Article 39A of the Constitution provides for free legal aid to the poor and weaker sections of society. The Legal services Authorities Acts 1987 (as amended by the Act of 1994) which came into force on 9 November 1995, aims at establishing a nation-wide network for providing free and comprehensive legal services to the weaker sections.
National Legal Services Authority (NALSA) has been set up for implementing and monitoring legal aid programmes in the Country.
The Supreme Court Legal Services Committee is being established to provide free legal aid to the eligible persons in legal matters coming before the High Courts.
The Legal Services Authorities Act also provides for constitution of the State Legal Services Committees, High Court Legal Services Committees, district legal Services Committees and Taluk Legal Services Committees.
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Under the Legal Services Authorities Act, every citizen whose annual does not exceed Rs. 9,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the Supreme Court, the limit is Rs. 12,000.
This limit can be increased by the state governments. Limitation as to the income does not apply in the case of persons belonging to the Scheduled Castes, Scheduled Tribes, women, children, handicapped etc.
The legal aid programme adopted by NALSA include promotion of legal literacy, setting up of legal aid clinics in universities and Law Colleges, training of para-legals, and holding aid camps and Lok Adalats.
The Government has sanctioned Rs. 4 crore as grant-in-aid for NALSA for 1998-99 allocating funds to the State, District authorities, etc. The NALSA is also monitoring and evaluating the implementation of the legal aid programmes in the country.
Up to December 1997 about 23.88 lakh persons were benefited through court-oriented legal aid programmes provided by the state Legal Aid and Advice Boards/State Legal Services Authorities.
Of them 3.73 lakh persons belonged to the Scheduled Castes about 2.14 lakh to the Scheduled Tribes, 2,40,485 were women and 8,578 were children.
Lok Adalats have proved to be an effective mechanism for resolution of disputes through conciliatory methods.
Up to 31 December 1997, about 17,633 Lok Adalats have been in different parts of the country where about 68.86 lakh cases were settled.
In about 3, 49.710 motor vehicles accident claims cases, compensation amounting to over Rs. 1,16o.70 crore was awarded. Under the Legal Services Authorities Act, Lok Adalat has been given the status of a Civil Court and every award made by Lok Adalat is final and binding on all parties and no appeal lies to any court against its award.
The Attorney General for India is appointed by President and office during the pleasure of the President. He must be a person qualification to be appointed as a judge of the Supreme Court.
It is the duty of the Attorney-General of India to give advice to the Government if India upon such legal matters, and to perform such other duties of a legal character as may be referred or assigned to him by the President and to discharge the functions conferred on him by or under the Constitution or any other law.
In the performance of his duties, he has the right of audience in all courts in India as well as the right to take part in the proceeding of parliament, without the right to vote. In the discharge of his functions, the Attorney-General is assisted by Solicitor-General and Additional Solicitor-General.
In India the law relating to legal profession is governed by the Advocates Act, 1961 and the rules framed thereunder by the Bar Council of India.
It is a self-contained code of law relating to legal practitioner and provides for the constitution of State Bar Councils and Bar Council of India.
A person enrolled as an advocate under the Advocates Act 1961, is entitled to practise law throughout the country.
An advocate on the role of a State Bar Council may apply for transfer to the roll of any other State Bar council in the prescribed manner. No person can be enrolled an advocate on the roll of more than one State Bar Council.
There are two classes of advocates, namely, senior advocates and other advocates. An advocate with his consent may be designated as a senior advocate, if the Supreme Court or a High Court of the opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he deserved such distinction.
A senior advocate cannot appear without an advocate-on-record in the Supreme Court or without some other advocate in the state roll in any other Court or Tribunal. Standards of education have been prescribed for enrolment as an advocate.
There are also rules regulating standards of professional conduct and etiquette and other matters. State Bar Councils have disciplinary jurisdiction over advocates whose names appear on their rolls. This is subject to right of appeal to the Bar Council of India and a further right of appeal to the Supreme Court of India.
Law Commission of India:
The 15 th Law Commission has been reconstituted with effect from 1 September 1997 for a period of there years with Hon’ble Justice B.P. Jeevan Reddy Chairman and Mrs Justice Leila Seth and Dr. N.M. Ghatate as Members, Dr. N.R. Madhava Menon as part-time member and Dr. S.C. Jan as Member-secretary.
The terms of reference of the Law Commission are:
(i) Review/Repeal of obsolete laws;
(a) To identify laws which are no longer needed or relevant and can be immediately repealed?
(b) To identify laws which are in harmony with the existing climate of economic liberalization which need no change?
(c) To identify laws which require changes or amendments and to make suggestions for their amendment;
(d) To consider in a wider perspective the suggestions for revision/amendment given by expert groups in various ministries/ departments with a view to coordinating and harmonising them;
(e) To consider references made to it by ministries/departments in respect of legislation having bearing on the working of more than one ministry/ department;
(f) To suggest suitable measures for quick redressed of citizens, grievances in the field of law;
(ii) Law and Poverty;
(a) To examine the laws which affect the poor and carry out post-audit for socio-economic legislation?
(b) To take all such measures as may be necessary to harness law and the legal process in the service to the poor;
(iii) To keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands to the times and in particular to secure:
(a) Elimination of delays, speedy clearance of arrears and reduction of costs so as to secure quick and economical disposal of cases without affecting the cardinal principle that decisions should be just and fair;
(b) Simplification of procedure to reduce and eliminate technicalities and devices for delay so that it operates not as an end in itself but as a means of achieving justice.
(c) Improvement of standards of all concerned with the administration of justice;
(iv) to examine the existing laws in the light of Directive Principles of State Policy and to suggest ways of improvement and Reform and also to suggest such legislation as might be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble to the Constitution;
(v) to revise the Central Acts of general importance so as to simplify them and to remove anomalies, ambiguities and inequities;
(vi) to recommend to the Government measures for making the statute book up-to-date by repealing obsolete laws and enactment or parts thereof which have outlived heir utility, and
(vii) to consider and to convey to the Government its views on any other subject relating to law and judicial administration that may be referred to. The commission has taken up various subjects according to the terms of reference.
Questionnaires on the proposed amendments to the Code of Civil Procedure, 1908 and Hire Purchase Act, 1972 have been issued to elicit the views/ suggestions on the aforesaid subjects from the various concerned persons/ organisations including government agencies.
The Commission has submitted the following reports:
(a) 157 th report on ‘Section 52: Transfer of Property Act, 1882 and its amendment;
(b) 158 th report on ‘The Amendment of the Industries (Development and Regulation) act, 1951;
(c) 159 th report on ‘Repeal and amendment of Laws; Part-1;
(d) 160 th report on ‘Amendment to the All India Council for Technical Education Act, 1987 (Act 52 of 1987)’;
(e) 161 st report on ‘Central Vigilance Commission and Allied Bodies’, and
(f) 162 nd report on ‘Review of Functioning of Central Administrative Tribunal, Customs, Excise and Gold (Control) Appellate Tribunal and Income-Tax Appellate Tribunal’.
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.)