16 April 2022 6:22 AM GMT
It is a privilege to be invited to speak on the occasion of the birth anniversary of Dr. Ambedkar and the completion of one year of the launching of the Community for Eradication of Discrimination in Education and Employment (CEDE). A year ago, three young lawyers Anurag Bhaskar, Disha Vadekar and Avinash Mathews came together to launch this self-empowering initiative CEDE...
A year ago, three young lawyers Anurag Bhaskar, Disha Vadekar and Avinash Mathews came together to launch this self-empowering initiative CEDE which provides opportunities in education and employment to those belonging to the marginalized communities in India with special focus on dalits, adivasis, other backward classes, indigenous communities. One of the laudable objectives of CEDE is to increase the representation of the marginalized communities in the legal profession in India.
It is the last-mentioned endeavour that has prompted the choice of the topic for today's lecture. The many years of active practice as a litigator provided me with an opportunity to study the legal services delivery system from close quarters. Being a lawyer on the panel of the Supreme Court Legal Services Committee for close to 15 years, a member of the Committee for two terms, and an amicus curiae in a number of cases involving public interest and human rights, helped me understand the complexity of the issues that require to be addressed while discussing the theme of access to justice.
Representing many of the marginalised groups in Court made me ponder over questions for which there were no easy answers then. I doubt it is easier now, although the complexity of the issues is better acknowledged in the empirical and research work done in the past few years on the working of the Indian legal system. One such study is the report published in October, 2021 by the American Bar Association Center for Human Rights on "Dalit Justice Defenders in India". I will have occasion to refer to it later in this talk.
At a very basic level, every person denied justice in the broadest sense of the term, and who has to perforce engage with the legal system for redressal, is in need of legal services. The Indian Constitution acknowledges persons who by birth, descent, caste and class have been denied justice over generations. It envisages the State coming up with affirmative action programmes and policies to redress such historic injustices. These include those belonging to the Scheduled Castes (SC) and Scheduled Tribes (SC), Dalits, adivasis, socially and educationally disadvantaged classes, economically deprived classes and a whole host of others including religious minorities, sexual minorities, differently abled, children in conflict with the law. Then there are 'status offenders' like sex workers, vagrants, mentally ill, and many others whose very existence and every activity is criminalised and therefore very often find themselves on the 'wrong' side of the law. Thus begging, street dwelling, prostitution, wandering of mentally ill persons and vagrants are all treated as law-and-order problems and dealt with in the criminal justice system. It is a matter for concern that at least 20 states in India still have anti-beggary criminal laws. Only in Delhi and J&K have the laws been struck down by judicial verdicts. Then there are the de-notified tribes who have, for long, been the victims of police atrocities. Those coming in conflict with the law in these situations are invariably those below the poverty line and a 'high risk group' for whom legal aid is an absolute necessity. They are to be acknowledged as unwitting consumers of legal services.
There is also problem with excluding certain categories of persons from the ambit of legal services. Early legal aid schemes statutorily sought to disqualify those arraigned in cases involving offences under the law prohibiting prostitution or child abuse and the like, and those involved in economic offences from receiving legal aid. Under Article 22 (3) (b) of the Constitution of India, the right available to every person who is arrested, to consult and be defended by a legal practitioner of his choice, is not available to a person who is arrested or detained under any law providing for preventive detention. Consistent with this bar, S.11 (4) of the National Security Act, 1980 and S.8 (e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 bar the right of a detenu to legal representation in proceedings before the Advisory Board which examines the need for continuing the detention. This to some extent has been addressed by Section 12 of the Legal Services Authorities Act, 1987 (LSAA), in terms of which every person who is in custody is entitled to legal aid. No exception is made for cases in which custody is by way of preventive detention. And yet, under Section 13 LSAA, a legal aid functionary could refuse legal services in a criminal case on the ground that no prima facie case exists. Then we have the pernicious prospect of a bar association resolving that no member lawyer will defend a certain kind of 'accused': a person accused of committing what is termed a terrorist act. This despite the fact that the Supreme Court has outlawed it.
The Indian criminal justice system provides, for those willing to see, a stark depiction of the intersection of law and poverty. Prof Upendra Baxi states that the words 'poverty' and 'poor' suggest the passivity of the 'poor'. "Everything about the 'poor' and 'poverty'" he says "is defined in terms of a lack: powerlessness, apathy, disorganization, alienation and anomie are some of the major attributes we use to define and describe the 'poor'. This cluster of attributes define the 'culture of poverty' which is a culture of multiple disabilities, and lacks, transmitted across generations." Noted scholar Barbara Harris White prefers the term 'destitution' and its myriad forms to describe what those in poverty experience. She describes 'economic destitution' as "having nothing"; 'social destitution' as "being nothing" and "political and law induced destitution" as "having no rights and being wrong"; each of which results in denial of 'personhood' or 'full citizenship'.
While tabling the final draft of the Indian Constitution before the Constituent Assembly on 25th November, 1949 Dr Ambedkar reminded everyone that "On the social plane, we have in India a society based on the principle of graded inequality. We have a society in which there are some who have immense wealth as against many who live in abject poverty." That scenario continues to plague Indian society even seven decades thereafter. He was also prophetic that despite independence, we could not call ourselves truly democratic unless we ensured 'social democracy'. He was not sanguine about this. He prophesied that "In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value." We are yet to dismantle the structures that marginalise a sizeable section of our population. Thus, we still have many among us those engaged in manual scavenging, sewer cleaning, rag picking and in forced labour or begar, doing all our 'dirty work' at the cost of their dignity and right to life.
And then, poverty need not be understood only in economic terms. As the Allen Committee that was commissioned by Robert Kennedy, then the Attorney General, in 1960s in the USA to study poverty and the criminal justice system observed, poverty is also a "functional incapacity to obtain in adequate measure the representation and services required by issues, whenever and wherever they appear." Thus, a married woman belonging to the higher or middle-income group who is a victim of domestic violence and finding herself incarcerated in her marital home in an upper-class neighbourhood may still be deprived of legal services. The definition of 'marginalized' it would seem is thus not as simple as one might want to believe it to be. It is thus entirely possible that a person in India on account of her social or economic disadvantage is denied legal services. We may be creating a set of 'social' and 'economic' outcasts' through law.
The 'marginalised' enter the legal system in a variety of ways, very often involuntarily. They come in as victims of crime – crimes against humanity, mass crimes, hate crimes, caste and communal crimes and atrocities - as witnesses to crimes and atrocities, as complainants, as victims of forcible evictions, of neglect, of poverty, of natural and man-made disasters, of human conflicts including caste and communal riots. And of course, they come in as persons suspected of committing crimes. 21% of the undertrial population of 3.72 lakhs and 21% of the convict population of 1.13 lakhs belong to the SC. 37.1% of the convicts and 34.3% of the undertrials belong to the OBCs. The corresponding percentages for Muslims is 17.4% and 19.5% respectively. And yet, these are the persons who are likely to find it difficult to come forward to fight for their rights.
Again, to quote Dr Ambedkar:
"Ask those who are unemployed whether what are called Fundamental Rights are of any value to them. If a person who is unemployed is offered a choice between a job of some sort, with some sort of wages, with no fixed hours of labour and with an interdict on joining a union and the exercise of his right to freedom of speech, association, religion, etc., can there be any doubt as to what his choice will be. How can it be otherwise? The fear of starvation, the fear of losing a house, the fear of losing savings if any, the fear of being compelled to take children away from school, the fear of having to be a burden on public charity, the fear of having to be burned or buried at public cost are factors too strong to permit a man to stand out for his Fundamental Rights. The unemployed are thus compelled to relinquish their Fundamental Rights for the sake of securing the privilege to work and to subsist."
The formal legal system in India is a legacy of the British legal system. For many a 'marginalised' person, navigating the formal legal system is a nightmare. Law Professor Stephen Wexler is fairly accurate when he says: "Poverty creates an abrasive interface with society; poor people are always bumping into sharp legal things". There are many barriers to accessing justice that a marginalised person faces. The laws, rules and processes are mystifying and befuddling even for an educated, literate person. The laws are themselves structured to discriminate against the poor. Specific examples are the anti-beggary laws that criminalise poverty, the Immoral Traffic Prevention Act that criminalises sex work, the juvenile justice law that delivers the street child into the arms of the law and even the municipal laws that criminalise acts of encroachment of public spaces by street dwelling homeless persons and hawkers. The system works differently for the poor. The Beggars Courts, the Juvenile Justice Boards, the Mahila magistrate Courts are often the first points of encounter for the poor with the legal system. A visit to any of them in a metropolis in India will bear out the truism that the system works unequally for the poor and the rich. Many undertrials continue to remain in jail despite grant of bail because of their inability to arrange surety bonds.
For long, sexual minorities and trans persons have had to live in fear of the criminal law processes. Even after Section 377 IPC was read down, first by the Delhi High Court in Naz Foundation and later by the Supreme Court in Navtej Johar and even after the declaratory judgment of the Supreme Court in NALSA in 2014 affirming the full citizenship and personhood of transpersons, it is a struggle on the ground for sexual minorities to cope with their daily lives. The changes it seems are happening 'with all deliberate speed', a phrase that translates as 'very gradually'.
To tackle the inequality and inequity of the formal legal system, we have institutionalised the delivery of legal services through the LSAA. We have a four-tier mechanism with the National Legal Services Authority (NALSA), the State Legal Services Authorities, the District Legal Service Authorities and the Taluka Committees. We also have a Legal Service Committee in every High Court. We have attempted providing not just legal representation but legal services as well. Both at the pre-litigation and post litigation stages. We have schemes that are meant to provide a complainant, a victim and a suspect legal assistance at every stage of the criminal justice process. And yet as Justice U U Lalit, Executive Chairperson of NALSA noted recently "Only 1% of the total criminal cases heard in the courts of law get legal aid from the offices of Legal Services Authorities across the country." The two reasons he identified were (i) lack of awareness and (ii) more disturbingly "they don't perhaps have confidence in the set-up of legal aid".
The fact remains that quality of legal aid is a concern. The marginalised who are the recipient of legal services do not really have a choice. This is a paradox because Article 22 talks of guaranteeing a person arrested with a lawyer of her choice.
In the Constituent Assembly while debating the wording of Article 15 A (later to be Art 22 in the final draft) Dr. Ambedkar adverted to the suggestions made in regard to the right of an accused person to consult a legal practitioner. With a view to removing ambiguity he said: "I am prepared to add after the words 'consult', the words 'and be defended by a legal practitioner' so that there would be the right to consult and also the right to be defended." He also explained that the words "legal practitioner of his choice" had been deliberately used "because we do not want the government of the day to foist upon an accused a counsel whom the Government may think fit to appear in his case because the accused persons may not have confidence in him."
This lack of confidence in the legal aid lawyer is a reflection of the general approach to 'welfare services' by the providers and the perception that this is an act of 'charity' rather than the right of the person in receipt of such services. It impinges on the dignity of the person. I call it the 'ration shop syndrome'. The poor believe that if you are getting any service or benefit for free, or it is substantially subsidised, then you cannot demand quality. Beggars can't be choosers is the stoic response that keeps the poor going. In a critical study of the public defender system in the U.S.A, Charles Silberman found that defendants who were represented by legal aid lawyers said 'He's not my lawyer, he is the legal aid' and that in the court "when judges ask who the lawyer is in the case at hand, legal aid lawyers typically answer, 'I'm standing up for this case,' not 'I'm representing this client,' let alone 'I'm representing Mr. Jones'.
The laws and the legal system also appear to work differently for the marginalised. Recently, a Supreme Court Bench of Justice DY Chandrachud and Justice B V Nagarathna noted that several members of the SC/ST community "face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial" and that they "specifically suffer on account of procedural lapses in the criminal justice system". The press report of the hearing (that appeared in the Hindustan Times Delhi edition of 31st October, 2021) quoted the Bench as saying that due to the fear of retribution from members of upper caste groups, ignorance, or police apathy, many SC/ST victims do not register complaints in the first place and even if they do "the victims and witnesses are vulnerable to intimidation, violence, and social and economic boycott." The Bench is reported to have noted that "This results in low conviction rates under the SC/ST Act, giving rise to the erroneous perception that cases registered under the Act are false and that it is being misused. On the contrary, the reality is that many acquittals are a result of improper investigation and prosecution of crime, leading to insufficient evidence". Indeed, the statistics put out by the NCRB on the conviction rates in SC/ST cases bear out these remarks. In 2020, the pendency of trials of offences under the SC and ST Act was 96.5%. Only 216 cases from the 50,291 crimes against SCs in 2020 resulted in convictions. 3,192 cases resulted in acquittals.
The above scenario is equally true in cases of communal riots and mass crimes. Where the trial is able to be insulated from the local pressures, there is a greater chance of reaching the goal of justice. Illustratively, these would include the cases of burning of dalit households in Mirchpur village in Haryana (where the trial was shifted to Delhi), or mass killings of Muslims in Hashimpura in UP by the PAC (again the trial was shifted to Delhi) or the case of rape and murder of a Bakkerwal girl in Kathua in Jammu (the trial was shifted to Pathankot) or the Gujarat riot cases (Best Bakery and Bilkis Bano cases, both shifted to Maharashtra). In each of these instances, the trial itself had to be transferred to different States since there was no assured witness protection programme for the marginalised, who became soft targets for intimidation.
Then within the formal legal system there are the problems posed by `hidden' and other `costs' that have to be inevitably borne by recipients of legal aid. Here I have the unedifying task of quoting my own work Law, Poverty and Legal Aid: Access to Criminal Justice:
Law Professor Deborah Rhodes in her piece titled Whatever Happened to Access to Justice, 42 Loy. L.A. L. Rev. 869 (2009) has this to say:
"not all barriers to justice are in the judicial system; some are part of a larger problem of economic disadvantage. Many factors affect the justness of the legal process apart from the adequacy of legal assistance: the substance of legal rights and remedies; the structure of legal processes; the attitudes of judges and court personnel; and the resources, expertise, and incentives of the parties. On almost all of those dimensions, as law professor Marc Galanter famously put it the " 'haves' come out ahead."
Studies abroad have shown, and this is true to a large extent in India as well, that there is a parallel system involving the police and the mafia that derives benefits from the activities of criminalizing prostitution, beggary and other activities of the marginalised. There exists a system of pre-paid legal services for those involved in organized crime rackets and other criminalized activities. Professional criminals are able to engage lawyers and obtain bail for those made to beg by them. They are also able to arrange sureties and professional bonds. In the context of sex work, the recent Sanjay Leela Bhansali film 'Gangubhai Kathiawadi' starring Aalia Bhat focuses its lens on the nexus between the brothel owners, the political class and the police. This is a vicious quagmire that the marginalised are unable to liberate themselves from.
Are the Alternate Dispute Resolution (ADR) systems within the formal legal systems a solution to the problems of the marginalised? As they presently stand, the options of mediation and arbitration do not seem to be available to the poorest among the litigants particularly since they find themselves ensnared in the criminal justice processes or face forced evictions, homelessness, displacement, and a myriad issues in confronting the state. They, however, do feature largely in lok adalats with their claims for either motor vehicle or land acquisition compensation and are asked to 'settle for less' as it were. Legal scholars Marc Galanter and Jayanth Krishnan term this phenomenon as 'bread for the poor'. The marginalised also feature in 'jail adalats' where they have the hobson's choice of longer periods of incarceration as opposed to admitting to guilt in petty offences for a premature release but with the tag of a 'previous conviction'. There do not appear to be dignified spaces rendering complete justice to the marginalised litigants in the ADR arena, as yet. That may be an area that needs further exploration.
Non-formal systems are perhaps the first choice for the rural and urban poor, deterred as they are by the prospect of having to engage with the formal system. But here again while the caste panchayats might offer solution to some civil disputes, it is doubtful that they are truly representative institutions when it comes to some of the critical issues concerning the marginalised. Particularly, when it comes to cases of crimes against women, caste-based discrimination and violence, cases of inter-caste runaway couples, the track record of the informal systems has not been encouraging. For the marginalised, traversing the legal system whether formal, alternate or non-formal, is a daunting task, full of uncertainties and perils.
I will now explore what representing the marginalised in Courts entails. That takes me to understanding how the 'bar' is organised. Is the Bar democratic? Is it a place of 'equal opportunity'? Is it diverse? Or does it mirror to a large extent the social and economic inequalities that are ubiquitous in Indian society, and home to the biases that plague social life?
The study on "India's grand advocates" by Marc Galanter and Nick Robinson is fairly well known in legal circles. These two legal scholars have stated that "despite repeated inquiries" they could not identify any scheduled castes, scheduled tribes and other backward class advocates, who are regarded as part of the elite strata of lawyers. I suspect that the legal service institutions may not be faring any better. Do we know how many of the legal aid panel advocates are Dalits? What percentage of the arbitrators, mediators, counsellors, conciliators do they constitute?
The study I referred to, to begin with, on 'Dalit Justice Defenders in India' makes an important contribution to our understanding of the lack of diversity in the Bar. After conducting interviews with lawyers, former and current judges, academics and others that in the High Courts the study concludes that "the bar is dominated by lawyers of upper castes and well to do families with a network of connections." Some of the respondents admitted that "in lower Courts, caste plays a role in getting clients." One of the conclusions drawn from the interviews conducted was that "structure of the legal profession is based on the ability of an individual to secure references, resources and have a network, all of which are difficult in an environment with caste discrimination." The study also reveals very tellingly that Bar Associations have historically been dominated by upper class males. The lawyers belonging to marginalized have experienced indirect discrimination, being asked to perform relatively unskilled tasks in law offices. There is also tendency to type-caste lawyers from Dalit and other marginal groups. A woman lawyer who described herself as "the first generation bahujan lawyer" without any caste networks of financial support found the journey to be a "lonely experience" and found the attitude of senior counsel as patronizing and loaded with notions of charity. She was treated as "a token or diversity candidate" and importantly, she stated that "the dignity of being a colleague was missing." The study found that lawyers belonging to Dalit and Adivasi communities working on human rights cases risk being labelled as 'Maoist' or 'Naxalite lawyers'.
The legal profession as it is presently structured does not necessarily provide a level playing field to all those entering into the system in various capacities: as a litigant, as a suspect in a criminal case, as a victim of crime, as a person denied justice, as a witness and accused, as a lawyer and even as a judge. The legal profession to a large extent mirrors the inequalities and the biases of the society.
The cab rank rule by which the legal profession purportedly operates, does not work for those who cannot afford cabs in the first place. The marginalised, to use a rough analogy, traverse the legal system by foot or in overcrowded buses or trains, very often at personal risk to their life and safety. The luxurious sedan that charges a higher tariff is largely out of reach, even when infrequently they do get a 'token' joy ride. Occasionally, you will have a top-notch senior lawyer do a case or two completely pro bono, and with positive outcomes. But for most other cases in the Indian subordinate courts, where the marginalised largely meet their destiny with choiceless stoicism, the informal rules by which the Bar functions are dictated largely by a supply and demand situation: where competent lawyers are in short supply and therefore, they are in great demand. In almost every rung of the structured hierarchy of the legal profession, more than 80% of the work is controlled by less than 20% of the lawyers who are usually referred to as the 'active practitioners' of any Bar. These active practitioners would have their own class and caste biases in how they approach cases, in how they prioritise their work and how they treat their clients. More than a century ago, Gandhiji commented that in India the law courts are perhaps the most "extravagantly run". He noted that "several thousand rupees had been known to be to have been charged in India. There is something sinful in a system under which it is possible for a lawyer to earn from Rs.50,000/- to Rs.1,00,000/- per month. The legal practice is not – and ought not to be – a speculative business. The best legal minds must be available to the poorest at reasonable rates".
In a documentary titled 'All rise for your Honour", the Director Sumit Khanna depicts the plight of an elderly rural woman trying to get an affidavit that she needs in a civil dispute, signed by her son who is lodged in a jail in Varanasi. Even with the help of the film maker, and all of this on camera, a sum of Rs.1500/- has to be spent just on getting the affidavit attested by a notary magistrate who travels with them to the jail to get the affidavit signed by the prisoner in his presence. All this only to be told later that it was not necessary at all. It is a telling commentary on the way the legal system in the courts is plagued by the ignorance of laws and procedures among lawyers, which works to the disadvantage of those already marginalized.
Self-representation, i.e. the litigant appearing in person, is not really an effective alternative. They often face the seemingly insurmountable barriers of legalese and court etiquette, which are tools of persuasion cultivated by the Bar over the years. On a lighter note, in an episode involving an elderly litigant appearing in person in court, during abstention from work by the bar, the judges interrupt his submissions saying: 'Babuji, aap jo keh rahe hain, ham samajh nahi paa rahen hain. Aap vakil rakh lo". To which the elderly litigant responds: "Kamaal hai, samajh aap ko nahi aa rahi hai aur vakil mujhe rakhna hai?"
But occasionally you do have the type of dedicated and conscientious lawyer that we saw Naseeruddin Shah play in Govind Nihalani's 'Aakrosh', Rajkumar Rao play in Hansal Mehta's 'Shahid' and southern star Surya play Chandru in Gnanavel's 'Jai Bhim'. The lawyers in those stories are the ones that we must get the young entrants to the Bar have as role models. And, among the younger generation of lawyers that I see in Courts I do come across one or two that have that potential.
Such lawyers at present are a small number and in great demand. They too are stretched beyond their resources, and at times this dilutes their efficacy. Unfortunately, there is a tendency of late to view appearing for the marginalised as making a political choice. These decisions have the potential of marginalizing those representing the marginalized. They are not the hi flying ambitious career-oriented lawyers. They plug away at cases knowing that the system is weighted against their clients. The lawyer Vinay Vora (played by actor Vivek Gomber) in the Marathi film 'Court' by Chaitanya Tamahane in one such. Yet, some of them who stand up for 'unpopular' causes that don't meet the approval of the dominant voices in society, face stiff resistance: they face threats to their lives, boycotts and expulsions by the Bar Associations, and even unwanted intrusions by law enforcement agencies. However, their presence in the court does lend legitimacy to the legal system which is essential for upholding the rule of law.
There are also the civil society groups that have for many years been working with the marginalised – with the homeless, the sex workers, the children in conflict with the law, the slum dwellers, the rag pickers, the manual scavengers and sewer cleaners – helping them organise, question state and police excesses, demand protection and enforcement of rights. There are also para legal workers that help the marginalised avoid or exit institutionalisation by their interventions. The system needs all of them for its legitimacy. The marginalised need them for their survival. A larger and less intimidating space has to be provided for these non-state players in the system.
Finally, I come to the question: How do we enable the marginalised to meet the challenges?
First, we need to acknowledge that the marginalised largely view the legal system as irrelevant to them as a tool of empowerment and survival. Their experience tells them that it operates to oppress and they have to devise ways of avoiding it rather than engage with it. Without fundamental systemic changes that enable erasing to some extent this negative perception of the legal system, and the legal profession in particular, mere changes in the system of legal services delivery by themselves may not enthuse greater engagement with the system, however promising the results may seem. It is bound to be viewed with suspicion. To begin with we need to revive the discussions around de-criminalising many of the survival activities of the poor including pavement dwelling, encroachment, hawking, begging, sex work. We have to act more on legal institutional reforms. For e.g., finding alternate, less coercive ways of running nari niketans, observation homes for boys and girls, beggars' homes instead of modelling them on the penal custodial institutions.
Prof Deborah Rhodes highlights for us the kind of questions we might want to ask in our approach to reforming the legal services delivery system. "Should individuals be entitled to assistance on all matters where fundamental rights are at issue, or only where their claims seem meritorious? When should they receive lawyers' help, and when would other forms of aid be sufficient? How should legal aid providers allocate assistance between individual representation and collective impact work such as lobbying, organizing, and test-case litigation? And most important, how should those decisions be made?"
Test-case litigation can be an effective tool for bringing about systemic changes. There are lessons to be learnt from the manner in which the civil rights movement in the USA went about litigating the issues of discrimination. Professor Charles Ogletree's seminal work titled 'All Deliberate Speed' describes in detail how the early work of test-case pioneer Prof. Charles Hamilton Houston for the NAACP to seek parity in payment to white and black teachers in public schools, paved the way for later litigators like Thurgood Marshall, who went on to become a Judge of the Supreme Court of the USA, to bring forth simultaneously in a range of courts spread across states, cases concerning segregation in public transport, public facilities, universities, schools and so on. Brown v. Board of Education did not happen overnight. It was a culmination of many years of patient struggle and perseverance with conviction and painstaking fact-gathering for presentation in the court. Basically, a lot of hard work. And then, there has been a constant struggle to get the tangible results of such test litigation realised in the succeeding years without diluting Brown. The follow up order in Brown that the US Supreme Court handed down in September 1955, one year after Brown, basically permitted the consequential changes of desegregation to be only gradually implemented. It used the phrase 'with all deliberate speed.' The NALSA judgment of the Supreme Court of India that recognises the full citizenship and personhood of transgenders is another such test-litigation that is yet to witness the tangible effects on the ground.
Prof. Ogletree himself spent a large part of his early professional life honing his lawyering skills with the Public Defender Service in Washington DC. He emphasises that if any system of Public Defender has to be effective, there can be no compromise on the quality of professional competence of its lawyers. In more contemporary times, the pro bono work of lawyer Bryan Stevenson in the US, devoting his energies to getting innocent black convicts released from death row is inspiring. In his book 'Just Mercy' Bryan tells us how a conscientious lawyer handling cases of the marginalised needs to be emotionally and mentally strong, politically aware, professionally competent and be prepared to take on a hostile system with calm and fortitude.
How do we improve the quality of legal services here in India? To begin with, we need to attract the better if not the best available legal talent for legal services. Since fees is such an important incentive for a lawyer to take up a case, it is necessary to ensure that the fees paid to the legal aid counsel representing indigent accused, in criminal trials involving grave offences, is the same as is paid to the prosecutor. The fact is that there is no scarcity of financial resources with the legal services authorities. It is the distribution of the resources that needs paying attention to. Even if it is a salaried system, the salary must be commensurate with what the lawyers would usually and reasonably charge private clients. Here we cannot pick the high end of the tariff but the 'mean' to ensure that the legal aid lawyer does not lose out for taking up a legal aid case. To expect Senior lawyers to take up the cases as 'pro bono' would not be doing justice to the clients. They would always be made conscious that they are recipients of 'charity' or 'beneficial treatment' which does not respect their dignity and enable them to demand accountability from the counsel. For trials involving complex issues and tasks, the services of a combination of a senior and junior lawyer should be able to be offered.
Secondly, and importantly, we need to ask how do we orient the lawyer to take up the cases of the marginalized? How do we get the lawyer to understand what it means to be a marginalised person having to navigate an intimidating and alienating legal system? Can we get the lawyer to truly understand how the marginalised person feels and thinks? How do we ensure that the legal aid lawyer is thoroughly professional in understanding all the nuances of the law and is able to match the opponent in terms of competency?
The legal aid lawyer would do well to remain aware that legal aid is not charity: it is the basic right of the marginalised. The consumers of legal services must be consulted at every stage of the case. They should be patiently listened to. They cannot be made to lose control over their case. They must have a say about the course of action or strategy to adopt. If pleadings are in English, and the client cannot understand that language, it has to be read over and explained in the language that they understand. Offering services pro bono or at state expense does not entitle the lawyer to make concessions and statements in Court, that do not correctly reflect the client's position or ends up compromising their position. It could be a political position, it could be a position on facts. At all times, the persons for whom one is representing must be kept in the loop and informed about everything that is happening in the Court. Nothing must be done in the Court without their consent. Also, there can be no room for cynicism. If the system appears broken, we are part of it and we need to do our bit to fix it. When the marginalised still have hopes of the system, lawyers who care can hardly afford to give up hope.
Lastly, to increase representation of the underprivileged and marginalized in the legal profession one has to begin early. One has to begin with law colleges. Initiatives like IDIA (Increasing Diversity by Increasing Awareness), the brainchild of late Prof. Shamnad Basheer, are indeed welcome. The presence of the underprivileged in law colleges is by itself not enough. They need to be handheld through the law course and thereafter till they are placed with seasoned lawyers or law firms. The Bar Council and Bar Associations need to emulate the IDIA model on a larger scale. There has to be mentoring of young lawyers belonging to marginalised groups by the more seasoned lawyers. The BCI can float a scheme offering stipends to promising young lawyers for the first two years of such mentorships, to help them find their feet in the profession.
There is much to be done. And it needs to be done now. We have the resources. We must find the will.