National Judicial Academy

Access to Justice: Constitutional Perspectives

Dr. S. MuralidharJudge, High Court of Delhi

November 13, 2015

Concept of Justice and Access to JusticeBarriers to Access to JusticeState’s Response to Access to JusticeThree waves of Access to justice Informal Legal SystemsChallenges aheadAn ideal legal service delivery modelAgenda for change

Outline of the presentation

Justice implies fairness and the implicit recognition of the principle of equality

Access to justice serves two purposes   -ensures that every person is able to invoke the legal processes for redress irrespective of social or economic status or other incapacity, and-ensures that every person should receive a just and fair treatment within the legal system.

Concepts: Justice and Access to Justice

Mystification of law and legal processesPrivileging of sections of society and criminalizing

povertyDependence on lawyersCosts, delays and uncertaintiesInstitutional model of state-sponsored legal aidSpecial disadvantages not limited to poverty,

social status, economic status, gender, age, sexual orientation

Failure to integrate the non-formal legal systems with the formal legal system

Barriers to Access to Justice

Constitution of India: Articles, 14,19,21,22,39-A Section 304 of the Code of Criminal Procedure, 1973:

Legal aid to accused at State expense in certain cases

Order 33 Code of Civil Procedure, 1908: Suits by Indigent Persons

Legal Services Authorities Act, 1987 (Section 12:  Criteria for giving Legal Services)+ Lok Adalats

Arbitration and Conciliation Act, 1996 Gram Nyayalayas Act, 2008

State Response to Access to Justice

National and State Human Rights Commission Commissions for Women Commissions for Protection of Child Rights Commission for Minorities

Other Tribunals including those for accident claims, consumer disputes, debt recovery, issues related to employment under the State and the Armed Forces, telecom disputes etc.

Delhi Government’s mediation centres Public Grievances Commissions/Cells Permanent Lok Adalats of public utilities Other dispute resolution mechanisms including Crimes

Against Women cells and committees for complaints of sexual harassment

State Response to Access to Justice

First Legal representation: the traditional model of legal aid which is based on providing representation to poor litigants in courts

Second – the expanded notion of locus standi – class action and public interest litigation

Third – ADR: Mediation, Arbitration, Conciliation and Lok Adalats

Three waves of Access to Justice

First Phase Pre-independence era: Introduction in the 17th

century of the Anglo Saxon adversarial model of litigation

Early recognition of the right under the 1898 CrPC

Courts alive to the need to provide legal aid in criminal cases: Re: Llewelyn Evans AIR 1926 Bom 551 and P.K.Tare v. Emperor AIR 1943 Nag 26

Evolution of legal aid

Constitution: Articles 21, 22 and 39-A Expert Committees on Legal Aid

Expert Committee on Legal Aid (Central Govt) (1973)

Juridicare Committee (Central Govt) (1977) Committee on Implementation of Legal Aid

Schemes (CILAS)

The Second Phase

Enactment of the Legal Services Authorities Act 1987

Formalising the hiearchical and institutional model of legal services delivery

Focus on Lok adalats and other pragmatic means of ensuring speedy justice

A model of legal services delivery conceptualised and controlled by the judiciary

Gram Nyayalayas Act 2008

The Third Phase

Issues concerning lawyers Availability of experienced and competent lawyers at

all levels: Quality of legal services delivery Payment of commensurate fees Perception of the role of a lawyer as a legal service

provider: State driven and not Bar driven Different models of use of lawyers for legal services: Amicus curiae, Pro-bono lawyers, duty solicitors

Lawyers and Representation

Response to the Problem

Judicially evolved PIL Expanded notion of standing Informality of procedure Appointment of Commissioners Court reaching the problem, and treating it

as a non-adversarial litigation. Monitoring of implementation Development of law in specific areas (human

rights, environment, judicial accountability)

Response to the Problem

PIL as a strategic arm of the legal aid movement.

Issues addressed in initial years of PIL Conditions in custodial institutions Bonded agricultural labour and child labour under trials in jails

Issues addressed in later years - Environment- Right to Food- Urban Life

Section 89 of the Code of Civil Procedure, 1908 Arbitration (Arbitration & Conciliation Act,

1996) Conciliation (Arbitration & Conciliation Act,

1996) Judicial settlement including settlement

through Lok Adalats Mediation (Afcons Infrastructure Ltd. v. Cherian

Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24; Salem Advocate Bar Association v. Union of India (2003) 1 SCC 49)

Alternative Dispute Resolution

The Legal Services Authorities Act, 1987 (LSAA)

LSAA inspired by the draft legislation appended to the 1977 Report of the Juridicare Committee in two important features:

Definition of `Legal services’ includes “the giving of advice on any legal matter”

Special categories who are entitled to legal aid irrespective of their qualifying the means test

LSAA: The Institutional Structure

Hierarchical pyramidical structure National Legal Services Authority State Legal Services Authorities Authorities at the High Courts District and Taluk levels.

LSAA: The Institutional Structure

Composition: dominated by executive and judiciary

Shift away from the beneficiary of legal services to the institution dispensing legal services.

Sizable portion of the budget for salaries and maintenance of the establishment

Co-option of the judiciary by the executive Multi-tasking by judges at district and taluk

levels

Paani Panchayats Khap Panchayats Katta Panchayats Shalishi Courts Naari Adalats Muslim Women’s Jamaat Other caste, community dispute resolution

mechanisms Parallel systems

Informal Legal Systems

Reluctance of people to engage with the Formal Legal System

(FLS)

A robust Non-formal Legal System (NFLS)

Need to reorient the FLS as a people-centric system relevant to

their problems

Effectiveness of ‘Lok Adalats’: “Bread for the Poor”

Identifying legal services needs and catering to them at the

earliest point in time

Integrated approach to law and legal services reform

Critiquing the institutional model of legal services delivery

Inter-disciplinary approach”: Involve a wider cross-section of

the society

Challenges

Legal aid needs of the rural population

Problems of security of land tenure; Availability of access to resources like clean

drinking water, water for irrigation, transportation, and pricing and marketing of commodities;

Availability of finances and repayment of loans taken for agricultural operations;

Issues concerning agricultural labour; Displacement on account of manmade calamities

(incl. Caste conflicts) and natural calamities;

Legal aid needs of the rural population

Access to basic facilities including primary healthcare and education;

Loss of shelter and livelihood on account of forced displacement to make way for development projects

Growing unemployment and lack of avenues on account of failure to develop alternative skills;

Forced migration to cities seeking employment

Agenda of the Legal Services Committees

What the activities ought to include:- preventive legal aid elements like advice,

counselling and mediation- Making it available at the point of entry into

the system – within closed penal institutions- social justice litigation on matters “of special

concern to the weaker sections of the society and for this purpose, give training to social workers in legal skills.” (S. 4 (d) LSAA)

Programmatic Content and Implementation

Visibility and Accessibility: Organise periodic visits to closed institutions (prisons, juvenile homes, police lock ups, women’s shelters, beggars’ homes) by team of lawyers, doctors and social workers and follow up with remedial steps

Awareness: Prepare brochures, pamphlets in the local language explaining laws, constitutional rights and remedies: Tie up with local educational institutions to outsource such activity

Outreach: Travel to urban slum clusters and remote corners of districts to increase visibility and enthuse participation by the disadvantaged sections in the legal services programmes

Preventive This includes providing counselling, advice, pre-litigative resolution mechanisms at the nearest point in time and within easy reach

Remedial This envisages strengthening the existing models of providing legal assistance from the point of entry into the legal system till the point of exit

Rehabilitative This envisages an expanded notion of providing legal services even beyond the litigative phase: Relevant for issues like bonded labour, child labour, persons who have been under involuntary incarceration in penal custodial institutions

An ideal legal services delivery model

Challenging the constitutionality of laws that criminalize poverty

The use of law and institutional reform litigation as a strategic arm of the legal aid programme

Legal aid as part of the overall package of welfare measures intended to support the economically and socially disadvantaged

Sensitization of the judiciary Incentivizing lawyers’ participation Interdisciplinary approachClinical legal aidWidening the range of legal service providers: para legals,

civil society

Agenda for change