By Ashif and Adv Archana Gosar*
On the occasion of the Constitution Day on 26th November 2017, a National Convention of lawyers was organized by the Lawyers Initiative Forum in Indore. The consultation was attended by 322 lawyers from 11 states of India. 92% of the participants were from socially excluded communities. The consultation was aimed at strengthening the criminal justice system and promoting representation of practicing lawyers from marginalized backgrounds towards an inclusive Indian Judiciary. The Forum has decided to expand its work to100 districts in 20 states with the membership of 12,000 practicing lawyers in next 3-5 years.
The Judiciary is one of the important pillar of Indian democracy. However, it continues to be negatively influenced by the caste system and is impeding on the individual rights to justice and freedom. One of the most important indicators of this barrier is the fact that the majority of under-trials come from excluded communities including Dalit, Tribal and Minority. The court is not immune to the caste and gender prejudices that exist in Indian society and mirrors this by ensuring that power, privilege and knowledge is restricted to a few.
According to National Commission of Scheduled Caste (NCSC), in 2011, there were only 24 judges belonging to SC/STs against total of 850 judges in all 21 High Courts. Fourteen out of 21 High Courts do not have a single SC/ST judge. There is not a single judge belonging to SC/STs in the Supreme Court. It is arguable that when executive and legislature are brought under the ambit of constitutional reservation, it is but natural that Judiciary, the third pillar of Democracy, which is mandated to safeguard the constitution, should also follow the principle of reservation; otherwise, it creates a dubious distinction among the three pillars of democracy.
Till today only two Presidents have raised the serious issue of Under representation of excluded communities in judiciary. KR Narayanan, the tenth President of India, had publicly voiced his concern over the under representation of the weaker sections in the higher echelons of the judiciary. He submitted a note in the Union Government recommending that Scheduled Castes (SC) and Scheduled Tribes (ST) candidates shall be duly considered for appointment as Judges of Supreme Court. Narayanan wrote: “I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation’s social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 percent of the population, and women are given due consideration.”
Ram Nath Kovind, the President of India also expressed concern over the “unacceptably low” representation of women, Scheduled Castes and Scheduled Tribes and Other Backward Classes in the higher judiciary, called for long-term measures to remedy this situation. He said that only 4,700 of the 17,000 judges — roughly one in four — in India were women. In addition, there is an unacceptably low representation of traditionally weaker sections such as OBCs, SCs and STs, especially in the higher judiciary. He said “Like our other public institutions, our judiciary too has to be judicious in being representative of the diversity of our country.”
In this context, it is imperative to promote representation of socially excluded communities at all level of the judicial system including promoting lawyers. The Lawyers Initiative Forum has responded to the dire need of the hour to have a platform for the lawyers belonging to the marginalized sections of the society to strengthen their capacities to cater to the emerging needs of the lawyering community. Jan Sahas has been facilitating this process and one of the goals is to ensure that the Lawyers’ Initiative Forum will federate lawyers across the country to promote social equity and justice.
The Lawyers’ Initiative Forum is a unique platform established by practicing lawyers who come from socially excluded communities including Dalit, Tribal, Minority and women lawyers in north Indian states (Madhya Pradesh, Rajasthan, Uttar Pradesh, Bihar, Chhattisgarh and Maharashtra). These lawyers mostly practice in lower courts. The forum was evolved from the Jan Sahas legal program, which was working on legal jurisprudence and criminal justice system.
The forum has more than 600 practicing lawyers as members across seven states and actively functioning in total 31 districts. The Forum by creating knowledge hubs (resource centre) at the district level for lawyers and other stakeholders has enabled members to exchange their experiences, facilitate learning widely advocates good practices to be replicated.; the Forum has also helped build network with relevant institutions like bar associations and law colleges to initiate joint interventions.
Forum members are associated with various organizations and work intensively on cases of atrocities, bonded labour, trafficking, sexual violence, gender based discrimination and violence, land and property rights cases and problems faced by under-trial prisoners’ etc. On the one hand, the forum members ensure legal intervention for ensuring justice to victims and on the other hand it had created the ground for collective action recognizing the requirement of practicing lawyers for capacity enhancement and the development of support systems for their effective legal practice
Lawyers’ Initiative Forum is shaped with a two-fold objective:
(a) To assist and provide easy access to legal aid to victims and under trials especially belonging to excluded communities including Dalit, Tribal, Minority and Women
(b) To enhance capacities of practicing lawyers from excluded communities for establishing their career and provide mentoring support to law students.
Issues and problems of lawyers from excluded communities in India:
The lawyers in the convention identified following critical issues and problems that they encounter while pursuing and practicing this profession.
- Most of the lawyers from marginalized communities and from rural areas of the country are first generation learners and hence have little or no social capital in the profession.
- Apprentice lawyers from marginalized and deprived communities face several issues while practicing under senior lawyers in order to gain guidance and learn relevant skills. Considering the fact that the representation of senior lawyers belonging to SC/ST backgrounds is extremely low, it is highly unlikely for the apprenticing junior lawyers to find a sensitive and supportive environment to learn and grow their skills. They experience a lack of comprehensive mentoring, lack of guidance, being delegated to administrative and clerical work, not given priority to build lawyering skills etc.
- Most lawyers coming from marginalized communities also struggle to make ends meet economically. While fighting cases of people usually belonging to the marginalized communities, they know that their clients would not be able to pay standard and decent fees. This leads to a Lawyers Initiative Forum of challenging financial status and results in mental stress and in a state of conflict.
- Due to the lack of practical skills while fighting cases in the courts, the lawyers face a crisis of experience while presenting their cases in the courts which often leads to weak representation of the cases and further, lack of confidence within the lawyers to fight them.
- There is a dearth of resources (books, law parable, etc) available to these lawyers to sharpen their skills and relevant knowledge due to financial constraints.
- The local Bar Council and lawyer’s associations have failed to provide appropriate support to struggling lawyers belonging to the marginalized backgrounds.
- There are only a handful of platforms for such lawyers to come together and form a Forum in order to support and share skills for the larger goal of fighting for the marginalized and underrepresented sections of the society since there are very fewer people coming from such secluded areas who have access to the relevant information and knowledge.
- Statistics show a positive correlation between the success rate of cases to the social and educational background of the lawyers. Lawyers who can afford expensive schools and have access to work under experienced lawyers, inevitably are paid handsomely for their labour. Lawyers belonging to a more humble economic background who lack the knowledge, skills and experience are often assumed as less efficient by clients and this perpetuates a vicious cycle of isolation and lack of growth
- Lawyers face discriminatory behaviour against them in several forms. This discrimination becomes one of the several factors that contribute to maintaining the poor representation of lawyers from Dalit and Adivasi communities or of women among public prosecutors.
- There are several processes while receiving higher education for law which also includes application for the license (sanad) in Bar council and other such procedures which requires high fees that once again become a barrier towards accessing education for such lawyers with no financial support.
Need of the lawyers’ forum:
In order for the forum to reach to a credible and sustainable position, the following requirements have been identified by the participants:
- The process of filing for justice should be clearly explained to the apprenticing lawyers to build up their skills for presenting their cases confidently in the courts.
- Platforms such as lawyers’ initiative forum needs to be established at local village, block, district and state level more systematically in order to be accessible to the people from most marginalized and secluded sections and empower them.
- The lawyers need to sharpen their skills and build their capacity through workshops and trainings where methods like moot court should be used to a prepare fresher lawyers for the court.
- Every person who aspires to learn and is passionate towards working for the improvement of the marginalized section through legal means should be provided with the necessary information, resources, opportunity and guidance through this forum. The forum should be able to build a network that helps to create an internal loan system for those who need financial support to capacitate themselves or develop legal skills. This forum will provide guidance to the new joined lawyers through the shared experiences, skills and knowledge of the older members.
- More and more law students should be encouraged to join Lawyers’ Initiative Forum.
- The Forum should have a physical space or an office where members can hold meetings and discussions and also where clients can reach them
- A resource center or a library should be established where the lawyers and the new practitioners can access information and reading material without fees.
- There’s a need for raising an awareness regarding this forum as a platform for lawyers to join and for the victims of violence and atrocities to reach out to; This will additionally increase the reporting of cases of violence and atrocities against such communities and trial history of these cases in the court by the lawyers of the Lawyers’ Initiative Forum.
Roles and Responsibility of the forum:
The roles and responsibilities of the forum, defined by the lawyers present in the convention were as follows:
- To be Just and sensitive towards the victims. The lawyer shall make efforts to link the victim to the necessary service and the relevant organizations.
- To counsel and guide the clients, especially the ones coming from marginalized backgrounds and weaker sections of the society. The lawyers shall also make efforts to connect the clients with the relevant government schemes and provisions.
- To make joint efforts for the sustenance of the Lawyers’ Initiative Forum.To collaborate with CBOs with similar visions and to work towards the expansion of reach of the forum.
- Promoting a network of lawyers by capacitating them and mobilize more lawyers to come together and thus collectively address the judiciary and other enforcement and statutory bodies.
- To support the victims through the process of seeking justice and provide guidance in making justice easily accessible to the most marginalized sections of the society.
- To raise awareness about laws and rights to people from all the sections of the society including the people with no background of formal education.
Approach to support the excluded communities by the lawyers:
The strategies developed in the Lawyers’ Initiative Forum to work with the marginalized and deprived communities are as follows:
- Social Advocates will be identified and trained at community level to raise awareness and identify cases of violation and provide elementary legal support.
- To work with children and youth of the community to strengthen skills and capacities and provide them with basic information and knowledge about their rights.
- To raise awareness regarding human rights among the communities to equip them with the basic legal knowledge so they can identify when there’s a violation.
- To evolve and expand the forum into a collective and with other CBOs so as to reach to the most deprived people.
- To target and identify more and more cases of atrocities against dalit and marginalized sections to bring attention to the issue.
During the convention, lawyers decided to expand the Forum’s work to 100 districts in 20 states with a total membership of 12,000 practicing lawyers in next 3-5 years to assist and provide easy access of legal aid to victims and under trials especially excluded communities and to enhance capacities of practicing lawyers for establishing their career and provide a mentoring support to law students.
*Lawyers Initiative Forum and Jan Sahas