Polity & Governance
8th Jul, 2019
Prof. Jeet Singh Mann of National Law University, Delhi has published a research paper: ‘Quality of Legal Representation: An Empirical Analysis of Free Legal Aid Services in India’.
- The Preamble of the Constitution of India secures to all the citizens, Justice – social, economic and political. Article 39 A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity. Articles 14 and 22(1) of the Constitution also make it obligatory for the State to ensure equal protection of law.
- In order to fulfil the above Constitutional promises, the Legal Services Authorities Act 1987 was enacted by the Parliament for providing free and competent legal services to the weaker sections of the society.
- In order to implement the provisions of the Act, the National Legal Services Authority (NALSA) has been constituted. The Chief Justice of India is the Patron-in-Chief and the Senior most Hon'ble Judge, Supreme Court of India is the Executive Chairman of the Authority.
- Free legal services under LSA Act are available to a person belonging to Schedule Tribe and Schedule Caste, woman, child, victim of human trafficking, differently abled person, industrial workman, and person in custody in a protective home and the poor.
PERFORMANCE OF NALSA
- With the objective to broaden the outreach of legal aid services in rural areas, in 2017, NALSA launched 'Nyay Mitra Scheme'. The responsibilities of Nyaya Mitra include assistance to litigants who are suffering due to delay in investigations or trial, by actively identifying such cases through the National Judicial Data Grid.
- NALSA had also established 'Nyay Sampark’, through which beneficiaries can get information about case status pending in any of the districts across the state.
- Subsequently, NALSA along initiated the Tele Law Scheme which aims to facilitate the delivery of legal advice through an expert panel of lawyers stationed at the office of the SLSA in each state.
- Legal Services Camps were organized by NALSA to make people aware about their entitlements and procedural aspects.
- According to NALSA, about 22 lakh people across India benefitted through legal aid services from April 2017 to March 2018.
- According to Law Ministry Data, more than 50 lakh cases have been disposed of every year on an average by the National Lok Adalats conducted by NALSA.
- Lack of Trust: The report highlights that people do not have much faith and confidence over the quality of the services offered under the legal aid system.
- Corruption: Although the services offered are free but Legal Aid Counsels often demand money during the court proceedings
- Low Quality: As per the report, Judicial officers have rated overall skill of LAC as of low quality as compared to a private lawyer.
- Ad-hoc Engagement: Currently, the engagement of LAC is usually on an ad-hoc basis. Due to this LAC can withdraw from an aided case at anytime and then, the beneficiaries had to go through the painstaking task of retelling their case history to the newly allotted LAC
- Paucity of Panel Lawyers: There is availability of just one legal aid lawyer per 18000 populations.
- Illiteracy of Beneficiaries: Most of the beneficiaries do not have procedural knowledge about the functioning of the courts and after few hearings, they often stop coming to court.
- The Legal Aid Counsels should be made full time. This will improve the level of commitment among the LACs
- There is a need to increase the honorarium given to the LACs at par with private cases. This will compel the LAC not to withdraw the case in the middle of the proceedings
- Legal Services Camps should be re-modelled in such a manner that beneficiaries are connected to the welfare schemes also to which they are entitled.
- Legal Aid Advocates should themselves deal with the case; they are not supposed to delegate the work to their untrained or budding junior advocates.
- Publication on important topics such as "Worker and Law", "Women and Law" "Tenancy", "Land Laws" etc are required to educate the masses through vernacular languages, and distribute to the needy people, free of cost.
Problems in Indian Judicial System
- Delay in Justice Delivery: The judge -population ratio in India is much less than in any other country of the world. The procedure in the Courts is rigid, lengthy and more formal. There are many vacancies in the Courts from the lower to the highest. All these factors have resulted in the backlog of cases, which has caused docket explosion. As per the National Judicial Data Grid, more than 3 crore civil and criminal cases are pending (as of Feb 2019) in the lower courts across the country. Two civil cases have been pending since 1951.
- Lack of Transparency: Recently, four senior most judges of Supreme Court addressed an unprecedented press conference, expressing their displeasure at the way cases were being allotted. This raises fundamental questions on the transparency of the institution and its ability to dispense justice. Moreover, Collegium System for the selection of Judges for Higher Courts is very opaque to be scrutinized. Reluctance of the judiciary to make available judicial records under the RTI Act is also a point of contention between judiciary and citizens.
- Corruption in Judiciary: Transparency International has recently highlighted corruption in the state’s subordinate judiciary in its report. Predominantly, judicial corruption can be attributed to the shortage of judges and the complex judicial procedure.
- Lack of Infrastructural Support: Most subordinate courts lack basic infrastructure for judges, court staffs, and litigants. This leads to arrears and backlog of cases. The budgetary allocation to judiciary is not sufficient for the efficient functioning of the Courts .
- Insufficient number of Judges: The number of judges per capita in India has been low compared to other countries. India has 19 judges per 10 lakh people on an average, according to a Law Ministry data. It also states that the judiciary faces a combined shortage of over 6,000 judges, including over 5,000 in the lower courts itself.
- Judicial Overreach / Judicial Over-activism – In recent times, Judiciary is seen to be at logger heads with the other two pillars of our democracy, i.e Legislature and Executive. The court’s duty is to interpret the law and not to intervene in policy-making. Overuse of Article 142 in Coal Block Allocation Case, ban on the sale of alcohol along national and State highways destroys the spirit of the constitution as the democracy stands on the separation of powers between the organs. Similarly, imposition of Patriotism in National Anthem Case is against the basic tenets of democracy and people’s fundamental rights. Also, striking down of NJAC Act reflects a conflict between the legislative and the judicial system.
- All India Judicial Services – The government has officially initiated the setting up of All India Judicial Services which will bring much more professional judicial officers and it will help in reducing the deficiency of number of judges in Indian Courts.
- NALSA - Financial Assistance provided by the government to NALSA has been increased by 165%. Also, the disposal of cases in Lok Adalats have seen an increase of 670% in 2017-18 from 2013-14.
- Increase in Strength of Judges - Ministry of Law & Justice has increased the sanctioned strength of judges in High Courts from 906 in 2014 to 1079 in 2018.
- Nyaya Vikas Mobile App and Web Portal – This initiative is aimed for strengthening of infrastructure facilities in Judiciary. This app helps in monitoring the ongoing infrastructure projects. The mobile application allows the surveyor at the ground level to capture images and enter details of the project which can be later reviewed by the moderator.
- e-Courts Project – Through this project, case information is available to litigants, advocates and judges through web and email. Also, a Justice Clock setup on top performing district courts provides information about other schemes to the public.
- Tele Law Services – This portal helps in mainstreaming Legal Aid to the Marginalised Sections of the society.
- Alternative Dispute Redressal Mechanism – Amendment to The Arbitration and Conciliation Act, 1996 by the Arbitration and Conciliation (Amendment) Act 2015 to expedite the speedy resolution of disputes by prescribing timelines.
- Rationalization of Tribunals – 36 identified Tribunals have been rationalized to 18.
- Improving Litigation – Litigant Legal Information Management & Briefing System (LIMBS ) is web portal on which, the Government uploads the details of cases which are pending in various courts and the status of these cases. This helps in effective monitoring of court cases.
- There is a need to Enact a Judicial Transparency Law. The new law can achieve its objective of Greater transparency by creating an obligation for proactive disclosure as well as empowering citizens with a positive right to demand information from the judiciary.
- Since there is no common legal framework for High Courts across India that governs the mode of administration of the High Courts and the lower judiciary. Enacting a new High Courts Act, laying down the governing structure for all twenty-five High Courts will improve the administration and functioning of not just the High Courts but also the subordinate judiciary which is supervised by the High Court.
- Most new laws would give rise to litigation and require additional judicial resources. Therefore, there is the need for assessing financial burdens imposed on lower courts with regard to increased litigations.
- In the sixty-nine years of its existence, the Indian Supreme Court has seen only eight women judges, one Dalit Chief Justice and no woman Chief Justice. Therefore, there is a need to publish Annual Diversity Statistics for both the judiciary and the bar. Such a report should include demographic data on currently employed judges and the pool of candidates for the judiciary.