Access to Justice via PIL and Legal Aid

Dr Ranbir Singh

Public Interest Litigation as a Component of Access to Justice for the Marginalized

The concepts of ‘public interest litigation’ have come to stay in our Constitutional Courts. The use of this potent weapon has been extended to every public spirited citizen who has been aggrieved of the wrong being perpetrated to bring it to the cognizance of the Court. To that effect, even a letter addressed to the Chief Justice of the High Court or the Supreme Court will be entertained as a Public Interest Litigation.  The trend of bringing public interest litigation in the Supreme Court and in the various High Courts by social action groups, the legal aid societies, university teachers, advocates, voluntary organizations and public-spirited citizens has risen in the country.  This has helped to ameliorate the miseries of thousands of persons, arising from repression, governmental omissions or excesses, administrative lethargy or arbitrariness or the non-enforcement of beneficial legislation.  Cases of under trials as well convicted prisoners, women in protective homes, unorganized labourers, untouchables, miseries of scheduled castes and tribes, landless agricultural labourers, slum-dwellers etc. are taken up in PIL cases.   The concepts of locus standi have been very much expanded to meet the problems created by damage to environment or environmental pollution.   Public interest cases have also come to be filed seeking directions against the Police or State for taking action against corrupt individuals.  The result is that the strict rules of ‘locus standi’ which were applicable in the writ jurisdiction of our Constitutional Courts have, practically vanished. A most prominent example is that of M.C. Mehta v. Union of India whereby hosts of Factories which were posing a serious risk to the Yamuna had to either relocate or were asked to shut down. Furthermore, in the case of Olga Telis, the right to slum dwellers was upheld by the Supreme Court by stating that the Right to Shelter forms an integral part of the Right to Life with Dignity, and it is the right to a dignified Life which has to be restored and upheld by the Courts in this Country.

In its essence, the pronouncement of the Supreme Court was explicitly surmised in the case of Bihar Legal Support Society v. The Chief Justice of India & Ors.[1] in the following words:

“The weaker sections of Indian society have been deprived of justice for long long years; they have had no access to justice on account of their poverty, ignorance and illiteracy.   …..The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings……   The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community.”

Legal Aid as a major component in providing Access to Justice

Legal Aid is not merely a subject of academic discourse; it is a social value, an underpinning commitment of the Welfare state of Nehru, a quintessential component of the Constitution, and above all, the most potent weapon to ameliorate the plight of the indigents. Lord Denning while observing that Legal Aid is a system of government funding for those who cannot afford to pay for advice, assistance and representation said: “The greatest revolution in the law since the post-second World has been the evolution of the mechanism of the system for legal aid. It means that in many cases the lawyers’ fees and expenses are paid for by the state: and not by the party concerned. It is a subject of such importance that I venture to look at the law about costs-as it was-as such it is-and as it should be.”[2]

With regard to the very inception of Legal Aid as being recognized as the primordial right of every denizen, reliance can be placed on the very tenets of the Magna Carta which was formulated well over seven centuries ago, the beginnings of equal justice under the law were marked by the inscription in the 40th paragraph of the Charter in the following words:

To no one will we sell, to no one will we deny or delay right or justice.”

To evolve at an all-encompassing and pan inclusive definition of Legal Aid is a major problem, as the problems for which legal services are required for are numerous. An attempt, however, has been made by way of Section 2(1)(c) of the Legal Services Authority Act, 1987 which stipulates that “Legal Service” includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter; To provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act. Justice – social, economic and political, is our constitutional pledge enshrined in the preamble of our Constitution. The incorporation of Article 39-A in the Directive Principles of State Policy in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid.

For long there has been a misconception that Legal Aid is not a right in its true sense as it is incorporated under Article 39 – A thereby being a Directive Principle of State Policy and not being part of the Fundamental Right. However, the position of law is now well settled that the Right to Representation as well as the Right to speedy trial has been recognized as being part of the very Right to Life and Liberty and is therefore of paramount significance. It is therefore the duty of the court in order to facilitate, promote and ensure that this right is preserved at all levels and that its sanctity is to be accorded from the very Preamble of the Constitution. Expeditious relief entails that the right is to be made available to every pauper, indigent, impecunious and destitute. Hence, legal aid is not a charity or bounty, but is a constitutional obligation of the state and right of the citizens. The problems of human law and justice, guided by the constitutional goals to the solution of disparities, agonies, despairs, and handicaps of the weaker, yet larger brackets of Bharat’s humanity[3] is the prime object of the dogma of “equal justice for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society.[4]

Justice Krishna Iyer regards it as a catalyst which would enable the aggrieved masses to re-assert state responsibility, whereas Justice P.N. Bhagwati simply calls it “equal justice in action”. But, again the constitution not being a mystic parchment but a Pragmatic package of mandates, we have to decode its articles in the context of Indian life’s tearful realities[5] and it is here when the judiciary has to take center stage. The judicature, which by its creative interpretations has given an encyclopedic meaning to the concept of legal aid. Time and again it has been reiterated by our courts that legal aid may be treated as a part of right created under Article 21 and also under Article 14 and Article 22(1).[6] The apex court has held access to justice as a human right.[6]thus, imparting life and meaning to law.

In his vision statement on Second Generation Reforms in Legal Education, as rendered by the Hon’ble Law Minister for the Government of India, a threefold policy of Expansion, Inclusion and Excellence was underscored and conceptualized.

  1. Expansion will focus on a multi-disciplinary approach encouraged across the board to enable more students to access affordable and quality legal education. An efficient justice system plays a vital role in our economic development – reducing pendency’s alone can add about 2% to our GDP – and it is our legal education system that will provide the manpower to fuel this required efficiency.
  2. Inclusion will focus on creating a system by which a first generation lawyer from a backward and poverty stricken class can rub shoulders with the best of the best at the national level by way of establishment of a National Law Library that can also be accessed by all citizens online.
  3. Excellence will focus on identifying and nurturing talent by providing every opportunity to every individual wishing to be a student of law: An opportunity for students to specialize in various aspects of the law during their education itself in order to create a pool of talent based on domain expertise and core competence. A continuous focus on social responsibility and a strong professional ethic during every step of the educational process – every practitioner should have an unfailing commitment to the integrity and working of the legal system – reinvigorate the oversight mechanism for professional misconduct in order for it to take swift action, including debarring those that violate professional ethics and standards of the profession.

The Law Commission of India in its 184th Report has elucidated and underscored the need for drastic remedial steps to be taken in order to bring transformation in the way Legal Education has been perceived and implemented, including revamping changes to the core structure of implementation in Legal Education. It was also for the very first time that it was realized that a mere declaration to that effect will not suffice, what was needed was also a series of concerted actions taken by The Bench, the Bar, the Legal Academia and the Legislators in order to do their part to instill and inculcate the spirit of Social Engineering into the next Generation of Lawyers.

Challenges to The Access to Justice in India.

A very pertinent and pragmatic observation would suggest that India, being a participatory democracy suffers both from the virtues and vices of public participation. Those which frequently have been termed as prioritized challenges are those that are aimed at infrastructural difficulties, problems of implementation, and above all a major sample size to cater to the needs of everyone. Furthermore, the cliché problems of docket explosion, less judges to litigant’s ratio are among other features which are here to stay. What is therefore necessary is to arrive at a step by step solution to the problem in question. However, there are other very significant issues, which are in addition to the problems already summarized above.

As a result of social and economic conditions in India, pro bono representation of indigent clients is regarded as part of the social responsibility of the legal profession: “The professional obligation of the Bar behooves it to help the poor in a country of poverty.”‘[7] The Expert Committee on Legal Aid rightly observed that “access to the Courts would be illusory unless representation of the under-privileged by counsel is recognized as a professional mandate.”‘[8] The Expert Committee, therefore, recommended in 1973 that the privilege of representing a client before judicial tribunals to the exclusion of all others must carry with it a binding obligation to appear in cases of legal aid.

In United States, the rules pertaining to pro bono verito services has been recognized as a non-

mandatory obligation, amongst the lawyers, vide Rule 6.1 which declares that every lawyer has a professional responsibility to provide legal services to those unable to pay, but this responsibility is only aspirational not legally binding. It then states that “[a] lawyer should aspire to render at least (50) hours of pro bono publico legal services per year,” and in fulfilling this responsibility should provide legal services at no fee or a substantially reduced fee to any of a wide variety of recipients, including persons of limited means, or should participate in activities for improving the law, the legal system, or the legal profession.[9]

In one of the articles penned by Mr. Bloch and Mr. Iqbal Ishar[10], it has been espoused by the learned authors that the nature of obligation that has been imposed on the lawyers practicing in India is purely moral as per the Bar Council of India rules continue to require the members of the profession only to bear in mind in the practice of law that “within the limits of an advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.”[11] This obligation of advocates to render legal aid is only moral, and, in the absence of machinery put in place by which an advocate could be made to discharge this obligation, it is easily possible for advocates who are so minded to evade their pro bono obligations. More conscientious members of the profession have been providing assistance and representation on a purely voluntary basis to clients with limited or no means, often without assignment by any legal aid organization. However, these individual efforts are said to suffer from an air of charity, and the legal profession as a whole has been castigated for not undertaking a public legal aid and advice program in an organized manner”.[12]

The author is unable to take this argument in its entirety for the BCI Regulations have been designed on a pragmatic basis. Should proper incentives for cases pertaining to Legal Aid matters were to be adopted there would be a competent representation of clients. In India, there are three categories of lawyers at all levels which deal with cases pertaining to Legal Aid matters. The first category belongs to those lawyers who take up such cases as part of their social responsibility, and promise to give adequate representation to their clients who are usually indigents. These lawyers have a very good practice, and do so as part of their community responsibility. However, there have been instances during the work being carried out in Tihar Jail Complex wherein the poor indigents who are incarcerated hold visiting cards of some very influential lawyers, however they have not seen their clients for the past four years, to quantify the least, leaving the destitute to linger on the faint light of hope.

The second category of lawyers who take up such matters are those whose practice is not able to earn them a proper living, the idea therefore is to thrive on the remuneration paid by the Legal Services Authority and earn it on a case to case basis. Discrediting the very argument of their competency, the sheer number of cases undertaken by them becomes so huge, that redressal of their clients apathy, and the very notion of his adequate representation falls into grave jeopardy.

The last class of lawyers is comprised of those who actually work for the benefit of the client and to secure to him the values that have been pithily surmised in the constitution, a right to which he has proprietorship is denied to him by all quarters. Needless to admit any argument that such lawyers are very few in number, owing to the insurmountable number of litigants that cluster around the doorsteps to justice. If a change has to be made then it has to be such so that adequate incentives are provided for cases in which Legal Aid is looked upon as the obligation of the State. Under Regulation 8(9) of NALSA (Free and Competent Legal Services) Regulation, 2010 the amount stipulated payable per month to Lawyers who are called Retainer Lawyers or solely committed to the cause of fighting Legal Aid cases, is a mere sum of Rs. 5000 p.m. for District Legal Services, Rs. 7500 p.m. for State Legal Services, and Rs. 10,000 p.m. for Supreme Court Legal Services.[13] This amount is payable to those lawyers who are exclusively empanelled for the purposes of Legal Aid Work and due to the over burden of cases have to deal with those cases solely. There is an urgent requirement of incentivizing legal aid work and to promote it amongst those lawyers who refrain from entering into this noble domain due to financial constrictions.

[1] AIR 1987 SC 38.

[2] What Next in the Law: Lord Denning, London Butterworths, 1982.

[3] Report on National Juridicare: equal justice – social justice,1977, Government of India.

[4] Chopra R C, Legal Aid Movement in India-Its Development and Present Status, http://causelists.nic.in/nalsa/

[5] Report on National Juridicare: equal justice – social justice,1977, Government of India

[6] Hussainara v. Home Secretary, State of Bihar, AIR 1979 SC 1377.,  Khatri v. State of Bihar, AIR 1981 SC 928, Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 99, Kishore v. State of Himanchal Pradesh, AIR 1990 SC 2140.

[7] V.R.K. Iyer, Social Mission Of Law 131 (1976). See Also V.R.K. Iyer, Law, Society And Collective Consciousness 68, 86 (1982); Menon, Lawyer In The Adjudicative Process.” An Appraisal Of Section 30 Of Advocates Act, 1961, 8 J.B. Council Of India 105, 107(1981); Anand, General Principles Of Legal Ethics 204-05 (1965).

[8] Supra Note 51.

[9] The comment to ABA Model Rule 6.1 says that “States, however, may decide to choose a higher or lower number of hours of annual pro bono service.” MODEL RULES OF PROF’L CONDUCT R. 6.1. The New York version of Rule 6.1 includes the following: “Every lawyer should aspire to: (1) provide at least 20 hours of pro bono each year to poor persons; and (2) contribute financially to organizations that provide legal services to poor persons.” N.Y. RULES OF PROF’L CONDUCT § 1200.45(d) (2010) (emphasis added).

[10] Legal Aid, Public Service And Clinical Legal Education: Future Directions From India And The United States, [Vol. 12:92] Michigan Law Review.

[11] Rule 39.B of the Bar Council of India, under authority of the Indian Advocates Act,1961 (quoted in the Expert Committee Report, supra note 8, at 176).

[12] Desai, Role And Structure Of Legal Profession, 8 J.B. Council Of India 112 (1981); V.R.K. Iyer, Law Versus Justice 167 (1981).

[13] Vide Regulation 8(9) of NALSA (Free and Competent Legal Services) Regulation, 2010.

 

Author: Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University of Delhi.

New Delhi, India