“Legal Aid And Social Responsibility- A Perspective On Law Schools” By - Harish Lambani

“Legal Aid And Social Responsibility- A Perspective On Law Schools”

Authored By - Harish Lambani

ABSTRACT:

Education plays an important role in the society and for a social change. As a potential instrument and a powerful medium of bringing changes in the society it enables drawing out of the best in the body, mind and spirit of individuals. It equips an individual with ability to understand and reflect upon knowledge and processes and to act in a responsible manner. Legal education is a species of main stream education involving the study of law and society. It inculcates the ability to make use of law, to analyze it and to criticize it as a member of the legal community. It focuses on the individual freedom and also on the development of society, solidarity and strengthening of rule of law. The progress of high quality legal education is a prerequisite to high quality legal practitioners. Legal Education precedes Law Profession, which in turn aims to provide legal remedies to the society. Article 14, 22(1) and 39A of Constitution of India makes State responsible for securing Justice to all and providing legal relief for poor and marginalised section of the society. Those remedies also come in form of Legal Aid. The Law Colleges are the very instrumentalities entrusted with provisioning Legal Education and Facilitating Legal Aid & Clinical Legal Education. This Study explore that how Law Colleges has been imparting Legal Education and Clinical Legal Education in order to prepare young legal professionals ready to serve the society through Legal Aid. Also the perspectives on change in approach by the law colleges in reaching the poor and needy by way of adopting certain areas in order to provide free legal aid.

Keywords: Key Words: Legal Aid, Clinical Legal Education, Law Colleges, Legal Remedies, Profession.

INTRODUCTION:

Peace and harmony is very essential for the growth and development of a nation which can be ensured through fair administration of justice. In a welfare State like India where people are known for its diversity, it is the obligation of the State to ensure equal administration of justice as it is a sine que non of fair administration of justice. To promote equal administration of justice irrespective of economic or other disability, the concept of free legal aid emerged. It promotes the saying that justice should not only be done but seem to be done. Another hurdle in the path of administration of justice is delay, cumbersome process and high litigation cost. These problems become more complex when a person who comes before a court for protection is poor, illiterate or ignorant about his rights. Failure to get easy, cheap and expeditious justice shakes the very faith of people in justice administration system. The founding fathers of the Constitution of India had taken a positive approach towards doctrine of equal justice, which becomes apparent on the plain reading of the preamble of the constitution. It provides for justice in all its forms- social, economic and political. This preamble promise is further strengthened by provisions in Articles 14, 21, 22(1), 32, 39-A, 38, 41, 46, 142 and 226 of the Constitution of India[1].

Law as a profession provides valuable service throughout the society in different ways to different groups of people at the different level in both the public and private sphere. Whether be any section of society, the law is needed for all. Law is not just the contribution of the lawyers but the profession also depends on the contribution of the budding lawyers or the law students. It is important to acknowledge and thank those who are the foundation of this profession as they provide their high level of service on which the modern society is dependent. In the modern context, it also provides us with the opportunity to highlight the role of law students in the legal profession as well as in the society. Law students have a strong sense of justice and have a will to remove the injustices from the society and through their legal knowledge gained through legal education they make this change significant. The change is not sudden but is a result of a gradual change that comes over a period of time.

Article 14 states that “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 22(1) states that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.

Article 39A of the Indian Constitution states that “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or 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.[2]”

Justice is what we usually talk about whenever we come across Indian Judicial Process. The purpose for which Judiciary has been established is to deliver justice to everyone irrespective of his social and economic condition. Very often, it becomes quite difficult for a person to get justice because of certain economic means or certain procedures which he is not aware of. Usually, a person does not want to indulge himself in the litigation process because of delay in justice. It has become a mindset of various people that if a person is entering into the process of litigation, then it would become very difficult for him to get out of it. Various Legal Aid Committees have been established by Central and State Government in order to make sure that justice can be delivered to those persons who are not able to represent themselves because of their economic condition. Indian Constitution envisages making the state oblige to enact a suitable act in order to provide free legal Aid to those people who cannot afford the litigation process. The role of Law Schools in this regard can play a very prominent role by adopting certain areas for provisioning continuous free Legal Aid.

BACKGROUND:

Justice UU Lalit the current executive chairperson of the National Legal Services Authority (NALSA) said that law students should act as a bridge between the providers and seekers of legal aid. He has urged law students to give back to society by acting as paralegal volunteers in the hinterland, similar to students of medicine who intern and work in rural areas as a matter of compulsion. It was urged to the law colleges to facilitate that students also give back to society in the form of acting as paralegal volunteers, between the providers and seekers of legal aid[3].

Further, the Bar Council of India (BCI) had assured NALSA that law colleges would be extending such support. “If law colleges adopt maybe two or three talukas in the region, then maybe there will be a regular stream of students who will be devoted to the cause of legal aid.

Although the BCI Rules provide for compulsory internship opportunities for law students, an institutional framework deserves to be designed for law students to assist in legal aid as part of their curriculum[4]. This will not only help students understand ground-level problems in justice dispensation but also help the legal service authorities in getting help for the needy.

A culture of such programmes needs to be cultivated, where for a lengthy period of time, law students are engaged at a particular place to learn the basics of procedural aspects pertaining to litigation. Law students are young, energetic and full of enthusiasm. Their energies need to be channelized by adopting at least one taluk in a manner that the society as a whole derives benefit out from it. By training in rural or semi-rural areas, students will learn the basics of civil litigation, e.g. property and family disputes as well as criminal litigation pertaining to different crimes in the society. They will also get a better grasp of on-ground realities in the country.

INSIGHTS OVER RIGHT TO EQUALITY & ACCESS TO JUSTICE:

Preamble of India provides for securing all citizens equality of status and opportunity along with justice-social, economic and political. Both the objectives have inter-connection. Equality promotes justice and justice promotes equality. We cannot expect justice without the support of equality. Equality in a country like India where differences among people prevail because of Social, Economic and Political factors is a far cry without the support of provisions like legal aid. Legal aid brings less advantageous people at par with affluent counterpart so that they could get equal opportunity to seek justice. Apart from preamble access to justice also get assistance from fundamental rights. Fundamental rights enshrined in part III of the Constitution are the tools to achieve the objectives laid down in the preamble. These are basic, natural and inalienable rights which are essential for growth and development of human beings which ultimately lead to growth & development of a nation. Articles 14, 21, 22, 32 and 226 provides for the free legal aid. Article14 provides that the State shall not deny to any person equality before the law or the equal protection of law within the territory of India. Article 14 uses two expressions "equality before the law" and "equal protection of law". Equality before law is taken from England and equal protection of law is taken from American Constitution. Both these terms appear same but they have different meaning. Equality before law provides that everybody is equal before law irrespective of position and economic resources on the other hand equal protection of law provides a helping hand in terms of special provisions to those people who are at less advantageous position so that they could avail the benefits of law as their affluent counterparts are availing and equality before law could be maintained. In India because of illiteracy, ignorance, poverty and lack of faith in judicial system people do not get equal opportunity to get fair justice as their educated and affluent counterparts get. So provision like free legal aid becomes very essential to provide them equal protection of law which is a fundamental right of every person

AUDI ALTERAM PARTEM:

Another supporting provision which is implicit in right to equality is the principle of Audi Alteram partem. It means the other party must be heard. This principle is implicit in Article 14 which is a fundamental right of every person. So it is the duty of the State to ensure every person proper representation before Court irrespective of his means or knowledge. Free legal aid is implicit in Article 14. The law schools and the law students can be a bridge in ensuring the legal aid served

RIGHT TO LIFE AND ACCESS TO JUSTICE:

 Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure establish by law. The Supreme Court in Menaka Gandhi V. Union of India[5] held that under Article 21 life and liberty of a person can be taken away only by the procedure establish by law. The procedure which can take away life and liberty of a person should be just, fair and reasonable. Any procedure established by law which does not provide for free legal aid for poor and illiterate people to ensure fair representation before court cannot be treated as just, fair and reasonable. So the Hon’ble Supreme Court widened the scope of Article 21 to include provisions of free legal aid in it.

The Hon’ble Supreme Court reaffirmed its stand in Hussainara Khatoon V/s. Home Secretary [6]to include right to free legal aid in Article 21. The right to free legal service is clearly an essential ingredient of ‘just, fair and reasonable’ procedure which can take away the life and liberty of a person accused of an offence. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty. The state is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the need of justice so require. Provided the accused person does not object to the provision of such lawyer.

Again the Hon’ble Supreme Court reaffirmed the obligation of State to provide free legal aid to poor person in M.H. Hoskot V. State of Maharashtra[7] by giving similar decision. It stated that if a prisoner is unable to exercise his constitutional and statutory right of appeal including special leave to appeal for want of legal assistance, then it is the obligation of the court under Article 142 read with Article 21 and Article 39A of the constitution to assign counsel to the prisoner provided he does not object to the lawyer assigned by the court.

Similarly in Sukh Das v. Union Territory of Arunachal Pradesh[8] , It was held that Free legal aid at the State’s cost is a fundamental right of a person accused of an offence. This right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.

OBLIGATION TO INFORM THE RIGHT TO LEGAL AID:

Right to legal aid cannot be denied to him on the ground that he failed to apply for it. The magistrate is under an obligation to inform the accused about this right and to inquire about his wish of legal representation at the State's cost, unless he refused to take advantage of it.

In the case of Mohd. Ajmal Amir Kasab vs. State of Maharashtra[9] the Hon’ble Supreme Court directed all magistrates in India to discharge their duty of informing about free legal aid. It was held that the right to legal aid, consult and defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. So It is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. All the magistrates in the country were directed to faithfully discharge the aforesaid duty and obligation any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.

ASSISTANCE BY COMPETENT ADVOCATES[10]:

Legal Aid to accused persons without means in all cases tried by a court of session, is a mandatory constitutional necessity, it is further necessary that such lawyer should be competent. Indigence should never be a ground for denying fair trial or equal justice. Therefore, advocates competent to handle cases should be appointed. To provide free legal aid in true sense we need to have well trained lawyers willing to perform free legal aid. It is possible if there are adequate number of colleges with necessary infrastructure, good teachers and staff. Since the government is unable to establish adequate number of law colleges, it is the duty of government to permit establishments of duly recognised private law colleges and afford them grant in aid on the similar lines on which it is given to government recognised law colleges. This would facilitate functioning of these colleges efficiently and in a meaningful manner. These colleges will turn out sufficient number of well trained or properly equipped law graduates in all branches year after year. This will in turn, enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability.

ASSISTANCE BY LAW SCHOOLS AND THE LAW STUDENTS:

Understanding the importance of legal aid under various circumstances as a matter of a legal right as directed by the Supreme Court in various cases, it is necessary to make the free legal aid reach the needy in time. The major obstacle to the legal aid movement in India is the lack of awareness amongst the people about the legal service as a constitutional right. People are not aware of the legal right as a basic right due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor. However looking over the existing difficulties that are faced by the legal services authority in facilitating the free legal aid it is felt that an institutional mechanism allowing Law students to pay back to the society is a need of the time. As an institution the existing law schools can play a better role by adopting one or more taluks within its limits in this regard. There are various law schools that have made a decent attempt in expanding the horizon of institutional legal services through legal aid programmes vehemently.

The law school can do much better going one step ahead by adopting at least one taluk within its reachable limits. The law students can engage themselves in fulfilling the desired objectives of the legal services authority and also gaining a firsthand experience over the legal challenges.

Who is entitled for legal aid? How a law school and a law student can be helpful? According to Section 12 of the Legal Services Authorities Act, the following categories of people are entitled for free legal services[11];

1. A member of a Scheduled Caste or Scheduled Tribe; 2. A victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution 3. A woman or a child; 4. A mentally ill or otherwise disabled person; 5.A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; 6. An industrial workman; 7. In custody, including custody in a protective home within the meaning of clause(g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of 1987);or 8. In receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the state government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the central government, if the case is before the Supreme Court.

The aforesaid legal services can be facilitated by the law schools and the law students by becoming a bridge between the legal services institution and the beneficiary. The law school can as a pilot project may try establishing a cell in the targeted area and deputing its law students as a pre-job training. A MoU can be entered with the jurisdictional legal service institute for certain duration and provision support to them.

Provision of free legal aid may include: 1. Representation by an advocate in legal proceedings; where a law student can help in assisting the representing counsel. 2. Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings; where a law student can in fact assist and also learn for his own benefit 3. Drafting of legal documents, special leave petition etc.; where a law student can be of a great support 3.Rendering of any service in the conduct of any case or other legal proceeding before any court or other Authority or tribunal and; where a law student can confidently serve in this regard 4.Giving of advice on any legal matter; where a law student can be of a great support.

Further, the free legal services[12] also includes a provision of aid and advice to the beneficiaries to access the benefits under the welfare statutes and schemes framed by the central government or the state government and to ensure access to justice in any other manner where both the law school and the law student shall be a great facilitator of such a service.

There are four main reasons why the National Legal Services Authorities[13] has not been able to deliver real legal aid: 1. There is a general lack of awareness of the availability of legal aid. 2. There is a perception that free service is incompatible with quality service. 3. There are not enough lawyers delivered by the legal services authorities, and 4. Lawyers generally are uninterested in providing competent legal assistance because of financial constraints. Moreover, too often lawyers assigned to provide legal aid and paid with public funds do not faithfully represent their clients, casting serious doubt on the credibility of the scheme of legal aid provided to weaker sections of society. Some lawyers engaged by legal aid committees hold their client’s cases for ransom by employing delay tactics. These lawyers compel their clients, many innocent, to pay additional amounts of money to them, even though they are supposed to obtain their fee from the legal aid committee. One factor that may be contributing to this is that the remuneration paid to lawyers by the legal aid committee is very low and does not even meet the lawyer’s incidental expenses.

Another major obstacle to the legal aid movement in India is that the delivery system for legal aid is far too inefficient. More lawyers must be encouraged to delivery free legal aid and a campaign should be launched to inform people about the existence of free legal aid. The legal aid movement cannot achieve its goal so long as people are not aware of their basic rights. When the poor are not aware of their legal rights, they are subject to exploitation and ultimately deprived of the rights and benefits provided to them under law. Thus, the key to a successful free legal aid system is increased awareness among the populace and more efficient delivery processes. In creating awareness the law schools can play a vital role. Successful legal aid delivery in India requires the government to embark on a campaign to inform and educate the public of its right to free legal aid. Further, the government must employ more efficient processes to improve legal aid delivery and encourage law schools to play the primary role.

CONCLUSIONS:

Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The focus of legal aid is on distributive justice, effective implementation of welfare benefits and elimination of social and structural discrimination against the poor. It works in accordance with the Legal Services Authorities Act, 1987 which acts as the guideline of the rendering of free justice. The prime object of the state should be “equal justice for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law, the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor. The Law schools and the law students are the very instrumentalities entrusted with provisioning Legal services and Facilitating Legal Aid to the poor and needy, their role by adopting it as a primary responsibility can do a lot in facilitating legal services as a matter of a basic right.

AUTHOR:

Harish Lambani

9538166946

harishlambani@gmail.com

[1] Preamble, Part III and IV of the Constitution of India.

[2] Preamble, Part III and IV of the Constitution of India.

[3] https://www.livelaw.in/top-stories/legal-aid-justice-lalit-law-colleges-nalsa-national-legal-services-authority-179122

[4] Part III and IV of the Constitution of India.

[5] Maneka Gandhi v. Union of India AIR 1978 SC 597.

[6] Hussainara Khatoon & Ors V. Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532

[7] M.H. Hoskot V. State of Maharashtra, AIR 1978 SCC 1548, (1978) 3 SCC 544.

[8] Sukh Das v. Union Territory of Arunachal Pradesh 1986 AIR 991, 1986 SCR (1) 590

[9] Mohd. Ajmal Amir Kasab vs. State of Maharashtra (2012) 9 SCC 1

[10] Section 9A of Advocates Act, 1961 and Section VI, Rule 46 of the Bar Council of India Training Rules, 1995

[11] Section 12 of the Act entitles a person to legal services if that person is a women, child, member of Scheduled Caste, Schedule Tribe, victim of trafficking, Industrial Workmen, persons in custody or victims of disasters, etc.

[12] Introduction and history of NALSA, available at- http://nalsa.gov.in

[13] See, particularly Section 4 (e), Section 7 (C), 10, 11(b), 12 and Chapter VI A of Legal Services Authorities Act, 1987.