Solutions to the Challenges posed in Access to Justice

Dr Ranbir Singh

It can be unequivocally contested that in order to ensure that access to justice is not a mere myth, or a semantic jargon, what needs to be done is a collaborative effort of the Bar, the Bench, the Legal Academia and the Law Students in order to promote facilitate and propagate the cause for clinical legal education, and legal aid work so that Justice can also be manifestly done. As Justice Holmes has surmised, what Law is to Lawyers, Legal Education is to Law Students. It is therefore very pertinent that there has to be a change in the way Legal Education is imparted. It is not only the role of the teachers to further this cause, but it also vests a great deal in students. Contrary to its western counterparts, Legal Education in India was not regarded as priciest of professions as the gestation period was long. With the advent of 21st century, this trend has reversed, where students choose law not as a matter of chance but as their very choice. However, much needs to be done.

Another point which is very pertinent to the ongoing debate is the attitude of Law Students who take up Pro Bono Legal Services. The students could be categorized into three denominations when it comes to opting for Legal Aid Programmes. Category A comprises of those students who wish to enter into corporate law jobs and therefore Legal Aid to them is futile, as it has no academic credentials attached to it. Category B comprises of those students who wish to take up Legal Aid Work because it earns them brownie points when applying for an LLM Degree in any of the Law Schools abroad, for due regard is paid to those students who have had some experience in such sectors, The final category is comprised of those students who are committed to the cause, and work for the betterment of the society rather than looking up to it as a means of upgrading their resume. However, another implicit quandary is that due opportunity is not given to the students who are willing to participate because of their seniority.

Students in first and second year of Five Year Programme rarely get a chance to participate in Legal Aid Activities, although they are inducted as members of the legal aid committee of their respective colleges.

In order to counter this problem, one has to see the very conception of what all is included within the ambit of Pro Bono Verito Services. Pro Bono Verito Services includes and is not restricted to Mediation, Conciliation, Negotiation, Client Counseling, Legal Drafting, Drafting for Policies, Prison Advocacy Programs, Legal Literacy, Legal Awareness, Organizing Legal Aid Camps, Working with Civil Societies that provide for Legal Aid, Assisting Lawyers and Firms that take up Legal Aid Work, to name a few.

A proper segregation of work can be done with respect to pro bono verito work, whereby students in the first year can work on legal empowerment, capacity building of other individuals in rural, semi urban, and urban sectors by spreading legal awareness. Whereas other specialized category of work such as ADR and Client Counseling can be taken up by students of second and third year. In such a way, every student can actively participate in the way Pro Bono Work has to be accomplished. Furthermore, in addition to this division, stress should be given on including academic credit so that the students who take it up are incentivized.

Being Tech Savvy

Although it has been noted for some time now, the utility of the Internet for providing legal information – and as far as other possibilities are concerned – one only has to visit the web pages of a number of CLCs to realize that many of them contain little more than basic contact details. Such a trend is universal. The details that are mentioned in any of the cells be it the Website of the Apex Court, i.e. Supreme Court or the Nalsa or State Legal Service Authorities is only constrained to the names of the Honourable Members who are spear heading these offices and discharging the duties, and their permanent addresses, to which a poor indigent has no use. What is important is therefore, the mechanism which has to be provided for in the form of a flow chart, or any other method which is easy to comprehend and is bereft of unnecessary complications. The absence of comprehensive legal information on their websites probably arises due to resource constraints but, again, this is an area in which the law student could contribute. Most CLCs produce comprehensive pamphlets on common legal topics for their communities. Law students with combined IT degrees or with web design competencies could upload these publications on CLC websites with minimal ordeal.

In Indian perspective, the same trend has been noticed in all the established law schools that have developed their own E- Research Cells. However there is a two pronged complication. A litigant, assuming that he is computer literate, would not know how to browse through the University’s individual Website Id and pick out relevant material that could help him build his case as he does not understand the finer intricacies of the subjects involved. A lawyer, on the other hand would not browse through individual research materials, as replete as they might be, on these individual websites, thereby heavily constricting the scope of his research. The problem therefore is not the unavailability of research solutions, the problem is the unavailability of a common platform wherein all such solutions could be classified according to Subjects, which can either be searched just like a Google search engine or be a click and open feature.

As far as it regards the literate section of the society, features can be provided for by using Social Networking websites such as Drupal, YouTube, Facebook etc. so that a basic legal awareness could be carried out to them at their doorsteps. Social Networking Sites have proved to have catalyzed socio- politico – cultural revolutions that have shaken roots in countries like Syria, Egypt, Tunisia, Libya, Sudan, Greece, United States, Ukraine, and England to name a few. With estimates totaling over a Hundred Million internet users who belong to India by the end of 2011, with roughly 43.5 Million users accessing Facebook[1], the prospective of Facebook and other social networking websites emerge as potent tools of information dissemination.[2]

Major Tool in the Shape of Section 32 of the Advocates Act, 1961

To the extent of representing any of those persons that are specified in Section 12 of the Legal Services Act, 1987, section 32 of the Advocates Act, 1961 is of primordial significance for students who are willing to represent their clients in a court of law. The most important benefit that this section provides for is that it identifies any person who can represent in any case or matter, the only prerequisite being that such person has to take leave to appear from the Magistrate and upon his permission can he represent his client.[3]

A pertinent instance of manifesting this right endowed in the hands of every student is the recent Tihar Advocacy Project which has been carried out by the Students of the National Law University, Delhi whereby bail is secured for all those incarcerated under trials who have been imprisoned for an offence for which they have already spent more than half period of the total maximum imprisonment term for which they have been accused of an offence. By invoking Section 436 – A of the Code of Criminal Procedure, 1973, upon the discretion of the Magistrate, without going into the merits of the case, if an under trial has spent more than half of the total imprisonment term for which he was accused of, he is bound to be released on bail with or without sureties.

However, what is also of significance is the limit to which this right can be extended. A ground breaking potent weapon that the Indian Judiciary had evolved was the inception of Public Interest Litigation in India that has liberalized the rule of locus standi to a considerable level. Under the banner of Public Interest (or Social Action) Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the courts have sought to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content. Originally aimed at combatting inhumane prison conditions’[4] and the horrors of bonded labor,[5] public interest actions have now established the right to a speedy trial,[6] the right to legal aid,[7] the right to a livelihood,[8] a right against pollution,[9] a right to be protected from industrial hazards,[10] and the right to human dignity.[11]

Justice Krishna Iyer surmised this proposition in the following manner:

Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings… Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.[12]

What is envisioned is an amalgam of this power that can be read with section 32 of the Advocates Act, whereby a student can act as a public spirited citizen, and therefore he shall not be restricted to putting up appearances only at the trial stage, he can also file writ petitions which shall be treated as PIL, wherein and whereby he can argue before the Hon’ble High Courts and the Supreme Court.

Law Firms participating in Pro Bono

Several large law firms have become signatories of the “Law Firm Pro Bono Challenge,” an initiative launched by the American Bar Association (ABA) in 1993 and now operating under the aegis of the Pro Bono Institute located at Georgetown University’s Law Center. The Challenge encourages law firms to demonstrate a commitment to pro bono by institutionalizing a policy that commits 3 to 5 percent of the firm’s billable hours to pro bono causes.[13]

In addition to these new firm roles and policies, virtually all state bar associations currently offer annual awards that recognize pro bono work, as do numerous individual law firms across the country (Rhode 2005). Many of these law firms tout the accomplishments of pro bono award winners on their Web sites and in national lawyer periodicals that rank and profile outstanding pro bono initiatives and achievements. Some states now require lawyers to report the number of pro bono hours they perform each year, while other state and national bar associations have increasingly urged lawyers to perform pro bono work. If the same trajectory can be followed in India, then Law Firms and not just lawyers can realize that they owe a responsibility to the people in India. It would further be an incentive for the law students who take up placements with such law firms.

Conclusion

What is therefore envisioned is a common platform whereby the law schools can help raise Legal Awareness in schools and colleges. Other students can also help in various legal aid programmes be it client counseling, mediation, negotiation, prison reforms, legal drafting, policy making, or assisting firms or lawyers in their pro bono verito matters. The endeavor is to bring together all the flag bearers of Legal Insignia to move towards a collaborative cohesive unison so that justice may be secured those who dream of it.

The framework should strive to achieve the following three A’s.

Awareness: Empowering people by letting them become aware of their rights and powers and the way to secure those rights to themselves.

Assertion: Assist and facilitate those people to assert those Rights as a matter of “Right” rather than a conferment or a bestowal of some benefaction.

Adequate Arrangements: Once Objective 1 and 2 are secured, the State shall make adequate arrangements so that these rights are rightfully given to those who assert them.

Let Access to Justice not be an experiment for a law school to try its hands on, let it be a full fledge realization of every law school to do its part for the betterment of our country, let it be a motivating force for every student to strive and live upto the ethos of Justice for all, let it be a calling for every lawyer to facilitate and promote the young legal minds by their able guidance so that the very tenets of professional ethics and civic responsibility are not constricted to a mere rule book.

[1] Estimates taken from Internetworldstats.com, accessed on 21st February, 2012.

[2] Estimates taken from socialbaker.com, accessed on 21st February, 2012.

[3] Section 32 of the Advocates Act, 1961 Power of court to permit appearances in particular cases.- Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

[4] Sunil Batra v. Delhi Administration, (1978) A.I.R. 1978 S.C. 1675, Upendra Baxi v. State of Uttar Pradesh (1983) 2 S.C.C. 308.

[5] People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473; Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161; A.I.R. 1984 S.C. 802.

[6] M.H. Hoskot v. State of Maharasta, (1978) 3 S.C.C. 544, A.I.R. 1978 S.C. 1548;

Hussainara Khatoon v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1360; 1369;1377.

[7] Suk Das v. Union Territory of Arunchal Pradesh, (1986) 4 S.C.C. 401; Sheela Barse v. Union of India, A.I.R. 1983 S.C. 378.

[8] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545.

[9] Rural Litigation and Entitlement, Kendra, Dehradun v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652.

[10] M.C. Mehta v. Union of India, (1986) 2 S.C.C. 176.

[11] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2 S.C.R. 516

[12] Mumbai Kangar Sabhha v. Abdulbhai, A.I.R. 1976 S.C. 1455.

[13] Robert Granfield, The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, Law & Society Review, Volume 41, Number 1 (2007).

 

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

New Delhi, India