Excerpts from the report “Tipping the Scales: Strengthening systems for access to justice in India”, published by DASRA, a philanthropic organization:
The journey to justice in India is riddled with challenges at every stage of the framework for access to justice. While there is no silver bullet to address these challenges, Dasra has identified – through secondary research, expert consultations and observing non-profits on the ground – four strategic areas to fund that can catalyze significant improvements in how India seeks and delivers justice. These four cornerstones have been set out below.
Make laws accessible and comprehensible for legal empowerment
“Sometimes even highly educated people have a problem understanding, and therefore interpreting, the correct meaning of some of our laws… an attempt should be made to simplify the language of the law so that anyone who reads judgments and laws can easily understand their true meaning.” – Manmohan Singh, former Prime Minister of India
Most of our basic human rights are guaranteed by the Indian Constitution. This includes Article 14 (equality before the law and equal protection by the law) and Article 39A (right to free legal aid). However, people are unaware of existing laws that protect their rights, as well as how to claim these rights when they are violated. This is a serious obstacle to legal empowerment, which is critical for any country to ensure complete access to justice. Legal empowerment entails enabling a person to exercise his/her rights – which is only possible if every citizen can easily access and understand how the law protects those rights. For instance, many more women in India would be equipped to fight for their rights with the knowledge that since 2005, the law grants them a share in their ancestral property that is equal to that of their brothers.
However, experts say that even those who are aware of these laws often hesitate to access the justice system due to the complexity of the language that laws are written in, resulting in an incomplete understanding of their true meaning. Dakshin Foundation is a non-profit that works to address this challenge in fishing communities along the coast of India. It compiles outreach material for these communities in the local language, which improves access to the relevant laws on issues such as coastal development and fisheries. By making these laws comprehensible, Dakshin helps more people know their rights and take steps towards grievance redressal.
For example, in 2013 Dakshin developed a booklet in Tamil explaining how the Coastal Regulation Zone (CRZ) 2011 (a government notification under the Environment Protection Act, 1986) applied to fishing communities in Tamil Nadu. While the CRZ required District Level Committees (DLCs) to be set up for its implementation, it did not explain how DLC representatives were to be elected. Due to this, most communities failed to elect local representatives who could champion their causes and defend their interests at the forum. Dakshin’s booklet not only helped these communities understand the provisions of the CRZ but also allowed them to collectively devise selection guidelines for DLC representatives that tied in with their local governance structures.
Case study: Nyaaya is a non-profit that was created from the awareness that information on laws is difficult for everyone to access, and that there is no single resource aimed at citizens that demystifies highlevel legal jargon. Its user-friendly website nyaaya.in aims to become “India’s first free, online repository of every central and state law, explained in simple English, with interactive guides and visualizations, to get people to the right legal answer”. It simplifies legal processes for situations that affect nearly every citizen in his/ her lifetime, including marriage and divorce laws, how to write a legally binding will and increasingly pertinent cyber laws. Since its inception in 2016 up to the time of writing this report towards the end of 2017, nyaaya.in has seen traffic of nearly 4,00,000 users, an indicator of the high demand for such a service in India.
Ensure high quality, affordable legal aid
“The state shall… provide free legal aid, by sustainable legislation schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” – Directive principle, under the 42nd Amendment to the Constitution.
A citizen’s chance at a fair trial hinges on being able to hire a competent lawyer, who can effectively represent his/her interests in court. For a vast number of Indians, however, hiring private legal representation is simply unaffordable. The Constitution directs the State to provide free legal aid for them “… to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” However, there is a glaring lack of faith in State-run legal aid panels, which experts say are often populated with inexperienced and poor-quality lawyers. Thus at the stage of legal aid itself, the justice system begins to disadvantage the poor and marginalized, and is skewed in favor of the rich and powerful.
A growing body of research shows that investing in the provision of high-quality legal aid not only benefits economically weaker litigants, it also provides significant economic benefits to communities and states. For instance, a 2012 report by The Task Force to Expand Access to Civil Legal Services in New York projected savings of USD 201 million in the state of New York, attributable to the provision of legal aid in civil cases. This figure comprises costs avoidable to the state – nearly USD 85 million in medical, mental health and other costs related to domestic violence, and USD 116 million due to prevention of evictions and homelessness. And while litigants cannot be guaranteed favorable outcomes, the alternatives are far less palatable for the individual and his/her community, including instances of cases being left unresolved or individuals pursuing nonlegal options for grievance redressal. There are also those who would be rendered utterly helpless without legal aid.
Caste study: One such case was that of Rosie, a 12 year-old girl from Delhi, who was sexually abused by her father following her mother’s disappearance, and ran away from her home. She was placed in a shelter home by the Child Welfare Committee after the crime was reported. However, the Trial Court judge did not accept the standing of the lawyer appointed by the shelter home, since the home was not “a family member or natural guardian of the victim… under the Guardians and Wards Act, 1890”.
iProbono, a non-profit online network of lawyers, intervened and provided Rosie with pro-bono legal representation at the Delhi High Court. With good-quality representation, not only did she win her case, but the Court also ruled that it is vital for vulnerable children to be provided with independent legal representation so their interests are protected in the judicial process.
Thus the provision of high-quality and affordable legal aid is crucial to facilitating universal access to justice and in particular, protecting the rights of the disadvantaged and marginalized. As seen in Rosie’s example, the impact of such legal aid can go beyond individual cases to create legal precedents that can change the law for the better and benefit vulnerable populations.
Streamline case management processes in courts
“Delay in disposal of cases not only creates disillusionment amongst litigants, it also undermines the capability of the system to impart justice in an efficient and effective manner.” – B N Agrawal, former judge of the Supreme Court of India
The biggest challenge for those accessing courts in India is the issue of pendency i.e. delays at every stage of a case’s lifespan: from filing and scheduling a hearing (on account of excessive adjournments) to receiving a judgment. As of August 2017, more than 25 million cases were pending before India’s courts, with an astounding 179,573 more cases being filed than disposed of in a given month. Experts say a key reason for this pendency is that the onus of case management is on judges and administrative support staff. The courts have limited support staff, who are not trained in basic case management techniques. If the courts can streamline their case management processes with technology or external expertise, judges will spend less time on administrative affairs and more on hearing cases and judging. Besides unlocking judges’ time, case management systems can also help reduce pendency and the resultant exorbitant costs for litigants.
Case study: Case management support helps determine how cases are scheduled and prioritized. An example is Daksh’s pilot project with the Madras High Court, initiated in 2017, to digitize the court’s case management system. It has created software that uses an algorithm to suggest potential dates to judges looking to adjourn a case. These suggestions are based on a variety of factors such as the anticipated workload of the judge and case flow management rules. These rules include limiting the number of substantive cases a judge takes up per day and prioritizing bail and family cases over government contract ones. The organization also conducts trainings/ workshops with Tamil Nadu district judges to help them adopt and use the software. If this pilot succeeds, it will serve as proof of concept for the 18 other High Courts across India that have agreed in principle to use a digital case management system but are yet to execute it.
While the results of Daksh’s pilot are yet to be seen, this approach has previously proven successful in the Republic of Korea (South Korea), which started streamlining case management processes through digitization in the early 1980s. In South Korea today, attorneys and litigants can electronically file lawsuits, which are automatically registered through the electronic case filing system, and then assigned to a judge who can access the corresponding files, organize and schedule cases and start processing claims. The case management system helps some judges to adjudicate up to 3,000 cases every year, manage up to 400 per month and hear up to 100 pleas per month. In comparison, an analysis of statistics from the National Judicial Data Grid from May 2016 showed that in India, a district judge adjudicates an average of only 516 cases per year. Streamlining case management processes in courts is thus an effective strategy, not only to reduce pendency and its resultant costs, but also to improve transparency and accessibility – which translates into increased public trust in the judicial system.
Drive accountability and support police and prison systems
“The system is more open to granting access to organizations that slowly build a rapport with it and are not trying to expose or haul up those in positions of authority. One has to walk the middle ground between asking the difficult questions, yet not threatening the integrity of the system.” – Dr Vijay Raghavan, Project Director, Prayas
The enforcement stage of the access to justice framework – specifically police and prison systems – has not received much attention from Indian funders. The opacity and complexity of these systems deter funders from taking the risk of engaging with them. Interestingly, however, committed Indian nonprofits have been working in this space for years, largely supported by limited international funds. Alongside the funding risk, the opacity of Indian police and prison systems makes pushing reforms from the outside laborious and extremely time consuming. Approaching these systems with the aim of highlighting failures and criticizing the authorities for their shortcomings only serves to antagonize key government stakeholders. Experts agree that the more productive and successful road to change is to engage with the enforcement system – by building credibility through objective assessment of gaps, and providing support to bridge these, as well as through ongoing oversight and constructive feedback.
Non-profits such as Majlis have taken this approach to their work on the ground. One of its key interventions is to conduct focused, skill-based, outcome-oriented trainings with police officers in Mumbai, to help them understand the legal provisions of the prevention of domestic violence and anti-rape laws, and their duties under the same. Majlis then monitors the performance of these trained officials, and has institutionalized a feedback channel with victims who interact with them. Any lapses are then reported to the authorities for immediate redressal.
Majlis has a unique relationship with Mumbai’s police system, as an organization that can hold the system accountable but is also invited to help build officers’ capacity for better performance. Prayas is another organization with a similar outlook. It provides customized support to under-trials across prisons in Mumbai and Gujarat, ranging from filing bail applications on their behalf to arranging for their families to visit them in prison. To carry out this work effectively, Prayas’s members need authorizations to enter prisons and spend the day with prisoners, twice or thrice a week.
The organization has been able to sustain this arrangement for the last 25 years by building a relationship of trust, cooperation and responsible communication with the authorities. Prayas consciously steers clear of attempting to ‘expose’ weaknesses within the system but is still able to leverage its experience to advocate for prison reforms. For instance, it is often invited by the courts to contribute recommendations to ongoing Public Interest Litigations (PILs), underscoring its role as a constructive partner of the system.
Case study: Amnesty International (India), a well-known human rights organization, has also successfully managed to navigate collaboration with the judicial system and its enforcement arm while also maintaining its autonomy. In 2016, it launched several rights-based campaigns, including one calling for an independent investigation into police inaction related to the rape and brutal murder of Jishamol, a Dalit woman in Perumbavoor, Kerala.
While campaigns such as these form the crux of its work, being a trusted partner of law enforcers is also essential, which is why the organization deepened ties with the Pune and Bengaluru police during the same period. It provided those two police forces with gender sensitization and capacity building training to prepare them to deal with sensitive cases like Jishamol’s adequately. Given the difficult balance it has to achieve through its work, Amnesty emphasizes partnering with like-minded institutions to ensure a support system and to build a wider and deeper movement for justice in the long term.
These cases demonstrate the courage and ability of non-profits to adopt a two-pronged approach: driving accountability in police and prison systems, while also supporting them to improve their performance.
Download full report HERE