Free Legal Aid And Mediation

Free legal aid a farce.

Article 39-A of the constitution of India, speaks about free legal aid to citizens, the intention of the legislature was to provide to poor or otherwise oppressed citizens. A lot of criteria to become eligible to free legal aid wasn’t minutely defined, and left open to mean and include other situations, not necessarily poor and not only persecuted or maliciously prosecuted persons.

Now coming to the core issue, permit me to take this august house to some thirty five years back in time, there wasn’t much implementation or even mention of free legal aid; but since about the past fifteen years purported hectic activity not to the benefit of India’s aggrieved litigants; but to the advantage of a coterie of certain echelons in the judiciary.

As those in the field of law are aware free legal aid in also mentioned in the Cr. P. C., the jail manual, the Human Rights Law etc; but is so shabbily and reluctantly sought to be implemented, that it would be better off if not implemented.

I now manifest from my personal experiences as herein below:-

a)     In Taluka Vasai, District Palghar, State of Maharashtra, in India, if a person seeks free legal aid, he/she is required to prove prima facie, that his /her income is below thirty six thousand a year, which works out to be three thousand per month, in turn amounts to hundred per day. The applicant is required to visit the court, and make out a  grievance or a request to the presiding officer, who grants through a written order; or the applicant goes directly to the free legal aid Committee, established in most of the courts (Not all courts), The applicant who is either referred by the P. O. or has approached directly, is first interviewed, wholly irrelevant and/or immaterial questions are asked, and mind you, this all happens after 5-30 or 6-00 P. M. when advocates who constitute the committee, have finished their practice for the day; as such the applicant’s entire day has been consumed, just to reach that stage. Next stage applicant is given a form to fill, requirements of which are, producing a certificate from the office of the Tashildar, who issues the same, based on the report of a Talathi of the village, who in turn has to personally visit the house of the applicant, to verify that the applicant is genuinely poor, then proof of domicile or citizen ship, after that an affidavit in support of the other documents submitted with the form. The cost of procuring all these documents, in terms of travelling long distances by train or bus, drafting, typing, time involved, besides loss of wages of the applicant due to absenteeism, etc; is more than the aid to be procured.

b)     Even worse, is some applicants won’t be granted aid, on the pretext that they don’t fit the criteria. Here a paramount question arises, wherefrom has the committee (Comprising of retired Judges of the High Court’s, as ex-officio members and one sitting Judge on the panel) introduced this rule, that aid will be granted only to the poor? The language employed in section 303 and 304 of the Cr. P. C., and the Human Rights Act, is very clear, “Every accused is entitled to free legal aid and advice” How have they framed rules in derogation of the law ?

c)      Another aspect is when magnanimous social minded persons are literally dissuaded and/or prohibited from doing Pro Bono or Amicus Curiae work for an accused or any other litigant(Be it petitioner, plaintiff applicant accused whoever)Myself not being an advocate have appeared for civil and/or criminal matters for prosecution and/or defense at the magistrate’s court and/or the High Court and have a series of successful orders; but of late contemporary magistrates and some High Court judges, have objected on grounds stating, “ Let the aggrieved litigant avail free legal aid, which facility exist”. I humbly contend that the quality of advocacy at the free legal aid committee is inferior, as it is populated by juniors and a few seniors who project a poignant portrait of the profession; through their work culture.  (No advocate worth his salts, whishes to be on the committee), so what in effect is being given, is third class services; now compare this with free medical aid,  just because a municipality or state government is granting free medical aid, does it mean they can dispense medicines past the expiry date? Does it mean a litigants have no other option but to select from their inefficient panel; that would be akin to selecting from a dozen  rotten mangoes, some of which are less rotten and some of which are more rotten, so the choice is limited to just that spectrum only.

The latest trend of abuse of free legal aid, is similar to corporators fund, MLA’s fund, M.P’s fund, for various schemes, projects, at the discretion of the concerned people’s representative, creating wanton losses to the state treasuries, the same concept is emulated by the judiciary, where concerned officials are more concerned how to exhaust the funds budgeted, for a particular year. We often read or hear this many lakhs or crores expenses incurred, on account of free legal aid, when a split up of the aggregate is tabulated, it concludes, more expenses were incurred on account of administrative and miscellaneous matters, comprising transport of dignitaries, hire of tables, chairs and sound system, printing, putting up banners, distributing hand bill, food for dignitaries, officials and administrative staff and salaries of administrative staff; when compared to actual aid granted to the litigants.

There is another disturbing aspect, some Machiavellian court officials, (Advocates and Judges) have started to nurse their own lobbies, by taking the ignorant press into confidence, and giving wide publicity to the miniscule work done,  portraying as if, this aid was obtained due to their benevolence.

Nearly every court in Mumbai, New Mumbai, Thane and Palghar, loquaciously talk about Arbitration and Mediation, and the judges, court staff and advocates, boast of having that many number of advocates, on their respective arbitration and mediation committees and therefore are reluctant to welcome legal firms or such other institutions, having quality legal talent, infrastructure and professional management skill, to infiltrate their coterie. The stand taken by The Registrar (Name withheld) of a court in Mumbai, is, we have fifty advocates on our panel. My question is, from those fifty advocates, not a single advocate can draft a meticulous notice or affidavit, in accordance with the law and practice of notices or the law and practice of affidavits, according to studies and records relied upon. At various conferences, seminars, symposiums and workshops, it is candidly admitted, that by and large, judges and advocates have woeful deficiency of knowledge and experience regarding arbitration and mediation, and these are the people who are at the helm of things, what then can one expect ?