of social and economic equality in his poverty stricken and discrimination filled life.
Two politicians in Gujarat have gone on fast. If Narendra Modi is using the communal harmony-coated fast for a boisterous projection of US-certified development in the state to exorcise the ghost of post-Godhra riots, then Shankersinh Vaghela is fasting to scratch the still fresh wounds to widen the chasm between communities for electoral gains.
But no politician seems inclined to go on fast for the 40 crore Indians who even after 64 years of independence live below the poverty line. Recently, for the benefit of the Supreme Court, the Planning Commission said a person is below the poverty line if he is unable to buy food worth Rs 20 a day at a time when almost every essential commodity is out of his reach.
And if he did not live below the poverty line, that is if he is able to spend Rs 21 a day on himself and his family, then he would have to buy ration from the market as he would be disentitled to get it from PDS shops.
Faced with an absurd definition of poverty, fast has become a common man’s constant companion. Political inaction to streamline supply of subsidised foodgrain to the poor forced Supreme Court to intervene decisively. When Justices Dalveer Bhandari and Deepak Verma said “not a single person should die of starvation”, it would have sounded like a poll-eve political slogan had it not been accompanied by stern directions for distribution of additional grains in 150 poorest districts.
It is the faceless common man — farmer, cobbler, iron-smith, washerman, landless labourer, daily wager, painter, plumber, sewage worker, sweeper — who sustains the wheels of the economy, yet faces the brunt of the economic policies of the government.
Would politicians take turns to live for a few days in the households of the poor and try to understand the hunger, anger and anguish that is stripping the common man of the right to live with dignity? Have they tried to understand the root cause behind the suicide of over 1.40 lakh farmers who left behind tales of debt, poverty and sorrow? Is waiver of loans the answer?
Poverty and hunger have drawn the Supreme Court’s attention periodically. In People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], it said utter, grinding poverty had broken the backs and sapped the moral fibre of a majority of the population. “They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce,” it had asked.
Three years later, in the case K C Vasantha Kumar vs Karnataka, the SC said, “Chronic poverty is the bane of Indian society. Market economy and money spinning culture has transformed the general behaviour of society towards its members. Bank balance, property holdings and money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity in means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means.”
Even when poverty still ruled society, the apex court in the year 2000 in Islamic Academy case said right to development was also part of human rights. “Economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allow individuals to lead a life with dignity with a view to (make them) participate in the governmental process, so as to enable them to preserve their identity and culture,” it said.
Sadly, we are very far from eradicating poverty, which was the poll slogan of the Congress party in the 1970s. Politicians still do not understand that hunger and poverty afflict the soul of a person and drive him to do things which are strange to his social and moral DNA.
Fasting may have brought Hazare support for a campaign against corruption. But fasting surely will not get politicians the votes. What voters need is development in the true sense and this alone can ensure prosperity and help eradicate poverty.