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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Poor accused must get free legal aid at all levels: SC

Supreme Court of India

Rajoo @ Ramakant vs State Of M.P. (Supreme Court- 09.08.2012 )

NEW DELHI: The Supreme Court has ruled that free assistance must be provided to all poor accused, irrespective of the severity of the crime attributed to them, at every stage of the three-tier justice delivery system and could not be restricted to the trial stage only.

“We are of the opinion that neither the Constitution not the Legal Services Authority Act makes any distinction between a trial and an appeal for the purpose of providing free legal aid to an accused or person in custody,” a bench of Justices A K Patnaik and Madan Lokur said. The bench ordered fresh hearing of appeal of one Rajoo, whose conviction in a gang rape case was upheld by the Madhya Pradesh High Court even though there was no legal assistance provided to the accused in the appeal stage. He had got free legal aid during the trial proceedings. Justice Lokur, writing the judgment for the bench, said when the Supreme Court Legal Services Committee provided assistance to eligible persons in the apex court, how could there be a bar on providing free legal aid to accused in the high courts. “It is important to note that Section 12 and 13 of the Legal Services Authorities Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending,” the bench said.

It disagreed with earlier judgments which hinted at carving out exceptions for providing free legal assistance to accused facing trial in economic offences or offences against law prohibiting prostitution or child abuse. “We have some reservation whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty,” the bench said.

“If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism, thereby diluting the constitutional mandate and fundamental right guaranteed under Article 21 of the Constitution,” it said. The bench said it was obligatory for every court, from trial court to the Supreme Court, to inquire whether the accused or convict required legal representation at the government’s expense so as not to deprive the person a “fair trial or hearing”.

The Court in its Judgement discussed  the scheme of institutional machinery , various court orders and the legislation enacted for   legal aid in the country. The Judgement content is as follows:

Constitutional and statutory provisions :

By the 42nd Amendment to the Constitution, effected in 1977, Article 39-A was inserted. This Article provides for free legal aid by suitable legislation or schemes or in any other manner, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Article 39-A of the Constitution reads as follows:- 39A. Equal justice and free legal aid. – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Subsequently, with the intention of providing free legal aid, the Central Government resolved (on 26th September, 1980) and appointed the “Committee for Implementing the Legal Aid Schemes”. This committee was to monitor and implement legal aid programs on a uniform basis throughout the country in fulfillment of the constitutional mandate. Experience gained from a review of the working of the committee eventually led to the enactment of the Legal Services Authorities Act, 1987 (for short, the Act).

The Act provides, inter alia for the constitution of a National Legal Services Authority, a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk Legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the concerned authority is satisfied that such person has a prima facie case to prosecute or defend.

It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending. In fact the Supreme Court Legal Services Committee provides legal assistance to eligible persons in this Court. This makes it abundantly clear that legal services shall be provided to an eligible person at all stages of the proceedings, trial as well as appellate. It is also important to note that in view of the constitutional mandate of Article 39-A, legal services or legal aid is provided to an eligible person free of cost.

Decisions of this Court :

Pending the enactment of the Legal Services Authorities Act, the issue of providing free legal services or free legal aid or free legal representation (all terms being understood as synonymous) came up for consideration before this Court.

Among the first few decisions in this regard is Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98. In that case, reference was made to Article 39-A of the Constitution and it was held that free legal service is an inalienable element of “reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 [of the Constitution].” It was noted that this is “a constitutional right of every accused person who is unable to engage a lawyer and secure free legal services on account of reasons such as poverty, indigence or incommunicado situation.” It was held that the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, subject of course to the accused person not objecting to the providing of a lawyer.

The essence of this decision was followed in Khatri (II) v. State of Bihar, (1981) 1 SCC 627. In that case, it was noted that the Judicial Magistrate did not provide legal representation to the accused persons because they did not ask for it. This was found to be unacceptable. This Court went further and held that it was the obligation of the Judicial Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that the right to free legal services would be illusory unless the Magistrate or the Sessions Judge before whom the accused is produced informs him of this right. It would also make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services thereby rendering the constitutional mandate a mere paper promise.

Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 reiterated the requirement of providing free and adequate legal representation to an indigent person and a person accused of an offence. In that case, it was reiterated that an accused need not ask for legal assistance – the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that it was now “settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution].”

Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held that there was a violation of the fundamental right of the accused under Article 21 of the Constitution. The trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside.

We propose to briefly digress and advert to certain observations made, both in Khatri (II) and Suk Das. In both cases, this Court carved out some exceptions in respect of grant of free legal aid to an accused person. It was observed that there “may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.” We have some reservations whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty. If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism thereby diluting the constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution. However, we need not say anything more on this subject since the issue is not before us. The above discussion conclusively shows that this Court has taken a rather pro-active role in the matter of providing free legal assistance to persons accused of an offence or convicted of an offence. Another view:

A slightly different issue had recently arisen in Clark v. Registrar of the Manukau District Court, (2012) NZCA 193. The issue before the Court of Appeal in New Zealand was whether legally aided defendants in criminal proceedings are entitled to choose or prefer the counsel assigned to represent them. The discussion in that case centered round the New Zealand Bill of Rights Act, 1990 and the issue was answered in the negative. However, in the course of discussion, the Court observed that the right of a fair trial is guaranteed by the Bill of Rights Act and it is an absolute right. A fundamental feature of a fair

trial is a right to legal representation under the Bill of Rights Act. Reference was made to the decision of the Supreme Court of New Zealand in Condon v. R, (2006) NZSC 62 wherein it was concluded that representation by a lawyer is nearly always necessary for a trial for a serious offence to be fair. An accused person must have legal representation or at least should have been afforded a reasonable opportunity of attaining it when charged with a serious offence. But, the Supreme Court held that: “An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer’s services – in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is under s 24(f) [of the Bill of Rights Act], when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the accused who must take the necessary steps to obtain assistance under the Legal Services Act.”

It was noted that the Supreme Court agreed with the High Court of Australia in Dietrich v. R, 1992 HCA 57 that, other than in exceptional circumstances, “an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, would not have had a fair trial.” A conviction obtained in such circumstances would be quashed unless the prosecution is able to satisfy the appellate Court that the trial was actually fair.

That there is a right of legal representation available to an accused is undoubted, even in New Zealand and Australia. The only point of disagreement appearing from Condon, as far as we are concerned, is whether the accused should be asked whether he or she requires legal assistance or not. The Supreme Court in New Zealand appears to have taken the view that the role of the State (and indeed of the Court) in this regard is passive. The view taken by this Court on issues of legal representation, on the other hand, is pro-active and an obligation is cast on the Court to enquire of the accused or convict whether he or she requires legal representation at State expense.

Conclusion:

Under the circumstances, we are of the opinion that neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of providing free legal aid to an accused or a person in custody. We are also of the view that the High Court was under an obligation to enquire from Rajoo whether he required legal assistance and if he did, it should have been provided to him at State expense. However, since the record of the case does not indicate any such endeavour having been made by the High Court, this case ought to be re- heard by the High Court after providing Rajoo an opportunity of obtaining legal representation.

Recent Initiatives of the Government for Justice Delivery and Legal Reforms

The Government is taking various initiatives to improve justice delivery system in the country and for improving justice delivery and legal reforms and steps to reduce pendency in courts from 15 to 3 years by 2012. These are as under:

National Mission for Justice Delivery and Legal Reforms: The Government has ‘in principle’ approved setting up of National Mission for Justice Delivery and Legal Reforms. The National Mission would help implementing the two major goals of

(i) increasing access by reducing delays and arrears in the system

(ii) enhancing accountability at all levels through structural changes and setting performance standards and facilitating enhancement of capacities for achieving such performance standards.

The Law Minister has on 28th April 2011 personally written to the Chief Justice of the Supreme Court and the High Courts on the launching of a campaign mode approach for pendency reduction and filling up of vacancies in Subordinate & High Courts. The campaign will be from June-December, 2011 and after a review, will be extended for another 6 months.

Judicial Standards and Accountability Bill, 2010: To bring about greater transparency and accountability in the higher judiciary, the Government has introduced a Bill in the Parliament to lay down judicial standards, to enable declaration of assets and liabilities by the Judges, and to establish a mechanism to enable investigation and follow-up action into complaints against judges. The Bill has been referred to the Standing Committee on 1st December, 2010 and is presently under its consideration.

13th Finance Commission grant: With the objective of improving justice delivery, the Thirteenth Finance Commission (TFC) has recommended a grant of Rs. 5000 crore to be utilized over a period of five years up to 2010-2015. An amount of Rs.1000 crore has been released to State Governments in the year 2010-11. This grant is aimed at providing support to improve judicial outcomes. Many States have already formulated State Litigation Policies as per the requirement for further release of TFC grant.

National Litigation Policy : The Government has already announced a National Litigation Policy effective from 1st July, 2010 to to reduce government litigation in Courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years.

ICT enablement of courts: The Government has implemented a central sector scheme for computerization of the District and Subordinate Courts (e-Courts project) in the country and for upgradation of the ICT infrastructure of the Supreme Court and the High Courts, at a cost of Rs. 935 crore for the first phase which will connect 14,249 courts in the country including video conferencing facilities.

Access to Justice for the marginalized section: Provision of legal aid enables the marginalized sections of the society in accessing justice. To strengthen Legal aid authorities a sum of Rs 200 crores had been provided under the TFC grants. The mission launched for release of under trial prisoners last year had appreciable results and is continuing. In the period 26 January 2010 to 31 May 2011, 562379 under trials have been released on bail, 77940 have been discharged, 68744 convicted, adding to a total of 709081 cases that have been disposed off. Software to trace cases of under trials by courts is also under consideration for integration into the e-courts software.

Gram Nyayalayas : The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas, a new tier of courts, at the grass-root level for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen. The Act came into force on 2 October 2009 and enables the State Governments to establish Gram Nyayalayas at Intermediate Panchayat levels.  The Central Government provides assistance to the State Governments for establishment of Gram Nyayalayas(Rs. 18 lakhs/court) and Rs. 3.20 lakhs per court per annum for the first 3 years towards recurring expenses. About 144 Gram Nyaylalays have been set up(notified) in the States of Madhya Pradesh (89), Rajasthan (45), Orissa (1), Maharashtra (9), till date of which 47 are operational – 40 in Madhya Pradesh, 1 in Orissa, and 6 in Maharashtra. Out of the budgeted Rs. 150 crores for Gram Nyayalayas, Rs. 20.92 crores have been disbursed to the 4 states which have notified the Nyayalayas.

Family Courts: The Government has pursued with the States the matter of setting up of Family Courts, providing 50% of the cost of construction and Rs 5 lakh annually. 211 such courts have been set up in 23 states.

Increase in the age of retirement of Judges of High Courts: The Government has introduced ‘the Constitution (One Hundred and Fourteenth) Amendment Bill, 2010’ in the Lok Sabha on 25th August, 2010 for increasing the age of retirement of Judges of the High Courts from 62 to 65 years. It aims at retaining the judges for three more years which would avoid occurrence of new vacancies on account of superannuation and result in continuance of judges to clear the backlog of cases in the High Courts. The Bill has been examined by the Department related Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice is to be slated for discussion in the Parliament.

Infrastructure Development at Subordinate courts: In the financial year 2011-12, the allocation for the Centrally Sponsored Scheme on Infrastructure Development has been increased 5 folds from Rs.100 crores to Rs. 500 crores.

Setting up of a Legal e-Library: The Government is finalizing the setting up a ‘National Legal e-library’ focusing on 933 law schools in India. ,It is expected to benefit the students and practitioners of Law. It is proposed to get operationalised on 15 August 2011.

Rajiv Gandhi Advocate’s Training Scheme: The Rajiv Gandhi Adhivakta Prashikshan Yojna to be launched on 27June 2011, will select about 10 practicing advocates from each state and impart a two-month long professional training by a National Law School/College – to them and encourage them to to serve the need of law professionals at the grass root level.

Creation of All India Judicial services: The proposed to set up an All India Judicial Service is awaiting Cabinet approval. This service is expected to attract the best of talent to the judiciary.

Comprehensive Electoral Reforms:

• The Government has held 6 Regional Consultation on Electoral Reforms. The seventh is scheduled on 12 June 2011 in Guwahati to be followed By the National Consultation in New Delhi on 2-3 July 2011. Following this, Comprehensive Amendments will be brought about to the Electoral System.

• The Government has also passed legislation and has enabled NRI Voting.

• The Maximum limits of Election Expenses have been increased for both Parliament and Assembly Elections.