The missing report for ‘competency’ in legal aid extended to Disha Ravi?- News Video by NDTV India questions the free legal aid of DSLSA/DLSAs as mere formality with a story of reasons having no clear answers
“There is no client as scary as an innocent man.”
A request letter dated 28.02.2021 along with the copy of NDTV news video has been sent to the learned Member Secretary/Judge of Delhi State Legal Services Authority, Patiala House Courts as well as other learned Secretaries/Judges of District Legal Services Authorities of 11 districts in Delhi, seeking clarification on imbalances created in the criminal justice system especially for poor and marginalized people due to incompetent legal aid being marketed on the pretext of being free. The letter mentions/raised six (6) pertinent questions challenging the entire set-up of free legal aid, as mandated by the Hon’ble Supreme Court of India and/or other Hon’ble High Courts and which is now found or otherwise being screamed to be largely incompetent, by seeking confirmation of the contents of the news video made and uploaded by NDTV India on 15.02.2021 wherein legal aid is stated to be a mere formality. The letter points out to several maladies and inherent deficiencies of the justice delivery system to the disadvantage of the legal aid seeker which is being practiced regularly without notice and cure. A further clarification request dated 04.03.2021 has been sent again to the authorities, which interestingly seeks to clear the air on the issue if the office of the Delhi State Legal Services Authority has edited the page titled ‘About Us’ of its website as available at specific weblink i.e. http://dslsa.org/about-us/, by mentioning/adding the word ‘competent’ in the line “Provide free and competent legal aid and services by advising on legal aspects and assigning lawyers to following categories:” since the said page being otherwise of no necessity to reflect dynamic content, was found to be so updated on 02.03.2021 post lunch, specifically after the receipt of the initial clarification request on 28.02.2021.
The notion ‘Access to Justice’ or the motto ‘Access to Justice for All’ does not intend to put its entire core in ensuring just bare minimum access to the Hon’ble Courts along with a black coat wearing individual, lately or belatedly or anyhow to be there, for securing disposal of the cases for the eligible enlisted poor and marginalized class of our society, who still in fact remains alive to the dark beliefs of his or her unanswered questions of having an occasion to visit the ‘न्यायालय’ (Courts), being otherwise fairly acquainted with and fondly enjoyed on television sets through cinematic motion pictures starring cast to the likes of Sunny Deol in the movie ‘Damini’ fearlessly pitching the cry for justice, and who wistfully returns with no show of dispensation of justice, for having failed to perform by their own side on the fateful day for probably no fault of theirs. The reasons are plausible, explicit, momentous and yet unexplainable as the orders duly record the attendance of the learned counsel who believed in his silence as equivalent to a long daring speech against the floating injustice. Much thoughts to give now just as the order for remand is ready to allow much needed time for the hapless individual to ponder over his or her judicially sanctioned custody, as to who, what and where went wrong in that mentally and physically painful journey that ensued post arrest till his or her first production before the Hon’ble Court, and this rigmarole is somehow assumed to have gone into notable and deeper deliberations amongst the law makers as reflected from the Preamble of the most important and unquestionably cherished statute i.e. Legal Services Authorities Act, 1987 which due to reasons, still in wait to be located, took around eight (8) years till the year 1995, a short of time for some to reckon for the state, to get the Presidential assent to get notified, the said Preamble being reproduced herein below for ready reference and recollection:
“The Legal Services Authorities Act, 1987 is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.”
– emphasis supplied
The term ‘free’ might excites a few crores of populace in the country to a least vague and conservative wrong maths play, but I beg to deflect to concentrate and focus on the other side of the coin i.e. ‘competent’ which sadly got oblivious from the entire set of provisions of the statute altogether and we, as the people of India, continued to relish for years in chorus, the freely ensured legal aid and assistance to be escorted to the prisons at the expense and cherish of the state., for an allegation which may not even stand beyond the piece of paper of the First Information Report (F.I.R.) recording it. Nonetheless, from the year 1987 till the year 2019, we were living contended with the state largesse of free legal aid, when suddenly ‘The National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 (As amended vide notification F. No. L/61/10/NALSA dated 28.08.2019 and Addendum dated 18.9.2019 published in the Gazette of India)’ were notified by the state by explicitly mentioning the term ‘competent’ as redemption of the sinister mistake having been committed in forgetting to mention ‘competent’ with the planned promotion of free legal aid or assistance. The said regulations being made in exercise of the powers conferred by section 29 of the Legal Services Authorities Act, 1987 (39 of 1987) and in pursuance of the provisions of section 4 of the Act to make available free and competent legal services to the persons entitled thereto under section 12 of the said Act, encompassed within itself, the Supreme Court Legal Services Committee, State Legal Services Authorities, High Court Legal Services Committees, District Legal Services Authorities, and Taluk Legal Services Committees in India. Howsoever, it again made the procedural battleground even more complex to comprehend when upon a bare perusal of the source of provisions in the statute which enabled the NALSA to notify the said regulations, showed no traces for ensuring ‘competent’ free legal aid in any manner and therefore the alien term i.e. ‘competent’ is understood to have been artificially brought within the ambit of ‘legal services’ as appearing in clause (a) of Section 4 and defined in clause (c) of sub-section (1) of Section 2 of the Legal Services Authorities Act, 1987, probably on a limited view and understanding that the context really required it otherwise, to be necessary or expedient for the purposes of giving effect to the provisions of this Act and the rules made thereunder, however forgetting the missing statutory provision of the competency embedded in the legal services defined.
“Section 2. Definitions
1) In this Act, unless the context otherwise requires,-
(c) ‘Legal Service’ includes the rendering of any service in the conduct any case or other legal proceeding before any court or other Authority or tribunal and the giving of advice on any legal matter.”
– emphasis supplied
“Section 4. Functions of the Central Authority
The Central Authority shall perform all or any of the following functions, namely:-
(a) Lay down policies and principles for making legal services available under the provisions of this Act.
(b) Frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act.
(c) Utilise the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities.
(d) Take necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections of the society and for this purpose, give training to social workers in legal skills.
(e) Organise legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes through Lok Adalats.
(f) Encourage the settlement of disputes by way of negotiations, arbitration and conciliation.
(g) Undertake and promote research in the field of legal services with special reference to the need for such services among the poor.
(h) To do all things necessary for the purpose of ensuring commitment to the fundamental duties of citizens under Part IVA of the Constitution.
(i) Monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act.
(j) Provide grants-in-aid for specific schemes to various voluntary social service institutions and the State and District Authorities, from out of the amounts placed at its disposal for the implementation of legal services schemes under the provisions of this Act.
(k) Develop, in consultation with the Bar Council of India, programmes for clinical legal education and promote guidance and supervise the establishment and working of legal services clinics in universities, law colleges and other institutions.
(l) Take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of the society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures.
(m) Make special efforts to enlist the support of voluntary social welfare institutions working at the grass-root level, particularly among the Scheduled Castes and the Scheduled Tribes, women and rural and urban labour; and
(n) Coordinate and monitor the functioning of State Authorities, District Authorities, Supreme Court Legal Services Committee, High Court Legal Services Committees, Taluk Legal Services Committees and voluntary social service institutions and other legal services organisations and given general directions for the proper implementation of the Legal Services programmes.”
– emphasis supplied
“Section 29. Power of Central Authority to make regulations.
(1) The Central Authority may, by notification, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-
(a) the powers and functions of the Supreme Court Legal Services Committee under sub-section (1) of Section 3A;
(b) the terms of office and other conditions relating thereto, of the Members and Secretary of the Supreme Court Legal Services Committee under sub-section (4) of Section 3A.”
– emphasis supplied
As one sees in hope besides trepidation, more than three (3) clear decades to come up with it, and the beauty of creating and notifying regulations is that the same somehow bypasses the parliamentary discussion at its embryonic stage and detailed scrutiny thereinafter because of the noble title it displays, may still be considered as being little early and actively progressive, with the subtle acceptance of having rendered previous aid as doubtfully competent. I remember a quote by Cornel West that “Rich kids gets taught, poor kids get tested” and like-wise best surgeons are developed from state hospitals, having operated on patients having no real choice, hence the saga of remand orders being secured by the state by fiercely representing itself on the prosecution side and by ensuring to assist the other side timidly and as formality is not an equal opportunity measure for the motto ‘Access to Justice for All’ and is lie for life.
The story of ‘trials and errors’ would have continued mechanically through the system invariably without any malafide, had it not for the Ms. Disha A. Ravi’s arrest following the internationally famed or ill-famed ‘Toolkit’ issue concerning Farmers’ Protest running for months in Delhi and ensuing connected or artificially connected incidents on the Republic Day this year. More specifically, the media fairly reported the chain of events, however the reality came before the larger chunk of members of the public when the NDTV India brought out a video news titled वकील ने नहीं Disha Ravi ने खुद दिए Judge के सवालों के जवाब, जानिए क्यों?’ questioning the free legal aid of DSLSA/DLSAs as a mere formality causing imbalances in criminal justice system of India, just after the remand of activist Ms. Disha A. Ravi for police custody on a Sunday afternoon. The detailed content therein can be manifestly understood once the video is watched carefully, however the premise upon which the same is based and the message it intends to give to the audience it caters, besides casting aspersions and raising questions, whether disputed, contentious or otherwise, exhorts for immediate indulgence and action/reaction of everyone interested in the way we intends to live a life with an independent and protective judicial set-up.
Narration (as understood and attempted to be reduced in writing herein below, as fairly as possible):
The said video as led solo by prominent journalist Sh. Sanket Upadhyay, Executive Editor, NDTV India foremost raised the bigger question concerning the level and type of legal aid or assistance being rendered to the accused Ms. Disha Ravi in the judicial proceedings held on 14.02.2021 (Sunday) in the Patiala House Court, New Delhi. The said video having its content centered on the basis of information made available to the NDTV India as claimed, provides that at the time of the accused being produced by the officials of the P.S. Special Cell, Delhi Police before the learned Duty Metropolitan Magistrate, no private pleader was found available for the accused and as a matter of practice being adopted, the Hon’ble Court called/sought the learned legal aid counsel from the DSLSA to represent the said accused. The said video further claims that such learned legal aid counsels are available only for the purpose of mere ‘FORMALITY’ and in bigger (important here) matters, usually it is found that such learned legal aid counsels are found unable to speak even. That it also provides that the learned legal aid counsel provided to the said accused endorsed the vakalath/vakaltanama therein, however did not respond to the questions/queries posted by the learned Duty Metropolitan Magistrate, and in fact were responded to by the accused herself in her defense, and consequently leading to the order being passed by the Hon’ble Court for grant of Police Custody Remand for 5 days instead of 7 days as sought by the police, only on the basis of communication/arguments entered into with the said accused and the police excluding the assigned learned legal aid counsel. The said video, after delineating the above mentioned series of events, focused on the point that had there been a good/competent learned legal aid counsel provided earlier or had there been already a good/competent learned private pleader for the accused, it could have been possible, on the basis of the arguments which could have been advanced, to secure less period of Police Custody Remand than the one actually handed over. That further, it emphasized upon that in essence, the said accused did not or could not have a learned private pleader of her choice at that moment, as against the provision of learned government pleader (i.e. learned legal aid counsel) who does not speak much otherwise. That surprisingly as was questioned as to how the same was possible particularly the non-availability of accurate/correct information to the learned lawyers in general even during the presence of extensive media coverage, the said video provided that the assigned learned legal aid counsel came up with his own defense that it could not be assessed or known as to which Hon’ble Court the accused was being produced then and the learned counsel was caught off-guard and resultantly the required legal aid could not be provided then.
Not much surprised with the concatenation, after having watched the video carefully, I was unable to accept the sequence of events for a number of reasons. That it is a general practice of the Delhi State Legal Services Authority and/or the District Legal Services Authorities to appoint learned panel advocates as ‘Remand Advocates’ in the concerned Hon’ble Courts and they are duty bound to render free legal aid or assistance to the accused as eligible person(s), whether on the insistence of the Hon’ble Court or otherwise, provided there appears to be no learned private pleader being found engaged by the accused as such. That it is rarely to witness that the Hon’ble Court seeks the immediate involvement of Delhi State Legal Services Authority and/or the concerned District Legal Services Authority to appoint a learned legal aid counsel during remand proceedings and that too on Sunday/Official or Gazette/Restricted holidays. That further, albeit it is aching to convey and the information is not alien to the reality in place, otherwise not ensured by the Hon’ble Court, and the remand proceedings are held or continued in their presence but with due recording of their attendance which fulfill a dual purpose of ensuring a false outlook of justice dispensation in terms of balance criminal justice system. The said practice even if little in percentage terms, may be an adjustment created out due to inherent difficulties of the system, and based out of convenience than malafide, is a savage reality which has now come because of the media glare concerning an important issue, thanks to other maladies reflected in the system as a whole, if viewed from the working and side of other stakeholders too. One can see that, a bare reading of the remand order dated 14.02.2021 passed by the learned Duty Metropolitan Magistrate, Patiala House Court, New Delhi in the matter of ‘State Vs. Disha A. Ravi’ FIR No. 49/2021 P.S. Special Cell makes it amply clear through the attendance being marked of a learned Legal Aid Counsel, coupled with the media provided information of the said learned counsel having endorsed the vakalath/vakalatnama on that fateful day, that the legal aid or assistance was in fact provided to her free of cost at the expense of the state through the Delhi State Legal Services Authority and/or the concerned District Legal Services Authority, whether or not, the same was in actual the ‘COMPETENT’ legal aid or assistance as well as such. Even on the touchstone of such competency being further questioned, nothing at all regarding any submission or contention except the attendance of such learned counsel is being found conspicuously present on the order, comes to fore and that explains the grim actuality in its raw cruel form of having caused a dent on the personal liberty of an individual charged with serious offences which may or may not get substantiated even at the stage of framing of charges later.
It may not be about Ms. Disha Ravi alone but many others, there has been no suo-moto official response from the authorities concerned even when the NDTV India has come out with such issues(s) and claims on the plausible basis self-acquired credible information, the following few questions of mixed facts and law arises for due consideration, in order to appreciate the events in clear perspective which should now be answered and brought before the public at large for due clarification:
1. Whether the Delhi State Legal Services Authority and/or the District Legal Services Authorities in Delhi in exercise of the powers bestowed or duties imposed upon them under the Legal Services Authorities Act, 1987 (as amended from time to time and as in force) emphasize and direct all resources and efforts to provide only free legal aid or assistance without going into the competency factor i.e. substantial and effective, so as to formally declare the provision of ‘Free Competent Legal Aid or Assistance’ at the expense of the state, on record and also in actual? (In other words, whether the extensive awareness campaign of legal aid or assistance is being carried on or sold to the minds of citizens by terming the same as ‘Free’ without ensuring the competent character of such legal aid or assistance?)
2. Whether the Delhi State Legal Services Authority and/or the District Legal Services Authorities in Delhi are unable to create an accountable and transparent mechanism of ensuring real and effective free competent legal aid or assistance being rendered to the eligible persons, in light of malpractices being allowed to be permeated in the system? Whether the existing system of requiring the learned legal aid counsels to submit case wise progress every month, as reproduced herein below, is being ensured as received without fail and whether the same is even otherwise perused to ensure corrective/remedial/penal actions?
“In order to ensure that there is effective check on the legal services being rendered, the lawyers on the panel must submit case wise progress every month or as directed DLSA concerned. Non submission of the same would entail removal from the Panel.”
3. Whether the Delhi State Legal Services Authority and/or the District Legal Services Authorities in Delhi have any concerted supervisory system to evaluate the performance of the learned legal aid counsels in real time, staggered or at specific milestone approach, to term the same as ‘satisfactory’ or ‘unsatisfactory’ or otherwise, and exactly what parameters have been devised and what all actions have been in fact taken in the said regard?
“If performance of the panel Advocate is found unsatisfactory or the Advocate is found to be guilty of charging or collecting or demanding any remuneration from an aided person in any form or he contravenes the Scheme of the Act, Rules and the Regulations he / she can be removed from the panel and shall also be liable for action for Professional Misconduct as per Regulation 7 of the Delhi State Legal Services Authority Regulations, 2002.”
4. Whether the system of empanelment of practicing advocates as learned legal aid counsels as prevalent in Delhi State Legal Services Authority and/or the District Legal Services Authorities in Delhi need revamp on account on inherent deficiencies which restrict the entry of or otherwise post entry, retention of competent practicing advocates?
5. Whether the engagement of learned legal aid counsels for legal representation of the eligible persons is just a mere formality as claimed, to superficially comply with the directions of the Hon’ble Supreme Court of India and other Hon’ble Courts and to present the judicial system as equally accessible and balanced while achieving the motto “JUSTICE FOR ALL or ACCESS TO JUSTICE FOR ALL”?
6. Whether or not the NDTV India in the above referred video, correctly describes the present status of free legal representation provided by the Delhi State Legal Services Authority and/or the District Legal Services Authorities in Delhi as is generally witnessed?
Finding no answer coming to the clarification or any press release on the official website of the authorities concerned, something unusual was found out and a further clarification request was made on 04.03.2021, which sought to clear the air on the issue if the Delhi State Legal Services Authority had in fact edited the ‘About Us’ page of its website available at specific weblink i.e. http://dslsa.org/about-us/, by mentioning the word ‘competent’ in the line “Provide free and competent legal aid and services by advising on legal aspects and assigning lawyers to following categories:” since the said page being otherwise of no necessity to reflect dynamic content, was found to be so updated on 02.03.2021 post lunch, specifically after the receipt of the initial clarification request on 28.02.2021. This reminds us to usual state policies of pasting posters informing the Do’s and Don’ts so as to get relieved of regulation and compliances being ensured.
Well, one may or should refer to Article 39A of the Constitution of India i.e. “39A. Equal justice and free legal aid:-The 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 disabilities.“, but the same should be contextually understood in the sense and manner as it gets reinforced with the interpretation of the term legal aid as made by the Hon’ble Supreme Court of India in the landmark case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar 1979 AIR 1369, besides others viz. M. H. Hoskot Vs. State of Maharastra, Mohd. Hussain Vs. The State (Govt. of NCT) Delhi and more specifically through the Khatri And Others vs State Of Bihar & Ors 1981 SCR (2) 408 which focused upon competent legal aid in the following words:
“Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”
All, including the learned judges manning the Legal Services Authorities must be agreeing to the focal point that ‘Access to Justice’ is a nullity if the competent legal aid or assistance, whether or not the same is freely available, is made practically available and conveniently accessible, although the dynamics of our nation truly requires the same to be effectuated at the expense of the state. The state is understood to have a larger responsibility that we as collective members of the electorate have given in the form of a mandate. The way Elliot Richardson explains it sums it all, “For You, the state is an entity with purposes of its own that the people can be required to serve. For us, the word is only a label for the arrangements by which we delegate to some among us responsibility for things that concern us in common” and therefore correct information should be flown freely towards the citizens of this country without demur concerning the work and practices of the Delhi State Legal Services Authority and/or the District Legal Services Authorities.
I may not have fallen into pit of somewhat larger expectations from Delhi based Legal Services Authorities in seeking the clarification(s) requests as I believe in the sterling character of accountability, fearlessness and ability to set moral benchmarks as the hallmark of Indian Judiciary, but without seeking the same, I and all others as members of the public and especially the NDTV India, would find the Delhi State Legal Services Authority and/or the District Legal Services Authorities standing in abject acquiescence to the above/earlier referred media generated video report. I humbly take the support of the observations made by the Hon’ble Supreme Court of India in the matter of High Court of Judicature at Bombay vs. Shashikant S. Patil (2000) 1 SCC 416, highlighting a marked and significant difference between a judicial service and other services,“….23. The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of the other service. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public offices of great trust and responsibility…” in expecting due action and response being made by the authorities addressed towards the issues raised by NDTV India by considering and marking the same as issues of larger public interest having wider implications for the justice delivery system in India.
The time has come when priorities need to get redefined yet again, although the same should have remained the same as we want today. The first work of any Legal Services Authority is to provide competent and free legal aid or assistance, and then the entire set of others works, which is being carried on presently to the utter disadvantage of the people in need and to the prejudice of the precious limited resources of the state. I, being an ordinary citizen of this country and as such with all other fellow citizens, look forward to responsive stand of the authorities in anticipation as to whether ‘Access to Justice’ is in fact available for all at all.
MOHIT KUMAR GUPTA
[The author is an advocate at High Court of Delhi and District Courts-Delhi NCR. He can be reached at contact@blackrobeslegal.com for any questions or feedback concerning the write-up. The views expressed herein are personal in nature which do not constitute legal advice as such and is not intended to be understood as solicitation of work.]
The present article was published by the author on LinkedIn on 29 May, 2021 vide direct web-link i.e. https://www.linkedin.com/pulse/missing-report-competency-legal-aid-extended-disha-ravi-gupta-1f/
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