LEGAL SERVICES PROGRAMME – I Towards Promoting Social Justice

DR SHAKIL AHMED, who has a long experience of fighting court cases of victims of State terrorism and communal prejudice, presents a blueprint for providing legal aid for the oppressed and wronged.

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DR SHAKIL AHMED, who has a long experience of fighting court cases of victims of State terrorism and communal prejudice, presents a blueprint for providing legal aid for the oppressed and wronged.

The Indian legal system is democratic. Hence it has all the merits and demerits of democratic functioning. Moreover, the implementation of democratic norms is usually imperfect. Such imperfections are also present in the Indian system and are visible to even a casual observer.

People who constitute the Indian democratic system are usually not fully aware of India ’s past; they are not even fully aware of the present intricacies of the vast Indian polity. Future is of course a closed book to them. Hence the legal system suffers from a lack of harmony and balance; this sometimes results in chaos.

India has a wide variety of religions, cultures, races and regions. The interests and ambitions of various groups are often in conflict with each other. The political system tries to contain these conflicts by identifying the overall priorities. But the system is subject to a number of pressures and is often compelled to make compromises. A political scientist has pointed out, “In democracy, the majority is able to manage the minorities by subjugating and pressurising them.” Of course in some aspects, the majority and the minority are not fixed entities and their complexion may change from time to time. But in certain other aspects such change is rare and sometimes near impossible.

Developing societies are engaged in a number of endeavours oriented towards growth. Often there is a price to be paid for such growth and it may be more easily extracted from minorities and weaker sections. Their livelihood, environment and habitat are consequently under constant threat and at any moment may be washed away by the tide of development. The trend of globalisation and the increasing activity of multinationals (coordinating with the indigenous capitalist system) have further intensified this threat. There is increasing exploitation of the natural resources and the common people are the worst victims. Activities harming the environment often go unchecked in spite of pious claims to the contrary. In these circumstances, minorities and weaker sections have to make continuous efforts to safeguard their legitimate interests, to maintain their dignity and to preserve their identity. To this end, they have to keep a vigilant eye on the process of legislation as well.

In our setup, the legislative process has several phases and stages. A number of institutions participate in the process; influencing its outcome to varying degrees. Even after a law is enacted and is enforced, the process continues and opportunities of intervention do not cease. However in different stages, the modes of possible intervention may not be the same. Necessary homework is of course a prerequisite for effective intervention at any stage.

It is therefore obvious that the legislative process deserves greater attention of all those who seek to transform the society into a better one. Let us outline the details of this task and identifies its practical requirements.

An Analysis of Present Legal System

India is a modern state which has accepted the concept of ‘Welfare State’. Hence it has to work for the welfare of the general public. Special protection should be provided to the persons unable to protect themselves and their interests. It is the primary duty of Government to create an atmosphere wherein all, especially the weak, can enjoy their rights, perform their duties and develop their personalities. It is the function of the State to establish a just social order by enacting just laws and providing equal opportunities for all to grow. Every Government is constituted to respond to the needs and aspirations of the people and to remove social inequalities among its citizens. It has to promote social justice among the poor and the downtrodden. Poverty, injustice, inequality and social disabilities can be reduced by the State by pursuing just and proper policies backed by protective legislation to enable the poor to enjoy the benefits of the constitutional and other legal rights. The concept of social justice must be the underlying principle in the administration of justice in our country.

But the present system of administration of justice is not favourable to the downtrodden and vulnerable sections of society. The judicial process in our country suffers from various defects like prolonged delay and high costs. Judicial proceedings are so complicated that the poor people can hardly understand them. They sit as helpless spectators in courts even for their own cases. They are mystified by court formalities and procedures. So the poor feel alienated from the law and the courts, and some have even lost faith in the legal system and judicial process. Today courts are very much used by the affluent sections of society for protecting and affirming their individual rights. Legal professionalism, ignorance of law and exorbitant fees come in the way of the poor who seek justice through courts.

According to Justice P.N. Bhagwati, former Chief Justice of India, in the present legal system the poor are always exploited, harassed and made to experience the painful side of law. For the poor, law only speaks about justice but fails in providing adequate justice. To make the law a genuine channel of justice for the poor, free legal services have been recently incorporated in the legal system in India .

The legal services programme for the poor must become a movement and it must generate a new dynamism in the entire legal and judicial system and bring adequate reforms in the laws and court proceedings in conformity with the new socio-economic conditions and demands of human life today. It must give dynamic and modern interpretation to various principles and doctrines like equality, liberty, justice and rule of law.

Legal services must also strengthen the Indian democracy which is based on the principles of equality, justice, human dignity and fraternity. A society with social and economic inequalities is undemocratic. Without an appropriate system of administration of justice a democratic Government cannot make adequate progress in socio-economic and political aspects of our national life. Democratic values can be reasserted by transfusing legal aid in our legal system and in administration of justice. Then every citizen, especially the members of weaker sections, can benefit from its impartiality and rule of law, on the basis of which democracy flourishes. The rule of law, without legal aid to the poor is unrealistic. Equal access to justice for the rich and the poor alike must be considered an essential aspect of the maintenance of the rule of law. It cannot be fully realised in a democracy unless all citizens, irrespective of cast, creed, race, sex and place of birth, are effectively allowed to defend and assert their legal rights. Today we cannot be said to live under the rule of law because the powerful elements in society oppress the poor and exploit law to their own advantage. In short, there can be no rule of law unless legal machinery is readily available to all to affirm their legal rights. The poor must be placed in the same position as the rich by providing them with adequate legal services.

Equal justice for all is the basic principle on which our entire system of administration of justice is based. Free legal services movement had been initiated to promote equal justice. A fair treatment in judicial proceedings implies an easy access to courts, governmental agencies and institutions on the basis of equality. If a large section of society is prevented from exercising its legal power for protection of their rights and security of an honourable existence, there can be neither equality nor justice in society.

In democracy equal representation before the law must be claimed as a matter of right. It is not charity or favour or generosity on the part of the government. The poor cannot often seek legal justice because of their inability to pay for legal services and to meet out the cost of litigation. So legal aid for the poor is a right guaranteed by the Constitution of India and without it there cannot be any true sense of equality.

In the absence of adequate legal services, principles of natural justice cannot be exercised and realised, the principle that no one shall be condemned unheard depends on adequate and proper legal representation and hearing. The opportunity of being heard is not available to a large section of society in our country on account of poverty and ignorance. Adequate legal services can remedy this situation.

Legal services as a modern and wider concept, if properly implemented, can soften the rigours of law, mitigate its hardship, remove its defects and make it more just and humane. The concept of legal services is not imported from the west. It is an essential part of our legal system but its potentialities were not fully realised due to lack of understanding and dynamic interpretation of the constitutional values inherent in the preamble and the fundamental rights. In a narrow sense legal services mean legal assistance given to the person of limited means in courts in criminal and civil matters. Today the concept of legal services must be given a broader interpretation. It must be understood as a device that reacts against inequitable conditions of life which are maintained by unjust laws and as a means that promotes the proper and just distribution of the services of law. Legal services, in their wider meaning, equalise the fruits of justice in action in all social, economic and political fields.

The ultimate aim of legal services movement is to establish a just and social order in society by ameliorating legal disabilities and hardships of weaker sections. It is part of a programme to secure social justice to the poor and is indispensable for removing the defects of working of the present legal system. Therefore the scope of legal services cannot be circumscribed to exemption of court fee, process fee or making provision for providing counsel or legal assistance in court, but must lead to complete socialisation of legal process and transformation of legal doctrine into a welfare scheme to uplift the poor.

In India legal services programme has been initiated by the government and some voluntary organisations. But it has not become a dynamic social movement to promote social justice in a wider sense. It has not attained sufficient maturity of thought and action. Much study, research and practical work are yet to be done in order to make it a more effective and dynamic movement to liberate the poor from socio-economic and political oppression.

Legal Services and Voluntary Organisations

The Legal Services envisaged by the Central Government, though radical and dynamic in its approach and ideology, may degenerate and decay in the course of time unless they are implemented by dedicated persons committed to the cause of the poor. Because of their dedication, commitment and radical approach, voluntary organisations and social action groups are in a better position than government agencies to evolve a strategy directed towards bringing about change in the social and economic structures which are responsible for the creation and perpetuation of poverty and denial of justice to the large masses of people.

As part of this process of structural change social action groups may have to initiate some of the following legal services programmes:

  1. 1.      Conducting socio-legal surveys to investigate and identify the injustices and violations of human rights suffered by the weaker sections of a specific area.
  2. 2.      Studying the detrimental effects of government policies and development programmes on the poor.
  3. 3.      Bringing the inadequacies in law-making and law implementation to the notice of the public and the government with a view to persuading the Government to take appropriate remedial measures.
  4. 4.      Resorting to the judicial process for enforcing the rights of the poor especially through Public Interest Litigation, when the Government or the bureaucratic machinery fails to respond to the demands of the poor for justice.
  5. 5.      Making the poor and the disadvantaged aware of their rights and the benefits conferred on them by socio-economic legislations and devising means to obtain their rights.
  6. 6.      Enabling the weaker sections to make conscious use of the laws as an instrument to further their interests.
  7. 7.      Promoting group consciousness, group dialogue and social action through a massive legal literacy programme, that will lead to a political dialogue about legal rights and political action.
  8. 8.      Organising and mobilising the poor and enabling them to co-operate with other groups to change law and society.
  9. 9.      Training para-legals or barefoot lawyers who would identify the problems of the poor, give voice to their demands, protest against injustices, alert them against deprivation and exploitation and help them to use law and legal procedure to assert or defend their rights.
  10. 10.  Giving legal services movement a new thrust to make it a dynamic force for the transformation of society.

Legal Services Cell

Legal Services Cell attached to a social work institution can provide not only preventive legal services but also operate as a vigilance cell which will take legal action against violations of human rights of the poor and protect them from exploitation by the powerful elements in society. The cell must be manned by socially committed lawyers or para-legals.

Activities that can be undertaken by a Legal Services Cell:

  1. 1.            Training of para-legal workers or barefoot lawyers.
  2. 2.            Organising Legal Aid seminars, courses, workshops, camps for social workers.
  3. 3.            Publishing pamphlets, leaflets, booklets in various languages to promote legal literacy.
  4. 4.            Conducting socio-legal survey and research on legal problems affecting the poor.
  5. 5.            Filing Public Interest Litigations to enforce fundamental rights of the weaker sections.
  6. 6.            Imparting legal information and legal advice to poor litigants.
  7. 7.            Organising Lok Adalats in collaboration with Legal Services Committees of various Courts.

(to be continued)