A recent “performance audit” of the law which allows the poor and the deprived sections of Indian society to avail free legal aid has found that while the state-appointed authorities for making this possible are non-functional, individual litigants are generally not aware of it. Carried out by the Centre for Social Justice, Ahmedabad, and still in its draft form, the study insists on the need for alternative ways to spread awareness about free legal aid.
The study, “National Legal Services Authorities Act 1987: A Performance Audit”*, while focusing on the right to free legal aid, has found that the level of awareness regarding free legal aid services amongst various stakeholders is “not very high”, adding, this leads to a situation where the “possibilities of corruptions by lawyers handling cases cannot be avoided.” The study says, “The Act gives a holistic vision. It specifically talks of development of alternative dispute resolution mechanism.” However, it regrets, “when it comes to implementation, the concept has been reduced to conducting one day event of Lok Adalats.”
While pointing out that Lok Adalats may be an administrative solution to backlog of cases, the study says, “At the moment, there is no intermediary wrung between the common person and the supposedly highly specialized lawyerly skills.” Hence, “it is important to recognize the roles of paralegal in the entire judicial system and to legitimize it. Activities like legal awareness, information about prelitigative procedure, liaisoning with the relevant authorities etc. may be entrusted to paralegals, who may be trained to perform this role.”
For this, the study insists on “involving the several stakeholders including law teachers, law students, chairperson of the Samajik Nyay Samiti at village/taluka and district voluntary agencies having legal aid centres or NGO involved in mobilizing poor on different issues.” At the same time, it says, “Efforts have to be made towards creating decentralized alternative dispute resolution mechanism which will reduce the burden on the courts. The Nadi Adalat model promoted by Mahila Samakhya or the Vivad Mukt Gam model is good initiatives.”
Enshrined in Art 39- A of the Constitution, the study says, the Act was passed with the objectives of providing “free and competent legal services to the weaker sections of the societies” and “ensure that the opportunities for securing justice are not denied to any citizen by reason of economic and or other disabilities.”
Yet, the fact is, “most citizens do not know that under its provisions free legal services are available to all members of a scheduled caste or scheduled tribe, all women and children, victims of trafficking in human beings, persons with disabilities, persons under circumstances of undeserved want such as being a victim of manmade disaster, ethnic violence, caste atrocity, flood, drought, etc., an industrial workman, and persons in custody, and persons in receipt of annual income as may be prescribed by the state government.”
Pointing out that this means the Act “applies to nearly 75 per cent of the country’s population, something which any developing country like ours should be proud of”, the study says, for this, the Act mandates setting up the of National Legal Services Authority (NALSA) towards fulfilling the objectives and ensuring that no one is denied of access to justice for the reasons of economic or other disabilities.” For this it has created a three tier structure — the Central Authority followed by the State Authority and the District Authority.
However, the study says, “If one looks at the functions laid down for the Central and State Authority under the Act, they are put in the role of an implementer rather than in a supervisory and monitoring role. It is impractical to expect the Central/ State Authority, given the structure it has, to actually perform the functions it has been bestowed with.” This is one major reason why “questions on mandated goals of the Act remain unachievable in the absence of an implementing structure.”
The study particularly says that the roles and responsibilities of the district and taluka legal services authority have not been fleshed out. “This is the crux of the matter. While seemingly forming a de-centralized structure, the state has actually created a highly centralized structure where roles and responsibilities are ill-matched. If the legal services are to reach the grassroots, the local structures there have to be essentially involved in implementation while there should be monitoring structures at local, zonal and national levels.”
Pointing out that “this issue has been consistently raised by various civil society organizations”, the study, which is based on interviews with individual litigants, lawyers and judges and discussions among households and focus groups in seven Indian states, Rajasthan, Chhattisgarh, Madhya Pradesh, Jharkhand, Bihar, Orissa and Uttar Pradesh, suggests how the poorer and the weaker sections of society remain deprived of free legal aid.
Based on its survey, the study says, out of 85 respondent groups from scheduled caste (SC) community, only 5.89 per cent SCs were aware about availability of free legal aid. Further, out of 47 respondent groups of scheduled caste (ST) community, only 17.02 per cent STs were aware about the availability of free legal aid. As for the other backward classes (OBCs), out of six respondent groups of the community, none of them were aware about the facility.
The same was the case with 12 respondent groups of general category, and six respondent groups of minority community. The survey further found that out of the 81 respondent groups of women, only 6.17 per cent women group were aware about the availability of free legal aid.
As for the legal services authority, out of 85 respondent groups from the SC community, 94.11 per cent said they were not aware of any camps conducted by it; the percentage of other sections not aware of the authority holding camps was 82.98 percent STs, none of the six OBC groups, and none of the 12 respondent groups from the general community.
Things were not any different for lawyers. In Jharkhand, out of 6 lawyers interviewed, only said that free legal aid can be provided to the riots affected victims whereas according to the rest of the five, it could be provided to Dalit, Adivasi and Women. “Thus, none of the lawyers knew of the complete list of category of people who are entitled to get legal aid”, the study says. In Madhya Pradesh, none of the lawyers were able to give the complete the list of beneficiaries who are entitled to it. None of the lawyers was aware that women, irrespective of income criteria, are entitled to free legal aid. The situation was similar in rest of the states.
Given this framework, the study says, “In a seminar organized by Department of Justice on reviewing the functioning of the Legal Service Authority, this was one of the major concerns raised by various speakers. Based on the recommendations arising out of the seminar, three schemes were conceptualized to fill in the gap caused by lack of an implementation structure under the Act.”
These three schemes recommended were:
- Scheme for Paralegal Volunteers
- Legal Aid Clinic Scheme
- Retainer Lawyer Scheme
The study says, “The beauty of this structure is that unlike the earlier system, it does mandate involvement of various other stakeholders at various levels. This includes involvement of voluntary organizations, lawyers, academicians etc. The District Authority is expected to co-ordinate its activities with these stake holders as equal partners. The idea must have been to recognize the fact that the judiciary cannot take the sole responsibility of the implementation aspects and that other agencies have to be involved.”
It adds, “The idea behind the involvement of people from various fields is to open venues for involving stakeholder and also to create an internal check and balance system. For instance, involvement of a law teacher would open the option of involving law students. Similarly, by involving a person from an NGO, one can think of collaborative ventures between the NGOs and the legal aid units.”
* Study prepared by Gayatri Upadhyaya, Azima Girach, Johanna Lokhande, Ishrat Pathan, Khyati Dave Anurdha Gharti and Nupur