ACCESS TO JUSTICE

Answer 1.
EVOLUTION OF CONCEPT OF LEGAL AID AS TRACED BY JUSTICE
MURALIDHAR
Justice S. Muralidhar is a sitting judge in the High Court of Punjab and Haryana and is
known for his exemplary views on court jurisprudence and practice in India. He served as the
judge in the High Court of Delhi for a span of 14 years and gave many noteworthy decisions.
The famous Naz Foundation case was also decided by a bench which had him as a judge.
Law, Poverty and Legal Aid: Access to Criminal Justice was his Ph.D thesis wherein he has
dealt with the Evolution of Legal Aid in India. Its more of a chronological representation of
the chain of occurrences that has established the concept of legal aid in India over the years.
He began his analysis from the pre-independence era.
(a) Pre-Independence Era
To study the evolution of any system, the historical perspective has to be evaluated.
Justice Muralidhar has tried to establish this analogy by dating back to the Mughal era
and their justice delivery system.
The britishers were the first to come up with a code to regulate the justice delivery owing
to the deplorable system that existed prior to that. The offenders had no say in the system
and were subjected to punishments without being represented well. The Mughals retorted
to harsh punishments in order to avoid overcrowding in jails. The criminals were confined
in the prisons for so long that their offences were forgotten but not forgiven.
In 1790s, the three tier justice delivery system was formulated by Lord Cornwallis. This
was the very first instance of separation of the three wings. However, 1833, it was
realized that the criminal justice system had failed to achieve its two fold purpose i.e.
cheap and speedy trial. Lord William Bentick tried to reverse this by combining executive
and judiciary. The IPC was drafted to reduce arbitrariness of the courts and regulate a
code of conduct to stipulate punishment according to offences.
The vakils started to enrolling the Madras and Bombay Presidencies in 1802. The
regulation of conduct and court fees was enacted in 1814 and followed by the Legal
Practitioners Act in 1846.
Mahatma Gandhi had the opinion that the lawyers as perpetrators of unjust legal system
and abandoned his profession as a barrister and So did many lawyers as their response to
the ongoing freedom struggle.
The Bombay Legal Aid Society in 1924 was the very first initiative beyond the judiciary
to ensure legal aid to the deprived and destitute at a lower cost. The gratuitous legal
services were voluntarily done by the members. The society received a grant in fund of rs.
12000and a yearly grant of rs. 300 from Ness Wadia.
This society later recommended formation of a committee in furtherance of such pro bono
services and to be grate by the state.
(b) Second Phase (1949-1970)
This is definitely one of the most happening periods post the colonial era which Justice
Muralidhar segregates into 6 major events.
(i) The Bombay Committee (1949)
This was appointed by the Government of Bombay and was chaired by Justice NH
Bhagwati. The legal aid was to be provided in an hierarchical manner for better outreach
at the taluk, districts, High Court and state levels. The legal aid was to be provided at both
trial and appellate stages.
The determining factor was the means test and the prima facie test. The bar associations
were to decide the panel of lawyers for legal aid.
Various other recommendations along with multifarious publicity for availability of legal
aid marked India’s entry to this arena. This was the first state sponsored legal service
programme.
(ii) Trevor Harries Committee in West Bengal
This was the contemporary development in Bengal under the chairmanship of Arthur
Trevor Harris, a retd judge of Calcutta High Court. This also had a three tier system.
(iii) Central government’s initiatives at par these two state initiatives.
Various state institutions geared up during this phase in areas like Uttar Pradesh, Andhra
Pradesh, Bihar and were to be regulated by the center. In 1957, the Law Ministers’
Conference in Delhi paved the path legal aid scheme for the poor to be brought by every
state government. The five year plan of the governments were to include provision for
legal aid to the poor.
(iv) Kerala legal Aid (to the poor) Rules, 1957
Kerala was one of the few states which elected communist party for the government. This
reflected in the legal aid system as the poor were prioritized. Social and economic justice
became the central goal and thus resulted in this set of rules. Providing legal assistance to
the poor and women through legal means were ascertained.
(v) 14th Law Commission of India report
This two volumed report had one whole chapter devoted to legal aid. Speedy and cheaper
access to justice was recommended and so was improvement in justice delivery system.
Legal aid was counted as state responsibility. Six free cases by every lawyer was stressed
upon.
(vi) Central Government Scheme 1960
This was formulated and given to all the state governments and combined the best
features of the aforementioned reports. The states’ obligation to ensure legal aid was
reiterated. No programmatic action was seen, however.
The observation of J. Muralidharan was that litigation was the basis of legal aid. The
developments were ineffective in practicality. The fundamental necessity of legal aid was
overlooked.
(c) The third phase
This was post the central government scheme till the Juridicare committee of 1977. The
first being National Conference on legal aid in 1970. This had numerous
recommendations on making a comprehensive set of rules to objective assessment and
functioning of legal aid system in India.
This conference generated public awareness and opened many debated regarding role of
government versus the role of judiciary vis-à-vis legal aid
The Gujarat Committee of 1970 chaired by PN Bhagwati considered the questions of
grant of legal aid in every aspect of civil, criminal, revenue and labour matters. The
financial assistance part was also discussed. the international developments by UNHRC,
ICCPR etc were taken into consideration.
Organisation of the poor and weaker society, spread of consciousness and democratic
spirit were the major recommendations
In 1973, the Ministry of Law and Justice came up with an expert committee on Legal aid
to ensure free aid to the economically and educationally backward srata. Legal awareness
and avoidance of unnecessary litigation were the major focus. Legal Aid clients were
identified. The adversary system and its flaws were analysed. Crime and poverty were
interrelated. Equal treatment of poor was not an option but necessity.
The Juridicare committee headed by VR Krishna Iyer and PN Bhagwati made
recommendations for establishing a comprehensive and dynamic system for effective
implementation of socio-economic equality and schemes for legal aid.
This was post Kesavanand Bharati phase and the judiciary had lost its weightage due to
over bearing nature of the executive after the judge supersede in the Apex court.
This envisaged various models of legal aid delivery mechanisms. Decentralization of the
justice delivery system was the major highlight. Nyaya panchayat came into existence as
a formal body.
Post the 1977 Report
The change in government made this report worthless and the recommendations of this
and the National legal Services Bill were not implemented. Legal aid was not a part of the
amends that followed this report and the importance was diluted.
Final observations by J. Muralidhar:
Institutionalization of the legal framework in pursuance with the international
counterparts’ successful model were the important feature of every report.
The collaborative adventure of executive and judiciary was questionable.
 The strength of every report lied in the philosophical construct upon which they were
based.
The reports failed to cater to the humane approach and their needs and were not
implement fully.
The various vulnerable groups like the juvenile, mentally unstable and victims of police
brutality were ignored as the socio-economic backwardness was the only criteria.
Answer 2.
PROBLEM QUESTION
(a)Paralegal services are an attempt to assist the legal system and thus facilitate legal aid to a
wider population. In Indian parlance, paralegal services are mostly community-based
services. They are the first responders as they are employed at the grassroot level.
In this question, Sumathi is a Para legal volunteer and thus is expected to be provided with
the required training.
The NALSA 2009 PLV scheme has laid down various duties of the PLVs.
 They are the ones who bridge the gap between the common people and the legal
service authorities and thus ensuring the access to justice being attained.
 The PLVs are to impart awareness on laws and legal system and try to settle the
dispute between parties through ADR mechanisms. They might also refer the cases to
lok Adalat or mediation centres.
 The legal awareness to be provided by the PLVs include the rights of the people vis-à-
vis constitution and other statutes. The human dignity aspect has to be explained as
well. Legal literacy camps are to be conducted and facilitated by the PLVs.
 The PLVs shall make the people aware of the nature of dispute and the exact authority
to whom they should approach.
 Any violation of laws in their area should be watched and reported by the PLV via
telephonic message or written communication to the appropriate authorities.
 Upon arrest of any person, the PLV shall visit the police station and ensure provision
of legal assistance to the arrested person.
 Proper care and attention to the victims and compensation under CrPC has to be
initiated by the PLV.
 Basic essential necessities and proper hygiene in the lock ups are to be looked upon
ny the PLVs.
 Juvenile necessities are also to be looked after and any violation of child rights has to
be reported by the PLV.
 PLVs shall assist the DLSA/TLSC in organisation of Legal awareness camps.
 The information about the available legal services has to be given by the PLV to the
localites.
 Benefits of pre-litigation dispute settlement should be explained to the localites by the
PLVs.
 Daily activities should be recorded by the PLVs in a diary and a monthly report has to
be submitted to the DLSA or TLSC.
  Adequate advertisement regarding the available services to the public should be
ensured by the PLV.
 PLVs can also work in Legal Aid Clinics as per NLSA 2011 regulations.

Yes, being a PLV, Sumathi can resolve the dispute between the villagers after trying to
counsel them in this regard. It is completely dependent on the nature of the dispute. If the
dispute cannot be settled by her, she can bring both the parties to ADR centers wherein the
matter can be further referred to the Lok Adalats.
(b) Sumathi can be disqualified if,
 She fails to ascertain the functioning of the interest of the Scheme
 She is adjudged insolvent
 Accused of an offence
 Becomes physically or mentally incapable of rendering duties as a PLV
 Abuses her position and misconducted
 Acts opposite to public interest
 Has been acting in promoting any political party vendetta
Answer 3.
ROLE OF CLINICAL LEGAL EDUCATION IN STRENGTHENING ACCESS TO
JUSTICE INITIATIVES IN INDIA
In order to understand the role of Clinical Legal Education, we need to understand the role of
Legal Education first. In the view of Prof. Madhava Menon, legal education directs and
moderates social changes; and has to operate as conscience keeper of the society. Legal
education also should manifest higher moral values and higher degree of competence and
discipline. The legal fraternity should question the government and analyse its policy
decisions.
The socio-economic justice has to be ascertained and every legal professional should
understand this and work in furtherance of the same.
The Clinical aspect of the Legal Education was first propounded by Russian Professor
Alexander Lublinsky in 1901. The underlying aim is to ascertain practical problem solving
capacity from the ground level exposure; like they do in social and anthropological studies.
The social and professional sense of responsibility shall be imbibed deeply in the legal
professionals only if they understand the rights and problems faced by the people while they
are part of the social construct.
The understanding of the disadvantaged group by application of social science findings is an
option as well. The close connection between social science, political insights, psychological
findings and legal norms has to be understood by the means of social experiment only.
The knowledge of environment, juvenile and women rights can be encapsulated along with
the interaction with the public agencies dealing with the population directly. Community
based resolution system has to be understood by the law students and they can have real life
experience in solving and assisting people.
1960s marked the emergence of Legal Aid Clinics in India. Delhi University established the
first Legal Service Clinic in 1969 for helping prison inmates.
Later AMU, University of Jodhpur, BHU, NLSIU joined the bandwagon in settling disputes
like:
 Legal literacy camps
 Matrimonial disputes
 Accidents
Optional and compulsory courses were introduced in law schools. Financial crisis resulted
in the non-functionality of the Legal Aid Clinics, so was lack of expertise, supervision
and absenteeism.
However, the student community has been sensitized in this regard due to the introduction
of clinical courses in the curriculum. 1998 was the year when the courses were made
compulsory. In 2008, BCI replaced Legal Aid Clinics with ADR as it gained momentum.
The broader goal of ascertaining social justice remains the priority of clinical legal
education. The legal professionals are the agents of legal process and are supposed to
stress upon such social goals.
Promotion of legal awareness remains the major task in a country as vast as ours and the
role of clinical education cannot be ignored in this regard.
As a part of legal fraternity, the goals that have been achieved by the legal aid clinics in
promoting legal awareness through
 Lega literacy programs
 Nukkad nataks/street plays
 Theatre arts
 Legal entitlement programmes
 Free legal advise
Have remained effective. The problems of governmental schemes not reaching the
beneficiaries has been resolved to a great extent by such awareness. RTI, traffics
rules, Child Sexual abuse, matrimonial offences are few of the many problems dealt
by such means.
Para legal services have also helped a lot.
Probono representation in quasi-judicial bodies like Consumer Dispute redressal
through legal aid clinics has been a successful experience.
Public Interest Litigation Is another aspect wherein students can conduct researches as
to the need of the society and represent such matters of public importance in the
courts.
JEROME FRANK ON IMPORTANCE OF CLINICAL LEGAL EDUCATION
 Jerome Frank questioned the Langeldian method of spending time in library as a way
to impart legal education being less effective as he had not tried many cases. Harvard
Law School believed in practioners being teachers not to be a good idea. such a
method will lack scientific intellect.
Frank thought that this Langdell-Harvard method resulted in academic pursuance of
law sans any practical experience.
The introduction of inductive study by case study method was a futile attempt as the
students didn’t study the cases and facts vary everytime. The task of lawyers is to find
out solution for every such particular set of problem.
The lawyer tries to predict an enforceable court decision and win a specific lawsuit.
Decisions are far more important for a lawyer than the opinions. So, only relying on
the jurisprudential aspect of the laws and the opinion of the philosophers and authors
will disable a lawyer from meeting the demands and needs of a client.
A lawyer cannot only learn from the opinion of the precedents set by judges. He will
lack the capacity to react to the conflicting testimonies of the judge.
At different levels, the laws, facts and interpretations are in conflict. The stress upon
questions of law has to be materialized and only philosophy would not suffice in
identifying the same.
Frank’s recommendations to enhance legal expertise by clinical exposure included:
(a) Law teachers should not be only academicians. A larger chunk should also include
lawyers with at least five to ten years of experience.
(b) The case-system should be revised and upgraded in a manner that people will
understand the whole step by step scenario.
(c) Law students should visit courts to see legal operations
(d) Free legal aid clinics comprising of law graduates, Undergraduates and members
of the local bar is very important tool
(e) Intertwining of legal rights and duties to be understood by the students
(f) Draftsmanship has to inculcated
(g) Until the actual functioning of legal aid clinics, the students shall go for apprentice
training in law offices which is the modern-day Internship.
(h) The traditional law school learning was expensive and this clinical study will
enable more masses to learn and law
(i) Social science education was to be envisaged in the curriculum
(j) Art of judging should also be inculcated by direct interaction with judges
(k) Lastly, professional ethics has to be compulsorily inculcated in the minds of
students refraining them from doing misconducts.
The views of Jerome Frank were in order to establish a realistic law school instead pf
technical law school.
Answer 4.
INDIA JUSTICE REPORT
The India Justice Report has been the first report that has discussed and ranked the Indian
states as per their performance and capabilities in administering justice. The four pillars have
been viz.
(a) Police
(b) Judiciary
(c) Legal aid
(d) Prisons
There were 78 indicators that were identified across the 4 pillars in order to determine the
ranks. The states were ranked as per their performance in various categories.
POLICE: modernization of the utilities available was a major criterion that was
unfulfilled and hence affecting the performance. Maharashtra was the only state that
accomplishes this feat. The ratio of the men to women staff was less than 10% in 8 of the
states. This gender gap was indicative of a sub dued performance. Reservation quotas
have been unfulfilled by 80% of the states. Vacancies were high and hence
underperformance was seen.
Thus, vacancy across the department in various positions has resulted in the poor
administration of justice by the police department.
PRISONS: Overcrowding was a major problem in prisons. Similarly, less females in the
staff was another big problem. The absence of correctional mechanisms is the major
setback in Indian prison system. Sanitary, reformatory and rehabilitory mechanisms are in
bad state but hace to be improved as the requirement of current underpinning of law.
The prisons are run by state government and hence budgetary deficit has been very
diverse.
JUDICIARY: Vacancy and clearance rate were the major deficits I the judiciary and
hence affected the access to justice part as the major actor of justice delivery system.
Gender gap was also noticed here.
LEGAL AID: the outreach and spreading of the legal aid system is the major setback. The
lack of central funding is a maor deficit as the institutional mechanism has not yet been
well formulated. Legal aid can as the only mode to secure maximum access to justice as
legal awareness and availability is the goal.
The report had been prepared by the Tata trusts.
Odisha ranked 7 in the overall ranking. The Human Resource ranking was 3. Odisha will
take 111 years to meet the gender gap in police employment. Odisha has the highest
judiciary clearance in the high courts i.e. 100%
The vacancies have to be fulfilled in every field and the systematic approach of
hierarchical division has to be followed in order to ascertain proper implementation of the
available resources.
Police: 7, Prisons: 5, Judiciary: 9 and legal Aid:15
Methodology of preparation of the report
The preparation of the report involved 8 major steps.
 Outlining: this included finding the indicators and using them in the light of the 6
common themes i.e. (a) infrastructure, (b) Human resources, (c) Gender and caste
diversity, (d) Budgets, (e) Workload and (f) Trends over the last five years.
 Filtering was the second step. 78 out of the 200 indicators were filtered on the basis of
dimensions involved and the qualitative ranking from good to bad gradation.
 Scoring was based on a common scale of 1 to 10 with reference to the performance in
each category.
 The fourth step included clustering the states into 4 clusters i.e. large & midsized
states, seven small sized states, Seven UTs and Four states not taken into
consideration
 Ranking was done in every cluster basing upon the performance as per the parameters
that were identified. The score was calculated by using geometric mean.
 The arithmetic means created difficulites and hence geometric means were adhered to
 Uniform weightage to parameters by using percentage points as the availability of
public data in each area was different.
 Data was checked in three rounds. The decimals were rounded off for convenience.
Answer 5
(a) Imityaz Ahmed v State of Uttar Pradesh
This case is one of the most important cases in the establishment of the access to justice and
recognition and reaffirmation of speedy trial being an important aspect of ascertaining the
means of justice. The Supreme Court of India laid down that undue delay and prolonged trials
are hindrances in the common men’s access to justice. The denial of timely justice is denial to
justice in itself. The apex court directed the Law commission of India to prepare a report in
this regard and recommendations for additional courts in order to avoid delays, ensure speedy
clearance of arrears and deduction of costs.
In criminal cases like murder, dacoity, rape and abduction, the delay in decision defeats the
purpose of the justice delivery system. The Supreme Court took judicial notice of this undue
delay caused and thus directed that Supreme Court under Article 226/227 can interfere in the
inherent jurisdiction of the High Court. This had to be done to retain the faith of common
men in the justice delivery system. The CrPC also has S. 482 and 397 which talk about the
improvement of criminal justice delivery system and work in furtherance of public interest.
The undue delay results in violation of Article 21 of the Indian constitution and weakens the
justice delivery system. The High Courts have their authority but expeditious trial is their
duty. If this is not adhered to, the Supreme Court can order investigation.
Thus, this case was followed by the 245th Law Commission Report named “Arrears and
Backlog: Creating Additional Judicial (wo)manpower” which gave various
recommendations.
This report dealt with various aspects like judge to population ratio, time based and rate of
disposal method.
(b) Mauro Cappelletti’s three waves of access to justice
Mauro Cappelleti had attempted to define Access to Justice in 1970s. in his ‘General report’
he had stated that “access to justice is the system by which people may vindicate their rights
and/or resolve their disputes under the general auspices of the state”
He along with Garth had pointed out three waves of access to justice:
 Legal Aid to the poor-
 Public interest in the forefront to protect diffused interest
 Reformation of civil procedure and bring ADRs
These waves are not chronological rather they were simultaneously being evolved.
Legal Aid to the poor: Financial hardship has been the major hindrance in affirming
access to justice. Therefore, the importance of free legal aid to the poor cannot be stressed
upon enough. This will ensure access to justice to the maximum population. Advocacy
assistance has to be state sponsored.
Public interest: public interest involves the interest of the mass and hence is definitely
ensuring accessible justice to a larger chunk of the population.
ADR: The third wave can be referred to as ‘the access-to justice’ approach, because it is
comprehensive and dynamic, and aims to improve a wide variety of reforms within civil
procedure and dispute processing in general parlance. reformation of the structure of the
courts, reforms in the legal profession and reforms providing the use of ADR are the
features of this wave. Various disputes have various issues, thus the ADR mechanism
shall be able to address such issues.