CONTEXT: Despite more than three decades after the Legal Services Authority Act 1987(LSA) came to effect, access to justice for millions of poor still remains a distant dream. This has been aptly described by Justice D Y Chandrachud in a recently concluded outreach and awareness program organised by National Legal Services Authority (NALSA). In this background, this write-up analyses the mandate of LSA, the problems in access to justice, and the way forward.
WHAT IS ACCESS TO JUSTICE MEAN?
Access to justice is more than improving an individual’s access to courts or guaranteeing legal representation. Access to justice is defined as the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievance in compliance with human rights standards. There is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it; where the justice system is financially inaccessible; where individuals have no lawyers; where they do not have information or knowledge of rights; or where there is a weak justice system. Access to justice involves legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes.
THE LEGAL SERVICES AUTHORITY ACT: MANDATE AND STRUCTURE
WHAT ARE THE OBJECTIVES?: To constitute legal services authorities. To provide free and competent legal services to the weaker sections of society. To ensure that citizens’ access to justice is not denied due to their deprivations. To organise and promote Lok Adalats as a means of ADR mechanism.
WHO ARE ELIGIBLE?: Women and Children. Members of Scheduled caste or Scheduled Tribes. Industrial Workmen. Persons with Disability. Persons in Custody. Victims of Human trafficking.Victims of Natural Disasters, Ethnic/caste violence, industrial disasters. Persons with an annual income of less than Rs 1,00,000/- Or as notified by the Central/State Governments.
WHERE TO GO FOR AVAILING LEGAL AID?: Civil, Criminal, and Revenue courts, Tribunals, any authority exercising judicial or quasi-judicial functions. Institutions that provide free legal services. Legal Services Authority at National/State/District/Tehsil. Taluka/Sub-divisional Legal Services Committee
WHAT IS NALSA?: NALSA is the Central Authority constituted under the LSA 1987 whose Patron-in-Chief is the Chief Justice of India(CJI). The executive chairman of NALSA is a sitting or retired SC judge and will have such other members determined by the Central government in consultation with the CJI. NALSA is the central implementing authority under the LSA 1987. It also implements various programs related to victim compensation, social action litigation, and conducts/coordinates Lok Adalats.
WHAT IS LOK ADALATS?: The LSA provides for a type of ADR known as Lok Adalat; the people’s court. It can be constituted by the authorities/committees provided under the Act. The Act provides for judicial and non-judicial members whose number and qualifications will be determined by appropriate authorities under the Act. Lok Adalat can be set up for dispute resolution in many areas like civil, family, commercial, utility services etc. But Lok Adalat shall have no jurisdiction in respect of any case relating to an offence not compoundable under any law. The manner of resolving the dispute of the Lok Adalat is through compromise or settlement between the parties. The Lok Adalat will have the power of a Civil Court. Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. If no award is made, then the case may be referred back to the Civil Court.
WHAT IS PERMANENT LOK ADALAT?: Under the Act, Permanent Lok Adalats can be established by the Central Authority(NALSA) or the State Authority(SALSA) to deal with disputes regarding “public utilities” (power, transport, post, insurance, hospital, banking, etc). The process of dispute resolution under them is either conciliation or a decision on merit. The Chairperson of Permanent Lok Adalat will be a judicial officer serving or retired in the rank of a District/Additional District Judge. The jurisdiction of the Permanent Lok Adalats is up to Rs. One Crore. Its award will be binding on all the parties and no appeal lies to any court.
WHAT IS THE NATIONAL LOK ADALAT?: National Lok Adalat is conducted quarterly across all the courts from the SC to the Taluka Courts in a single day. It is organised under the aegis of NALSA. Sep 2021, National Lok Adalats, held in 33 states and union territories, settled over 15 lakh cases and awarded over Rs 2,281 crore to litigants in a day.
THE STATE OF ACCESS TO JUSTICE IN INDIA- AN APPRAISAL
DELAYED JUSTICE: As of Apr 15, 2021, in SC 67279 cases are pending while in High Courts the number is a whopping 57.53 lakh. (National Judicial Data Grid). The Subordinate judiciary (Districts courts and below) has a pendency of 3.81 crore cases as on the same date. (National Judicial Data Grid). These facts themselves reflect the state of justice delivery in India.
UNDERTRIAL PRISONERS: As per the National Crime Records Bureau(NCRB)” Prison Statistic Report 2019”, 69.05% of those behind the bar were under trial. This means neither the survivor/victim nor the accused gets justice in time. The tragic death of an octogenarianunder trial prisoner, Fr Stan Swamy is a case in point. The NCRB report also points out that the number of undertrials dying in the prison is going up.
QUALITY OF LEGAL AIDL: LSA 1987 provides for free and competent legal aid for eligible sections. But as J. Chandrachud observed, “Studies have indicated that advocates empaneled with the state and district legal authorities lack competence or initiative”. This poor quality of legal aid not only delay access to justice but also deter people from accessing justice.
WEALTH AND JUSTICE: It is said that wealth and justice go hand in hand. The legal landscape is structured in such a way that only those having the resources can knock the citadels of the justice system in India. This is empirically proved by the above mentioned NCRB report which mentions that Muslims, Dalits and Scheduled Tribes have disproportionate representation in prison inmates relative to their population.
LEGAL AWARENESS: The legal literacy in India is abysmally poor. One of the significant mandates of NALSA and other authorities is to spread legal awareness not only to the people but also to those in administration, especially in police and prisons. Recently, the SC had to step in to grant bail to 13 people who despite being juveniles had to spend more than two decades in Agra Jail, UP. J. Chandrachud observes that neither jail superintendents are conversant with the basic legal remedies available to the convicts and undertrials nor are they provided adequate legal assistance”.
POOR FUNDING AND REMUNERATION: A research project sponsored by the Indian Council of Social Science. Research (ICSSR) in 2017-19, spanning across 18 states and 36 districts of India, has shown that Legal Services Counsels (LACs) are performing under low honorarium with no recognition accorded. This honorarium is really very nominal indeed. It can be as little as 1,500 rupees in small towns, and at a maximum, it goes up to Rs. 7,500 in certain cities. Such an amount for services rendered doesn’t help attract the best talent with serious intent to work in this space. This, in turn, has a direct bearing on those citizens who depend upon these legal services as their only option and hope for justice. In reality, it defeats the purpose of free legal aid for the underprivileged.
DECREASING BUDGETARY ALLOCATION: In 2018, the NLSA was allocated 150 crores to discharge its functions, it came down to 140 crores the next year and then to just 100 crores in the next two years again. To discharge all these responsibilities and run these programs, the Centre allocates funds to the NLSA, which in turn distributes the money to state authorities and their various agencies
EXTRA JUDICIAL METHODS AND ENCOUNTERS: The abhorrent practice of custodial torture, forced disappearances, encounter killings, etc, does not seem to stop in India. One major reason for their prevalence is the lack of accountability of the police and other officials as the poor victims and their families cannot access the justice system.
WHAT ARE THE IMPLICATIONS OF POOR ACCESS TO JUSTICE?
VIOLATION OF CONSTITUTIONAL PROVISIONS: The Preamble of the Constitution promises socio-political and economic justice to the people of India. This has been given concrete shape under Art 39A of the DPSP. Poor access to justice violates these noble promises of the Constitution.
THREATENS RULE OF LAW: The common man’s faith in the justice system suffers due to a lack of timely justice delivery. This leads to people taking the law into their hands or approaching influential entities likeKhaps, for resolving their disputes often leading to miscarriage of justice. Many revenge killings or riots stem from the perception that delays injustice system will lead to culprits walking scot-free.
VIOLATION OF FUNDAMENTAL RIGHTS: As per SC, the right to a speedy trial is a fundamental right under Art 21. The consequence of delayed justice is injustice. Consider a few examples. In March this year, Vishnu Tiwari was held not guilty of rape by the Allahabad high court after he had spent 20 years in jail. In March, Dipak Jaishi a Nepali citizen was ordered to be released by the Calcutta high court from the Dum Dum Central Correctional Home after spending 40 years in judicial custody as an under-trial prisoner.
POOR ECONOMIC DEVELOPMENT: Without access to justice, the economic reforms and business-friendly initiatives of government remain only on paper and thus become ineffective in achieving their policy goals. Lack of speedy and effective dispute resolutions inhibits economic activities, reduces employment opportunities, and retard economic growth.
SOCIAL DIVISIONS AND INEQUALITY: Access to justice is a prerequisite for social equality. The widening gulf between the rich and the poor, male and female, and between regions, castes, religions, languages, etc, cannot be bridged unless there is equality of opportunity to access justice.
BREACH OF SOCIAL CONTRACT: The people in the “state of nature” entered into the “ social contract” to create a “ state “ for ensuring justice to all. When access to justice is delayed or denied, the social contract between the state and the citizens is breached.
DEHUMANIZING INDIVIDUALS: Justice is the most fundamental virtue of human society. The lack of justice robs individuals of their dignity, self-esteem, and creates such extreme negative emotions often leading to taking one’s own life.
WHAT SHOULD BE DONE TO REALISE THE OBJECTIVES OF THE LSA ACT REAL?
RESOURCE SUPPORT: The budgetary allocation for the NALSA and other authorities needs to be substantially increased to address the problems of resource constraints.
DEMAND GENERATION: The demand for justice delivery needs to be created by awareness and outreach programs like camps, seminars, legal clinics, etc. The Law colleges and universities can be roped in by NALSA for this purpose. The Lok Adalats need to be provided more visibility and public messaging.
PRO BONO LEGAL WORK: Pro bono legal work needs to be encouraged and recognized which will incentivize lawyers as well as improve access to justice to the people. The Bar Councils can take such steps as a mandatory period of pro bono work before renewing their license or persuading their accomplished members to lead by example.
ATTRACTING AND RETAINING TALENT: The lawyers and other functionaries associated with the implementation of the LSA need to be remunerated well. This helps bring fresh and qualified talent into this area thereby increasing willingness and improving the trust of people in “free and competent” legal aid.
CREATION OF SPECIALIST CADRES: NALSA and other agencies need to take steps to create themes-based legal service providers which will create expertise in the relevant area and people can readily tap these pools. An instance of this was seen in 2018 with the rise of the me-too movement where young women lawyers started offering their services free of cost to assist women who had been sexually harassed. This created databases of lawyers who could be approached for specific issues. This would be particularly helpful for sexual minorities, transgenders, survivors of communal riots, sexual assault survivors, etc.
TAPPING TO STRUCTURED ENTITIES: The NALSA can enter into contracts with law firms through the department of justice and the ministry of law, requiring them to spend a certain number of hours delivering pro bono legal aid services. This may be made mandatory similar to corporate social responsibility for companies or may be considered as one of the relevant factors when impaneling law firms for contractual work for the government of India or the PSUs”.
LEVERAGING TECHNOLOGY: Integration of technology with legal administration offers numerous opportunities to use creative means to enable access to justice. One such way would be an AI-based chat box to provide automatic legal advice. This has already been implemented in the USA by the ‘DoNotPay’ platform and other countries such as Russia, China, Mexico and is worth exploring in India.
EFFECTIVE IMPLEMENTATION OF GOVT INITIATIVES: The Tele Law Programme 2017 pre-litigation legal advice and consultation under which a panel of lawyers can be connected to persons in need of legal aid. Similarly, Nyaya Bandhu Programme, a pro bono legal services program where interested lawyers volunteer their services can be connected via a mobile application. One of the missions in the e-committee of the SC is to provide E-Seva Kendra in every one of the 17,000 institutions of the courts across the country. National Mission for Justice Delivery and Legal Reforms, a mission mode project started in 2011 aims at speedy and easier access to people by improving judicial physical and human infrastructure and other measures. All these initiatives need to be executed in greater urgency by taking a stakeholder approach.
CONCLUSION: Free legal aid is not a charity but the right of the people without which the constitutional guarantee of security and liberty cannot be realised. The role of authorities established under the LSA 1987 assumes immense significance in this context. When India is going to celebrate its 75th year of independence, we must restructure and Indianite our legal system so that justice does not remain a luxury but a living reality for the poor. A timely, affordable, and qualitative justice delivery system is the sine qua non for a functioning and vibrant democracy.
Questions:
- Despite three decades of the Legal Services Authority Act(LSA) 1987 being in force, access to justice for the poor and the marginalized still remains a distant possibility. Examine.
- What do you mean by Lok Adalats? Identify the reasons for their sub-optimal utilisation for dispute resolution in India.
- Equality of opportunity for accessing justice delivery institutions demands free and competitive legal aid to the weaker sections. In the light of the statement explain what measures the National Legal Service Authority should take to promote access to justice to the weaker sections.
ADD TO YOUR KNOWLEDGE
NATIONAL MISSION FOR JUSTICE DELIVERY AND LEGAL REFORMS
National Mission for Justice Delivery and Legal Reforms was set up in August 2011 with the twin objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and setting performance standards and capacities. The Mission has been pursuing a coordinated approach for phased liquidation of arrears and pendency in judicial administration, which, inter-alia, involves better infrastructure for courts including computerization, increase in strength of subordinate judiciary, policy and legislative measures in the areas prone to excessive litigation, re-engineering of court procedure for quick disposal of cases and emphasis on human resource development. To advise on the goals, objectives, and strategies of the National Mission and the Action Plan and its implementation, an Advisory Council has been set up under the Chairmanship of the Minister of Law and Justice with wide-ranging membership. An action plan of the National Mission was formulated under 5 strategic initiatives which are reviewed by the Advisory Council of the National Mission from time to time. On July 14, 2021, the Union Cabinet has approved the continuation of the Centrally Sponsored Scheme (CSS) for the development of infrastructure facilities for the Judiciary for a further five years from April 1, 2021, to March 30, 2026. A total of Rs.9000 crores has been sanctioned for the scheme. It was also announced that the Gram Nyayalayas Scheme will be implemented in a Mission Mode through National Mission for Justice Delivery and Legal Reforms.
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