FAIR TRIAL, ACCESS TO LEGAL AID & THE SOCIAL WORKER

One of the essential elements of a fair trial is the right of the accused to be defended by a competent and qualified legal practitioner of his or her choice. The right to a fair trial cannot be realized where the accused does not have equal access to legal resources in comparison with the prosecution. Without adequate legal services, the accused will not have the means or expertise to rebut the evidence presented by the prosecution.

It is this that the Legal Services Authorities Act of 1987 seeks to remedy. It is accepted that many people in India cannot afford a lawyer when they are accused of a crime and this is not only because of economic reasons but also because of the social vulnerability which leaves some people devoid of most access to resources.

It is because of this that both the international and domestic law has established that an accused person who cannot procure a lawyer with his/her own resources is entitled to free legal aid at the State’s expense. In practice during civil matters as well, the complainant is also entitled to this free legal aid.

The right is enshrined in the ICCPR and Articles 22 (1) and Article 39-(A) of the Constitution of India.

The positioning of social work intervention in such a setting is essential and varied.

The District Legal Services Authority (hereafter mentioned as DLSA) is established under the provisions of the Legal Services Authorities Act of 1987.

It is responsible for :

• disseminating information on a regular basis to strive for litigation free villages in the district,
• to give paralegal training,
• to  organise Lok Adalats within the District,
• to promote and to facilitate arbitration and conciliation and to arrange for legal representation of those who apply for the same and are accepted by the member-secretary. The member-secretary is authorised to accept applications provided it fulfils the grounds of the income ceiling or the other grounds of recognized vulnerable groups.

The District Legal Services Authority has in its disposal a fund from which it allocates for the above mentioned programmes. It also has a panel of lawyers who do not charge the clients and receive an honorarium from the Authority as provided for by the Act. This panel of lawyers is constructed by an application to the member-secretary which on being accepted, the said advocate is welcomed into the panel and holds his/her position for a given time period.

I will now introduce another character in my Story - The Social Worker...

Social Work intervention is mainly for the underprivileged, those who do not have access to resources to design and define their own modes of intervention. It has been observed by social work practitioners that most of the cases for which the applications come through are from the Prisons from the accused or the convicted who either have no contacts with their family or friends or community or who are too economically challenged themselves to afford an advocate.

Given this situation, the District Legal Services Authority gives a scope to rally for this cause and to push for more and more cases to be taken up by the panel and followed through by the Social Worker.

However, the issues here are multiple. To begin with, certain Prisons have really low instances of applications made. The DLSA’s sole office is in the premises of the court. There is limited outreach into the Prisons for disseminating information of this right to avail of free legal services. Although the ignorance of the law is no excuse according to Indian lawmakers, there is little scope of “knowing” the law for in most cases, there is no sustained legal rights education in either schools, colleges or communities or even in institutional settings. How many parents would actually teach their children Law instead of Mathematics during their study period at home?

It is here that there is ample scope of social work intervention. Outreach programmes can be designed for the community and institutional settings in which the procedures and the rights  can be discussed and succinctly described in step by step procedures. Not only is the knowledge of the law important, so is the knowledge of how to go about claiming ones right.

Arbitration and Conciliation and Lok Adalats can also be promoted in the community. This is in relation to the reality that the Prisons are overcrowded and there is no sustained follow up available in the system for those who are acquitted or released by the court of law except in some cases related to Probation.

There can be two strategies to tackle this -  one in which civil society organisations take up this cause and work towards it and push for it both as part of community organisation and mobilisation and another -in appealing to and pushing the system towards working out a way of doing the same.

The curious case of compounded vulnerability...and the magic of Section 311

It has to be remembered that this vulnerable group which applies for legal aid, remains vulnerable even after attaining legal aid. Legal aid is a support while the case is sub judice, after that, the other marks of vulnerability – stigma, discrimination – which may compound that initial vulnerability are not addressed by the system.     

Once the case is sub judice and even during arbitration and conciliation efforts, there are points in time when the lawyer appointed by the DLSA is unable to do a thorough social investigation. The police and the prosecution and in these cases the police and the defence counsel do not really work together in investigation. The lawyer hence is reduced to somebody who only presents to the court the “facts” presented to him/her by the police through the lens of law. There is little scope for active investigation which is social and not criminal in nature. It appears as if only the criminal side of the individual is in focus here and not the other aspects of human behaviour which may have pushed him/her towards the action deemed criminal.

Here, the Social Worker may intervene under the provisions of Section 311 of the Code of Criminal Procedure which mentions “Any Court may, at any stage of any inquiry, trial or other procedure under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness…if his evidence appears to it to be essential to the just decision of the case.”  If  the Social Worker can work with the lawyer appointed by the legal aid, s/he may become that person if the lawyer can plead that his/her statement is essential to the just decision of the case. This will go a long way to ensure a full and fair trial with corroborations and full facts of the case.

The follow up of the cases are often not a possibility for the accused when s/he is an undertrial or when s/he is convicted. So the entire scope of self determination and the decision of the individual about what s/he wants to do, or if s/he can provide any other information which may be of help to his/her case is greatly lost. It is here that the Social Worker may build the bridge by following up the cases and also interacting with the client trying to find ways to strengthening the defence or appeal.

The follow up of the cases also need to be done with the lawyer, considering that there are instances when the cases are not heard due to the absence of the lawyer and alternate arrangements need to be made to ensure a speedy trial.

The interest of the legal aid panel lawyers are also an issue which can be taken up by the Social Worker to initiate a more active interest in the cases taken up. Voiced concerns have variously included the inadequate honorariums allocated by the budget and also the lack of a proper framework regarding the number of cases that can be taken up by a practitioner.

Civil cases- Lok Adalats...And the court-shy community.

Lok Adalats are an important way to deal with cases which are pre-litigation or in which the complainant is ready to reach a settlement.  Here, the accused, the complainant, the advocates of either sides and the judge sit together to negotiate an agreement which may lead to a withdrawal of the case or a settlement.

A Social Worker, here could mobilise the community to come together and lodge their grievances against such practices first with the company or institutions and then later if required take it through the legal channels.

Arbitration and Conciliation as a process has been recorded variously as a very successful move in the DLSA. Hoever, the reasons for absence of either party are multiple. Sometimes the party may not be able to afford the trip to the Court ; s/he may not be willing to; s/he may not have received the notice.

The potential for intervention in such a setting is immense as mentioned earlier. There is much that can be done.

Outreach programmes can be designed to link better the community, the prison and the court. But this is not easy.

The first stumbling block is the antipathy of most to have anything to do with the law. Individuals I have interacted with in the court premises were most concerned of the stigma that came with being involved in any of the systems of law unless it was for a reason of occupation within the system itself. Unless this notion is dealt with meaningful work which does not stigmatize a group or adds a value judgment to it in relation to legal aid and legal awareness and mobilisation would be difficult.

The DLSAs also have a mandate to undertake legal aid education programmes in colleges in the districts. Despite this, the DLSA is to a great extent confined to the court premises. The only times that it goes out into the community is when it organises programmes and camps. Then too, the approach is of only disseminating information and coming back. There is no forum for constant interaction within the community. Programmes in prisons are few and far between and not scheduled in the list of programmes  to be conducted formed by the State Legal Services Authority operating from the High Court.

Looking ahead!

Several development sector initiatives and academic institutes, colleges, schools and departments of Social Work  have been taking steps to collaborate with the criminal justice system to form active linkages between the community and cater to the need for legal aid- Understanding & Access.

 It has to be remembered in all discourse, that the Court is not in isolation. It is very much a part of the social fabric and its responsibility towards the same cannot be ignored and under the garb of a “public spirited individual”, the social worker can indeed play a crucial role in ensuring fair trial overcoming hurdles.