Thread by @barandbench

Justice DY Chandrachud speaks on "Rendering Pro-bono Services with Legal Services Authority," at the launch of the Pan India Legal Awareness and Outreach Campaign by the National Legal Services Authority (NALSA).

Justice Chandrachud: The launch of a pan India legal awareness campaign by NALSA is an important milestone to reflect on the progress we have made as a country to ensure the fulfilment of a key promise of the Constitution to its citizens and a fundamental guarantee u/ Art 21.

Justice Chandrachud: We have come a long way as a nation since the right to free legal aid was incorporated under Article 39A of the Constitution. In a sense it was a leveller to secure justice to the common person living in an underprivileged strata of society

With Supreme Court's intervention in the Hussainara Khatoon case, a guarantee of free legal aid was strengthened, specifically for undertrials and prisoners, culminating in the establishment of NALSA, Justice Chandrachud

Chandrachud J. commends remarkable work done by NALSA. At present, NALSA not only seeks to provide free legal aid but also has introduced schemes for marginalized sections incl victims of trafficking, unorganised workers, mentally disabled, acid attack victims, senior citizens.

Justice Chandrachud: The work of NALSA and legal services provided under its umbrella is evident from the fact that in the initial phase of the pandemic, it had provided assistance in close to 7 lakh cases (from domestic violence cases to assisting migrant workers)

Justice Chandrachud: Criminal justice and the requirement of good legal services at every stage of the trial process is an extremely important facet of the fair trial guarantees under the Constitution.

Justice Chandrachud: NALSA has consistently provided legal aid to the accused in the pre-arrest, arrest, and remand stage. In 2021 itself, legal services were provided to nearly 75 thousand persons.

Justice Chandrachud also says, as Chairperson of the Supreme Court e-committee, he is pleased to note that NALSA has used technology to assist in easing its caseload.

For instance, Justice Chandrachud notes that e-Lok adalats were conducted successfully by J&K, MP, Rajasthan, Delhi, Ladakh Legal Services Authorities during the pandemic.

Justice Chandrachud: This indicates to us a practical application of online disputes resolution which would be changing the legal landscape in the coming years

Justice Chandrachud notes that NALSA has also started a helpline to reach persons who may not have access to internet in remote areas

Justice Chandrachud: One of NALSA's initiatives has also been to develop a legal aid defence counsel system, which involves the creation of a legal unit in sessions courts, comprising of legal counsel dedicated for providing legal assistance only.

Justice Chandrachud says he believes that this will create an institutionalized system and a team of advocates who can be held responsible for the quality of legal services and that it would greatly improve legal aid by State

Justice Chandrachud voices concern that the ground realities of whether legal aid is accessible to persons in need remains far from perfect.

Justice Chandrachud: Only recently, I was hearing a matter where a convict had undergone a sentence of 16 and 19 years without availing their right to submit an application for premature release.

Justice Chandrachud: I was dealing, just last week, with a case where charges had not been framed after 12 years of incarceration.

Justice Chandrachud: Such is the state of affairs that neither are Jail Supp.s conversant with basic legal remedies available to the undertrials or convicts nor are these convicts provided adequate legal assistance.

Justice Chandrachud: With little or no contact with the outside world, even educated prisoners who are lay persons, may not be able to exercise their rights, let alone the vast majority of uneducated prisoners in India

Most of the challenges related to legal aid have to do with the inadequacy of human resources, lack of infrastructure, low quality of legal services, lack of monitoring and less incentive to lawyers, Justice Chandrachud says.

The blame does not fall on NALSA. Rather this is a collective failing of the legal fraternity and requires a multi-pronged strategy to address the gap between access to legal aid and persons in need, Justice Chandrachud says.

Justice Chandrachud: This afternoon is not a time just for an inquest, least of all for an autopsy or a post mortem. I think this an application for anticipatory bail for the legal fraternity and the profession to be given another chance to heal itself

Justice Chandrachud makes suggestions: On increasing access to legal aid ... the e-Committee is not just a committee on technology, it is a committee that is using technology, to pitch for technology, for widening the access to justice in a socially purposive mission.

Justice Chandrachud: The Dept of Justice launched the tele-law programme in 2017 to provide pre-litigation legal advice and consultation. Under this, panel lawyers can be connected to persons in need of legal aid. One of our missions in e-Committee is to provide e-Seva kendras

Justice Chandrachud also refers to the pro bono legal aid programme - Nyaya Bandhu-where lawyers interested in providing free services are connected through a mobile app. A network of such lawyers is to be maintained by each High Court. DOJ has also sought to involve law students

Justice Chandrachud: In the times today, when law students have actively started participating in the exercise of their rights before courts, such as in the case of Swapnil Tripathy v Supreme Court, which led SC to hold that live-telecast of court proceedings must be conducted..

Justice Chandrachud: ... it is imperative to tap into this resource.

Justice Chandrachud notes that one use of technology is the use of an Artificial Intelligence-enabled chat box to provide automated legal advice.

Justice Chandrachud: The use of AI, including chatbots, for legal advice, has already been implemented in platforms such as DoNotPay in the US and in other countries such as Russia, China and Mexico, and is worth exploring in India

Justice Chandrachud: Urgent reforms are needed for capacity building of lawyers willing to provide pro bono legal services.

Justice Chandrachud: Studies have indicated that lawyers empanelled with state and district Legal Services Authorities lack the initiative or the competence to provide effective legal services and devote little time to the cases they are involved in during their private practice

In most countries, the legal aid system involves a Public Defender system and assigned counsel system, and a contract services system. NALSA mirrors an "assigned counsel system", Justice Chandrachud notes

Chandrachud J.: (Apart from its public defender initiative) NALSA can also consider entering into partnerships with a structured component of the legal fraternity, i.e. with corporate law firms, which have a huge capacity for human resources cutting across different areas of law

Justice Chandrachud: NALSA, along with DoJ and Ministry of Law and Justice can enter into contracts with law firms, requiring them to spend a certain number of hours on delivering pro bono legal aid services.

This may be made mandatory like CSR, he adds.

Alternatively, this can also be considered a relevant factor when it comes to deciding on the empanelment of law firms for contractual work for Govt of India or PSUs, Justice Chandrachud says

Justice Chandrachud: Perhaps, the Bar Council of India introducing a requirement mandating the provision of pro bono legal services in some capacity at the time of renewal of the certificate of practice every 5 years.

Justice Chandrachud speaks on legal aid clinics in law schools. The DoJ has already recognized the potential of these clinics to act as a bridge between clients and lawyers, he adds.

Legal aid clinics must be given greater recognition as they can provide para legal services such as legal opinions, drafting applications, persuade their alumni base to represent clients assisted by the clinics: Justice Chandrachud

It is necessary to recognize clinical work undertaken by students. The BCI should consider making clinical education credit-based and mandatory, which reflects in the academic performance of students, similar to clinics in law schools across the globe: Justice Chandrachud

Justice Chandrachud: Finally, the creation of a case-type-specific database is the need of the hour. The provision of legal aid services can be enhanced if lawyers dedicated to a particular cause are responsible for only those cases.

Justice Chandrachud: An instance of this was seen in 2018 with the rise of #MeToo movement when young women lawyers started offering their services free of cost to assist women who had been sexually harassed.

Justice Chandrachud: This even led to the creation of databases of lawyers who could be approached for specific issues. In my opinion, such an exercise should be conducted at an institutionalised level.

Justice Chandrachud notes that NALSA cases are generally assigned to lawyers empanelled, who may not have a specialized area of practice. He says it may be worthwhile for NALSA to solicit support from young lawyers who are passionate about specific issues.

Justice Chandrachud adds that this would also help persons seeking legal aid to approach without the fear of being shamed or harassed.

Justice Chandrachud: A similar exercise could perhaps be conducted for members of the transgender or sexual minority communities. Many of the members in these communities are closeted and do not seek legal aid for fear of disclosure of their identities.

Justice Chandrachud: A number of them also face significant threats to life by society and even their family members. In such cases, it would be beneficial for them to reach out to lawyers who specifically deal with similar cases

Justice Chandrachud: In conclusion, may I say, that the right to free legal aid relates to our basic conceptions of equlity. Without this right, the Constitutional promise of securing justice and liberty for all would ring hollow.

Justice Chandrachud: As India is in its 75th year of independence, we must build on our experience and reimagine the structure of legal administration to ensure that our laws are not merely tools in the hands of the privileged but can also have a profound impact on lives of poor

Justice Chandrachud assures NALSA that the e-committee, being a technology expert body, would do all it can to support NALSA in every which way.

Justice Chandrachud concludes address.

Justice Sanjay Kishan Kaul, Supreme Court, speaks.

Justice Kaul: The person giving legal aid has to have empathy. Why I say so is because otherwise, your heart will not be (unclear) ... that's the aspect, I think, brother Chandrachud emphasized.

Justice Kaul: Mediation is something that is growing, and I have a great faith it needs to grow further

Justice Kaul: There is a lot amount of civil disputes in agrarian societies ... litigation fatigue sets in and the inability to get access is a problem. All these disputes, I think, are issues that can be resolved with mediation.

Justice Kaul quotes Reginald Heber Smith: “Without equal access to the law, the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented."

Justice Kaul: Legal awareness has to grow, because it is only legal awareness that creates exercise of rights by marginalised sections of society. We have achieved a lot, but we have a lot to achieve still.

AG KK Venugopal refers to the vision document of the NALSA for 2021, reads: There is something very something wrong in the statement that the poor and the indigent cannot obtain judicial redress of the wrongs done to them because of their poverty.

AG Venugopal: It is the poor and the vulnerable more than the rich and the powerful who need legal aid. They believe, when a grave injustice is done to them, because they are so poor, that they will have to suffer it. In Kannada they call it...'what has written on your forehead.'

AG Venugopal: There are people who suffer because they are not paid wages or they are suffering because of money lenders or because of non-payment of maintenance. They cannot afford much, they go to a legal aid clinic. Notice is sent to the opposite party ...

AG Venugopal notes that the opposite party, being in a dominant position, may not appear in the clinic despite notice. The question is, how do you make the person appear in the clinic? Even if a case is filed in Court, there is a huge pendency and litigation would take years.

The solution is to settle the matter, but if the opposite party refuses to appear, what would be done? AG Venugopal asks

There has to be a little amendment to the law, the AG suggests

AG: Suppose you fail to turn up in legal aid clinic because of dominant position and clinic writes out a report and with that a case is filed with pro bono services, telling Court that the person refuses to turn up because he believes that by not turning up nothing will happen ..

AG: In such cases, there is something known as Order 38 in CPC (arrest before judgment) - suppose the law says, with the report (clinic's report), that the person's (who refuses to appear before the clinic) property would be attached to the extent of the claim ...

AG suggests that a law similar to Order 38, CPC should be made i.e. that there would be an ex-parte attachment along with summons at the first instance, where persons in dominant positions refuse to appear before legal aid clinics approached by poor persons.

AG: Once it is known that such a provision is there which hands like a sword over the head of the dominant party, in such a case, there is a likelihood of settlement being made.

Thank you.

AG concludes.

Chairman of BCI, Manan Kumar Mishra, and Senior Advocate Vikas Singh, SCBA President also speak.

Justice Chandrachud adds to the discussion: Ancilliary to the main topic we are discussing, how do we ensure that we broaden or democratize access to our lawyers in our courts?

Justice Chandrachud: How do we ensure that we provide a minimum or a modicum of living expenses and the wherewithal for young lawyers to join the legal profession?

Justice Chandrachud: These are two critical areas which face lawyers without connections in the legal profession today. One, that access to legal chambers is not democratized. That is why many of our young lawyers are going to the law firms.

Justice Chandrachud: It's very easy for us, as Judges and lawyers, to lament the fact that the best are going out of the mainstream of the legal profession and to law firms, but what is the reason?

Justice Chandrachud: This has a bearing on what we are discussing today, because that has a bearing on the quality of legal assistance that is made available.

Justice Chandrachud: The reason why more people go to institutionalized corporate law firms is because there is some pattern for recruitment of young lawyers.

Justice Chandrachud: We do not have a pattern for recruiting young lawyers into chambers at all. It all depends on somebody speaking to somebody and getting access to that particular Senior in the Bar.

Justice Chandrachud: Second, once a lawyer gets access to a chamber, it is presumed that itself is a great achievement. So then that lawyer has to willy nilly survive on their own. This is one of the critical reasons why young lawyers are not entering the legal profession today

Justice Chandrachud: Most law students who pass out of law schools undertake very heavy loans when they join the legal profession, particularly at the national law schools.

Justice Chandrachud: The reason why they are averse to joining the legal profession is because there is no guarantee of either access being provided to a good chamber or, if they have access to a good chamber, of a steady flow of income.

Justice Chandrachud: So, therefore, I would request both the Supreme Court Bar Association and the Bar Council of India - I am not saying you can make it compulsory - lawyers are all private entities over whom you may not have control ... (contd ...)

Justice Chandrachud: (contd)... but at least if some institutionalized mechanism is set up by the SCBA or by the BCI to create a modality by which these associations - you can generate a sort of level playing field for young people to join the legal profession

Justice Chandrachud: Having done that, we can then use their legal services to provide genuine pro bono work at the stage of their career when they have all the promise, the excitement of a life in the legal profession which tends to wear off as time goes on.

Justice Chandrachud: We must tap the young, because the real talent today lies in the young. We interact a lot ... and you know the kind of enthusiasm that they have, the mission that they have, the kind of effort they want to make to make India a better society.

Justice Chandrachud: I see when I discuss every day with my team of young law students - how committed they are and how bravely moved they are by the sense of injustice they see in the legal profession.

Justice Chandrachud urges that this is something the SCBA or the BCI can do, to democratise access to the legal profession.

Justice Chandrachud: The mainstream of our profession does not democratize access. We still continue to be a purely feudal profession which I believe needs to change.

Create database of lawyers offering free legal aid, like during MeToo movement: Justice DY Chandrachud

report by @meera_emmanuel

#SupremeCourt #legalaid #MeToo

Read more: bityl.co/8wcj

Legal profession continues to be feudal; recruitment to lawyers' chambers should be institutionalised: Justice DY Chandrachud

Read story: bityl.co/8wfh