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Pros and cons of Legal Services Authorities Act
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The provisions of the Legal Services Authorities Act seek to reduce justice dispensation to an informal and casual process. Such measures will serve no purpose save to throw the foundation of the legal system into total chaos.
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THERE IS unfortunately an opinion gaining ground that lawyers are unreasonably opposing implementation and provisions of the Legal Services Authorities Act, 1987 as amended by Act 37 of 2002. In the first place it must be clarified that lawyers are not against the Act itself but only against certain provisions that they consider draconian, unreasonable and would have the effect of contributing to backlogs.
There are several laudable aspects in the Act. For example most citizens do not know that under its provisions free legal services are available to all members of a Scheduled Caste or Scheduled Tribe, to all women and children — yes, without any qualification regarding their financial status to victims of trafficking in human beings; to persons with disabilities; to persons under circumstances of undeserved want such as being a victim of man made disaster, ethnic violence, caste atrocity, flood, drought, etc.; an industrial workman; persons in custody and persons in receipt of annual income less than Rs. 9,000 or such other higher amount as may be prescribed by the State Government. Since the Act applies to all persons who are members of the Scheduled Castes and Tribes and all women and children irrespective of their financial status the implication is that free legal services are available to 75 per cent of the country's population, something which any developing country like ours should be proud of.
Now what does "legal services" under the Act mean? It includes rendering of any service in the conduct of any case or other legal proceedings before any court, or any other authority or tribunal and giving advice on any legal matter. It means that persons covered by the Act are entitled to legal advice, legal representation and legal adjudication free of cost. And since the Legal Services Authority pays fairly decent remuneration to lawyers maintained on its panel, the quality of service rendered can be expected to be quite satisfactory. In fact enrolment with the Authority can be both a satisfying experience and a remunerative exercise to a junior who qualifies to be empanelled with the Authority.
The Act contemplates establishment of "Permanent Lok Adalats" at such places and for exercising such jurisdiction in respect of one or more public utility services and such areas as may be specified in the notification. Transport, postal, telegraph, telephone, power, water, public conservancy or sanitation, service in hospital or dispensary, insurance service and any other service which the government may declare to be public utility service come within the definition of the term "Public Utility Service."
The Permanent Lok Adalat shall be composed of one judicial member and two non-judicial members.
These are just some of the finer aspects of the Act. Lawyers have no objection to the implementation of these provisions. If at all, we can only complain that sufficient awareness has not been created about the benefits accruing through the Act.
Arbitrary and unreasonable
The provisions which have stirred a hornets' nest among lawyers are as follows:
Once an application is made to the Lok Adalat no party to that application shall invoke jurisdiction of any court in the same dispute; to the process of conciliation or adjudication by the Lok Adalat, the provisions of the Code of Civil Procedure 1908 or the provisions of the Indian Evidence Act shall not apply; every award of the Permanent Lok Adalat shall be a decree of a civil court and a decree can be made by a majority of the members. This means that the lay members can overrule the judicial officer; every award made by the Permanent Lok Adalat under this Act shall be final and cannot be called in question in any court; the provisions of the Act are to have overriding effect over any other law; there are no provisions for any appeal.
Lok Adalats do perform and can perform invaluable service as conciliators or mediators. But then to tell parties that even if they do not agree to settle the matter the Lok Adalat would go ahead and pass a decree which will then be binding on them, is horrendously arbitrary and unreasonable.
Somewhere down the line we have started blaming our procedural and evidence laws for the docket explosion in our legal system. The result is we now want to impart ad hocism to the process of justice dispensation. Let the state first realise that it is not the laws themselves but the manner of their implementation which has resulted in the proverbial law's delays. However good laws may be on paper, unless we have sufficient infrastructural support and adequate number of competent and honest judges to implement them, they will lose their capacity to render justice. Throwing overboard the Civil Procedure Code and the Evidence Act is no answer to judicial backlogs. In the long term it will have a most pernicious effect on the system. Even on a short term basis no advantage is discernible. This is because, though the Legal Services Act does not provide for an appeal against the orders of the Lok Adalat, invoking the High Courts' Writ Jurisdiction under Articles 226 and 227 cannot be ruled out as it is a basic feature of our Constitution. The ultimate result would be that all these matters will come knocking at the doors of the High Court, thus suffocating an already overloaded High Court.
The provisions of the Legal Services Authorities Act seek to reduce justice dispensation to an informal and casual process. Such measures will serve no purpose save to throw the foundation of the legal system into total chaos and disarray. Let the Executive and the Legislature realise that the reason for the pathetic state of our litigation disposal rate is the next to non-existent infrastructure, enormous delays in filling up vacancies, low entry level barriers into the legal profession and appallingly low judge-to-population ratio in India. The objection of the lawyers to the provisions of the Act is relevant and most definitely merits a review.
N.L. RAJAH
President, Consumer Courts
Bar Association
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