ACCESS TO JUSTICE IN INDIA: EVALUATING THE CHALLENGES AND EFFORTS

TOWARDS BRIDGING THE GAP

It was rightly said by Justice Blackmun that “The concept of seeking justice cannot be
equated with the value of dollars. Money plays no role in seeking justice.” The road to justice
has never been a cheap one. One has to pay a hefty amount at each step while seeking justice
in courts. Article 14 of the Constitution of India states that every person shall be treated
equally before the law, and ensures equal protection of the law, to everyone irrespective of
religion, caste, race, sex, or place of birth. Also, Article 22(1)states that whoever being
arrested cannot be denied the right to consult and to be defended by a legal practitioner of
his/her choice, and there is a basic principle of law that should be followed, that is, Audi
Alteram Partem, that no party shall be left unheard. Even after justice is a fundamental right,
the poor people have to suffer a lot due to the inability to afford the expensive legal system
and have to settle for the injustice many times.

Legal Aid is a torchbearer for poor people who cannot afford the court proceedings. It is free
legal assistance given to poor people in judicial proceedings, administrative proceedings,
quasi-judicial proceedings, or any consultation regarding all legal problems. Legal Aid as
explained by Justice P.N. Bhagwati is an arrangement to have easy access to the justice
delivery system for the poor and illiterate people, so that ignorance and poverty does not stop
them from seeking justice. The only objective of this service is to provide equal justice to the
poor and downtrodden people. This not only includes the free access to the representation of
an advocate in court proceedings but also Legal Awareness, Legal Advice, Public Interest
Litigation, Legal Mobilisations, Lok Adalats, law reforms, and many such services that could
prevent the injustice.

Historical background:

After Independence, many states introduced the concept of legal aid for the needy people. In
1958, the 14th Law Commission Report emphasised on providing equal justice and free legal
aid to the poor. Kerala was the first state to introduce a policy on legal aid, Kerala Legal Aid,
to the poor. Tamil Nadu and Maharashtra also introduced similar schemes to provide free
legal aid to the poor and backward people. In 1971, Hon’ble Justice P.N. Bhagwati was a
chairman of a committee that was formed to emphasise the role of judges in providing justice
to all and working of the different committees of legal aid, that were-
(i) Taluka Legal Aid Committee

(ii) District Legal Aid Committee

(iii) State Legal Aid Committee.

In 1973, a report was published on “Processuals Justice to Poor”, by an Expert Committee on

Legal Aid headed by Hon’ble Justice V.R. Krishna Iyer. The report emphasised on the need to
give a statutory basis to legal aid, the need to set up legal aid clinics in law schools, emphasis
on Public Interest Litigation, and other ways to make the legal aid system easily available to
people. Then, in 1977, a joint report was submitted by Justice P.N. Bhagwati and Justice
Krishna Iyer, named as “National Juridicare Equal Justice and Social Justice”. The report
looked at the working of the legal aid programs, recognised the value and role of lawyers in
seeking remedies or justice, and also proposed to establish the National Legal Service
Authority (NALSA).

In 1976, keeping in mind the need for providing free legal aid, it was made a statutory right
by the 42nd Constitutional Amendment by inserting Article 39A under the Directive
Principles of State Policy (DPSP), on “Equal Justice and Free Legal Aid” which stated that
the State must the Court has to ensure equal opportunity of justice to everyone and provide
free legal aid to the ones in need so that economic or any other disability does not stop
anyone from seeking Justice.

In 1980, Committee for Implementation of Legal Aid Scheme (CILAS) under the
chairmanship of Hon’ble Mr Justice P.N. Bhagwati, monitored and supervised the legal aid
activities going on in the country and also introduced Lok Adalats which are an effective tool
to settle disputes amicably.

NALSA (national legal services authority):

The National Legal Services Authority (NALSA) has been constituted under the Legal
Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the
society and to organise Lok Adalats for amicable settlement of disputes.

Hon’ble Dr. Justice D. Y. Chandrachud, The Chief Justice of India is the Patron-in-
Chief. NALSA is housed at Supreme Court of India, Tilak Marg, New Delhi, Delhi(110001).
The NALSA Centre for Citizen Services is set up at Jaisalmer House,Man Singh Road, New
Delhi-110011. It is working during office hours on all working days.

In every State, State Legal Services Authority has been constituted to give effect to the
policies and directions of the NALSA and to give free legal services to the people and
conduct Lok Adalats in the State. The State Legal Services Authority is headed by Hon’ble
the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal
Services Authority.A Senior most Judge of High Court is nominated as Executive Chairman,
SLSA.

In every District, District Legal Services Authority has been constituted to implement Legal
Services Programmes in the District. The District Legal Services Authority is situated in the
District Courts Complex in every District and chaired by the District Judge of the respective
district.A Civil Judge Cadre Judicial Officer is appointed as Secretary on full time basis.

History of Legal Movement in India:

Legal Aid Movement in India – Its Development and Present Status

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 earliest Legal Aid movement appears to be of the year 1851 when some enactment was
introduced in France for providing legal assistance to the indigent. In Britain, the history of
the organised efforts on the part of the State to provide legal services to the poor and needy
dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee
to enquire about the facilities existing in England and Wales for giving legal advice to the
poor and to make recommendations as appear to be desirable for ensuring that persons in
need of legal advice are provided the same by the State. Since 1952, the Govt. of India also
started addressing to the question of legal aid for the poor in various conferences of Law
Ministers and Law Commissions. In 1960, some guidelines were drawn by the Govt. for legal
aid schemes. In different states legal aid schemes were floated through Legal Aid Boards,
Societies and Law Departments. In 1980, a Committee at the national level was constituted to
oversee and supervise legal aid programmes throughout the country under the Chairmanship
of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This
Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes)
and started monitoring legal aid activities throughout the country. The introduction of Lok
Adalats added a new chapter to the justice dispensation system of this country and succeeded
in providing a supplementary forum to the litigants for conciliatory settlement of their
disputes. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal
aid programmes throughout the country on a uniform pattern. This Act was finally enforced
on 9th of November, 1995 after certain amendments were introduced therein by the
Amendment Act of 1994. Hon. Mr. Justice R.N. Mishra the then Chief Justice of India played
a key role in the enforcement of the Act.

National Legal Services Authority was constituted on 5th December, 1995. His Lordship
Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive
Chairman of National Legal Services Authority on 17the July, 1997. Soon after assuming the
office, His Lordship initiated steps for making the National Legal Services Authority
functional. The first Member Secretary of the authority joined in December, 1997 and by
January, 1998 the other officers and staff were also appointed. By February, 1998 the office
of National Legal Services Authority became properly functional for the first time.

In October, 1998, His Lordship Hon. Dr. Justice A.S. Anand assumed the Office of the Chief
Justice of India and thus became the Patron-in-Chief of National Legal Services Authority.
His Lordship Hon. Mr. Justice S.P. Bharucha, the senior-most Judge of the Supreme Court of
India assumed the office of the Executive Chairman, National Legal Services Authority.

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal
services to the eligible persons. Section 12 of the Act reads as under:-
12.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) in custody, including custody in a protective home within the meaning of clause (g) of
section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home
within the meaning of clause

(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health
Act, 1987 (14 of 1987); or

(h) in receipt of annual income less than rupees nine thousand or such other higher amount as
may be prescribed by the State Govt., if the case is before a court other than the Supreme
Court, and less than rupees twelve thousand or such other higher amount as may be
prescribed by the Central Govt., if the case is before the Supreme Court."
(Rules have already been amended to enhance this income ceiling).

According to section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case'
which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the 'court'
as a civil, criminal or revenue court and includes any tribunal or any other authority
constituted under any law for the time being in force, to exercise judicial or quasi-judicial
functions. As per section 2(1)(c) 'legal service' includes the rendering of any service in the
conduct of any case or other legal proceeding before any court or other authority or tribunal
and the giving of advice on any legal matter.
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.

A nationwide network has been envisaged under the Act for providing legal aid and
assistance. National Legal Services Authority is the apex body constituted to lay down
policies and principles for making legal services available under the provisions of the Act and
to frame most effective and economical schemes for legal services. It also disburses funds
and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes
and programmes.

In every State a State Legal Services Authority is constituted to give effect to the policies and
directions of the Central Authority (NALSA) and to give legal services to the people and
conduct Lok Adalats in the State. State Legal Services Authority is headed by the Chief
Justice of the State High Court who is its Patron-in-Chief. A serving or retired Judge of the
High Court is nominated as its Executive Chairman.

District Legal Services Authority is constituted in every District to implement Legal Aid
Programmes and Schemes in the District. The District Judge of the District is its ex-officio
Chairman.

Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for
group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to
organise Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil
Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman.
After the constitution of the Central Authority and the establishment of NALSA office
towards the beginning of 1998, following schemes and measures have been envisaged and
implemented by the Central Authority:-

(a) Establishing Permanent and Continuous Lok Adalats in all the Districts in the country for
disposal of pending matters as well as disputes at pre-litigative stage;

(b) Establishing separate Permanent & Continuous Lok Adalats for Govt. Departments,
Statutory Authorities and Public Sector Undertakings for disposal of pending cases as well as
disputes at pre-litigative stage;

(c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign;

(d) Appointment of "Legal Aid Counsel" in all the Courts of Magistrates in the country;

(e) Disposal of cases through Lok Adalats on old pattern;

(f) Publicity to Legal Aid Schemes and programmes to make people aware about legal aid
facilities;

(g) Emphasis on competent and quality legal services to the aided persons;

(h) Legal aid facilities in jails;

(i) Setting up of Counselling and Conciliation Centres in all the Districts in the country;

(j) Sensitisation of Judicial Officers in regard to Legal Services Schemes and programmes;

(k) Publication of "Nyaya Deep", the official newsletter of NALSA;

(l) Enhancement of Income Ceiling to Rs.1,25,000/- p.a. for legal aid before Supreme Court
of India and to Rs.1,00,000/- p.a. for legal aid upto High Courts; and

(m) Steps for framing rules for refund of court fees and execution of Awards passed by Lok
Adalats.

The First Annual Meet of the State Legal Services Authorities was held on 12th of
September, 1998 at Vigyan Bhawan, New Delhi which was presided over by His Lordship
Hon. Dr. Justice A.S. Anand, the then Executive Chairman, NALSA. His Lordship Hon. Mr.
Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal
Services Committee, the Members of the Central Authority and the Executive Chairmen and
Member Secretaries of the State Legal Services Authorities attended this Meet. In this Meet,
the progress of on-going schemes which had been initiated by NALSA was examined and
decisions of far reaching implications were taken with a view to strengthen and streamline
legal aid programmes in the country. The Second Annual Meet of the State Legal Services
Authorities was held at Jubilee Hall, Hyderabad on 9th of October, 1999. This Meet was
inaugurated by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India and
Patron-in-Chief, NALSA. Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA
delivered the keynote address. Other dignitaries present at the inaugural function included
Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme
Court Legal Services Committee, Hon. Mr. Justice M.S. Liberhan, Chief Justice of Andhra
Pradesh High Court and Members of Central Authority.

In pursuance of the call given by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice
of India in the First Annual Meet, 9th of November is being celebrated every year by all
Legal Services Authorities as "Legal Services Day". NALSA issues Press Releases in almost
all the leading newspapers in the country in English, Hindi and regional languages to convey
to the public salient provisions of the Legal Services Authorities Act, the important schemes
introduced by NALSA for providing legal aid and the utility of Lok Adalats, so that people
should know about the facilities being provided by Legal Services Authorities throughout the
country. State Legal Services Authorities all over the country organise Lok Adalats, legal
literacy camps and undertake legal awareness campaign to make people aware of their legal
rights.

Permanent and Continuous Lok Adalats are being established in all the Districts in the
country. NALSA has been providing and shall continue to provide funds to State Legal
Services Authorities for the implementation of the Legal Aid Schemes and Programmes but
the infrastructure has to be provided by the State Govts. Separate Permanent and Continuous
Lok Adalats in Govt. Departments are aimed at amicably settling pending cases as well as the
matters at pre-litigative stage between Govt. Departments and general public so that the
inflow of litigation to regular Courts is reduced. In so many Govt. bodies these Lok Adalats
have become functional. In Delhi Permanent Lok Adalats have been established in Delhi
Vidyut Board, Delhi Development Authority, Municipal corporation of Delhi, MTNL and
General Insurance corporation . These Lok Adalats are becoming popular day-by-day and it is
expected that very soon a large number of disputes between public and statutory authorities
would start getting settled at pre-litigative stage itself saving the parties from unnecessary
expense and litigation inconvenience. In other States also State Legal Services Authorities
have initiated steps to persuade the State Govts. and statutory bodies, etc. to set up separate
Permanent Lok Adalats for amicable settlement of their legal disputes.

"Legal Aid Counsel" Scheme which was conceived and introduced by His Lordship Hon. Dr.
Justice A.S. Anand when His Lordship was the Executive Chairman, NALSA has been well
received all over country. Legal Aid Counsel have been provided in most of the courts of the
Magistrates in the country to provide immediate legal assistance to those prisoners who are
not in a position to engage their own counsel.

Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA in the course of working
session of the Second Annual Meet of the State Legal Services Authorities held at Hyderabad,
had emphasised that Counselling and Conciliation Centres should be established in all the
Districts in the country to bring about negotiated settlement of disputes between the parties.
All the State Legal Services Authorities are taking steps to establish these Centres which
would prove immensely useful for settling legal disputes at pre-litigative stage and would
also help legal services functionaries to find out as to whether a person approaching them for
legal aid has or not a prima facie case in his favour which is a pre-requisite for grant of legal
aid. Hon. Executive Chairman has repeatedly emphasised that legal aid must not be given as
a matter of routine and frivolous cases should not be supported by legal aid authorities.

Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA while writing in 'Nyaya Deep'
and in the course of his keynote address in the meeting of the Member Secretaries held in
NALSA office on 19.2.2000 emphasised the need for improving the quality of legal aid that
is being given by legal aid advocates. His Lordship observed that teeming millions of this
country who live below poverty line in tribal, backward and far flung areas look to Legal
Services Authorities for help and support in resolving their legal problems. When involved in
litigation they very often feel that they are fighting an unequal battle in which the party that
has better financial resources can secure more able legal assistance. His Lordship is of the
view that these poor and weaker sections must not remain under the impression that they are
getting comparatively inferior legal assistance. His Lordship has called upon legal services
authorities to revise the payment schedule for legal aid panel advocates and also compress the
panels so that panel advocates get more work and better remuneration from legal services
authorities and thus get encouraged to render effective legal assistance to aided persons.

His Lordship Hon. Mr. Justice B.N.Kirpal, Judge, Supreme Court of India and Chairman,
Supreme Court Legal Services Committee has a very long association with legal aid
movement. Under the guidance and control of His Lordship, Supreme Court Legal Services
Committee is providing legal aid to eligible persons in a very effective and meaningful way.
Up to 31.12.99 Supreme Court Legal Services Committee has provided legal aid and
assistance to 10,125 applicants.

'Nyaya Deep', the official newsletter of NALSA is promoting a healthy working relationship
between legal services functionaries throughout the country and is proving immensely useful
for exchange of views and sharing of ideas. Statistical information in regard to legal aid
schemes and programmes is also included in this newsletter which is printed on quarterly
basis. The editorials written by Hon. Mr. Justice R.C. Lahoti reflect the soul of 'Nyaya Deep'
and measure the depth of the material included therein. These provide a window to the reader
who in one glance through it can appreciate the content and purpose of the articles.

NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign.
Almost all the State Legal Services Authorities are identifying suitable and trustworthy NGOs
through whom legal literacy campaign may be taken to tribal, backward and far-flung areas in
the country. The effort is to publicise legal aid schemes so that the target group, for whom
Legal Services Authorities Act has provided for free legal aid, may come to know about the
same and approach the concerned legal services functionaries.

NALSA has also called upon State Legal Services Authorities to set up legal aid cells in jails
so that the prisoners lodged therein are provided prompt and efficient legal aid to which they
are entitled by virtue of section 12 of Legal Services Authorities Act, 1987. Hon. The Chief
Justice of India His Lordship Hon. Dr. Justice A.S. Anand, while delivering the inaugural
address at the Second Annual meet of the State Legal Services Authorities at Hyderabad, had
pointed out that a very large number of undertrial prisoners lodged in jails are involved in
petty criminal offences. His Lordship expressed his deep anguish and stated that these poor
and under privileged prisoners are languishing in jails for fairly long period in spite of the
fact that they are willing to plead guilty and the ultimate sentences which are likely to be
passed against them will be far less than the period they are incarcerated as undertrial
prisoners. His Lordship suggested that the CJMs/CMMs of the areas in which the District
Jails are situated should hold their courts in jails once or twice in a month for disposing of the
cases of such undertrial prisoners. In many States, the suggestion has already been
implemented and the prisoners involved in petty and minor offences are getting substantial
relief.
Sensitisation of Judicial Officers in regard to legal aid schemes and programmes is also high
on our agenda. His Lordship Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA
while writing from the Desk of the Executive Chairman in Jan.,99 Issue of 'Nyaya Deep' had
observed that not all judicial officers in the country are duly sensitised to Legal Services
Schemes and programmes and as such are unable to guide poor litigants in this regard. His
Lordship observed that Legal Services Authorities must ensure that Judicial officers are duly
sensitised about the work NALSA is doing and its importance for the poor and illiterate.

In the last Chief Justices' Conference held at New Delhi, a resolution was passed to say that
in the service records of the Judicial officers, their interest in legal aid programmes should be
reflected and all the High Courts should take steps for sensitising the Judicial officers in
regard to legal aid programmes and schemes. Once all the judicial officers in the country get
properly sensitised in regard to the relevance and importance of legal aid schemes they shall
themselves start caring for the poor, backward and weaker sections of the society who are not
in a position to engage their own counsel and look after their legal causes.

His Lordship Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA has repeatedly
called upon State Legal Services Authorities to continue to hold Lok Adalats on old pattern so
that the pace of the disposal of cases through Lok Adalats is not inhibited. Permanent and
Continuous Lok Adalats are primarily aimed at settling disputes at pre-litigative stage and
more contentious pending matters in District courts in which the parties can be motivated
only by repeated sitting to arrive at settlement. Counselling and Conciliation Centres at
Districts and Permanent Lok Adalats in Districts can be under same roof and can effectively
function in unison. Most significant contribution by Legal Services Authorities to the
administration of justice would be to settle legal disputes through Lok Adalats at pre-
litigative stage so that the inflow of cases in our already over-burdened courts is reduced to
the extent possible.

Most of the offices of the State Legal Services Authorities are now equipped with FAX
machines, computers and E-mail facilities. These modern gadgets shall surely help legal
services functionaries to act swiftly to provide legal aid and assistance to the eligible persons
in a meaningful manner.

During the Chairmanship of the then Hon’ble Executive Chairman, Mr. Justice Altamas
Kabir, the following innovative steps have been introduced in the functioning of NALSA:-

 A National Plan of Action to be executed by all State Legal Services Authorities and
Calendar for activities was put in place.
 NALSA Regulations on Lok Adalat were published in the Gazette.
 NALSA Regulations on Free and Competent Legal Services were published in the
Gazette of India.
 Legal Services to Trans-Gender people was taken up as a new project of NALSA.
  Training of Para-Legal Volunteers and engaging them in the front offices of Legal
Services Institutions and in the village level legal aid clinics were started.
 Legal Literacy Programmes in schools and colleges started in an organised manner
with the assistance of the Department of Education in all States.
 School Legal Literacy Clubs set up in all High Schools under the State Legal Services
Authorities in order to create legal awareness, obedience to law and spread the
philosophy of rule of law amongst the younger generation.
 Legal Aid Clinics in all villages to be manned by Para-legal Volunteers and panel
lawyers.
 Retainer lawyers are engaged at Taluk, District, High Court and Supreme Court level
for handling legal aided cases.

NALSA is very sure that under the kind patronage and guidance of Hon. The Chief Justice of
India and Hon. Executive Chairman, a vibrant nationwide network of Legal Services
Authorities shall be made available to the people to provide free and competent legal services
to the eligible persons. NALSA is keen to develop and promote a culture of conciliation
instead of litigation in the country so that the citizens of this country prefer to resolve their
disputes and differences across the table in a spirit of goodwill and brotherhood. NALSA also
wishes to ensure that even the weakest amongst the weak in the country does not suffer
injustice arising out of any abrasive action on the part of State or private person.

Role of Judiciary:
Judiciary has always been a major supporter and a proponent of free legal aid in India. It is
evident from the past that the Hon’ble Justice P.N. Bhagwati and Hon’ble Justice Krishna
Iyer have played a very important role in the legal aid movement, and have emphasised the
importance of free legal aid in India. Various judgments by the judiciary have proven
effective in promoting the legal aid program. Some of them are:

Hussainara Khatoon v. Home Secretary, State of Bihar

This case exposed the poor condition of the justice delivery system in the state of Bihar.
There were so many undertrials that were forced in jails and there were accused that were
forcefully convicted and suffered greater punishment than they deserved. The only reason
behind all these delays was the inability of the convicted person to hire an advocate to defend
them. It was held by Justice P.N. Bhagwati that the right to free legal service is an essential
part of ‘reasonable, fair and just” procedure for a person who is accused of any offence and
this guaranteed by Article 39A and implicit in Article 21.

State of Haryana v. Darshana Devi

In this case, Hon’ble Justice Krishna Iyer held that no poor should be deprived of the justice
market just because of the court-fee and refusal to apply the exemption provisions of Order
XXXIII, Civil Procedure Code, and extended its provisions to Accident Claims Tribunals.
Khatri v. State of Bihar
In this case, Hon’ble Justice P.N. Bhagwati made it mandatory for the Session Judges to
inform the accused of their rights to free legal aid and if any such person is unable to hire an
advocate to defend due to poverty or indigence.

Sheela Barse v. Union of India

In this case, it was held by the Hon’ble Court that it is a person’s fundamental right to have a
speedy trial implicit in Article 21 of the Indian Constitution.

Suk Das v. Union Territory of Arunachal Pradesh

This was one of the landmark judgments given by Justice P.N. Bhagwati. He said that India
has a large number of illiterate people due to which they are not aware of their rights. Hence,
it is essential to promote legal literacy and legal awareness among the people and it is an
important component of legal aid as well.

Issues and challenges:

Even after so much of statutory provisions, committees and authorities, there is still a vacuum
which needs to be filled. Even today, many people settle for injustice because they cannot
afford an advocate to defend them. There are many reasons as to why there are so many
pending cases in courts, there are many people who are innocent but convicted and are not
able to defend themselves. There are many challenges and issues which come in the way of
the implementation of legal aid services.

Lack of public legal education and legal awareness: These legal aid services are for the poor
and illiterate people, and the major issue is that they are not educated. They do not have a
legal education, that is, they are not aware of their basic rights and legal rights. People are not
much aware of the legal aid services which they can avail. Hence, the legal aid movement has
not achieved the goal, as the people are not much familiar with Lok Adalats, Legal Aid, etc.

Lack of support by the advocates, lawyers, etc.:These days all the lawyers and advocates
want the proper fee for their services, and most of them are not interested in participating in
such social services. There are very few counsels who contribute these services but the lack
of good quality legal representation hinders the delivery of justice.

Lack of powers to Lok Adalats:Lok Adalats have limited powers as compared to civil courts.
Firstly, the lack of proper procedures. Then in this, they cannot compel the parties to appear
for the proceedings. Many times one of the parties does not appear for the hearing and then
there is a delay in the disposal here as well.

Underutilisation of para-legal volunteers: The basic role of these para-legal volunteers is to

promote legal aid camps, schemes and to reach to the poor and weaker sections of the society.
But there is a lack of proper training, monitoring, verification, of these para legal volunteers.
And these volunteers are also very less in number as compared to the whole population.

Solutions and suggestions

The goal of legal aid would be achieved when all the needy and poor people are aware and
are getting benefits from it, as it is their fundamental right. So, there are some improvements
to be made to fill those lacunas in the legal aid system.

Role of NGOs: Involving and increasing the role of non-governmental organisations to create
awareness amongst the people about their rights and effective justice delivery.

Legal aid programmes and legal awareness: There should be an organisation of legal aid
camps and Lok Adalats at a mass level to spread awareness about the rights of the people and
awareness about the free legal aid programmes for the needy ones. There should be the
establishment of the entitlement centres at various backward areas to make them aware of the
rights, laws and encourage them to opt for free legal services by solving disputes through
Alternative Dispute Arbitration, Lok Adalats, etc.

Legal Literacy Mission :Other developed countries have missions of 2 years or 5 year plans
to inform people about the laws and rights. India can also introduce a 5-year plan to educate
people about their rights and laws.

Better remuneration to the lawyers: Nowadays, a good representation for lawyers is difficult
to find because they are not interested in giving free legal services, and expect certain fees for
the services. So, there should be an increase in remuneration paid to the lawyers by the courts
or government, appearing or defending the accused for free.

Feedback approach: The monitoring of the work of the counsels should be evaluated through
the feedback approach, that is, by asking the people about the feedback of the work of the
counsel and then there should be proper progress reports of every advocate. This all could be
done by setting up a proper monitoring committee.

JUDICIAL REFORMS

Judicial reforms is a collaborative and a continuous process. Government has set up the
National Mission for Justice Delivery and Legal Reforms in August, 2011 with the twin
objectives of increasing access by reducing delays and arrears in the system and enhancing
accountability through structural changes and by setting performance standards and
capacities. The Mission has been pursuing a coordinated approach for phased liquidation of
arrears and pendency in judicial administration, which, inter-alia, involves better
infrastructure for courts, including computerisation, an increase in strength of subordinate
judiciary, policy and legislative measures in the areas prone to excessive litigation, re-
engineering of court procedure for quick disposal of cases and emphasis on human resource
development.

Some of the initiatives taken by Department of Justice to aid the cause of justice delivery are
as under:-

Under the Centrally Sponsored Scheme for Judicial Infrastructure, funds are being released to
States/UTs for construction of court halls, residential quarters for judicial officers, lawyers’
halls, toilet complexes and digital computer rooms that would ease the life of lawyers and
litigants, thereby aiding justice delivery. As on date, Rs. 9755.51 crores have been released
since the inception of the Centrally Sponsored Scheme (CSS) for Development of
Infrastructure Facilities for the Judiciary in 1993-94. The number of court halls has increased
from 15,818 as on 30.06.2014 to 21,271 as on 28.02.2023, and number of residential units
has increased from 10,211 as on 30.06.2014 to 18,734 as on 28.02.2023, under this scheme.

Further under the e-Courts Mission Mode Project, information and communication
technology (ICT) has been leveraged for IT enablement of district and subordinate courts.
The number of computerised district & subordinate courts has increased to 18,735 so far.
WAN connectivity has been provided to 99.4% of court complexes. Video conferencing
facility has been enabled between 3,240 court complexes and 1,272 corresponding jails. 689
e-Sewa Kendras have been set up at court complexes to facilitate lawyers and litigants
needing assistance ranging from case status, getting judgments/orders, court/case-related
information, and efiling facilities. 21 virtual courts have been set up in 17 States/UTs. As on
31.01.2023, these courts have handled more than 2.53 crore cases and realised more than Rs.
359 crores in fines. E-courts Phase III is about to begin which intends to incorporate latest
technology such Artificial Intelligence (AI) and Block chain to make justice delivery more
robust, easy and accessible to all the stakeholders.

Government has been regularly filling up the vacancies in higher judiciary. From 01.05.2014
to 07.03.2023, 54 Judges were appointed in Supreme Court. 887 new Judges were appointed
and 646 Additional Judges were made permanent in the High Courts. Sanctioned strength of
Judges of High Courts has been increased from 906 in May, 2014 to 1114 currently.
sanctioned and working strength of judicial officers in district and subordinate courts has
increased

In pursuance of a Resolution passed in Chief Justices’ Conference held in April, 2015,

Arrears Committees have been set up in all 25 High Courts to clear cases pending for
more than five years. Arrears Committees have been set up under District courts as
well.
Under the aegis of the Fourteenth Finance Commission, the government has
established Fast Track Courts for dealing with cases of heinous crimes; cases
involving senior citizens, women, children etc. As on 31.01.2023, 843 Fast Track
Courts are functional for heinous crimes, crimes against women, and children etc. To
fast track criminal cases involving elected MPs / MLAs, ten (10) Special Courts are
functional in nine (9) States/UTs.Further, the central government has approved a
scheme for setting up 1023 Fast Track Special Courts (FTSCs) across the country for
the expeditious disposal of pending cases of Rape under IPC and crimes under
POCSO Act. As on date, 28 States/UTs have joined the scheme.

With a view to reduce pendency and unclogging of the courts, the Government has
recently amended various laws like the Negotiable Instruments (Amendment) Act,
2018, the Commercial Courts (Amendment) Act, 2018, the Specific Relief
(Amendment) Act, 2018, the Arbitration and Conciliation (Amendment) Act, 2019
and the Criminal Laws (Amendment) Act, 2018.

Alternate Dispute Resolution methods have been promoted wholeheartedly.

Accordingly, the Commercial Courts Act, 2015 was amended on 20th August, 2018
making Pre-institution Mediation and Settlement (PIMS) mandatory in case of
commercial disputes. Amendment to the Arbitration and Conciliation Act, 1996 has
been made by the Arbitration and Conciliation (Amendment) Act 2015 for expediting
the speedy resolution of disputes by prescribing timelines.

LokAdalat is an important Alternative Disputes Resolution Mechanism available to

common people. It is a forum where the disputes/ cases pending in the court of law or
at pre-litigation stage are settled/ compromised amicably. Under the Legal Services
Authorities (LSA) Act, 1987, an award made by a LokAdalat is deemed to be a decree
of a civil court and is final and binding on all parties and no appeal lies against thereto
before any court. . LokAdalat is not a permanent establishment. National LokAdalats
are organised simultaneously in all Taluks, Districts and High Courts on a pre-fixed
date.

The Government launched the Tele-Law programme in 2017, which provided an

effective and reliable e-interface platform connecting the needy and disadvantaged
sections seeking legal advice and consultation with panel lawyers via video
conferencing, telephone and chat facilities available at the Common Service Centres
(CSCs) situated in Gram Panchayat and through Tele-Law mobile App.

Efforts have been made to institutionalise pro bono culture and pro bono lawyering
the country. A technological framework has been put in place where advocates
volunteering to give their time and services for pro bono work can register as Pro
Bono Advocates on NyayaBandhu. NyayaBandhu Services also available on UMANG
Platform. Pro Bono Panel of advocates have been initiated in 21 High Courts at the
State level. Pro Bono Clubs have been started in 69 select Laws Schools to in-still Pro
Bono culture in budding lawyers.

Relevant Legislative Initiatives:-

Delays in the trial of cases are often attributable to the complicated procedures involved. For
instance, there may be delays in the service of summons and notices, parties may seek
frequent adjournments, or a number of frivolous and miscellaneous applications may be filed
before the courts. These procedures often complicate the trial process causing delays and
inconvenience to litigants. To overcome this, the procedural laws governing both criminal
and civil matters have been amended from time to time to introduce necessary reforms.

A. Amendments to the Code of Criminal Procedure, 1973 (CrPC)

The CrPC has been amended several times in recent years to introduce provisions that enable
criminal courts to expeditiously dispose of the cases pending before them. Some of the
relevant changes brought about in CrPC are as follows:
 Audio-video recording of confessions and statements: A proviso was added to Section
164 (1) to provide that any confession or statement made to a Magistrate may also be
recorded by audio-video electronic means in the presence of the advocate of the
accused.
 Special summons in cases of petty offences and power to try summarily: section 206,
empowers a magistrate taking cognizance of a petty offence to issue special summons
to the accused giving him/her the option to plead guilty and pay the specified fine
without appearing before the court. The scope of this provision has been enlarged by:
a. allowing a Magistrate of second class empowered to conduct summary trials under
Section 261 to issue special summons;
b. increasing the maximum fine that can be specified in the special summons to Rs.
1,000.5

Section 260 provides for the summary trial of offences specified under that provision.
The scope of summary trials has been widened in case of theft and other property-
related offences by increasing the value of the covered property to include properties
of up to Rs. 2,000.

 Evidence for prosecution

A proviso was inserted in Section 242 directing the Magistrate to supply witness
statements recorded during the police investigation to the accused in advance.

 Plea bargaining
In 2006, a new Chapter XXIA on plea bargaining was added to the CrPC which
makes it possible for an accused to voluntarily make an application for plea
bargaining in certain types of criminal cases. Plea bargaining is applicable to offences
other than those for which the punishment of death, imprisonment for life or
 imprisonment for over seven years has been provided under the law. However, it does
not apply to cases involving socioeconomic offences or those that are committed
against a woman or child below 14 years of age.

It is the responsibility of the court to satisfy itself that the plea bargaining application
has been made voluntarily by the accused. Upon doing so, the court will give the
accused and the prosecution/ complainant the opportunity to arrive at a mutually
satisfactory disposition, which will then be recorded by the presiding officer of the
court. Once the court delivers a judgment following the plea bargain process, no
appeals are permitted from the same.

 Recording evidence through electronic means in warrant cases9

Section 275 deals with recording of evidence of witnesses by a Magistrate in warrant

cases. A proviso has been added to Section 275(1) allowing the evidence of a witness
to be recorded by electronic means through audio-video recording, in the presence of
the advocate represented the accused.

 Limitations on power to adjourn proceedings:

Section 309 deals with the power of the court to postpone or adjourn proceedings. The
newly substituted sub-section (1) makes it mandatory for the trial court to hold the trial on
day-to-day basis until all the witnesses in attendance have been examined. Adjournment
beyond the following day is to be allowed only if found to be necessary on account of
reasons to be recorded.

Trial of cases under Sections 376, 376 A, 376B or 376D of the Indian Penal Code should as
far as possible be completed within a period of two months from the date of filing of the
charge sheet.

A new proviso has been inserted in Section 309(2) to provide that (a) no adjournments shall
be granted except for circumstances beyond the control of that party; (b) the fact that the
pleader of a party is engaged in another court will not be a ground for adjournment; and (c)
the court may record the statement of a witness on its own in situations where the pleader of a
party is not present or is not willing to examine the witness.

Power to examine the accused:

A new proviso has been inserted in Section 313 relating to the examination of accused, where
the court may take the help of the prosecutor and defence counsel in preparing relevant
questions that are to be put to the accused and the court may permit filing of written
statement by the accused as sufficient compliance of this section.16

 Compounding of offences:
The list of compoundable offences has been rationalised. Offences that were earlier
compoundable with the permission of the court are now compoundable without the
court’s permission. In the case of offences which are compoundable only with the
permission of the court, two petitions must be filed – one for permitting the offence to be
compounded, and the second regarding the fact that the offence has been
compounded.

 Appeal by the State Government against sentence

Under the revised Section 377, the State Government must direct an appeal against
the inadequacy of sentence passed by a Magistrate to the Court of Sessions. The State
Government can only appeal to the High Court in cases where the sentence has been
passed by a court other than a Magistrate’s court.
20

 Maximum period for which an undertrial prisoner can be detained

A new Section 436A has been inserted to provide that undertrial prisoners who have
spent half of the maximum period of imprisonment specified for a particular offence
in jail (except for those punishable by death) shall be entitled to be released by the
court on their personal bond with or without sureties.

B. Amendments to the Code of Civil Procedure, 1908 (CPC)

The following is a summary of some of the key changes brought about in the CPC for the
expeditious disposal of civil cases:

 Compensatory costs for causing delay

Section 35B of the CPC entitles that on any date fixed for hearing of a suit if a party
fails to take the step which he was required to take or obtains an adjournment for
taking such step on the next date, the court may make an order for the payment of
reasonable costs to the opposite party in respect of expenses incurred by him for
attending the court on that date.

This section further states that if such an order of cost is passed by the court then
payment of such cost will be a condition precedent to the further prosecution of the
suit.

 Settlement of disputes outside the court

Section 89 requires courts to refer matters where there exist elements of a settlement
to any of the identified alternate dispute resolution mechanisms, namely, (a)
arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok
Adalat; or (d) mediation.

The scope of this section and the process to be followed by courts under it has been
detailed by the Supreme Court in certain landmark judgments. These decisions are
 discussed in the following section on relevant judicial pronouncements.

 Delivery of summons by court

The court can direct service of summons to the defendant through speed post, courier
services approved by the High Court, or by any other means of transmission provided in
the rules made by the High Court, including fax and electronic mail. Such modes of
delivery can also be used in cases where the defendant resides outside the jurisdiction of
the court.

 Summons given to the plaintiff for service

On an application being made to the court under Order V, Rule 9-A, the court may allow
the plaintiff to serve the summons to the defendant himself/herself. Few High Courts,
such as those in Delhi and Bombay, allow service through e-mail and fax.

 Written statement
An amendment was made in Order VIII, Rule 1 requiring the defendant to file the written
statement within 30 days from the date of service of summons and allowing the court to
extend this period till 90 days, for reasons to be recorded in writing. The Supreme Court
has in the Salem Advocates Bar Association case held that although this provision of
having the 90 day limit is directory and not mandatory in nature, the court should
generally permit filing of written statement beyond the upper limit of 90 days only in
exceptionally hard cases.

 Dismissal of suit where summons not served in consequence of plaintiff’s failure

to pay costs
Where on the day fixed for hearing it is found that service of summons on the defendant has
not been affected on account of the plaintiff’s failure to file the process fee or pay court fee or
any other reason attributable to the plaintiff, the court may dismiss the suit. However, such an
order should not be made if the defendant or his/her agent is present in court despite such
failure.
 Limit on number of adjournments
This is an important amendment that was introduced to limit the number of adjournments
that may be granted in a case. The court may if sufficient cause is shown, grant adjournment
at any stage of the suit after recording reasons in writing, provided that no such adjournment
should be granted more than three times to a party during the hearing of the suit.

III. Policy and administrative initiatives by State Governments and High Courts
This section contains an overview of the recent policy and administrative initiatives targeted
at reducing pendency and improving the justice delivery system in the country. National and
State litigation policies The Law Commission of India in its 100th Report observed that bulk
of litigation in courts, including, in particular, writ petitions in the Supreme Court and the
High Courts, consists of cases to which the Government is a party. Therefore, prioritising the
cases to be pursued by the Government and the manner in which those cases are conducted
can significantly contribute towards saving valuable court time. With this objective, the
Ministry of Law and Justice has drafted a National Litigation Policy that seeks to guide the
Government in acting as an efficient and responsible litigant. Similarly, State Governments
have also framed State Litigation Policies through which they have committed that a review
of the existing cases will be undertaken and wherever found necessary, frivolous and
ineffective cases will be withdrawn. Empowered Committees have accordingly been
constituted at the State and District Levels to identify cases which have become ineffective
and infructuous with passage of time. Simultaneously, the High Courts have advised the
judicial officers and judges to invoke relevant provisions of law such as Section 258 of CrPC,
which relates to the power to stop proceedings, to remove the deadwood from our judicial
system. Himachal Pradesh has framed Guidelines for withdrawal of stale and ineffective
criminal cases by the State in 2013.

The cases are mainly petty offences and cases relating to traffic and police challan. The
guideline provide for detail procedure for identifying and removing these cases from the
judicial system. The proper implementation of these policies at the National and State level
can help in significantly reducing the number of pending cases in courts. The National
Mission has been corresponding with the States regarding the implementation of their State
Litigation Policies. In this regard, a ten-point action plan for effective implementation of the
policies was evolved during the National Consultation with State Governments and High
Courts in December, 2013. States have accordingly been requested to undertake a Mission
Mode Campaign for the reduction of government litigation and to share details of the success
of this campaign during the period from July-December, 2014 with the National Mission.

Reforms in service of summons

Delay in service of summons is a major hurdle in the speedy delivery of justice. As noted
above, certain amendments have already been made to the CPC to address this issue. In
addition to the legislative changes, the National Mission had requested High Courts and State
Governments to consider measures such as a one-time collection of process fee, clubbing of
process fee with the court fee, and the use of ICT systems for service of process. Several
High Courts have responded positively to the suggestion on collection of one time process fee
by stating that they have either implemented or are in the process of considering such
measures.

As regards the suggestion on adoption of ICT, it is noted that a majority of High Courts are
yet to formalise and adopt ICT tools for the purpose of expediting process service. There are
however certain exceptions, such as the High Courts of Madhya Pradesh, Bombay and
Tripura that have already taken positive steps towards the use of ICT systems. The Madhya
Pradesh High Court has adopted two pieces of software for this purpose, the Centralised
Process Generation System (CPGS) and POS devices. The CPGS streamlines the procedure
by assigning a single ID to each application, so that each process then falls under a single
application and can be individually monitored and tracked online. The POS is a device used
by process servers, similar to a CGPS tracking device, which allows process service to take
place with the electronic surveillance of the court.

In Bombay, there is a service of e-suvidha in all the districts which has all the facilities
ranging from filing of various applications, depositing the required fees and ensuring the
timely delivery. This service also provides immediate information to the nazarat branch
about the deposit of the amount by a party. In addition, the software i.e. Case Management
Information System at the High Court and Case Information System at district courts
generates notices, summons, writs etc. through e-mail, fax and/or mobile. In Tripura High
Court a Case Information System (CIS) has been introduced not only at the High Court level,
but also at the level of subordinate courts. Additionally, litigants can receive information
through a SMS based service.

Addressing areas prone to excessive litigation:

The National Mission is looking into the areas of law that are prone to excessive litigation
and considering suitable policy and legislative measures that may be adopted to curb such
litigation. For instance, a large number of cases relating to dishonour of cheques are currently
pending before courts under the NI Act. An Inter-Ministerial Group (IMG) was constituted to
suggest measures to deal with the large number of pending cases of this nature, which
suggested measures such as, promoting the use of ADR mechanisms; adoption of summary
procedure by courts dealing with these cases; and encouragement of electronic modes of
payment to reduce the overall number of disputes. The Department of Financial Services has
accepted the broad recommendations of the IMG and has moved the necessary proposal for
amendment of NI Act, which is before the Ministry of Law and Justice. The next step would
be for the Department of Legislative Affairs and the Department of Legal Affairs to resolve
any pending issues regarding the draft bill on an urgent basis so that the same may be tabled
before the Parliament for approval.

Policy and legislative changes are also being considered to tackle the large number of cases
that are pending under the MV Act and to actively promote computerised systems for
payment of challans. The National Mission has been corresponding on these issues with the
Ministry of RoadTransport and Highways and has shared two policy notes with them on
‘Alternative Mechanisms for Collection of Traffic Challans’ and ‘Victim Friendly
Mechanisms for Accident Compensation’. The Ministry of Road Transport and Highways has
recently prepared the draft Road Transport & Safety Bill 201437 with a vision to provide a
framework for safer, faster, cost effective and inclusive movement of passengers and freight
in the country. The draft Bill suggests several legislative changes to ensure that traffic challan
cases are reduced or resolved without resorting to litigation and motor accident cases are
disposed of expeditiously.

Administrative and policy decisions by High Courts:

Based on information provided by the State Governments and High Courts it is noted that
they have undertaken several measures geared towards identifying areas of high litigation and
formulating mechanisms for speedy disposal of cases. For instance, special pendency
reduction campaigns have been resorted to by several High Courts for dealing with specific
categories of cases, such as those under NI Act, MV Act and cases that have pending for
more than five years. In addition, consistent organising of lok adalats and mega lok adalats is
seen as an effective mode of pendency reduction. Focused pendency reduction drives have
been carried out in the past few years. In the pendency reduction campaign that was initiated
for the first time in July, 2011, High Courts were requested to prioritise disposal of cases that
had been pending for a long duration, particularly those relating to senior citizens and
marginalised sections of society. In 2012 the focus of the campaign was to make the judicial
system free of cases that were over five years old and in 2013 the campaign focused on
weeding out ineffective and infructuous cases from the judicial system.
The High Courts were also requested to draw up a ‘Vision Statement’ for the total
elimination of pendency and delays from the judicial system and a ‘Court Development Plan’
geared towards achieving that objective. Some High Courts have furnished such Vision
Statements and Court Development Plans covering aspects relating to human resource
planning, infrastructure development, computerisation and other measures such as operation
of morning/ evening shift courts and organising lok adalats aimed at the reduction of
pendency of cases.