A Study of Social Implications of Access to Justice

INTRODUCTION

The society is a product of many complex phenomenon and subsystems. In the primitive society as humankind evolved from solitary gatherer of food to maximising their efforts through team work and collective efforts the social mores evolved as did the first social group. These groups had their own mores and customs which were though quite primitive but they kept the groups together and ensured that the members did not deviate from their tasks and cohesion was maintained amongst the members. Gradually as the society evolved the relationship amongst the members became complex to govern the conduct of their conduct even more reliance was places on the social mores and customs. With time the advent of State required even more complex norms of behaviour to be formulated for regulation of the behaviour of the citizen and collection of revenue. This led to the evolution of laws. Gradually the legal systems became more complex. As concept of people‘s welfare became cardinal the welfare legislations were ushered. The welfare legislations were aimed primarily as the term indicates towards the welfare of the citizenry at the expenses of the State. There was other set of laws which were aimed at protecting the disadvantaged or promoting them so that they could rise and move forward despite their innate disadvantage. The democratic governments which are basically formed with a people centric approach were particularly keen on laws which provided for welfare of people and tackled the socio political and economic disparities. These laws have had a positive social impact and they continue to mould the behaviour of the society and govern the social actions. The legislations like Scheduled Caste (Prevention of Atrocities) Act, Article 17 and 18 of the Constitution which abolish untouchablity, Article 15(4) and 16(4) of the constitution which provide affirmative action and the ones like MNREGA which guarantees rural employment for a specified number of days in a year, Dowry prohibition Act have all had a deep seated social impact. These legislations have changed the social format by guaranteeing livelihood, protection from discrimination, emancipation of women and getting the society rid of the social evils like dowry etc. However in certain sections of the society which are below poverty line and which lack awareness about legal and constitutional privileges vested in them by the various Constitutional and legal provisions they are not able to access the same on the contrary the benefits are appropriated by the unscrupulous middlemen and interlopers. Education and literacy though is the first and foremost tool of empowerment and bringing people within the net of the welfare provisions. However when it comes to the legal provisions the awareness of the safeguards and privileges is one thing and the capacity to access those provisions is another. This being primarily due the complexity in the legal language and legal process in India, even for the so called‗well educated‘ and‗well read‘ people going to the Courts and undertaking any legal formality is not a very welcomed activity. For

At the micro level the broad objectives of the development plans have been realised through a series of scheme which are motivated with the mission to ensure availability of certain ‗takeaways‘ to each individual beneficiary or group of them. The prime focus of most of the schemes has been the weakest and the downtrodden of the society. The people of underprivileged sections have an inherent disability in gaining access to the schemes and obtaining justice due to poverty and illiteracy. In a country like India where a majority of population is poor and illiterate taking productive use of the liberties granted by the Constitution and the benefits provided for by various progressive legislations has been difficult task particularly for the underprivileged.

The duties imposed upon the Courts by incorporation of the regime of ―legal aid‘, was significantly different from the traditional duty of judging the disputes before them. It vested the judiciary with a new duty to act as a catalyst in the justice dispensation system by providing access to the people belonging to the lowest strata of the society to the institutional mechanisms of justice dispensation. It is noteworthy here that till now the people of these class of the society either had no access to the judiciary or were victims of exploitations in the hands of touts and inadequately equipped lawyers. The inability to access the institutional mechanisms of justice dispensation had vast sociological implications not only on the people who were left out of the process but also the population in general, as the same brought with it social unrest, lack of trust in institutions and exploitation.

1 1980(1)Supreme Court Cases 98

to every person equality before law and equal protection of law. The protections afforded by the Constitution and the ―Rule of Law‖ seems redundant when an individual on account of being marginalised and socially and economically being backward has no access to the law. The entire social fabric appears to be at a threat. The non-accessibility to justice has cascading effect in terms of the general lack of faith in the institutions, the awareness and realisation of the constitutional rights and the smooth functioning of a civilised society. In this sense the availability of legal assistance has a great social significance. With the evolution of India since Independence the mechanisms of legal aid and legal services have also evolved the scope of legal assistance has tremendously increased. The range of the people to whom the legal services and aid is available has also grown. However even despite there being a geometric growth in the numbers the access to legal assistance, in terms of the total numbers of the marginalised and excluded groups the percentage that have been able to get legal aid is a miniscule. There are numerous reasons for the non-permeation of legal services to the majority of target population, the crucial being lack of awareness, lack of resources and the empathy at the level of the Governments. The Legal Service Authority Act 1987, has proven to be a boon to the underprivileged whereby the legal service authorities have act as a facilitator and medium to reach the welfare schemes and reap their benefits. The availability of affordable and quick justice by Lokadalats has further benefitted particularly the underprivileged who earlier had to wait for decades for the adjudication of trivial cases. There have been various studies on the impact of effective legal service and the sociological implications there of Dr. Durgalakshmi & Mrs.Ammu R.2in their paper Law as an instrument of social change and empowerment of the masses discuss the role of law in social transformation and the role of the society in the development of the laws. The author suggests that law is the ―most effective instrument of social change but at times social changes become law‖. The authors further study certain legislations like those abolishing slavery and bonded labour, abolition of sati, widow remarriage, elimination of child labour, right to free and compulsory education etc. to substantiate their theory. The authors conclude that social problems are interconnected with law and effective implementation of laws is a device of social change.The theory of the author is very much relevant for this research as the

2Durgalakshmi S. Dr., AmmuR.Mrs. Empowering People: Effective Social Work Approaches and Strategies (Vol5 Issue 12)

social mores and customs which had the force of laws were also determining factors in the social conduct and were reason for changes in the society which has continued further with the march of civilisation. Prof. (Dr.) Ranbir Singh 3Access to Justice and Legal Aid Services with special reference to specific Justice needs of the underprivileged people-The author in this paper discusses the advent of Indian Legal system and the inspiration it draws from the British legal system. The author then discusses the inception and development of the Legal Aid system in India. The author discusses the various legislations and the schemes for providing legal aid in India. The paper briefly touches the vast scope of ‗legal service‘ as laid down by the Legal Services Authority Act 1989. The author finally suggests that the system of legal aid should be made broad based, the law students should be provided with a place in the system and the students can prove to be a key players. Galanter Marc, Krishnan Jayanth K.4 (2004) “Bread for the Poor” in their paperAccess to Justice and the Rights of the Needy in Indiaanalyses the growth of the Indian legal System from the pre-colonial era to the current times. The concepts of ‗‘nyaypanchyats‘ is discussed and the reasons on account of which it could not be as successful as anticipated are discussed by the paper. The authors further discuss how the various institutions for dispensation of justice evolved after Independence. The relaxation of the doctrine of locus and evolution of the concept of ‗Public interest litigation‘ have been landmarks in the evolution of a responsive judiciary of the Country. The authors suggests that traditionally contesting litigation in the Courts was an expensive affair and was only within the means of the people who were resourceful and poor, and approaching the Courts was outside the financial capacity of the poor. However ‗Public Interest Litigation‘ provided the poor and have not‘s with the access to the temples of justice. The litigation to cater to the problems of the poor who had no means to approach the highest echelons of justice were brought and contested efficiently in the form of Public Interest Litigations. The Courts also rose to the occasion and not only entertained but also took a proactive view to provide much sought legal remedies. The enactment of legislations like legal services authority Act 1989 further opened more channels for the poor to justice. The evolution and growth of the ‗LokAdalats‘ proved to be single most significant step for providing the poor cheap and speedy justice. The paper discusses statistics to

3 Singh Ranbir Prof(2017) http://probono-india.in/research-paper-detail.php?id=15 4Glanter Marc, Krishnan Jayanth K. (2004) Hastings Law Journal,[Vol. 55:789] pp 789

also makes a critical analysis of LokAdalats and suggests that the LokAdalats have a tendency to turn into a paternalistic, intuitive and ―kadi justice‖ institution for the poor where the poor are left at the mercy of the judges. The authors further suggest that lokadalats with the absence of appeals, the exclusion of lawyers, and the shift of decisional standards from ―legal principles‖ to ―principles of justice‖ suggest a major enlargement of the presiding judge‘s discretion and that the poor have more to gain from benign paternalism than from juristic or popular legality. A study was undertaken by the Department of Justice, Government of India namelyProject on access to justice for marginalised people workshop report on validation of needs assessment study of legal services authorities5. The key objective of this study was to examine the needs of the Legal Services Authorities (LSAs) in order to fulfil their statutory mandate and make recommendations for strengthening their functioning so that they are able to meet the expectations better as expressed in the LSA Act and other relevant documents. The study was conducted by the Multiple Action Research Group (MARG), a Non-Governmental Organisation (NGO) in 2011. The period covered under the study is between 2006 and 2010. . The SLSAs in all seven project states were studied with regards to their three main functions namely Legal Aid, Legal Awareness and dispute resolution through LokAdalats. Following the completion of the needs assessment study, MARG shared a draft report with Department of Justice, which was circulated to National Legal Services Authority and the State Legal Services Authorities for comments on the findings. Thereafter, a daylong workshop was organised on 31 October 2012 in Delhi to bring together National legal service Authority (NALSA) and State Legal Services Authority(SLSA) to take on board their comments. The workshop benefited from the participation of the Member Secretaries of the SLSAs from across the country. The study identified the following best practices:-  A toll free legal helpline number  Outreach through websites  Use of documentary films for awareness generation and publicity  Holding legal aid clinics in jails  Use of mobile vans for holding LokAdalats

5http://doj.gov.in/sites/default/files/VWR%20%205_0_0.pdf

victims of calamity  Filing of Public Interest Litigation  Setting up monitoring committees to monitor progress in legal aid cases  Holding televised panel discussion on rights and entitlements

The Access to Justice for Marginalized People or the A2J Project is in its second phase and over the past four years has endeavored to address some of the pertinent issues regarding the justice sector in India. It is a collaborative effort between the UNDP and the Department of Justice and comprises multiple components including legal research and evidence gathering to strengthen policy, systematic analysis of data on crucial aspects of the judiciary to influence

6Department of Justice Government of India, United Nations Development Programme. http://www.doj.gov.in/other-programmes/access-justice-marginalized/access-justice-marginalized

partnerships, conducting innovative pilots to raise legal awareness and generating demand from the grassroots. The project has had a special focus on working with marginalized groups belonging to Dalit and Adivasi communities, women and children. The pilot efforts have led to significant learning and promise to bring in deep-seated change if pursued over a period of time. The main components of the A2J project were: ▪ Strengthening Capacities of Legal Services Authorities ▪ Technical Support to National Mission on Justice Delivery and Legal Reforms ▪ Legal Empowerment ▪ Gathering Fresh Evidence to Strengthen Policy on Judicial Training and Justice Delivery

The quinquennial strategy under this document was also be implemented in a phased manner, the first phase from July 2009 to June 2010, phase-II will be from July 2010 to June 2011, phase-III will be from July 2011 to June 2012, phase-IV from July 2012 to June 2013 and phaseV from July 2013 to June 2014. It was expected that the strategy in this document for the thrust areas will be fully implemented by 2014 so that a new era of legal services can be set in place for the forthcoming years. Vision implementation Committee NALSA, in order to implement the vision and the strategy narrated in this document was to constitute a committee to be called ―Vision Implementation Committee‖ consisting of five persons having such

7Haryana State Legal Service Authority. hsla.gov.in/sites/default/files/documents/quinquennial.pdf

Secretary, NALSA, will be the Secretary of the Committee. The Committee was to formulate the schemes necessary for the implementation of vision and strategy envisaged in this document within a period of three months from now. The committee was to evaluate all such schemes and programmes after every six months and submit a report to the Executive Chairman NALSA to bring to his attention the status of the implementation of schemes, success or failure of the scheme, financial or other constraints in the implementation of such scheme etc. However the report though has evaluated and has performed a reasonable audit of the evolution of legal service scheme however the strategy for the future has not fully transformed into a reality as there exists a vast gap between the beneficiaries of the legal services and the authorities which primarily is on account of lack of awareness amongst the beneficiaries.

The author has given certain suggestion to alleviate the situation. He suggests that it is the need of the hour that the poor illiterate people should be imparted with legal knowledge and should be educated on their basic rights which should be done from the grass root level of the country. However that cannot be possible until judiciary gets wholehearted support from the State Administration to conduct legal literacy programmes. He further suggests that the judiciary should focus more on Legal Aid

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discrimination against the poor will be achieved when free Legal Aid is used as an important tool in bringing about distributive justice. The author critically evaluates the judicial precedents and legislations guaranteeing legal aid to suggest that even though there are a number of precedents as well as legislations to up hold the right to free legal aid but they have just proven to be a myth for the masses due to their ineffective implementation. Thus the need of the hour is that one should need to focus on effective and proper implementation of the laws which are already in place instead of passing new legislations to make legal aid in the country a reality instead of just a myth in the minds of the countrymen. In providing Legal Aid, the Legal Aid institutions at all level should use proper ADR methods so as to speed up the process of compromise between parties to the case and with that matter will be settled without further appeal. Finally reverting to the duty of the State the author suggests that Legal Services Authorities must be provided with sufficient funds by the State because no one should be deprived of professional advice and advice due to lack of funds.The author has not only comprehensively analysed the growth of the legal aid regime in the country but also has very effectively conducted a critical evaluation of the same and has come up with positive suggestions to ensure availability of legal aid.

The report suggested given the centrality of quality legal services in securing justice for the marginalized people, the focus has been on supporting the Legal Services Authorities. As a part of this endeavour, the Department commissioned a needs assessment study in 2011, after obtaining NALSA‘s consent, with a view to assess the requirements and challenges of the Legal Services Authorities as well as the communities that they service. The study was envisaged as a tool as it allows perspective building on perceptions of legal aid provision as well as highlight the directions for future change. It helped to understand the needs of the Legal Services Authorities to fulfil the role that

9 United Nations Development Programme, Department of Justice: Government of India: Needs assessment study of selected legal services authorities in the States of Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odisha, Rajasthan and Chhattisgarh

others requiring reforms – across the Legal Services Authorities in terms of their resources, budgeting, planning, client satisfaction and monitoring practices. The primary aim was to assist NALSA and SLSAs in developing strategies for providing effective legal services across the country through strengthened Authorities. Some of the recommendations made seem practical, such as adopting a systematic empanelment process for lawyers, ensuring further trainings for empanelled lawyers as well as paralegals, putting in place monitoring systems for legal aid lawyers, ensuring adequate infrastructure of Legal Services Committees at the taluka levels etc. The study also identifies activities of select Legal Services Authorities that could be adopted as best practices to strengthen the delivery of legal services across the country. In short, the study provides a comprehensive perspective on the legal services in India and makes useful recommendations for improving benefits to recipients of legal services.

The major recommendation of the Law commission were (i) The state is obligated to provide funds for legal aid (ii) The legal profession has a responsibility to provide legal aid iii) The legal profession owes a moral and social responsibility to the poor members of the society which it must discharge by doing certain amount of legal work free for poor persons iv) The scheme should be modified suiting the conditions prevalent in each state v) The State should make financial provisions for legal aid schemes.

10 Law Commission of India, 14th report Vol.1

The 14th report of the law commission if looked down in a retrospective way was path breaking as with it the formalisation of legal aid was initiated. The concept the ―Legal aid is not Charity‖ can be seen to be developing in the report. The report acknowledged the social importance on legal aid in India. The report acknowledged the duty owed by various sections to provide legal aid to the people of economically and socially marginalised sections. The national legal service Authority which is the umbrella authority under the Legal Services Act monitors and guides the other state Legal Services Authorities published the Nalsa News Bulletin11. The issue does an audit of the activities of the various State Legal Services Authorities in addition to the National Legal Services Authority. After the initiation of the legal services in the country the scope of the legal services have significantly increased. Now the marginalised people are provided with an array of legal services over those which were provided by the legal services authorities earlier, now the range of services covered include, motor accident claims, assistance in family disputes, traditional civil and criminal litigations etc. The impact of the progressive outlook is clearly evident in the numbers of beneficiaries. The national data regarding the beneficiaries in first and second quarters of 2017 has been collated in the issue and it mentions a total of 230278 people were benefited by the various legal aid schemes. In Madhya Pradesh 33037 people were benefitted out of which 3664 belonged to the Scheduled Castes, 2746 belonged to the Scheduled Tribes, 5145 were women, 1434 were Children and 9419 were under trials. A total settlement of Rs 93, 80,000/- was awarded in the LokAdalats of Madhya Pradesh. The national data regarding the beneficiaries in second and third quarters of 2017 has been collated in the NALSA News Bulletin; Graphical and Statistical Glimpse12 it mentions a total of 401404 people were benefited by the various legal aid schemes. In Madhya Pradesh 75313 people were benefitted out of which 6139 belonged to the Scheduled Castes, 5415 belonged to the Scheduled Tribes, 17683 were women, 3770 were Children and 13001 were undertrials. A total settlement of Rs 7,08,73,272/- was awarded in the lokadalats in Madhya Pradesh. The data indicates that the awareness of about the legal aid and the access to it is on a rise both at the national level as well as in the State of Madhya Pradesh.

11Quarterly Legal Services Bulletin IssueNo1&2of2017 12 Quarterly Legal Service Bulletin Issue No. 3&4 of 2017

aid budget in the United Kingdom. According to the article the cut in legal aid budget has a devastating human rights impact in the UK. Thousands of the most vulnerable, including children and people with learning difficulties, have been left without essential legal advice and support. The opportunity to secure rights - and to challenge wrongs - is at risk of becoming a luxury only available to those with a significant amount of money and the ability to navigate an often complex and frightening legal system alone. The author suggests that not only has access to justice undoubtedly been severely restricted, but that this policy shift has been discriminatory in effect – disproportionately hitting those already marginalised and disadvantaged in society. Migrants, children and young people, and people with disabilities and other vulnerabilities have been particularly badly hit, as have the poorest in the UK. She further suggests that the cuts have entrenched socio-economic inequalities in the justice system. Those living in poverty are more likely to face legal problems in those areas of life now excluded from the scope of legal aid (like housing and welfare benefits), and are also necessarily more affected because they cannot afford to pay for the help they need. The article is one of the rare works where the social effect of legal aid is realised. The article evaluates the effect of the cut in legal aid in a socially and economically progressive society like the United Kingdom However if the same analogy is applied in the Indian Society the social implications of the non-availability of legal aid is further magnified.

The abovementioned papers establish the theory Legal Services Authority Act has a positive social effect. The availability of effective legal services and capacity to effectively contest the litigation by the underprivileged people of the society goes a long way towards establishing Rule of Law. The capability of getting a legal redressal within the reach of the poor and backward not only empowers them but also leads to wide ranged social effects. The attitude of the public in general changes towards the underprivileged with the realisation of the rights by them and their capability to enforce their rights. The exploitation at the hands of moneyed and on account of the legal procedure is significantly reduced. The capacity to reach the various forums also leads to definite changes in the economic conditions as the

13 Rachel Logan: https://www.opendemocracy.net/openjustice/rachel-logan/amnesty-concludes-that-legal-aid-cuts-are-major-human-rights-issue

the underprivileged. All these factors contribute to decrease in the crime in the society. Thus availability of efficacious legal services not only has a social impact for the underprivileged but also for the society in general. However the legal service regime needs an upheaval to achieve the august objectives. The first and foremost difficulty faced is the lack of knowledge about the availability of legal services. Though significant efforts have been made to ensure the legal services reach the target population however much efforts need to be made to bring awareness about the availability of free legal services to the underprivileged. Further it has been observed that in terms of the volunteers there is a dearth of knowledgeable genuine volunteers. To canter this situation the need of the hour is to identify and motivate people who are genuinely interested in social service though providing legal literacy and access to legal services. The Governments and Courts need to accord topmost propriety to legal literacy and legal services. A society which is aware of the legal protections and benefits provided to it and is capable to take advantages of the same would be the ideal society in terms of the liberties granted by our Constitutions and only then the noble objectives of ‗Welfare State‖ would be realised.

1. 1980(1)Supreme Court Cases 98 2. Durgalakshmi S. Dr., Ammu R. Mrs. Empowering People: Effective Social Work Approaches and Strategies (Vol5 Issue 12) 3. Singh Ranbir Prof(2017) http://probono-india.in/research-paper-detail.php?id=15 4. Glanter Marc, Krishnan Jayanth K. (2004) Hastings Law Journal, [Vol. 55:789] pp 789 5. http://doj.gov.in/sites/default/files/VWR%20%205_0_0.pdf 6. Department of Justice Government of India, United Nations Development Programme.http://www.doj.gov.in/other-programmes/access-justice-marginalized/access-justice-marginalized 7. Haryana State Legal Service Authority. hsla.gov.in/sites/default/files/documents/quinquennial.pdf

9. United Nations Development Programme, Department of Justice: Government of India: Needs assessment study of selected legal services authorities in the States of Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odisha, Rajasthan and Chhattisgarh 10. Law Commission of India, 14th report Vol.1 11. Quarterly Legal Services Bulletin Issue No 1& 2of 2017 12. Quarterly Legal Service Bulletin Issue No. 3&4 of 2017 13. Rachel Logan: https://www.opendemocracy.net/openjustice/rachel-logan/amnesty-concludes-that- legal-aid-cuts-are-major-human-rights-issue

Research Scholar, Rabindranath Tagore University, Bhopal, Madhya Pradesh