17 September 2018
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The justice system in India is fast, responsive and humane. No matter how surprising it might sound, yet this observation is absolutely factual. The only problem is the system isn’t so for everyone and certainly not for those who are underprivileged socially, economically and politically.
Right from filing of a case to applying for protection from arrest, seeking bail or requesting expeditious hearing to probability of getting a favorable verdict, ability to getting the appeal accepted by the higher courts and getting relief there, all crucial steps of the legal tangle, are influenced by the privilege one enjoys. Even the Supreme Court has admitted on multiple occasions that the Indian judiciary has been ignoring the common man (and woman of course) while giving priority to rich, powerful and influential people in hearing cases, "Sometimes, I wonder at my system. Here is an appeal of the year 2013 which gets a quick hearing. In how many cases are we doing so? That's why poor man feels that the system cares only for known persons and the unknown persons (common man) gets ignored,". This observation was made by a bench of Justices H L Dattu and SJ Mukhopadhaya in September, 2013 while dismissing the appeal of former chief minister of Haryana Om Prakash Chautala. Only one month earlier in August that year, Justice B S Chauhan and Justice S A Bobde while dismissing the anticipatory bail plea of IPS officer P P Pandey, accused in Ishrat Jahan fake encounter case had observed, "We can say on oath that only 5 per cent of the time is being used for common citizens, whose appeals are waiting for 20 or 30 years. This court has become a safe haven for big criminals. You come here for the sixth or eighth time for anticipatory bail and we should hear as if we were a trial court."
In India, we have adopted the British system wherein parties to litigation are represented by advocates. These advocates have varying abilities to influence the case in favour of their clients. A major influence on how courts respond to litigants has been attributed to the status of the senior advocates or defense councils who enjoy a celebrity status in the legal fraternity. A lawyer activist, who has been working for speedy justice for poor, puts it this way, "It is a well-known fact that hearing pattern in most courts change when petitions of the rich and powerful come up. Senior advocates who appear for them get special attention. These prized advocates obviously, come at a hefty price, well beyond the means of an average citizen, leave alone the disadvantaged. The top 10 lawyers charge between INR 5 lakh to INR 25 lakh per hearing at Delhi High Court and Supreme Court, see here. It is to be noted that advocate’s fee is not the only cost of accessing justice. There are numerous other costs involved directly, besides huge indirect costs. In such a scenario, cost of getting justice becomes paramount and ability to meet that cost is directly proportional to the probability of getting justice that too sooner than later. The inability to meet this cost on the other hand diminishes the possibility of getting justice, for the luckiest ones it may come eventually but still far too late.
It will not be entirely correct to assume that the justice system is completely oblivious to addressing the inequality mentioned above. Various measures have been taken in this regard, including free legal aid. “It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities” (Art.39 A of the Constitution of India). Thus, legal aid is not a charity but a right of the citizens who are in need. Legal aid can be provided to a needy litigant to cover one or more expenses around the following; i) payment of court and other process fees; ii) charges for preparing, drafting, and filing of any legal proceedings; iii) charges of a legal practitioner: iv) costs of obtaining orders judgments and other documents in legal proceedings v) cost of paper work, including translation etc.
In 1995, Legal Services Authorities Act (LSAA) came into force to enable free legal aid for socially and economically vulnerable people. Potentially, it could have been a game changer on equal access to justice. However, like many other welfare based laws LSAA too suffers from serious implementation issues, including, government apathy, procedural barriers, corruption and above all serious shortage of funds. The Central Authority which disburses funds to State Authorities under the Act upon receipt from the Union Government disbursed an amount of INR 110 crore in 2016-‘17 (up from 17 crore in 2009-’10). The meager honorarium paid to lawyers for providing services under LSAA is around INR 7500 per case in Bombay High Court. As reported in an article, for lawyers at lower courts the amount can vary between INR 1500 and INR 5000. Such a paltry sum obviously, does not help in attracting talented and experienced lawyers thus impacting the quality of legal representation for the poor and failing to address the very objective of free legal aid.
Coming back to the core issue of inequality in access to justice, evidently, the experience of free legal aid is not making much of a difference. It is surprising that despite increased awareness about the need to reforming our justice system and the various efforts in this direction civil society has not paid adequate attention to the public provision of legal aid and the need for demanding enhanced funding and better implementation of the Act. The need of the hour is to strengthen advocacy by having wider consultations and public mobilization around this issue. We should not forget that the LSAA came into existence after a protracted struggle and hence it must not be allowed to fade out as a lost opportunity. It is worth reiterating that the idea of social justice will remain elusive in the absence of equal access to legal justice.
The views expressed in this piece are those of the author, and don’t necessarily reflect the position of CBGA. You can reach Asadullah at
as*******@cb*******.org
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