LEGAL SERVICE/AID AND LOK ADALAT

R. Swaroop

Need for introduction of an

adequate and comprehensive legal aid/service programme had
been felt for many years and it was
increasingly
equality in criminal cases unless the accused gotbeing
realized that there could not be any real
a fair trial of
charges laid and unless he had competent professional assistance.defending
In
himself against the
State of Bihar [AIR 1979 SC Hussainara Khatoon v.
1369, 1375], the Supreme Court observed that it was not
possible reach the benefits of the legal process to the poor, to
to
and to secure to them their protect them against injustice
constitutional and statutory rights unless there was a nationwide
legal service programme to provide free legal services to them.
Government of India as also the State Impressing upon the
Governments, the urgent necessity of
introducing a
dynamic and comprehensive legal service programme with a view to
common man, the reaching justice to the
Supreme Court in Hussainara Khatoon case observed:
"Today, unfortunately, in our country the poorpriced out of the judicial
are
system with the result that they are losing faith in the
capacity of our legal system
to bring about
changes in their life conditions and to deliver justice to them. The
poor in their contact with the legal system have always been on the wrong side of
the line.
They have always come across °Law for the poor' rather than Law of the
poor. The law is regarded by them as something mysterious and forbidding -
always taking something away from them and not as a positive and constructive
social device for changing the social economic order and
improving their life
conditions by conferring rights and benefits on them. The result is that the
system has lost its credibility for the weaker sections of the community.
legal
It is,
therefore, necessary that we should inject equal justice into legality and that can be
done only by dynamic and activism scheme of
legal services.
We would strongly recommend to the Government of India and the State
Governments that it is high time that a comprehensive legal service programme is
introduced in the country. That is not only a mandate of equal justice implicit in
Article 14 and right to life and liberty conferred by Article 21, but also the
compulsion of the Constitutional Directive embodied in Article 39-A."
The State cannot, therefore, avoid its constitutional obligation to provide free legal aid to
the accused by pleading financial or administrative inability. The State is under a
Constitutional mandate of equal justice implicit in Article 14 and right to life and
liberty
conferred by Article 21, but also the compulsion of the Constitutional Directive embodied in
Article 39 A, to ensure fair trial and whatever is necessary for this
purpose has to be done by
the State. It is also the constitutional obligation of the Court, as the guardian of the
fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental
right of the accused to fair trial and his right to free legal aid or to secure assistance of a
counsel, where he cannot afford to engage one, on account of indigence or poverty.
There are several reasons why, the right to legal aid or to avail legal
services in a country
like India, which is under-developing, democratic republic, wherein, the 'Welfare State

22
 und
rensons, uspects
are several
assumes wider
significanco. There and
effective, useful
doctrine has been adopted, would prompt to have a very
like India,
this country, which
acets prevalent in free and competent legal aid in a country usefully.
etticient ntrastructure for providing read sufficiently nnd
know how to write and
less than 33 percent of the people below the poverty iin, even
where or indigent and most of them live
ayonty ot the people are poor Standard. It is imperative
line is drawn liberally, and not upon an Internationul commancdment and
though poverty
to reach the goal of 'cqual access to justice,'
which is a constitutional
or a chance, but as stated,
it is constitutional
is not a charity
statutory imperative. Legal-aid not now an opinion, but a
constitutional
mandate to the State and right of public, which is but has
or a plan of a Government,
obligation and compulsion. As such it is not a pledge of
Assumed, the status of people's movement. Somebody
has rightly said, "What is the use
downtrodden and which creates
the system, which does not help lowly and lost, poor and
distance between law and justice." It is in this context, the provisions
for legal services have
been made in the Constitution as well as in the Legal Services Authorities Act,
1987, over and
above the provisions made in Section 304 of the Criminal Procedure Code, 1973.
2. Constitutional Mandate
"The State is under a constitutional mandate to provide free legal aid to an accused

person who is unable to secure legal services on account

of indigence and whatever
is necessary for this purpose has to be done by the State. The State may have its
financial constraints and its priorities in expenditure but, as pointed out by the
Court in Rhem v. Malcolm 1377 F. Supp. 995]: "the law does not permit any
Government to deprive its citizens of constitutional rights on a plan of poverty" and
to quote the words of Justice Black mum in Jackson v. Bishop [404 F Supp 2d,
5711: "human considerations and constitutional requirements are not in this day to
be measured by dollar considerations" (Khatri v. State of Bihar, AIR 1981 SC 928,
930).
The Founding Fathers of the Constitution of India have right from the Preamble, taken a
positive approach of doctrine of philosophy of Equal Justice which becomes apparent on the
plain perusal of the preamble of the Constitution. The preamble promise is further
strengthened by the constitutional provisions in Articles 14, 19, 21, 22(1), 32, 39-A, 51-A and
226 of the Constitution of India. Article 22(1) of the Constitution, expressly provides that,
"No person, who is arrested, shall be detained in custody, without being informed, as soon as
nor shall he be denied of the right to consult and to be
may be, of the grounds for such arrest,
defended by a legal practitioner of his choice."
Code,
Procedure under Section
Long before the Constitution, even in the Old Criminal
340(1), it had been provided that:
whom
"Any person, accused of an offence before the Criminal Court against
or
be
instituted, under this Code, or any such Code, may of right,
proceedings are

defended by a pleader."
Free legal services an essential element offair procedure: When under Article 21 of the
Constitution of India, no person can be deprived of his life or personal liberty except
according to the procedure established by law, it is not enough that there should be
some
Semblance of procedure provided by law but the procedure under which a person may be
deprived of his life or liberty should be 'reasonable', fair and just [Maneka Gandhi v. Union
of India, AIR 1978 SC 597]. Now, a procedure which does not make legal services available
to an accused person who is too poor to afford a lawyer and who would, therefore, have to go
through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and
is to
Just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who
seek his liberation through the court's process that he should have legal services available to

him.
equal justice and free legal aid -As aprinciple of
Tnsertion of Article 39A providing forConstitution
policy to be followed by the State: The (Forty-second Amendment) Act, 1976
This Article stipulates that
has inserted Article 39-A as a Directive Principle of State Policy.
"39-A. Equal justice andfree legal aid - The State shall secure that the operation
in
basis of equal opportunity and shall,
of the legal system promotes justice, on the in other
suitable legislation or schemes or any
particular, provide free legal aid, by not denied to any citizen
for securing justice are
way, to ensure that opportunities w.e.f. 3.1.1977].
disabilities" [Enforced
by reason of economic or other inalienable
that free legal service is an
This article (Article 39-A) also emphasises from
for without it a person suffering
element of "reasonable, fair and just' procedure The
of the opportunity for securing justice.
economic or other disabilities would be deprived fair and
an essential ingredient
of 'reasonable,
right to free legal service is, therefore, clearly the
and it must be held implicit in
procedure for a person accused of an offence
just accused person who is unable to
of Article 21. This is a constitutional right of every
guarantee
account of reasons such as poverty, indigence
or
secure legal services on
engage a lawyer and to accused
under a mandate to provide a lawyer
an
incommunicado situation and the State is
of Justice so require, provided of
course

if the circumstances of the case and the needs

person
to the provision of such lawyer.
the accused person does not object
It is [legal assistance to poor or indigent
accused] necessary sine qua non of justice
act of
to result and undeniably every
and where it is not provided, injustice likely
is
foundations of democracy and rules
of law, because nothing
injustice corrodes the who suffer and
than a feeling of injustice and those
rankles more in the human heart lose faith in the
are priced out of the legal system,
cannot get justice because they rule of law
and a feeling begins to
overtake them that democracy and
legal process intended to perpetuate the
domination of the rich and
are merely slogans or myths interests..."
99

the establishment and the vested

the powerful and to protect
further and held
Bihar [AIR 1981 SC 928] the Court went a step
In Khatri v. State of service to an indigent
of the State to provide free legal
that the constitutional obligation also at the stage when he is first produced
accused extends not only at the stage of trial but
Arunachal Pradesh [AIR
Das v. Union Territory of
before theMagistrate. However, in Suk further observed that, "of course,
it must be
991, 993] the Supreme Court,
1986 SC such as, economic offences or
be cases involving offences,
recognized that there may or child abuse and the like,
where social Justice
offences against law prohibiting prostitution
the State.
may require that legal service may not be provided by
 whether conditional upon the
accused applying for
Exercise of this fundamental right the
Union Territoryof Arunachal Pradesh,
free legal assistance: In Sukh Das v. the state is
Court while interpreting legal aid as a fundamental right which
Supreme accused in criminal proceedings,
dealt
constitutionally obliged to provide to every indigent accused if
with the question whether this fundamental right
could lawfully be denied to the

they did not apply for free legal aid. The Court has observed:
be denied to the
"But the question is whether this fundamental right could lawfully
of this fundamental
appellants if they did not apply for legal aid. Is the exercise
assistance so that if he
right conditional upon the accused applying for free legal
does not make an application for free legal assistance the trial may lawfully proceed
without adequate legal representation being afforded to him? Now, it is common

knowledge that about 70% of the people living in rural areas are illiterate and even
more than that percentage of the people are not aware of the rights conferred upon
them by law. Even literate people do not know what are their rights and
entitlements under the law. It is this absence of legal awareness which is
responsible for the deception, exploitation and deprivation of rights and benefits
from which the poor suffer in this land. Their legal needs always stand to become
crisis oriented because their ignorance prevents them from anticipating legal
troubles and approaching a lawyer for consultati on and advice in time and their
poverty magnifies the impact of the legal troubles and difficulties when they come.
Moreover, because of their ignorance and illiteracy, they cannot become self
reliant; they cannot even help themselves. The law ceases to be their protector
because they do not know that they are entitled to the protection of law and they
can avail of the legal service programme for putting an end to their exploitation and
winning their rights. The result is that poverty becomes with them a condition of
total helplessness. This miserable condition in which the poor find themselves can
be alleviated to some extent by creating legal awareness amongst the poor. That is
why it has always been recognized as one of the principal items of the programme
of the legal aid movement in the country to promote legal literacy. It would in these
circumstances make a mockery of legal aid if it were to be left to a poor, ignorant
and illiterate accused to ask for free legal service. Legal aid would become merely a
paper promise and it would fail its purpose. This is the reason why in Khatri v.
State of Bihar [AIR 1981 SC 928] we ruled that the Magistrate or the Sessions
Judge before whom an accused appears must be held to be under an obligation to
inform the accused that if he is unable to engage the services of a lawyer on account
of poverty or indigence, he is entitled to obtain free legal services at the cost of the
State..." [Refer also to State of Kerala v. Kuttan, 1988 Cri LJ 453].
In Khatri v. State of Bihar, the Supreme Court has held thus:
"But even this right to free legal services would be illusory for an indigent
accused unless the magistrate or the Sessions Judge before whom he is produced
informs him of such right. It is the common knowledge that about 70 per cent of the
people in the rural areas are illiterate and even more than that percentage of people
are not aware of the rights conferred upon them by law. There is so much lack of

25
 items of
legal awareness that it has been recognized as one of the principal
always
literacy.
the programme of the legal aid movement in this country to promote legal
and
It would make a mockery of legal aid if it were to be left to a poor ignorant
illiterate accused to ask for free legal services. Legal aid
would become merely a
The Magistrate or the Sessions Judge
paper promise and it would fail in its purpose. inform
be under an obligation to
before whom the accused appears must be held to account of
services of a lawyer on
the accused that if he is unable to engage the
cost of the
obtain free legal services at the
poverty or indigence, he is entitled to in the
to discharge this obligation
State. Unfortunately the judicial Magistrate failed was
stated that no legal representation
case of the blinded prisoners and they merely
none was provided."
asked for by the blinded prisoners and hence
in the
the magistrates and Sessions judges
The Supreme Court in that case directed
country-
and Sessions judges in the country
We would, therefore, direct the magistrates
before them and who is not represented by
a
to inform every accused who appears
or indigence that he is
entitled to free legal
lawyer on account of his poverty to take advantage of the
services at the cost of the State. Unless he is not willing
free legal services provided by the State, he must be provided legal representation
at the cost of the State."
Court also directed the State of Bihar and required every other State in the
The Supreme
country-
accused who is
"IT]o make provision for grant of free legal services to an
unable to engage a lawyer on account of reasons such as poverty, indigence or
incommunicado situation. The only qualification would be that the offence charged
against the accused is such that, on conviction, it would result in a sentence of
imprisonment and is of such a nature that the circumstances of the case and the
needs of social justice require that he should be given free legal representation.
There may be cases involving offences such as economic offences or offences
against law prohibiting prostitution or child abuse and the like, where social Justice
may require that free legal services need not be provided by the State."
Reports of Law Commission of India
Though even in the old Criminal Procedure Code, under Section 340 (1), it had been
provided that: "Any person accused of an offence before the Criminal Court or against whom
proceedings are instituted, under this Code, or under any such Code, may of right, be
defended by a pleader." [Section 303 of the new Code corresponds to the said section, with
the addition of the words 'of his choice' at the end]. The emphasis being on "any
person
accused of an offence in a criminal case is entitled to be defended, as of right, by an
Advocate", this right under the said section did not make it obligatory on the part of the Court
in a Sessions case, to assign a
pleader for the defence of the accused at the expenses of the
State. However, many High Courts issued circulars and
orders, and incorporated rules in the
Criminal Rules of Practice providing for assignment of an advocate for the defence of an
 consonance
with the
nature in
other cases of serious
accused in Session trials and
Constitutional mandate and
fundamental human rights.
time it was in the year
with lawyer by the State: For the first
Right to be provided a
Volume I on the subject
India in its Fourteenth Report
1958, the Law Commission of for State legal aid
and
Judicial Administration" made certain recommendations
Reform of
at government expense.
It observed,- "Unless
emphasized for right to assignment of counsel 's
the man for the payment
of court-fees and lawyer
Some provision is made for assisting poor to
fees and other incidental costs of litigation,
he/she is denied equality in the opportunity
Commission Report, the Law
Commission
seek justice." (p.487). Again in 1969 the 41" Law
a lawyer should be
made available at
strongly recommended that representation by
Government expenses to accused persons in all cases
tried by a Court of Sessions (Vol.1,
for making
Commission in its Forty Eighth Report also suggested
paras 24, 34-38). The Law
all accused who were undefended by a
provision for free legal assistance by the State for
lawyer for want of means.
recommendation has now been codified
Recommendation codified in Section 30: This
with this change made
in sub-section (1) of Section 304 of the Code of Criminal Procedure,
available only where the accused "has not
by the Joint Committee, that the State aid will be
sufficient means to engage a pleader". Section 304 reads,

Legal aid to accused at State expenses in certain

cases
"304.

(1) Where, in a trial before the Court of Session,

the accused is not represented
sufficient
by a and where it appears to the Court that the accused has
pleader,
not

means to engage a pleader, the Court

shall assign a pleader for his defence at the
expense of the State.
The High Court may, with the previous approval of the State Government,
(2)
make rules providing for-
under sub-section (1);
(a) the mode of selecting pleaders for defence
the courts;
(b) the facilities to be allowed to such pleaders by
and generally, for
(c) the fees payable to such pleaders by the government,
sub-section (1).
carrying out the purposes of
direct that, as from such date
(3) The State Government may, by notification, of sub-section (1) and (2)
as may be specified in the
notification, the provisions
before other Courts in the State as they
shall apply in relation to any class of trials
Courts of Sessions."
apply in relation to trials before
more so in trials before the Court
of
The section provides that when in the trial and
or an Advocate and when it appears
Sessions, the accused is not represented by a pleader
to engage an Advocate, the Court
tothe Court that the accused has not sufficient means
defence at the expense of the State. Under
shall assign a pleader or an Advocate for his
direct that the provisions of
Section 304(3), the State Government, may, by notification,
sub-section (1) will apply to any class of trials before
other Courts in the State.

27
 A bane eadmg of the provisions under Section 304 of the Criminal Procedure Code make
t erystal clear that in a eriminal trial, the Magistrate or the Sessions Court before whom the
aceused appears must be held to be under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of poverty or indigence or any other
disability. he is entitled to free legal services, at the cost of the State. It is, therefore,
imperative for a Presiding Ofticer, in charge of a trial to inform every accused, who appears
before hinm and who is not represented by a private lawyer on account of the poverty
ignorance or by any disability that he is entitled to free legal services, at the cost of the State.
While. it is settled position of law that to provide legal aid to accused persons without
means in all cases tried by a Court of Session, is a mandatory constitutional necessity, it is
further necessary that such lawyer should be of competence. Such counsel appointed for the
accused must be given the complete brief of the case and time to prepare the case. Failure to
this is a denial of proper representation of the accused and vitiates the tral. [Raj Kishorev.
State. 1969 Cri LI 860 (Cal: AIR 1969 Cal 321]. Also, no counsel can be thrust upon the
accused without ascertaining the wishes of the accused and without giving him any choice in
selecting his lawyer as Article 22(1) of the Constitution guarantees that choice to be accused
Committee for Implementing Legal Aid Scheme (CILAS)
Concermed with the programme of legal aid as it is the implementation of a constitutional
mandate, in September, 1980, the Government of India, with the object of providing free legal
aid, by a resolution dated 26 September, 1980, appointed "Committee for Implementing
Legal Aid Schemes" (CILAS) with P.N. Bhagwati J (as he then was) as the Chairman to
monitor and implement legal aid programs on a uniform basis in all the States and union
temtories. The Committee evolved a model scheme for legal aid programme, [which includes
organization of legal aid camps] and set up several legal aid and advice boards throughout the
country.
But on a review of the working of the CILAS, certain deficiencies had come to the fore. It
was, therefore, felt that it would be desirable to constitute statutory legal service authorities at
the national, State and District levels so as to provide for the effective monitoring of legal aid
programmes. Therefore, the Legal Services Authorities act, 1987 (Act No.39 of 1987) was
enacted with a view to constitute Legal Services Authorities at National, State and District
Levels. However, the Act not having been brought into force (The Act was brought into force
with effect from 9-11-1995, almost eight years after its enactment) the term of Committee
was extended
again for a period of one year on and from the 14 May,
1990 or till the
National Legal Service Authority was constituted under the Legal Services Authorities Act,
whichever was earlier.
Constitution of Legal Aid Boards and Committees:
Many states evolved their own programmes and even enacted State
promulgated certain schemes or Rules to provide Legal Aid to under privileged Legislationand
or

disadvantaged sections of the society. For effective implementation and to achieve the desired
objective of providing Free Legal Aid and Advice to the poor, State Boards, District
Aid Committees and Taluka Committees were Legal
constituted. But it was felt that enactment of a
Central Legislation to co-ordinate and
promote the activities of the various States in providing

28
 aid
monitor and implement legal
was desirable to
Legal Aid and Advice to the poor territories.
programmes on a uniform basis
in all the States and union

Need for Strategic Legal Aid Programme which is

that the legal aid programme
lt 1s now acknowledged throughout the country to remain
cannot afford
for the purpose of reaching social justice, to the people
needed but it must, taking into
or litigation oriented legal aid programme
confined to the traditional
account the socio-economic conditions prevailing in the country, adopt a more dynamic
posture and take within its sweep what we may call strategic legal aid programme consisting
of promotion of legal literacy, organization of legal aid camps, encouragement of public
interest litigation and holding of lok adalats or niti melas for bringing about settlements of

disputes whetherpending in Courts or outside. [Center of Legal Research v. State of Kerala,

AIR 1986 Sc 2195]. As observed by Justice Bhagawati "..what is necessary is to supplement
the traditional legal service programme with strategic legal service programme. The strategic
legal service programme aims at prevention and elimination of various kinds of injustices
which the poor as a class suffer because of poverty and endeavours to launch a frontal attack
on the poverty itself with the ultimate goal of its eradication from the society. It does not
involve merely quantitative extension of traditional legal services to the poor but instead
requires a qualitative and radical change in the whole emphasis, aims and functioning of the
legal service programme. It involves novel, radical, more dynamic and multi-dimensional
uses of law and the legal process and seeks to provide representation to groups of social and
economic protest. It does not regard litigation as playing an important or even significant role
in the life of the poor and hence refuses to consider the court as a centre of all legal activity
and is concerned with the problems of the poor as a class rather than with the individual
problems of the poor which may be projected in litigation in court. The strategic legal service
programme is thus directed towards group-oriented approach to the problem of poverty rather
than individual-oriented treatment and basically it is calculated to make the poor as class-
conscious and powerful, self-reliant and capable of using law as a potent weapon for various
purposes....
A common man has started feeling that justice itself is on trial. It is, therefore, imperative
to evolve effective and efficient strategies both preventive and protective:
(1) To manage: Unmanageable; (2) To break: Unbreakable; (3) To beat: Unbeatable; (4)
To hit: Unhitable; (5) To defend: Indefensible.
Looking to the present situation in the country, we are obliged to create and constitute a
Neo-Jurisprudence, a public-oriented participation performing, progressive, professional and
pervasive programmes. Unfortunately, in the present system, the litigant, who is the heart of
judicial anatomy, is the most neglected segment. He is the corsumer of justice and he should
be respected. The litigant-consumer of justice - and heart of our system- must receive equal,
effective, inexpensive and speedy trial and justice.
In our country, amount spent or expenditure for administration of law and justice is
reported 0.2 percent of the Gross Domestic Product (G.D.P) which is grossly inadequate and
insufficient in a democratic set up. It is, therefore, necessary to constitute a
regular
mechanism, whereby, we can take and evaluate Judicial Cardiogram for necessary urgent and
 useful, effective and ebullient reforms to translate
propounded right from Preamble Promise in their fightingConstitutional mandate and obligatíon
faith by its Founding Fathers, 4
reality.
Legal literacy: Legal literacy is a pre-condition to maintain the "rule of law", As observed
Justice Bhagwati, the by
strategic legal service consists of creating legal awareness or what may
be described as
promoting legal literacy, for knowledge of their rights and entitlement would
give to the poor strength and confidence to fight and help them to avoid needless difficulties
which arise fromignorance. Legal aid camps can also be arranged as part of the strategic legal
service programme for carrying legal services to the doorsteps of the rural poor. (Quoted in
"Equal Justiceand Forensic Process: Truth and Myth" by V.R. Krishna lyer, at p.47), The
model scheme for Legal Aid evolved by the "Committee for Implementing Legal Aid Scheme
(CILAS" also included programme for promotion of legal literacy and spread of legal
awareness among the weaker sections of the communíty by way of organízing legal Aid
camps, especially in rural areas, slums or labour colonies. Voluntary organizations, socíal
action groups, journalists and even advocates have been rendering significant servíce to
educate the people about the laws, their rights and benefits flowing out of the various schemes
and measures. The assistance of voluntary agencies and social action groups must theresore bee
taken by the State for the purpose of operating the legal aid programme in its widest and most
comprehensive sense, and this is an obligation which flows directly from Article 39 A of the
Constitution.

Public Interest Litigation

Public Interest Litigation has been devised as a tool to secure benefit to a class or group of
persons, either victims of exploitation, or oppression or who are denied the constitutional
rights but cannot come to court personally for relief by reason of ignorance, poverty
destitution, helplessness, disability or social or economic disadvantage. It is a form of
litigation where jurisdiction of the purt is invoked on behalf of such persons or group of
persons by a third person or a social action group or a social organízation regardless of its
unlíke
personal injury. Cases of this kind involve the rights of thousands of people at a time,
traditional litigation, which are basically of adversary character and concens disputes
between individuals. Whenever such litigations have come to Court, the Courts in the country
have done everything to help the poor and to break every procedural barrier to deliver justice
to the poor. To quote Krishna Iyer, "Moulding the remedies to suit the needs of the sítuation
so that efficacious and comprehensive remedies may be granted, regardless of pickled
precedents in remedial methodology, is part of judicial dynamics."
movement and which is
Public interest litigation which is a strategic arm of the legal aid
intended to bring justice within the reach of the poor masses, who constitute the low vísíbility
area of humanity, is a totally different kind of litigation from the ordinary traditional litigatíon
which is essentially of an adversary character where there is a dispute between two litígatíng
Public interest litigatíon is brought before
parties, one making claim or resisting such relief. individual against another as
the court not for the purpose of enforcing the right of one
is intended to promote and víndicate publíc
happens in the case of ordinary litigation, but it

30
 number of
violation of constitutional or legal rights of large should
demands that position
interest which
a sociallyor economically disadvantaged which forms
in
who are poor, ignorant
or
destructive of the Rule of Law,
people That would be The
and unredressed. democratic form of
government.
not go unnoticed interest in any fortunate
one of the
essential elements of public available only to a
of the law must be
mean that the protection for protecting
Rule of Law does not be prostituted by the vested interests
to
civil and political rights.
be allowed
few or that the law should of enforcement of their
under the guise meant for them also, though
and upholding the status quo
rights and the Rule of Law
The poor too have civil and political Union for Democratic Rights
v.

and not in reality. [People's

today it exists only on paper
Union ofIndia, AIR 1982 SC 1473].
or collaborative
effort on the part of
a co-operative
Public interest litigation is essentially observance of the
State or public authority
and the court to secure
the petitioner, the
conferred upon the vulnerable sections of
constitutional or legal rights, benefits and privileges
to them.
the community and to reach social justice
the rights of the
have been used only for the purpose of vindicating
So far the courts
classes which have been able to approach
and the affluent. It is only these privileged
wealthy who have so far had the
vested interests. It is only the moneyed
the courts for protecting their first time the portals of the court
unlock the doors of justice. But, now for the
golden key to
the ignorant and the illiterate and
are being thrown open
to the poor and the downtrodden,
which has been
Courts through public interest litigation
their cases are coming before the S.P. Gupta v.
the recent judgment delivered by the Supreme Court in
made possible by
and Transfer case].
President of India, AIR 1982 SC 149 [Judges Appointment to these
interest litigation seek to bring justice
The Legal Aid movement and public of India and who are
who constitute the bulk of the citizens
forgotten specimens of humanity Constitution. It
and truly the "people of India" who gave to themselves this magnificent
really in the Courts but that cannot be any
reason for
is true that there are large arrears pending No State has a
the poor and weaker sections of the community.
denying access to justice to cases of the rich and the
well to do are
tell its citizens that because a large number of
right to
to the Courts for seeking justice
not help the poor to come
pending in our Courts, we will who can afford, is disposed of. The
time has now
until the staggering load of cases of people and struggling masses of the
come when the Courts
must become the courts for the poor
established order and the status quo.
their character as upholders of
country. They must shed to the large masses of people
to whom
must be sensitized to the need of doing justice
They heartless society for generations. The
realization must
justice has been denied by a cruel and is their solemn
tune of our Constitution, and it
to them that social justice is the signature
come
of the poor and vuinerable
under the Constitution to enforce the basic human rights
duty in the realization of the constitutional goals.
This
sections of the community and actively help effective instrument of social
new change has to come if
the judicial system is to become an
survive for long. Fortunately, this change
is gradually taking
justice, for without it, it cannot this change. It is
interest litigation is playing a large part in bringing about
place and public to the forefront
the problems of the poor are now coming
through public interest litigation that future. In
It holds our great possibilities for the
and the entire theatre of the law is changing.
a constitutional Bench of the Apex
M.C. Mehta v. Union of India [AIR 1987 SC 1086],

31
Court while considering the scope of public interest litigation to grant compensation to the
victims of hazardous or dangerous activities when deaths or injuries were caused to them on
account of the accident during the operation of such activities, has held that the law should
keep pace with changing socio-economic norms; where a law of the past does not fit in the
present context, the Court should evolve new law in a public interest litigation. The Court has
incidental and ancillary powers in exercise of which it can devise new methods and strategy
in securing enforcement of fundamental rights particularly in public interest litigation or
social action cases.
In Bandhua Mukti Morcha v. Union of India [AIR 1984 SC 802, 815, the Supreme
Court beld hat when the poor come before the Court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a
new procedure which will make it possible for the poor and the weak to bring the necessary
material before the Court for the purpose of securing enforcement of their fundamental ights.
The Supreme Court further observed:
It must be remembered that the problems of the poor which are now coming
before the Court are qualitatively different from those which have hitherto occupied
the attention of the Court and they need a different kind of lawyering skill and
different kind of judicial approach. If we blindly follow the adversarial procedure in
their case, they would never be able to enforce their fundamental rights and the
result would be nothing but a mockery of the Constitution. We therefore to abandon
the laissez faire [Let things be] approach in the judicial process particularly where
it involves a question of enforcement of fundamental rights and forge new tools,
devise new methods and adopt new strategies for the purpose of making
fundamental rights meaningful for the large masses of the people. And this is
clearly made permissible by the language of clause (2) of Article 32 because the
Constitution-makers while enacting that clause have deliberately and advisedly not
used any words restricting the power of the Court to adopt any procedure which it
considers appropriate in the circumstances of a given case for enforcing the
fundamental right. It is true that the adoption of this non-traditional approach is not
likely to find easy acceptance from the generality of lawyers because their minds
are conditioned by constant association with the existing system of administration
of justice which has become ingrained in them as a result of long years of
familiarity and experience and become part of their mental make-up and habit and
they would therefore always have an unconscious predilection for the prevailing
system of administration of justice. But if we want the fundamental rights to
become a living reality and the Supreme Court to become a real sentinel on the qui
vive, we must free ourselves from the shackles of outdated and outmoded
assumptions and bring to bear on the subject fresh outlook and original
unconventional thinking."
The traditional rule of locus standi comsiderably relaxed by the Supreme Court
The traditional nule in regard to locus standi' that judicial redress is available only to a
person who has suffered a legal injury by reason of violation of his legal rights- by some
agency or individual has now been considerably relaxed by the Supreme Court. In S.P. Gupta
 Court speaking throughi
v. President India [AIR 1982 SC 149, 188}, the Supreme
of
Bhagwati, J. has held:
where a legal wrong or
"It may, therefore, now be taken as well established that
reason of
is caused to a person or to a determinate cla8s of persons by
legal injury in
violation of any constitutional or legal right or any burden is imposed
of law or
contravention of any constitutional or legal provision or without authority
burden is threatened and such perom
Such legal wrong or legal injury or illegal
or determinate class of persons is by reason of poverty, helplesness, or disability or
unable to approach the Court for
socially or economically disadvantaged position,
relief, any member of the public can maintain an application for an appropriate
direction, order or writ in the High Court under Artícle 226 and in case of breach of
any fundamental rights of such person or persons, in this Court (Supreme Court
under Article 32 seeking judicial redress for the legal wrong or injury caused to
such person or determinate class of persons.."

THE INSTITUTION OF LOK ADALAT

Lok Adalats or Niti Melas
Lok Adalat has emerged lately as a new system of dispensation of justice and received
tremendous response and wide support from different sections of the socicly. The system
visualized as an alternative dispute settlement mechanísm, evolved as a part of the CILAS
programme with the object of taking justice to the doursteph of the poor andto give speedy
and cheap justice to those who cannot afford to fight the contly legal battle. Lok Adalat has
come to be seen as an institution or an agency, for handling disputes by conciliatíon and
counseling, a species of peace making. Lok Adalats dø not treat the issues before it as
disputes under contest and decide cases, but treat them as differences and resolve them by
conciliatory and persuasive efforts. The process ínvolves discussing with the parties the pros
and cons of their case and explainíng to them advantages and disadvantage of resolving their

dispute by conciliation and compromise, or in the alternative, of resorting to the traditional

dilatory procedure of adversaríal litigation in regular Courts, The procesm of partícipatory
the Lok Adalatw in resølved by
justice is a unique feature of this institutíon, Dispute in members of the Lok Adalat
discussion in an informal atmosphere, in which parties and panel
free consent of the partíes. Unlike
participate, and settlement is reached with the mutual and nature of compromises, there is no
in litigations concluded in our regular Courts, being in the
winner and no loser in a mediated resolution of dispute by Lok Adalats, The intention being

to help warring parties to work things out,

shake hands, and become friends (or not enemies
more likely to bring or keep people together
again), resolution of disputes in Lok Adalat, isThere has been in the last few ycars a growing
and, therefore, more conducive to harmonies,
forum for alternative dispute resolution, to
interest in the institution and it has emerged as a
These forums based on the concept of dispute
supplement the exísting justice delivery system, and conciliation, functíon as
settlement mechanism by way of counseling persuasion
with simplificd procedure,
peacemaker, and are intended to work ínformally
were constituted and nisi
As part of CILAS programme, lok adalata (Peoples' Court)
under the supervisiom of State Legal
melas were organized at various places in the country,

33
Aid and Advice Boards, for the
arbitration and sealement betweendisposal,
in a
summary way and
the
through the process of
with essr CoSts. The parties, of a large number of
expeditiously and
cases
organizers of the Lok Adalats, fixed the date and
Lok Adalats about a month in advance. place of the holding of
Information about the holding of Lok Adalat was
wdely publicized through press and other means of
LOurts s e equested to look into the cases publicity. Presiding Officers ot various
pending in their respective Courts and to see
wneiher there was possibility of conciliation in these cases. Such of those cases where there
w s TE2sOmabe
poss+bility of conciliation were identified and listed. Cases were analyzed,
cassified under varions heads according to the nature of dispute and substance recorded.
Then. pre-Lok Adalat conferences were held and parties to the dispute were approached and
TOtivted by the legal aid teams. which included, law students, social workers and volunteers
to sesolve their disputes through Lok Adalats. Before the case was taken up by the Lok
Adalat, ne mediation process or justíce process through Lok Adalat was initiated by way of
thorough iscussion with the parties as to the details of the case and desirability of
conciliation and compromise and the scope of a settlement mutually acceptable to the parties
was 28sessed The team involved in the mediation or Lok Adalat justice process, consisted of
the members of local Legal Aid Committee. advocates, spirited public men or elders of the
locality or sccial activists and called conciliators. This process was continued and resumed at
the campsite of the Lok Adalat. Once parties had made a compromise or armived at a
senemen. it was reduced into writing by members of the panel of the Lok Adalat, signatures
of the paries were obtained and countersigned by the members of the panel and passed on to
the Court concermed for final decree or order. Multiple panels, according to the need of the
Lok Adalat, were set up. These panels or members of Lok Adalat consisted of two or three
persons. one of them conld be a retired judge or a senior retired civil servant or an advocate, a
Law teacher. znd others, social workers and eminent persons of the locality, carefully chosen
by the Local Aid Committees on the basis of their record of public services, honesty and
respectabiliny among local population, supposed to be good conciliators, concermed with the
canse of social justice and sympashetic to people's problem. When the compromise so arrived
a wa presented before the Court concerned, the Court was expected to look into the question
whether aiI the perties to the suit were entering into settlement or compromise, examine the
faimess and legality of the setlement or cormpromise, and satisfy itself that compromise had
been arived a by free and mutual consent of the parties. After this process of due verification
of the compromise made or selement arrived at by the parties, decree or orders were passed
in terns ch the setlement or compromise
Importance of the institution of Lok Adalat in the present context: The revolutionary
evolurion of resolution of dispute by one or other means, Alternate Dispute Redressal
(ADR) mechanism, has been, successfuly, translated in various countries. While, in India,
rougily, 91 percent of cases instituted in the Courts go for trial and only 9 percent of cases are
seed without judicial agitatíon, in U.S. A., more than 90 percent of cases involving legal
dispnes ae setled before they go for trial.
The institaticon of Lok Adalat has been acknowledged as an effective Altemate Dispute
Redresal agency and gaining wide acceptability. More and more people are choosing this
oTT to belp senlenent of dispute through negotiation, counseling, conciliation, settlement
 it is less
court. It provides a quicker remedy.
and compromise than to go for a verdict through
tacties of parties to prolong
less time consuming, does not permit dilatory
Cxpensive, and is concerned more with narrowing
litigation. It saves parties from intricacies of procedure rules of equity and
differences and finding settlement in accordance with natural justice.
the strict
other legal principles than with expatiating upon procedural complexities and their
It is based on jurisprudence of peace and provides a rendezvous for social amity
aPplication.
and affinity and social justice. It aims at promoting larger interest, harmony, comity and
policy and jurisprudential cohesion and environment. Looking to the present situation in the
country the role of Lok Adalat assumes higher degree of importance.
It is reported that 34 percent of the total world's poor populace is in India. More than
majority persons live below poverty line. Most of the rural people in India who reside in more
than 5.18.000 villages are either, illiterate, indigent or ignorant of their rights. Even in case of
urban populace most of them are ignorant about their legal rights, who are otherwise, literate.
The urbanized populace lack awareness about their legal rights. Our present traditional system
of justice is suffering from maladies like
huge and heavy expenses; unexpected and
unpredictable delay disposal
in and, cumbersome and complex process of
Court. in view or
the failure to provide easy, cheap and
expeditious accessibility, mental barrier is developed
amongst many persons to suffer injustice. As a result of which, a common man has started
looking at it, as foe rather than a friend. The life span of a civil case or a lawsuit in civil side
is ranging average, between 8 to 12 years. Who knows even after a successful decision or
order in favour of a party, whether he would be able to see
light at the end of tunnel after
having passed through the long legal and procedural conduit pipes? Even after a decree
awarded ororder passed
on judicial side in favour ofa party, after number of years, successful
party has to again undergo the second round of litigation at the stage of execution. It is not a
Pity v. Dury? Pending workload of cases in Indian Courts has rapidly erossed the 30 millions
as per latest survey, and many more are under inquiry or investigation stage, etc. The ratio of
Judges per million in Indiais almost 9. whereas, itis more than 115 in U.S.A. In case of ratio
of Advocate available in India, is far less than developed countries. There are about only
4,50,000 and odd number of Advocates in India, which has populace of I billion. In view of
these circumstances, the institution of Lok Adalat is being looked upon as an effective
Alternate Dispute Redressal Forum, which has proved to be dialectical and speedy. By
bringing justice at their doorstep, it gets the poor litigants justice without having to meet huge
costs and help them to settle their disputes amicable. It creates not only peace but also a
culture of compromise. It provides a rendezvous for social amity and affinity and social
justice. [Cf. Dineshbhai Dhemenrai v. State of Gujarat, 2001 (1) GLR 603
Legal status for Lok Adalat: The Lok Adalat, a specie of conciliatory agency, proved to be
administration of justice at lessor costs.
very popular in providing for a speedier system of
The success of these Lok Adalats in taking justice to the doorsteps of poor and the needy and
making justice quicker and less expensive raised a new ray of hope for those whocould not
otherwise afford to fight the protracted costly legal battle for assertion and protection of their
rights under the law. The institution received wide support from concened citizens and
spread to disputes of diverse and varied nature and resolved cases pertainingtocompoundable
criminal complaints, civil and revenue disputes, MACT cases, and even institutional cases
(Cuses Wheve one of the parties is an
institution, such as, municipality or a corporation). The
nmber of eases resolved by these Lok Adalats also
began to reflect on the workload of our
Tegular Courts. The institution of Lok Adalats was, however,
functioning as a voluntary
geney Without any statutory backing for its decisions. In view of its
here was demand for growing popularity,
providing a statutory backing to this institution and the awards given by
Tvk Adalats. It was being felt that such a
statutory support would not only reduce the burden
f arrearS of work in regular courts, but would also provide social justice and serve to achieve
he constltutional mandate under Article 39 A. The Government was convinced that this
admirable ulternate dispute settlement mechanism shall now only reduce the burden of arrears
o work in regular courts, but would also take justice to the doorsteps of the poor and the
needy and make justice quicker and less expensive and felt that if the Lok Adalats were given
slatutory status they could funetion more effectively. Therefore, the Government in exercise
of its duty under Article 39 A, drafted the Legal Services Authorities Bill 1987 and the same
wAR enacied by the Parliament as Act No. 39 of 1987, acknowledging the institution of Lok
Adalat and giving statutory status to Lok Adalats. However, the Act was brought into force
with effect from 9-11-1995, almost eight years after its enactment.
Public Participation in Legal Aid Programmne
Research v.
Role of Voluntary Organizations and Social Action Groups: In Centre of Legal
be doubt that
State of Kerala, AlR 1986 SC 2195, the Supreme Court held that there could no
The Court
if the legal aid programme was to succeed it must involve public participation.
observed
"The State Governnment undoubtedly has an obligation under Article 39A of the
Constitution which embodies a directive principle of State Policy, to set up a
that the
comprehensive and effective legal aid programme in order to ensure
have
operation of the legal system promotes justice on the basis of equality. But we

no doubt that despite the sense of social commitment which animates many of our
officers in the Administration. It is absolutely essential that people should be involved
in the legal aid programme because the legal aid programme is not charity or bounty
but it is a social entitlement of the people and those in need of legal assistance cannot
be looked upon as mere beneficiaries of the legal aid programme but they should be
regarded as participants in it."
Emphasizing the importance of role that could be played by voluntary organizations and
social action groups in securing people's participation and involvement in the legal aid
programme, the Supreme Court went on to observe:-
"If we want to secure people's participation and involvement in the legal aid
programme, we think the best way of securing it is to operate through voluntary
organizations and social action groups. These organizations are working amongst the
deprived and vulnerable sections of the community at the grass-root level and they
know what are the problems and difficulties encountered by these neglected sections
of the Indian humanity. They have their finger on the pulse of the
people and they
know from their own experience as to what are the unmet legal needs of the
what are the sources of exploitation and injustice to the
people,
underprivileged segments
of
 and what necessary to be taken for
measures are
the purpose of ending such
society
distributive justice to them. We are
exploitation and injustice and reaching social or
and social action groups
therefore definitely of the view that voluntary organizations
must be encouraged and supported by the State
in operating the legal aid programme.
the legal aid programme which is
It is now acknowledged throughout the country that
to the people cannot afford to remain
needed for the purpose of reaching social justice
aid programme but it must,
confined to the traditional or litigation oriented legal
into the socio-economic conditions prevailing in the country, adopt a
taking account
more dynamic posture and take
within its sweep what we may call strategic legal aid
of legal literacy, organization of legal aid camps,
programme consisting of promotion
and holding of Lok Adalats or niti melas
encouragement of public interest litigation
in Courts or outside. The
for bringing about settlements of disputes whether pending
must therefore be taken by
assistance of voluntary agencies and social action groups
aid programme in its widest and most
the State for the purpose of operating the legal
which flows directly from Article 39A
comprehensive sense, and this is an obligation
of the Constitution."
United States and other
the Bench and the Bar: In various countries, particularly, in
Role of is
Bar in rendering free and competent legal-aid
Western countries, the contribution of the with juristic
emulated. Legal Aid fraternity must respond
praiseworthy and it must be voice of weak,
silence zone (a class of litigants) and mass
sensitivity to the voice from the as to create evolving
women and destitute children so
meek, poor, suppressed and exploited is
must evolve scheme to ensure that unprotected
ebullient echo for the silent sector. The Bar
services to compliment
not priced out of Market. The
Bar is, really, a backbone of the legal
of indigent,
and obtain statutory rights of millions
and complete the Constitutional obligation
needy, handicapped and deserving people. interest
has to be played by Legal Aid in the larger
To save the Nation, a catalytic role and effective and
weaker sections. N.A.L.S.A. has undertaken various important
of members of Bench and Bar, N.G.Os.
and
and, therefore,
appreciable Legal-Aid programmes noble and novel projects.
Government Agencies must render voluntary helping hand in such
GLR 603].
v. State of Gujarat, 2001 (1)
[See Dineshbhai Dhemenrai

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