The Difficulty of Equal Justice: a talk at the Bangalore International Centre

It was a delight to attend a very informative talk on the legal aid and the criminal justice system at the Bangalore International Centre, last Thursday. The panellists were eminent leaders in the domain, both nationally and locally in Bangalore; Justice (Retd.) Madan B Lokur, Prof. Vijay Raghavan, Aarti Mundkur, Dr. Anup Surendranath and Monica Sakhrani.

Scroll down to the Too Long; Didn't Read (TL;DR) section if you're short on time, to get a gist of the article. It includes my personal opinions too, so don't give it a skip even if you read the entire article!

The talk began with Justice Lokur explaining his concerns with the access and quality of legal aid provided to under-trials. He said that often, prisoners do not even know the status of their case because of the weak communication between legal aid lawyers and the under-trial. A report highlighting such problems that was submitted to the SC by Dr. Anup and his team has not been addressed and the debate on whether it should be made public is still ongoing. 

Prof. Raghavan posed a question about whether legal aid is even a right. He argued that it is ridiculous to expect good quality legal aid, especially when the remuneration for legal aid lawyers is paltry in most places, except Delhi where lawyers are compensated higher amounts (around INR 20k as opposed to other places like Maharashtra where the maximum compensation is about INR 7.5k and in many cases INR 750-1000). He said that the bias of the legal system against the poor is made visible because of policies such as these. Moreover, many under-trials do not trust legal aid lawyers because they are 'sarkari vakeel' (government's people) and hence their interests are opposed. He ended his initial arguments by saying that just about 50% of under-trials will recognise their lawyers in court and other half, won’t have a clue who they are,  and this is indicative of the fact that, "if you pay peanuts, you get peanuts".

Aarti Mundkur who is an unpaid representative for those who require legal representation, said that she too thought about applying to be a legal aid lawyer but upon contacting her friends who have been legal aid lawyers for four years, she realized that it was probably not worth it. Four of her friends reported that in the 4 years they have been legal aid lawyers, not one case has been allotted to them. She further echoed her concerns about the quality of lawyering today because of the lack of effective checks 10/12/15 years into the profession. She registered her alarm at the fact that barely anyone fails the Bar as well as the lack of refresher courses or training that lawyers have to take; double trouble indeed! 

Justice Lokur, when asked whether there is anything in the legal aid set up to prevent the problems that had been highlighted so far, said that the fundamental question that needs to be asked is whether the legal aid is about the money. He said that one should not become a legal aid lawyer if they are interested in the money. A question that I had for Justice Lokur but could not ask him in the Q&A session is as follows:

The matter being discussed is whether there is anything in the legal aid system's structure to prevent the problems that affect the system - low quality of lawyers, low pay, lack of incentive to become one etc. As Ms. Aarti had brought up, the quality of legal aid lawyers in Delhi is higher, arguably because of the greater financial incentive. In a society where one is driven by money, and money in many cases increases quality (think of better quality lawyers who themselves charge higher fees), by saying that one should not join the legal aid system for the money, however utopian, doesn't solve or address the problem. Hence, what can incentivise high calibre lawyers to join?

Monica Sakhrani kind of addressed the basis of my question - no one strives to be the best legal aid lawyer. 'No one has this ambition'. According to her, a system of dedicated people is required, just like in the prosecutor system. She says that lawyers have to be long term, unlike in the current situation in which most novice lawyers are the ones who undertake such positions. 

Both Prof. Raghavan and Justice Lokur agreed that more staff are required to handle cases, hand out cases, rosters etc. Offices have to be strengthened into a lawyer's office with stenographers, clerks etc. 

The panel then moved onto discussing the overcrowding of jails. 

They agreed that the notion that any problem can be solved by sending a person to jail must be changed. For example, a jail sentence for petty offences such as littering makes bare minimum sense because we already have an overcrowding problem and jailing people for minor offences is a waste (pun unintended). Alternatives to jail sentences are hardly ever spoken about. The Probation of Offender's Act allows those who have not been sentences to life imprisonment or death to be sent back to the community by a Probation Officer once a social enquiry report is furnished. However, these provisions are hardly exercised. As long as we say that imprisonment is the only way forward, nothing can be done. The only alternative is increasing the number of jails. Aarti added that there is no political will to keep under trials out of prisons. For example, even when a person gets bail for one case, they virtually do not leave prison because another case will be subsequently filed which will get them re-arrested. It is heart wrenching that cases filed in 2009 are heard about 10 years later, today. 

Monica Sakhrani reminded the panel and the audience that the overcrowding situation may be a bit exaggerated because certain figures indicate that the overcrowding rate is only 118%, which is no doubt indicative of overcrowding, but not to the extent that we may assume it to be.

The final 'Constitutional Question' that was posed to the Justice was whether the Constitutional silence on legal aid in the pre-trial stage indicate some sort of punishment. It is only in the trial stage that it is provided. There is no doubt that the Constitutional discussion with legal aid is extremely weak.

TL;DR

The talk exposed the problems of the justice system and how it is tilted in favour of the rich. A rich person can afford the best of lawyers (in plural!) to fight their case but a poor person is left with someone who has no incentive to fight for them. The lack of a political will to solve the problem is displayed on two fronts - first, with instances such as cases not being allotted to registered legal aid lawyers, and second, with the Constitutional silence on legal aid at the pre-trial stage. According to me, as opposed to what Justice Lokur had to say, a financial incentive is important to ensure the increase in quality. Even if financial incentives in the form of higher compensation is not given, perks can be given. Think about a civil servant. The salary is 'meagre', when compared with the service they render but the perks associated with it, result in thousands of students sitting the UPSC. Why can't similar perks be given to those lawyers rendering legal aid instead of just low fees such as INR 750? In the Q&A session, a legal aid lawyer said that she faces problems even getting paid the small fees that she is entitled to. This makes it difficult for her to travel to the jail and back, which no doubt, affects her functioning as an efficient lawyer. 

This area of law requires a radical transformation. The Constitutional silence fails to help advance the cause to fix the problem.