Legal Services Cells in Law Schools: Need for Legal Sanctity

Transcription

1 Legal Services Cells in Law Schools: Need for Legal Sanctity Free Legal Services' mean the free legal assistance and guidance to the poor and weaker sections of the society with the object to enable them to exercise the rights given to them by law before any Courts, Tribunals, Consumer Forums, Quasi Judicial Authorities and before Government Departments. Section 12 of the Legal Services Authority Act, 1987 gives the list of persons entitled to avail free legal services under this Act.' Hereinafter referred to as FLS. The Legal Services to Authority Act, 1987, S.12 provides the criteria for giving legal services. It reads: "Every person who has to file or defend a case shall be entitled to legal services under this Act if that person isa member of a Scheduled Caste or Scheduled Tribe; a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution; a woman or a child; a mentally ill otherwise disabled person; e) a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or 0 an industrial workman; or in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 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 in receipt of annual income less than Rs.9,000/- 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 Rs.12,000/- or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court."

2 C.U.L.R. Notes & Comments 313 According to Justice P.N. Bhagwati legal aid means making an arrangement in the society so that the machinery of administration of justice becomes easily accessible and is not out of reach to those who have to resort to it for enforcement of rights given to them by law.' The goal of any service according to Pandit Nehru should be to wipe out every tear from every eye. That may be beyond us, but as long as there are tears and sufferings, so long our work will not be over'. In India, every Law School has FLS Cell to defend persons entitled to avail free legal services under Section 12 of the Legal Services Authority Act 1986 and as a result, law students are prepared and moulded to be good advocates, good judges, good legislators and above all good human beings. These Cells are under the strict supervision of full time teachers, who are well versed with procedural subjects. Even though these Cells are actively involved in providing free legal services to the society, it is not very effective because they do not have enough legal sanctity in the eyes of law. The usefulness of FLS Cell's representation on behalf of persons entitled to avail legal services under Section 12' is not given due recognition. The members of the FLS Cell are not allowed to represent the needy in any courts. This article, attempts to make an enquiry into the objects of the FLS Cell, with a view to explore the possibility of utilizing these Cells for administering better social justice to the poor and needy. Objects of Free Legal Services Cell The first object of FLS Cell is to ensure that the opportunities for securing justice are not denied to any person by reason of poverty, illiteracy, etc. The poor and illiterate should be able to approach any Court, Tribunal, Report of the Committee for Implementing Legal Aid Scheme (CILAS), Granville Austin, The Indian Constitution: Cornerstone of a Nation, Clarendon Press, Oxford ( 1966), p Supra n. 2.

3 314 Cochin University Law Review [2006] Consumer Forum, Quasi Judicial Authorities and Government Departments and their ignorance and poverty should not be an impediment in the way of obtaining justice. The object of free legal aid is to ensure equal justice. The second object is to mould students of law who are budding lawyers to sharpen their skills and also to play a vital role in the society. They have to be prepared and moulded by giving practical training required for making them competent advocates, judges, legislators and above all good human beings. Even the Mac Crate Report' has stressed on practical training to provide fundamental lawyering skills and human values to the budding lawyers. The I 84 th Report' of Law Commission of India has considered this report in its findings. According to Chief Justice Stone "the character of Law Schools determines the character of the Bar".8 Development of Free Legal Services Many are the reports that stressed on `FLSs' and 'practical training' in Law Schools'. These reports on FLSs called for extensive Section of Legal Education and Admissions to the Bar, American Bar Association, Legal Education and Professional Development - An Educational Continuum,pp (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, ( 1992), (also called as Mac Crate Report). See Law Commission of India, I84'h Report, The public influence of the Bar, Harv. L. Rev (1948). (i) Processual Justice to the People: Report of the Expert Committee on Legal Aid, Ministry of Law, Justice and Company Affairs, Govt. of India, May Report on National Judicature: Equal Justice, Social Justice, Ministry of Law, Justice and Company Affairs, Govt. of India (1977), p.66 to 74. Report of the Committee for Implementing Legal Aid Scheme (CILAS), (iv) Justice A.M Ahmadi Committee Report, (fn. contd. on next page)

4 C.U.L.R. Notes & Comments 315 involvement of law teachers and students in the legal services programmes outlined in them. The legal aid movement acted as a catalyst in the evolution of clinical programmes as part of Law School activity. Constitution and Free Legal Services The Preamble of the Constitution of India resolved to secure to all its citizens justice, social, economic and political, and equality of status and of opportunities. The Constitution of India provides for certain fundamental rights including the Article 14 which states that 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 21 assures the protection of life and personal liberty. In the Directive Principles of State Policy, Article 38(1) states that the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of national life. Article 39A 1 provides for equal justice and free legal aid. It states that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid. This can be attained by suitable legislation or schemes or in any other manner. The state shall ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In M.H. Hoskot v. State of Maharashtra" the Supreme Court has observed that free legal aid is the State's duty and not Government's charity. In Hussainara Khatoon v. State of Bihar 12 the Law Commission of India, 184' Report, First South Asian Conference of Law Teachers on " Skills-Ethics Education" held on 16 th to 18 th December 2005, at V.M. Salgaocar Law College, Goa. Inserted by the Constitution (Forty-second Amendment) Act A.I.R 1978 S.C A.I.R S.C

5 316 Cochin University Law Review [2006] Supreme Court has opined that the right to free legal aid or free legal service is an essential ingredient of 'reasonable, fair and just procedure' and implicit in the guarantee of the right to life and personal liberty under Article 21. Statutory Provisions on FLS Section 304 of the Criminal Procedure Code 1973 deals with legal aid to accused at State's expense in certain cases. Order. XXXIII and Order XLIV of the Civil Procedure Code 1908 deals with providing FLS to the indigent persons. The Bar Council of India under sections 6(1)(eee), 6(2)(a), 6(2)(b) and State Bar Councils under sections 7(1)(i-b), 7(2)(a), 7(2)(b) of the Advocates Act 1961, are vested with the duty to provide FLS to the poor, disabled and indigent persons. Rule 46 of Section VI of Chapter II of the Bar Council of India Rules 1995, imposes duty on every lawyer to render free legal aid to the indigent and oppressed persons. The Legal Services Authority Act 1987 has been enacted under Article 39A of the Constitution of India to provide equal justice and free legal aid services to the poor and the needy. Nevertheless, the FLS objects are not yet achieved satisfactorily. Free Legal Services Cell: The Law in Practice Eventhough providing FLS have been envisaged in the Constitution and in the Statute, in practice the objects are not achieved satisfactorily. FLS Cells in Law Schools do not have the required legal sanctity in the eyes of law. FLS Cell members of Law Schools are not allowed to represent persons entitled to avail free legal services under Section 1213 before any Court, Tribunal, Consumer Forum, Quasi Judicial Authorities or Government Departments. The Law Schools can no longer afford to remain silent spectators to the suffering of the masses. Time has come that they learn to fight for 13. Supra n. 2.

6 C.U.L.R. Notes & Comments 317 the under privileged by playing an active role in mitigating injustice which the poor people suffer in the present day socio-economic environment. The Law Schools are eminently suited to take-up the challenge. They can devise means and methods to make law as an instrument of socioeconomic change. The Law Schools should wage a war against socioeconomic exploitation of the neglected masses." Therefore, there is a necessity of involving Law Schools in legal aid programmes. The law students thus become an inexpensive and enthusiastic resource for providing meaningful legal aid to India's vast population." There are legal services programmes in countries such as United States, Latin America, Zambia and Indonesia which permit students under proper supervision to appear and argue cases in open court on behalf of indigent clients.' 6 But in India, at present there is no legal sanctity to the FLS Cell of Law Schools. So the Government Departments and others are not responding properly to the sincere efforts of the FLSs Cell, who have been representing the persons entitled to avail free legal services under Section 12' 7. Hence to achieve the spirit of the provisions of the Constitution and Statute on FLSs it is necessary that legal sanctity is afforded to the FLS Cell of Law Schools that allows its members to represent the needy before various authorities and courts. The Advocates Act 1961 should be amended suitably to enable such representations by free legal services cells of Law Schools. Rabin Singh, "Sensitizing Law Students to the Needs of the Society ", Nyaya Deep, Vol. III, Issue 2, April-June 2000, NLSA, New Delhi, p Processual Justice to the People: Report of the Expert Committee on Legal Aid, Ministry of Law, Justice and Company Affairs, Govt. of India, May 1973, quoted by Rabin Singh, "Sensitizing Law Students to the Needs of the Society", Nyaya Deep, Vol. III, Issue 2, April-June 2000, NLSA, New Delhi, p Supra n. 9 (ii). Supra n. 2.

7 318 Cochin University Law Review [2006] Conclusion By Granting legal sanctity to the FLS Cell of Law Schools, the objects of free legal services may be achieved a better than before. The lawyers of tomorrow trained in the law schools of today have to be active partners and agents in the speedy dispensation of justice programme launched by the State through its legal services in the country. This kind of transformation is necessary if the manifesto of 'justice to all and equal access to justice' is to become a living reality. Let all the Law Schools join hands and take the pledge to share the burden of the poor and, to establish a just society based on just and equitable social order. Admittedly the task is challenging, but the challenge is Worth taking so as to make India a functional democracy and to regain the "paradise lost" before it is too late.". Ashok R. Patil* 18. Supra n. 14 at p.42. * B.Sc., LL.M., Ph.D., Lecturer, K L E Society's B.V. Bellad Law College, Belgaum, Karnataka.