Immigration of laborers during pandemic

Indian migrant workers during the COVID-19 pandemic have faced multiple hardships. With factories
and workplaces shut down due to the lockdown imposed in the country, millions of migrant workers had
to deal with the loss of income, food shortages and uncertainty about their future. Following this, many
of them and their families went hungry. Thousands of them then began walking back home, with no
means of transport due to the lockdown.
In response, the Central and State Governments took various measures to help them, and later arranged
transport for them. In total 198 migrant workers died due to the lockdown, with reasons road accidents.
The Supreme Court of India agreed to hear a petition on behalf of the migrant workers on 30 March. The
Court asked the central government to file a status report with respect to the situation of migrant
workers.
In its report, the central government stated that the migrant workers, apprehensive about their
survival, moved in the panic created by fake news that the lockdown would last for more than three
months. The court added that it was satisfied by the government response thus far.
A plea requesting payment of minimum wage was rejected by the Court on 21 April, on the grounds of
workers already being provided free meals.
On 16 May, the Supreme Court rejected a PIL to direct the District magistrates to identify and provide
free relief and transport to the migrant workers, stating that it was the responsibility of the state
governments. Speaking about the workers killed sleeping on the Aurangabad railway tracks, the Court
stated that it could not have been prevented. Further, the central government stated that inter-state
transport had already been provided to the migrants and requested them to wait their turn instead of
choosing to walk.
On 26 May, the Supreme Court admitted that the problems of the migrants had still not been solved and
that there had been "inadequacies and certain lapses" on the part of the governments. It thus ordered
the Centre and States to provide free food, shelter and transport to stranded migrant workers. Hours
before this ruling, senior lawyers from Mumbai and Delhi wrote a strongly-worded letter to the Court,
regarding its "self-effacing deference" towards the government thus far.
Labour unions organised nationwide protests to protest the changes in labour laws, with the Bharatiya
Mazdoor Sangh organizing one on 20 May and the Centre of Indian Trade Unions and the All India Trade
Union Congress organizing another on 22 May. Ten labour unions wrote to the International Labour
Organization (ILO) regarding the labour laws, on 14 May. In response, the ILO expressed "deep concern"
to PM Modi and requested him to instruct the central and state governments to uphold commitments
(towards labour laws) made by India.
 Under trial prisoners
“Justice delayed is Justice denied”
The criminal justice delivery system in India saw more than 0.2 million undertrial prisoners being
neglected in jail for many years, in many cases it exceeded the maximum sentence for the crime which
they had committed. Lack of coordination between the Centre, Judiciary & State Governments & also
because they did not have anyone to stand as guarantors nor assets to furnish as bail bonds, the poor
continued to suffer in prisons. There have been cases where the amount of bail is disproportionately
high. One such case even went to the Supreme Court.
Abuses faced in jail:
The Constitution of India, the Universal Declaration of Human Rights and the Standard Minimum Rules
for Treatment of Prisoners clearly specify the standards of treatment with prisoners on trial. But realities
in jails transmit an entirely different tune. Given Below are some challenges that every under-trial
prisoner goes through in Indian jails.
Specific problems faced by under-trial prisoners:
1) The Right to Speedy Trial - as recognised by the Supreme Court in Hussainara Khatoon vs. Home
Secretary, Bihar is violated due to protracted delays. This delay is due to all kinds of reasons such as
–
a. Systemic delays.
b. Grossly inadequate number of judges and prosecutors.
c. Absence or belated service of summons on witnesses.
d. Presiding judges proceeding on leave.
e. Remands being extended mechanically due to lack of time and patience with the presiding
judge.
f. Inadequacy of police personnel and vehicles which prevents the production of all prisoners on
their due dates.
g. Many a times, the escorting police personnel merely produces the remand papers in the courts
instead of actually producing the prisoner in front of the magistrate. This practice is widely
reported, notwithstanding the strict requirement of the law in section 167(2)(b) of the Criminal
Procedure Code, 1973 which says that – ‘No Magistrate shall authorize detention in any custody
under this section unless the accused is produced before him.’
2) Right to bail is denied even in genuine cases. Even in cases where the prisoner was charged with bailable
offence, they are found to rot in prisons due to exorbitantly high bail amount. The spirit of the Supreme
Court in Moti Ram & others vs. State of Madhya Pradesh is violated constantly. It is also important to
point out that the system of giving bail which is mentioned in sections 436 to 450 in the Code of Criminal
Procedure, 1973 is also unjust. This is because according to the provisions of the code a person released
on bail is required to execute a personal bond and bond of security for a certain amount of money. As a
result the poor who cannot afford to avail surety have to suffer in jail till the case is over.
3) Some of the judges even at the High Court level are not following the guidelines laid down by the
Supreme Court on bail and grant of the same is dependent upon the attitude of each judge. Standards
cannot become prisoners of the whims and fancies individuals. Authority is to be exercised with
responsibility.
4) Large number of persons including women and children are detained under Section 109 of the Criminal
Procedure Code provides for failure to furnish requisite security for keeping good behaviour. The police
usually pick them up “because the number of cases had to be brought up to the specified figure”. The
authorities refuse to release them without bail whereas the standing law on Section 110 says that you
cannot ask for bail from such persons, only the history ticket is required.
5) In the absence of a system, that takes a proactive role in providing legal services to prisoners their right
to effective Legal Aid is also violated due to politicisation of legal aid schemes as many lawyers are hired
on political consideration who get a fix salary without the pressure of disposing off cases at the earliest.
Even today, the order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts in Jails
for prisoners involved in petty offences and willing to confess to their guilt is not being implemented at
least in Madhya Pradesh. If implemented by the High Court and followed judiciously, it can bring lot of
succour.
Solutions For The Plight Of Under-Trials
o Undertrial prisoners should be lodged in separate institutions away from convicted prisoners. There
should be proper and scientific classification even among undertrial prisoners to ensure that
contamination of first time and petty offenders into full fledged and hardcore criminals.
o Under no circumstance should they be put under the charge of convicted prisoners.
o Institutions meant for lodging undertrial prisoners should be as close to the courts as possible.
o Provisions of Section 167 of the CrPC with regard to the time limit for police investigation in case of
accused undertrial prisoners, should be strictly followed both the police and courts.
o Automatic extension of remands has to stop which are also given merely for the sake of the convenience
of the authorities. Mere convenience of the authorities cannot supersede the Constitutional guarantees
under Article 21.
o All undertrial prisoners should be effectively produced before the presiding magistrates on the dates of
hearing.
o Video conferencing between jails and courts should be encouraged and tried in all states beginning with
the big Central jails and then expanding to District and Sub jails.
o The District Magistrate should constitute a committee consisting of representatives from the local
police, judiciary, prosecution, district administration and the prison department at a fairly high level, to
visit the Sub jails under their jurisdiction at least once every month and review delay in cases of prisoners
if any and adopt suitable measures.
o Police functions should be separated into investigation and law and order duties and sufficient strength
be provided to complete investigations on time and avoid delays.
o The criminal courts should exercise their available powers under Sections 309, 311 and 258 of the CrPC
to effectuate the right to speedy trial. In appropriate cases jurisdiction of the High Court under Section
482 of the CrPC and Articles 226 and 227 of the Constitution of India can be invoked seeking appropriate
relief or suitable directions to deal with and prevent delay in cases.
o With undertrial prisoners, adjournments should not be granted unless absolutely necessary.
o Order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts Jails for prisoners
involved in petty offences and willing to confess, should be actively taken up by the High Courts and
implemented in all districts.
o The class of Compoundable offences under the IPC and other laws should be widened.
o Alternatives to imprisonment should be tried out and incorporated in the IPC.
o Remand orders should be self-limiting and indicate the date on which the undertrial prisoners would be
automatically entitled to apply for bail.
o Computerise the handling of criminal cases and with the help of the National Informatics Centre,
develop Programmes that would help in managing pendency and delay of different types of cases. The
High Courts should take an active interest in helping subordinate courts to speed up cases.
o There should be an immediate increase in the number of judges and magistrates in some reasonable
proportion to the general population. It should be at least 107 judges per million of the Indian
population.

Access to justice
Access to justice relates to the ease of entry to a legal institution as also to the nature of the de jure fact
that carries its promise. The concept of access to justice has undergone an important transformation;
earlier a right of access to judicial protection meant essentially the aggrieved individuals formal right to
merely litigate or defend a claim. In the modern, egalitarian legal system the effective access to justice is
regarded as the most basic human right which not only proclaims but guarantees the legal rights of all.

In today's world," Access to justice" means having recourse to an affordable, quick, satisfactory
settlement of disputes from a credible forum. The words "access to justice" serve to focus on two basic
purposes of legal system- the system by which people may vindicate their rights and/or resolve their
disputes under the general auspices of the state. Thus it requires that the system, firstly, must be
equally accessible to all, and second, it must lead to results that are individually and socially just.

Access to justice can be broadly categorized into formal and informal access to justice. The formal access
to justice is basically adjudication of disputes by the courts which follow the rules of civil and criminal
procedure. This mode of justice delivery system though the primary model, has numerous shortcomings
such as cost hurdles, inordinate delays and other technical hurdles like laches and execution of courts
order. On the other hand informal access to justice includes ADR such as arbitration, conciliation,
mediation, lok adalats and nyaya panchayats. Contrary to what the nomenclature suggests, alternative
modes are more of a supplementary phenomenon and were devised with that very intent.

In India, Article 14 of the Indian Constitution reads as follows: "Equality before Law – The State
shall not deny to any person equality before the law and the equal protection of the laws within
the territory of India." The words "equal protection of laws" indicates two things: Firstly that
every person is entitled to protection of all the laws of the land, and secondly, every person
within Indian territory is equally entitled to that protection.
Article 14 casts a duty on the State to deliver the substantial promise of the laws, in other
words the state has been imposed with a duty of delivering justice to all the people within the
territory of India. In addition to this, Article 256 of the Indian Constitution provides for two
important things firstly, it obliges the State governments to implement the laws, which are the
laws passed by the State and Union Legislatures. Secondly, on failure to do so, the Union
government is under an obligation to direct the State government to implement the laws. Thus
under the Constitution, a strict duty is cast on the State to ensure that there is compliance with
every law. Therefore from the abovementioned, it is logical to conclude that even the violation
of a private right casts a duty upon the state to initiate proceeding against the offender.
INFORMAL ACCESS TO JUSTICE
Unlike a court which is a formal mode of access to justice, in informal modes of access there is
not strict adherence to procedural laws and the laws of evidence. Further, parties are free to
represent themselves, without taking the help of an advocate and there are no formalities in
respect of filing the suit etc. and other such technicalities as followed in the regular courts. The
informal modes of access to justice include Nyaya Panchayats, lok adalats, Negotiation,
Arbitration, Conciliation, Mediation and the Ombudsman.
Right to Work
Right to work is the idea that individuals have a human right to work or take part in productive
employment, and may not be kept from doing as such. The right to work is revered in the
Universal Declaration of Human Rights and recognized in international human rights law
through its incorporation in the International Covenant on Economic, Social and Cultural Rights,
where the right to work focuses on financial, social and cultural development.
The ‘right to work’ subsequently is the most basic component of life to live. To have the basic
needs of food, water, clothing and shelter and furthermore something more than simply the
basic needs of life one must work to earn.
The Universal Declaration of Human Rights and the International Covenant on Economic, Social
and Cultural Rights, the two of which were acceded by India, in Article 23 and Article 6
separately, perceive the right to work in employment of one’s own choice and the State’s
obligation to protect this right.
The Indian Constitution does not expressly recognize the ‘right to work’ as a fundamental right.
In spite of the lack of an express wording of the ‘right to work’ in Part III (Fundamental Rights)
of the Constitution, it was turned into a ‘fundamental right’ through a judicial interpretation.
All because of the wider interpretation of Article 21 made by the Hon’ble Supreme Court
through its judgment in Olga Tellis and Ors. v Bombay Municipal Corporation and Ors.- ‘right to
work’ was perceived as a fundamental right inalienable in the ‘right to life’.
Talking about the question of the ‘right to livelihood’ as claimed by the petitioners, the Court
had observed that to make living significant there must be a means of living, i.e. the means of
livelihood. That, if the right to livelihood was not regarded as a part of the right to life, the most
convenient method for denying a man of his right to life is denying him of his means of earning
a living.
The Court held-that, which makes life possible to live, must be regarded to be an indispensable
part of the right to life.
Labour and Employment Laws Related to ‘Right to Work’
As one goes looking for work it is critical that he/she knows about their rights and liabilities
relating to such work. Labor laws attempt to regulate employment. These laws contain
provisions concerning working conditions, wages, welfare, social security, and employer-
employee relation.

The central laws which address the labor issues are-

 The Factories Act, 1948.

 Industrial Employment (Standing Orders) Act, 1946.
 The Minimum Wages Act, 1948.
 Payment of Wages Act, 1936.
 The Industrial Disputes Act, 1947.
 Employees Provident Funds and Miscellaneous Provisions Act, 1952.
 Payment of Gratuity Act, 1972.
 The Payment of Bonus Act, 1965.
 Maternity Benefit Act, 1961.
 Workmen Compensation Act, 1923.
 Equal Remuneration Act, 1976.
The right to work must be claimed against the State and not against any private organization.
Decoding the Supreme Court judgment in Olga Tellis case right to work is violated-
- When a man is fired from his job against the terms of his employment. For example, as
in the Charan Singh case, if a permanent worker is fired from his job without a
reasonable cause it amounts to the infringement of the ‘right to work’.
- When a man is fired from his job infringing upon the officially set down Central or State
laws.
- When a man is not given a job based on an unfair and unreasonable classification.
- When a man is denied his livelihood in violation of the just and fair procedure
established by law, just like the case in Olga Tellis and Ors. v Bombay Municipal
Corporation and Ors.
Voluntary unemployment or unemployment because of the absence of jobs or absence of skills
shall not amount to an infringement of the Right to Work.
In case of infringement of the ‘right to work,’ a writ petition can be filed in the High Court of the
respective State under Article 226 of the Constitution of India, or In the Supreme Court of India
under Article 32 of the Constitution of India.
As opposed to the other fundamental rights which are suspended for the period amid which
the Proclamation of Emergency is in power, Article 21 and 22 of the Constitution keep on
working.
A man seeking after an occupation/trade/business denied by law can’t claim the ‘right to work’
when the State takes measures to control it. For example, living on the gains of prostitution,
betting, gambling and the likewise isn’t ensured under the ‘right to work’.
What began as a struggle to stop the demolition of pavement dwellings and slum hutments
ended with the Supreme Court recognizing ‘right to work’ as a fundamental right.

Equal Pay for Equal Work

The phrase Equal pay for Equal Work means that every individual who has been employed for
the work which is allotted to him should be given sufficient pay as that of the others. There
should not be any discrimination while payment of wage. It is most commonly used in the
context of sexual discrimination, in relation to the gender pay gap.
The temporary workers who are working the shifts instead of the permanent workers should
get the same remuneration as that of the permanent workers is a rule and a right for the
individual for getting the same.
Any act of paying less wages as compared to others similarly situated, constitutes an act of
exploitative enslavement. The equal pay is governed under the Equality Act of 2010 which gives
a right to equal pay between women and men for equal work. This covers individuals in the
same employment, and includes equality in pay and all other contractual terms.
The provision in the Act states that the right of women and men to receive equal pay for equal
work applies to:
- All employees (including apprentices and those working from home), whether on full-
time, part-time, casual or temporary contracts, regardless of length of service.
- Other workers (example: self-employed) whose contracts require personal performance
of the work.
The Supreme Court has given a judgement based on it in the case of State of Punjab and Ors. v.
Jagjit Singh and Ors wherein it was held that an employee engaged for the same work cannot
be paid less than another who performs the same duties and responsibilities and certainly not
in a welfare state.
The SC further observed that India being a signatory to the International Covenant on
Economic, Social and Cultural Rights, 1966, there is no escape from the obligations thereunder
in view of the different provisions of the Constitution. Thus, the principle of “equal pay for
equal work” constitutes a clear and unambiguous right and is vested in every employee,
whether engaged on a permanent or temporary basis.
Equal pay for equal work is not a constitutional right or a fundamental right. It can be described
through the interpretations of Article 14,15 ad 16 which guarantees fundamental rights of
equality before law, protection against any kind of discrimination and equal opportunities in the
matters of public employment. The UDHR( Universal Declaration of Human Rights) states that
without any discrimination made has the right to pay for equal work.
The preamble of the Constitution of International Labor Organization proclaims the principle of
equal remuneration for equal work. Article 4(3) of the European Social Charter which provides
the right to fair remuneration and includes the recognition of right to men and women workers
to equal pay. This has been considered as a good practise by various organizations including the
United Nations. The Indian Constitutions has also made several other Acts for protecting the
individuals from irrational way of payment for the work that they have done.
The Equal remuneration Act 1976 has been significant government step towards “equal pay for
equal work”. This Act was mainly passed with the point of giving equivalent compensation to
men and women laborers and to forestall segregation based on sexual orientation in all issues
identifying with business and work openings or opportunities.
The Minimum Wages Act provides a statutory fixation for minimum wages working in specified
employments since workers are poorly organized and have a less bargaining power. The
minimum wage is reviewed and revised after fixed interval of five years.
With the same ideology the Workmen's Compensation Act was also enacted with the aim of
providing proper financial protection to the workmen and his or her dependents in case of
accidental injury arising out of and in course of employment by means of payment of
compensation by certain class of employers.
The Equal Remuneration Act 1976 (ERA), a legislation in India dealing with equal pay for equal
work for men and women, was repealed in August 2019, and replaced by the Code on Wages
2019(Code). This could have been used as an opportunity to fill crucial gaps in the legal regime
dealing with pay equality in India. Unfortunately, the opportunity has been squandered.
Case Laws
The guidelines for equal pay for equal work was considered in the case of Kishori Mohanlal
Bakshi Vs Union Of India where the Supreme Court announced it unequipped for being
implemented in the court of law.
There were misinterpretations for the said principles as it was held in the case S. Narkara Vs
Union of India the court was of the opinion that Article 38(d) of the Indian Constitution that the
state will endeavour to limit the imbalances in pay and attempt to take out disparities in status,
offices and openings among people as well as among gatherings of individuals living in various
territories with various livelihood.
In Markendeya vs. State of Andhra Pradesh, difference in pay scale, between graduate
supervisors holding degree in Engineering and non-graduate supervisors being diploma and
license holders was upheld. It was held that on the basis of difference in educational
qualifications such difference in pay scales was justified and would not offend Article 14 and 16.
Principle of equal pay for equal work is applicable among equals. It can't be applied to unequal.
Thus, daily rated workers can't be equated with regular employees of the State in the matter of
wages. There are differences of qualifications, age, and manner of selection between the two
categories of employees.
The International Labour Organization has, from the outset accepted and, on several occasion,
reaffirmed the principle of equal remuneration for men and women doing work of equal value.
Right to Education
Education is a fundamental human right and essential for the exercise of all other human rights.
It promotes individual freedom and empowerment and yields important development benefits.
Yet millions of children and adults remain deprived of educational opportunities, many as a
result of poverty.
Normative instruments of the United Nations and UNESCO lay down international legal
obligations for the right to education. These instruments promote and develop the right of
every person to enjoy access to education of good quality, without discrimination or exclusion.
These instruments bear witness to the great importance that Member States and the
international community attach to normative action for realizing the right to education. It is for
governments to fulfill their obligations both legal and political in regard to providing education
for all of good quality and to implement and monitor more effectively education strategies.
Education is a powerful tool by which economically and socially marginalized adults and
children can lift themselves out of poverty and participate fully as citizens. India is home to 19%
of the world’s Children. What this means is that India has the world’s largest number of
youngsters, which is largely beneficial, especially as compared to countries like China, which has
an ageing population. The not-so-good news is that India also has one-third of the world’s
illiterate population. It’s not as though literacy levels have not increased, but rather that the
rate of the increase is rapidly slowing. For example, while total literacy growth from 1991 to
2001 was 12.6%, it has declined to 9.21%.
To combat this worrisome trend, the Indian government proposed the Right to Free and
Compulsory Education (RTE) Act, making education a fundamental right of every child in the age
group of 6 to 14.
The right to education is a universal entitlement to education. This is recognized in the
International Covenant on Economic, Social and Cultural Rights as a human right that includes
the right to free, compulsory primary education for all, an obligation to develop secondary
education accessible to all, in particular by the progressive introduction of free secondary
education, as well as an obligation to develop equitable access to higher education, ideally by
the progressive introduction of free higher education.
The right to education also includes a responsibility to provide basic education for individuals
who have not completed primary education. In addition to these access to education
provisions, the right to education encompasses the obligation to rule out discrimination at all
levels of the educational system, to set minimum standards and to improve the quality of
education.

Right to Education Act (RTE Act)

The Right to Education Act 2009, also known as the RTE Act 2009, was enacted by the
Parliament of India on 4 August 2009.
It describes modalities of the importance of free and compulsory education for children aged
between 6-14 years in India under Article 21 (A) of the Constitution of India. This act came into
effect on 1 April 2010 and made India one of the 135 countries to have made education a
fundamental right for every child.
It prescribes minimum norms for elementary schools, prohibits unrecognised schools from
practice and advocates against donation fees and interviews of children at the time of
admission. The Right to Education Act keeps a check on all neighbourhoods through regular
surveys and identifies children who are eligible for receiving education but do not have the
means to.
Educational challenges have been prevalent at both the centre and states for many years in
India. The Right to Education Act 2009 maps out roles and responsibilities for the centre, state
and all local bodies to rectify gaps in their education system in order to enhance the quality of
education in the country.
Given below are some of the important features of the RTE Act.
Compulsory and free education for all - It is obligatory for the Government to provide free and
compulsory elementary education to each and every child, in a neighbourhood school within 1
km, up to class 8 in India.
The benchmark mandate - The Right to Education Act lays down norms and standards relating
to Pupil-Teacher-Ratios (number of children per teacher), classrooms, separate toilets for girls
and boys, drinking water facility, number of school-working days, working hours of teachers,
etc. Each and every elementary school (Primary school + Middle School) in India has to comply
with these set of norms to maintain a minimum standard set by the Right to Education Act.
Special provisions for special cases - The Right to Education Act mandates that an out of school
child should be admitted to an age appropriate class and provided with special training to
enable the child to come up to age appropriate learning level.
Quantity and quality of teachers - The Right to Education Act provides for rational deployment
of teachers by ensuring that the specified Pupil-Teacher-Ratio is maintained in every school
with no urban-rural imbalance whatsoever. It also mandates appointing appropriately trained
teachers i.e. teachers with the requisite entry and academic qualifications.
Zero tolerance against discrimination and harassment - The Right to Education Act 2009
prohibits all kinds of physical punishment and mental harassment, discrimination based on
gender, caste, class and religion, screening procedures for admission of children capitation fee,
private tuition centres, and functioning of unrecognised schools.
Improving learning outcomes to minimise detention - The Right to Education Act mandates that
no child can be held back or expelled from school till Class 8. To improve performances of
children in schools, the Right to Education Act introduced the Continuous Comprehensive
Evaluation (CCE) system in 2009 to ensure grade appropriate learning outcomes in schools.
Ensuring all round development of children - The Right to Education Act 2009 provides for
development of curriculum, which would ensure the all-round development of every child.
Build a child’s knowledge, human potential and talent.
Monitoring compliance of RTE norms - School Management Committees (SMCs) play a crucial
role in strengthening participatory democracy and governance in elementary education. The
committees have been empowered to monitor the functioning of schools and to prepare school
development plan.
Right to Education Act is justiciable - The Right to Education Act is justiciable and is backed by a
Grievance Redressal (GR) mechanism that allows people to take action against non-compliance
of provisions of the Right to Education Act 2009.
Creating inclusive spaces for all - The Right to Education Act 2009 mandates for all private
schools to reserve 25 per cent of their seats for children belonging to socially disadvantaged
and economically weaker sections. This provision of the Act is aimed at boosting social inclusion
to provide for a more just and equal nation.
Major Roadblocks and Subsequent Solutions related to the RTE Act
1. RTE violated by Private Schools
Recently, RTE litigation has revolved around schools denying admission on frivolous grounds.
These include repeated incidents of school administrators obstructing children from accessing
proper education. The National Commission and State Commission for Protection of Child
Rights – a body which adjudicates on RTE disputes had entertained nearly 10,000 complaints
regarding violation of RTE Act last year.
2. Lack of penal action against schools
There is rampant discrimination not only in the admission processes but also in the schools
conduct and treatment of the students. The primary reason for this is the lack of penal action
taken against the derelict administrators and absence of any regulatory body for school
teachers and administrators.
3. Establishment of Regulatory Bodies for Teachers
Mandatory registration of school teachers and administrators with professional regulatory
bodies, similar to lawyers with bar councils, is a fundamental change required in the education
sector. India’s next step towards expanding the enforceability of the Right to Education needs
to be towards ensuring that this right can be secured without having to approach the already
overburdened courts.

Right to Free Legal Aid

Legal Aid means giving free legal services to the poor and weaker section of society who cannot afford to
take the service of advocate to conduct a case or any legal proceeding in the court of law, any judicial
authority or before any judicial tribunal. Article 39A of the Constitution of India provides that State shall
secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall
in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other disability.

Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal
system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that
constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor,
downtrodden and weaker sections of the society.

The preamble of the Indian constitution basically aims to secure to the people of India justice - socio-
economic and political. Article 38(1) avows that the State shall promote the welfare of the people by
securing and protecting the social order including justice.

Article 21 clearly says that every person has an equal right to life and liberty except according to the
procedure established by the law. The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities.

t 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)

If the accused does not have sufficient means to engage a lawyer, the court must provide one for the
defense of the accused at the expense of the state.—(Sec. 304 of Code of Criminal Procedure,1973)
The Constitutional duty to provide legal aid arises from the time the accused is produced before the
Magistrate for the first time and continues whenever he is produced for remand. —(Khatri II Vs. State of
Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470)

A person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and
argue the appeal. —(Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544) (Art. 142 of
the Constitution r/w Articles 21 and 39A of Indian Constitution)

Section 12 of the Act reads as under:- Every person who has to file or defend a case shall be entitled to
legal services under this Act if that person is -

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic
violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) An industrial workman; or
(g) Those in custody, including protective custody
(h) Those facing a charge which might result in imprisonment; —(Khatri II Vs. State of Bihar, (1981)
1SCC); and
(i) Those unable to engage a lawyer and secure legal services on account of reasons such as pover ty,
indigence, and incommunicado situation;
(j) in cases of great public importance;
(k) special cases considered deserving of legal services.

Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a
prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the
matter and bear all incidental expenses in connection with the case. The person to whom legal aid is
provided is not called upon to spend anything on the litigation once it is supported by a Legal Services
Authority.

Services offered by the Legal Services Authority:

1. Payment of court and other process fee;

2. Charges for preparing, drafting and filing of any legal proceedings;
3. Charges of a legal practitioner or legal advisor;
4. Costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
5. Costs of paper work, including printing, translation etc.

When can Legal services be rejected?

If the applicant

- has adequate means to access justice;

- does not fulfill the eligibility criteria;
- has no merits in his application requiring legal action.
Cases for which legal aid is not available:

1. Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc.

2. Proceedings relating to election;
3. Cases where the fine imposed is not more than Rs.50/-;
4. Economic offences and offences against social laws;
5. Cases where the person seeking legal aid is not directly concerned with the proceedings and
whose interests will not be affected.

When can the legal services be withdrawn? The legal services committee can with draw the services if,

1. the aid is obtained through misrepresentation or fraud;

2. any material change occurs in the circumstances of the aided person;
3. there is misconduct, misbehavior or negligence on the part of the aided person;
4. the aided person does not cooperate with the allotted advocate;
5. the aided persons appoints another legal practitioner;
6. the aided person dies, except in civil cases;
7. the proceedings amount to misusing the process of law or of legal service.

Right to Speedy Trial in India

The huge backlog of pending cases in India is an issue about which much has been written and
deliberated. Inspite of digitization of case records and huge technological advancement being witnessed,
not much progress has been reflected in this area. Hence, the right to speedy trial has rightly been
remarked to flow from the right to life guaranteed under Article 21 of the Constitution.

In India the Supreme Court in it’s landmark judgment in the case of Hussainara Khatoon v. Home
Secretary State of Bihar [(1980) (1) sec 98] held speedy trial as part of Article 21 of the Constitution
guaranteeing right to life and liberty. The Apex Court in the case also observed that if a person is
deprived of his liberty under a procedure which is not ‘reasonable fair and just’, such deprivation would
be violative of his Fundamental Right under Article 21 and he would be entitled to enforce such
Fundamental Right and secure his release. The case pertained to state of undertrial prisoners in Bihar
who were languishing in jail for several years.

Another noteworthy judgment which further firmly establishes right to speedy trial as a Constitutional
mandate is the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners vs. Union
of India. In this verdict, the Supreme Court laid down certain conditions for release of undertrial
prisoners on bail where trial was not completed within a specified period of time. There is no denial of
the fact that speedy trial is recognized by the Legislature as well as Judiciary as an essential pillar of law
and justice in India. The recent legislations and reforms being witness in the judicial system indicates the
same.

Main Factors For Pendency Of The Cases: Delay in cases can be of two types:

- Court system delay: The delay from the time the case is admitted to the time it is taken up in
trail.
- Delay due to lawyers/ advocates and others: The delay which takes place due the actions of
lawyers/ advocates such as adjournments given etc.
However, the chief reasons for delays can be enumerated as follows:

1. The first and the biggest problem is of the delay in disposition of cases. Due to huge pendency, the
cases take years for its final disposal, which would normally take few months time. The arrears
cause delay and delay means negating the accessibility of justice in true terms to the common man.
2. The judge – population ratio – presently taking into consideration the population of the country and
pendency of the cases the no. of judges available are very less.
3. The infrastructure of the lower courts is very disappointing. Though, the Supreme Court and High
Courts are having good infrastructure but this in not the same position with lower courts. The Courts
have no convenient building or physical facilities due to which it takes more time to dispose off a
case. Good library, requisite furniture, sufficient staff and reasonable space are the need of the
qualitative justice and most of these facilities are not available in lower courts.
4. Due to the Independence of Judiciary, some Judges think that they are not accountable to any one
due to which many a times this factor could drive judges toward comfort, ignorance etc. ultimately
results in delay of the cases.
5. Provision for adjournment: The main reason for the delay in the cases is the adjournment granted
by the court on unreasonable grounds.
6. Vacation of the court: The reason with providing courts with a vacation period also leads to further
delay of the cases especially in country such as India where there are tremendous amount of
pending cases. In most of the countries like U.S. and France there is no such provision.
7. Investigative agencies generally delay: The Investigation agencies such as Police also play a role in
Delay of cases. Many a times Investigation agencies take time to file up charge sheet in the court
due to which delay occurs.

Take into consideration Bhopal Gas Leak Tragedy involving lives of more than 15000 people. 26 years
had passed for that incident and still people suffered a lot to get the compensation and no action still
has not been taken against the main victim of the incidence. One of the recent example of the Delay
would be the Babri Masjid case. Of the five title suits filed in the Ayodhya matter — the first was filed
sixty years ago by Gopal Singh Visharad, seeking permission for Pooja at the disputed site. A Division
Bench of 3 Judges of the Allahabad High Court will pronounce this verdict on 24th September, 2010.

Reformative Measures:

The Fast Track Courts were made for the sole purpose of disposing of cases as soon as possible but it
also hasn’t been successful in achieving its goal. Some measures which could prevent Delay could be:

 Effective management of the courts:

Time scheduling should be done so that there is effective management of time leading to effective
management of judicial system.
 Steps for Judges
Judges should be provided with proper training and vocations on a regular basis to improvise there
drafting, hearing and writing skills along with the skill of taking correct and fast judgment.
- the ratio of judges to population should be increased which will help in disposal of cases very
fast.
- Cases must be assigned according to specialized area of judges.
 - Cases must be assigned according to specialized area of judges. This means that a Judge who has
a good experience/ knowledge of Criminal law should try criminal cases, a Judge who has deep
knowledge of Labor law should try Labor law cases.
 Arbitration should be done wherever possible and in particular small and petty cases arbitration
should be made compulsory. It will save precious time of the courts.
 Nyaya Panchayats should be authorized to dispose off small and petty cases. However. Lok Adalats
were established for the speedy disposal of cases at lower level.
 The procedure of Adjournment should be modified in a way so as it is reduced to a limit and fine
should be imposed on the person who files application for an adjournment on flimsy grounds.
 Technological Courts and Speedy Justice: The technological development made by the human being
in the field of science can be highly useful in realization of this objective. In last two decades,
Information technology has brought many beneficial changes into our lives. And this tool of
information technology can be equally useful in imparting justice.

Malimath committee: The Law Commission of India and the Malimath Committee recommended that
the system of plea bargaining should be introduced in Indian criminal justice system to facilitate the
speedy disposal of criminal cases and to reduce the burden on the courts. Accordingly, the Criminal Law
(Amendment) Bill, 2003 was introduced in the Parliament and the Supreme Court of India referred and
supported this Amendment Bill, 2003

Measuring Poverty: NITI Aayog

 Poverty line and the poverty ratio have three potential uses: identification of poor; the allocation of
expenditures on anti-poverty programs across regions; and measuring and tracking poverty over time and
across regions.
 In India, identification of poor is done by the State Governments based on information from Below
Poverty Line (BPL) censuses of which the latest is the Socio-Economic Caste Census 2011 (SECC 2011).
Allocation of expenditures on anti-poverty programs can also be done using instruments other than the
poverty ratio. For example, the expenditure on the provision of housing across states can be done
according to the proportion of households without house in the state. Universal programs such as those
under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNAREGA) and Sarva Shiksha
Abhiyan (SSA) are available to all making the question of allocation moot.
 This leaves tracking poverty over time and space as the principal objective behind measurement of
poverty. The current official measures of poverty are based on the Tendulkar Poverty Line. But this line
has been controversial with many observers criticizing it as being too low. The controversies led the
previous government to appoint the Rangarajan Committee, which recommended higher rural and urban
poverty lines.
 Going forward, we can consider four options for tracking the poor: (i) Continue with the Tendulkar
poverty line; (ii) Switch to the Rangarajan or other higher rural and urban poverty lines; (iii) Track progress
over time of the bottom 30% of the population; or (iv) Track progress along specific components of
poverty such as nutrition, housing, drinking water, sanitation, electricity and connectivity. 2
 While options (iii) and (iv) can complement the measurement of poverty using a poverty line, they
cannot substitute for it. Tracking reduction in poverty requires a direct measure of poverty. In turn, this
requires us to choose between (i) and (ii).
 The main criticism of the Tendulkar line (also applicable to the $1.25 line adopted by the United Nations
Sustainable Development Goals) has been that it is too low. The counterargument, however, is that if our
objective is to assess whether we are making progress in bringing households out of extreme poverty, it
makes sense to set the poverty line at a level that allows households to get two square meals a day and
other basic necessities of life. It is the households below this bare subsistence level whose welfare should
concern us the most and whose progress we must monitor. Put differently, if we set the poverty line at
too high a level, we would be tracking how many people who had already achieved a certain level of
comfort have been made yet further comfortable. It will tell us little about what is happening to
households in abject poverty.
 The key source of public dissatisfaction with the Tendulkar line was that it would deprive many
households in need of government assistance from such assistance by classifying them as above poverty
line (APL) households. But as just noted, poverty line is not the basis of identification of the poor in India.
Instead, it is the BPL Census. This fact weakens the case against the Tendulkar line.
 At the same time, it must be recognized that judgments on what represents a basic necessity of life
would vary from person to person and this is what makes the choice of a poverty line difficult. Therefore,
the final decision on this question needs to be informed by further deliberations that pay adequate
attention to the fact that the objective behind an official poverty line is to track progress in combating
extreme poverty and not identification of the poor for purposes of distributing government benefits.