Access to justice - the idea and the institution

Sorokhaibam Sadananda *

National Lok Adalat at Lamphel Court Complex on 14th September, 2019 :: Pix - Manipur State Legal Services Authority

All along the history, the idea of justice has been propounded in myriad of ways. However, the underlying theme has always been the idea of fairness associated with it. What is fair is generally assumed to be as just.

What is unfair is generally treated as injustice. So, Prof John Rawl’s concept of justice as fairness is to act as the parameter to determine the effectives of the systems in place today for ensuring justice to all.

It need not necessarily be reiterated that the Rawl’s idea of justice on the fairness principle is preceded by the vision of justice, as gloriously etched in the Indian Constitution. The Preamble of the Indian Constitution lays down that justice is to be secured in all the three spheres of the modern life in the modern state, viz., political, economic and social.

And by recognizing the tenets of liberty and the corresponding freedoms associated with it- equality on the basis of equity, respecting the dignity of an individual tempered with the integrity of the nation, the Indian Constitution resolved to achieve justice for all by guaranteeing fairness in every walk of life.

But down the line, it soon became apparent that the translation of this glorious vision of justice into reality was met with various stumbling blocks. The practical difficulties which lay on the path started posing serious questions, even to the effect of questioning the efficacy or the workability of the Constitution, or of its ideals atleast.

For example, when instances of injustice occur, redressal forums have been provided in the form of judiciary. However, these are only curative aspects, and no emphasis has been laid on preventive and rehabilitative aspects when injustices occur; and yes, they were and still are occurring.

And more importantly, a more serious poser was- 1. What to do when the people cannot approach these forums of redressal, even when injustices has been meted out to them?, 2. More frighteningly, what if the people are not aware of their rights?

What if they don’t know that injustices have been meted out to them? What if they don’t know there are forums for redressal of the injustices meted out to them? What if they are living in ignorance? Ignorance may be bliss sometimes, but it is not the case always.

The dilemma which represented was what if instances of injustices have been so normalized that it may have the effect of being institutionalized. What if they became a normative order in the long run? No doubt, the idea of India was at stake.

It was at this juncture that the Judiciary took up the challenge to reverse this aberration, and to bring on track the journey this great nation undertook with its people on 26th January, 1950. Thus, with the judicial activism, the idea of providing free legal aid was borne.

And so, the Constitution was amended to bring within its fold, the idea of providing free legal aid so that access to justice was not be denied by reason of economic, social or any other disadvantages to anyone.

At first, a scheme was developed for overseeing the legal aid and services provided in the country, and it was personally overseen by the ever illustrious Justice Bhagwati. However, it was soon realized that access to justice should not mean merely access to courts, and so a need was felt to developed a complete statutory mechanism to ensure justice is accessible to all, fairness is guaranteed to all, and the people of this great nation can strive for greatness, to the lofty heights as glorified in the Constitution.

As such, the Legal Services Authorities Act, 1987 came into being, to take care of not only the curative aspect, but also the preventive and the rehabilitative aspects of countering instances of injustice as well as injustice in general, in all forms and its modifications.

With time, and in order to cover the preventive and rehabilitative aspects, the scheme of Para Legal Volunteers and Legal Aid Clinics was also developed, who form the grassroot workers of the legal services institutions. The accessibility question was sought to be redressed by the establishment of Legal Aid/ Services Clinics, so that people are no longer deprived of the institutions of the legal system by reason of any inarticulate barriers.

In Manipur, the Act came into force in 1998, with the constitution of the Manipur State Legal Services Authority, whose sole task is to implement the aforementioned principles. In 1998, the beginning was very modest, and it only in the recent times, the required staff and the infrastructure has been put in place to some extent.

As of today, there are 125 Legal Aid Clinics all over Manipur, manned by about 800 odd Para Legal Volunteers. In addition to this, there are around 300+ advocates on the panel of Manipur State Legal Services Authority (MASLSA), who have been kind enough to lend their services for delivering free legal aid to the people.

There are also dedicated panel advocates in each of the criminal courts (including JJBs) in Manipur, to ensure representation to every unrepresented arrestee (s), who is produced before the Court. All of them are mandated to provide effective legal aid and services to any unrepresented arrested persons, and to monitor their working, a monthly report is to be submitted in detail mandatorily to the Legal Services Institutions after getting duly certified by the Magistrate.

A format in this regard has been circulated by MASLSA in this regard. Also, for the legal aided cases, all the conducting panel advocates are to submit monthly reports in the proper format, to check the progression of their cases. Dedicated panel advocates are also assigned to each of the CWC (Child Welfare Commissions) in all the districts to take care of particular needs of children.

Legal Services Clinics are also opened in some of the police stations, district hospitals, DC offices, wherever possible. And Legal Aid Clinics have also been established in both the jails of Manipur, to take care of the special needs of the prisoners. There are also dedicated Jail Visiting Panel advocates; whose task is to interact with the inmates on a regular basis.

At present, there is also a fully functional mediation center (also housing the office of the MASLSA), with trained mediators comprising of both Judges and Advocates, as a part of encouraging resolving disputes by Alternative Dispute Redressal mechanisms. And it is always a pleasure to highlight the fact that mediation as a means of resolving disputes have garnered huge traction in the recent times, with people opting to resolve their disputes (cases pending in courts as well as pre-litigation matters) in an amicable manner.

After all, it also can be said that mediation or some variation of it, as a mechanism of resolving disputes was pre-existing in Manipur and pre-dates the present legal system. Glimpses of it still can be seen when the locality members try to resolve certain disputes of their locality by mutual agreement and amicably. Not to say the least, MASLSA is also organizing Lok Adalats, which provides an opportunity to the people to settle their claims and dues, and other disputes by their mutual agreement without invoking the normal procedural laws.

This is the framework in place for Manipur State Legal Services Authority, summed up very briefly. And to oversee all such activities, there are 9 District Legal Services Authorities in all the 9 judicial districts of Manipur and a High Court Legal Services Committee.

Now to address the question of effectiveness of the legal aid provided. As stated earlier, justice as fairness is to be the parameter in this case. Further, to put in context, it is to be kept in mind that Manipur is not a just one of the states of the Indian union; but a part of the greater geo-political space, situated at the very eastern frontiers of the Indian nation.

The space, so mentioned, is bounded on all sides and is connected with the rest of the Indian nation by a chicken neck corridor, which represents the lifeline for all the people residing in this space. So, Manipur, as a whole, can be treated as marginalized; and corollary, all the people of Manipur represents one of the most marginalized sections of the Indian society.

However, reports by the Legal Aid Clinics showed that there are hardly 5-10 legal aid seekers who comes to their clinics in a month on an average. This figure is the same for all the districts of Manipur. Although Legal Aid Clinics have been established in almost all the nook and corner of Manipur, the number of footfalls accessing these clinics remained far from satisfactory.

It is only in the Legal Aid Clinic, situated at the court complexes that maximum number of legal aid seekers is approaching. So, either the people are not aware of the existence of the Legal Aid Clinics, or they are not willing to put their trust in them or they are not satisfied with the working of the Legal Aid Clinics, or the people in general doesn’t know of the existence of their rights and entitlements, or the people doesn’t know that their rights have been violated. It is more particularly true for a place like Manipur, where instances of injustices have been so normalized.

In any case, the dilemma faced by the Hon’ble Justice Bhagwati can be rephrased now. Access to Justice should not mean mere access to Legal Aid Clinics. Establishing Legal Aid Clinics is not enough, if people are not coming forward in the same manner, establishment of redressal forums is not enough if people are not approaching them for various inarticulate barriers.

Thus, a project for the effective utilization of the 800 odd Para Legal Volunteers has been formalized and presently it is operational in 3 districts of Manipur. Under this project, all the Legal Aid Clinics have charted out their specific jurisdictions, the number of localities along with an estimated population covered by each of them.

To cross check, electoral data has also been procured from the CEO office for every constituency, for easy verification of the intended beneficiaries. Then, all the Para Legal Volunteers have been tasked to identify people who are in need of legal aid and services, by reaching out to them; instead of sitting in the clinics and asking the people to come to them.

The PLVs have also been trained and briefed on all the existing welfare schemes available under the Government and how to avail them. They have also been provided with the Beneficiary Identification Tool forms so as to assess properly the peculiar problems faced by each intended legal aid seeker. This exercise is to be seen in the light of the fact that 46 percent of the total population of Manipur is reportedly under the BPL, roughly translating into more than 14 lakh of the population. Hence, it is to be assumed that instances of injustice are occurring; and they are occurring every day.

Under this project, the PLVs have also been tasked with spreading legal awareness, and briefing of the existence of the free legal services and the protector of their rights and entitlements in the form of the judiciary. The point being, rule of law mandates not only that everyone is equal in the eyes of the law; but also, equal protection by the law (s).

Now, another issue that has been flagged off often is the efficacy of the legal aid provided for the arrested persons. Sometimes, it becomes paradoxical when so many authorities apart from the civil police are empowered with the powers of arrest, under various special laws in force in the state of Manipur.

For example, under the AFSPA, armed forces are empowered to arrest any person without warrant, who has committed or is suspected to commit any cognizable offence. However, they are only duty bound to hand-over the same to the nearest civil police with the least possible delay. It is thus only the civil police who are to produce the arrested persons before the nearest magistrate within 24 hours of their arrest.

Procedural fairness is also a basic pre-requisite of the idea of justice. However. it becomes difficult to conceptualize as to how far this procedural fairness can be or has been guaranteed in such peculiar circumstances. The danger of normalization of exceptional circumstances is no doubt real and is always looming around the corner.

In this regard however, it is a pleasure to mention that the National Legal Services Authority has initiated a campaign for providing early access to justice, for extending legal aid and assistance at pre-arrest stage; so that unnecessary arrests and detention may be done away it, and that procedural fairness is also effectively guaranteed at every stage when a person is to be deprived of his personal liberty.

As first phase of this project, a meeting with all the stakeholders has already been held in view of the peculiar characteristics of Manipur. Also, necessary IEC materials regarding the rights of a person at pre-arrest and at remand stage are being printed and they will be distributed to all the police stations and at other appropriate/ prominent places all over Manipur.

PLVs and interested and willing advocates on panel shall also be designated to all the police stations, as per the mandate prescribed by the National Legal Services Authority. Effective co-ordination between the legal services institutions and the law enforcement agencies shall be the key in successfully implementing this campaign.

Lastly, it can be said that the Constitutional vision of justice comprises of justice or fairness in all walks of life- political, economic and social. Civil and criminal justice administration in the law courts only represents one facet of the idea of justice.

In any case, as India is concerned, judiciary is still tasked with ensuring the political, economic and social aspect of justice as envisioned by the forefathers of the Constitution. Hence, the legal services institutions are tasked with the hefty mission of carrying forward these ideals, and to translate this vision into reality.

The challenge ahead is no doubt great, and there are still miles to go. However, the point is to keep moving, and to keep moving forward that is.