The Indian legal system is considered to be one of the oldest legal systems. With the increase in the population of the country, there has been a simultaneous increase in its judicial affairs. As time goes by, Indian courts are packed with many unsettled cases and the judicial system is falling back on providing speedy justice. According to the National Judicial Data Grid (NJDG), there are about 3.7 million cases pending in the courts for over a decade in India. To deal with such situations of pendency in cases, a mechanism called as the ‘Alternative Dispute Resolution’ was established. It plays a significant role in lessening the burden of the courts. The Alternative Dispute Resolution is a mechanism in which the disputes between the parties are settled outside the court. It can also be referred as an informal way of dispute resolution. This mechanism is considered to be a cost efficient, fair and timely means of resolving disputes. It offers to resolve both matters involving disputes of civil and criminal nature. The Alternative Dispute Resolution mechanism includes in itself various modes of resolution processes such as:
- Negotiation, and
- Lok Adalat.
In ancient times, people used to solve their disputes with the help of the ‘Panchayat’, in which the people’s problems will be heard and resolved by a group of unbiased people based out of mutual understanding. This concept has evolved over the years and has occupied a distinctive place in the Indian judicial system in the name of Lok Adalat.
Lok Adalat which is also called as the “people’s court” is a forum where cases that are unsolved and pending in the courts or are at pre-litigation stage are settled or compromised cordially. It is a unique institution where people come together and solve their disputes amicably. This method of dispute resolution is considered to be the most effective, rapid and prominent one.
The first Lok Adalat was initially held in 1982, in the village of Una, in the district of Junagarh, Gujarat. But the fairly modern version of Lok Adalat mechanism which exists hitherto began in Chennai, in 1986. Over the years, this system has been adopted in many other states such as Karnataka, Maharashtra, Bihar, Haryana etc., and has now gained nationwide popularity.
Unlike the traditional court of law, no court fee is payable when the matter is filed under Lok Adalat. Even in cases where the matter is still pending in the court, the court fees originally paid will be given back to the parties once the case referred to the Lok Adalat is settled. The Lok Adalat is usually chaired by a serving or a retired judicial officer as the Chairman and with two other members, a lawyer and a social activist. When compared to the usual court procedures, Lok Adalat ensures speedy resolution of disputes and people get quick remedy for their issues. It has been observed that cases involving monetary quarrels are settled easily through the Lok Adalat. The parties here can communicate directly with the presiding officer, unlike as in the traditional courts. The cases which are already pending in the court of law will be transferred to the Lok Adalat only with the approval of both the parties. The person deciding the case in the Lok Adalat is called the ‘Member of the Lok Adalat’. He cannot coerce or pressurize the parties and can only convince them to come to a conclusion for settling the case. The case records will be sent to the court from where the reference was acquired, in cases where the Lok Adalat is not able to come to a settlement or conclusion.
The Lok Adalat has been given a statutory position under the Legal Service Authority Act, 1987. According to this Act, the awards made by the Lok Adalat are considered to be at par with the orders passed by the civil court and is said to be final and binding on all parties. And also, due to mutual settlement between parties, no appeal can be claimed against the decision of the Lok Adalat. If the parties are not satisfied with the decision of the Lok Adalat, they can initiate litigation in the court of suitable jurisdiction.
The history of legal aid goes back to 1944 where a committee was appointed under the leadership of Lord Rushcliffe to determine the facilities provided for giving legal advice and assistance to the disadvantaged and negligent people of England and Wales. The Legal Aid and Services Act of 1949 was enacted based on the report submitted by the committee in 1945. In reference to this Act, a committee on legal aid and legal advice was set up in Bombay under the chairmanship of the late Justice P.N. Bhagwati in 1949 to grant legal aid to a certain category of people. In spite of such initiatives, nothing significant happened with respect to legal aid for over a decade. In 1972, a committee was constituted to address the need for providing legal aid services to the people of the educationally weaker and socially downtrodden class of society. Subsequently, a committee chaired by late Justice P.N. Bhagwati was formed by the Indian Government for ‘Implementing Legal Aid Schemes’ (CILAS). This committee made sure that not only legal aid was offered to these sections of society but various other measures were also taken for creating legal consciousness among the public.
The preamble of our Indian Constitution contains the words ‘justice- socio economic and political’ which aims at securing social, economic and political justice to the people. By the Constitutional 42nd Amendment Act, 1976, a new provision was incorporated in the constitution under Article 39-A which provides for free legal aid to the poor and downtrodden. According to this Article, the States shall provide operation of legal system, fomenting justice based on equal opportunity. All this is to be provided through appropriate legislations or schemes to ensure that the opportunities for securing equal justice is not denied by reason of social, economic or other disabilities. In the case of Sheela Barse v. State of Maharashtra it was held that, legal assistance to poor or an underprivileged accused, who is detained and put in endangerment of his life or personal liberty is a constitutional authorisation not only by Article 39-A but also by Articles 14 and 21 of the Constitution. Article 21 talks about the right to life and liberty available to every person, expect according to the procedure established by law. Likewise, Article 14 deals about equality before the law. In Hussainara Khatoon v. State of Bihar, the Supreme Court held that the right to free legal aid is an indispensable ingredient for a reasonable and just procedure for any person accused of a crime. It also added that, such right must be held to be implicit in the guarantee of right to life and liberty given in Article 21. The court also recommended the Government of India and the State Government to introduce comprehensive legal service programs in the country in the case of M.H. Hoskot v. State of Maharashtra. Also, the Supreme Court in a case held that the Magistrate or the Sessions Judge in front of whom an accused appears, shall be held to be under a duty to inform the accused that if he is not able to undertake the services of a lawyer due to of poverty or neediness, he has the right to obtain free legal services at the cost of the State.In Suk Das v. Union Territory of Arunachal Pradesh, it was held that if an accused is not informed of his rights and hence remains unpresented by a lawyer, it would be a violation of Article 21 and the trial must accordingly be held as a constitutional infirmity and the sentence charged against him should be set aside.
Section 304 of the Code of Criminal Procedure, 1973 deals with the obligation of the State in providing legal aid to the accused, when he is not presented by a lawyer due to insufficient means. In such cases, the court has to appoint a pleader for his defence at the expense of the State. If the accused is not represented by a lawyer, he may place a request to the Court under Section 304 of Cr.P.C. or under any other Legal Aid Scheme to provide him with a lawyer. The Court on such cases may pursue with the trial once again after recording a plea on the charges. In cases where the accused under Section 304 of Cr.P.C. files for the appointment of a lawyer and when the court has to appoint a defence counsel to him, there would be no infringement of Article 22(1) for not providing the Right of Choice in choosing the defence lawyer by the accused. Even though at the enquiry of the magistrate, the accused had stated that he does not require a lawyer at the cost of the State, the same exercise has to be done by the Sessions Judge before whom the trial is commenced. If this is not done, it is considered as a violation of Article 22(1) and Section 304 of the Cr.P.C.
LEGAL SERVICES UNDER LEGAL SERVICES AUTHORITIES ACT:
In Suk Das v. Union Territory of Arunachal Pradesh, the Supreme Court observed that over 70% of the people residing in rural areas are illiterate and are not aware of their rights under the law. This absence of legal awareness among the people was responsible for the deprivation and exploitation of all rights and benefits for the poor. Based on this background, the Parliament passed the Legal Service Authorities Act, 1987 which came into force on the 9th of November, 1995.
The Act has two primary aims; namely,
- To constitute legal service authorities for providing free and competent legal services to the weaker sections of society in order to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and
- To organize Lok Adalat to ensure operation of the legal system, thereby promoting justice on the basis of equal opportunity.
The important features of the Act can be summarised as follows,
- To make arrangements for periodical organisation of Lok Adalats which can be conducted and organised under the Act by the Supreme Court Legal Services Committee, High Court Legal Services Committee, State Legal Services Authority, District Legal Services Authority and by the Taluk Legal Services Committee, and
- To spread legal literacy and legal awareness to everyone, especially to educate the weaker section of society about their rights and privileges guaranteed by the Constitution and other social welfare legislations or enactments in the country.
The program of Legal Aid mentioned in the Act is headed by three bodies.
- National Legal Services Authority at the Central level.
- State Legal Services Authority at the State level.
- District Legal Services Authority at the District level.
Apart from these, several committees such as the Supreme Court Legal Services Committee, High Court Legal Services Committee and Taluk Legal Services Committee are constituted by the Central Authority and the State Authority respectively to exercise such power and functions as may be determined.
Though Article 39A speaks about ‘Equal justice and Free legal aid’, the criteria for providing legal services to those entitled are provided in Section 12 (a) to (h) of the Act. This provision should be read with Section 13 which prescribes further tests for satisfying the entitlement criteria as prescribed under Section 12. Section 12 (h), where the person whose annual income is less than a certain limit as prescribed, are also eligible for legal aid for pursuing cases before the Supreme Court and other lower Courts. Any member of the Scheduled Castes or Scheduled Tribes or a women or any mentally ill/otherwise disabled persons or an Industrial workman, are entitled to the free legal aid as per Section 12 although they may receive an amount more that the limit of income as prescribed. Section 14 of this Act holds that the Central Government shall, after the appropriation made by Parliament, pay to the Central Authority, certain sums of money as grant for being utilised for the purposes of this Act. The Central Authority, the State Authority and the District Authority shall establish Funds called as National Legal Aid Funds under Sec. 15; State Legal Aid Fund under Sec. 16 and District Legal Aid Fund under Sec. 17 of the Act respectively Any other funds received under the orders of any court or from any other source shall be credited to the said Funds as detailed under the provisions of the said sections. Apart from this, under Section 22-B of the Act, as amended by Act 37 of 2002, the National Legal Services Authority or as the case may be, all State Legal Services Authority, are required mandatorily to establish a Permanent Lok Adalat.
In spite of all efforts by the Government of India and the laws enacted by the Parliament, the concept of Legal Aid remains much on paper than in reality in our country. The above discussed developments from the legislature and the judiciary have focused only on the aspect of free legal aid and have widely failed to address the quality of legal aid provided. In addition, as more emphasis is laid on criminal cases, the significance of ADR is somehow lost in the process of Legal Aid. Though, Lok Adalats have been quite successful in India in resolving a huge number of pending cases, many legal professionals’ still resort to litigation. Sometimes ADR mechanisms are considered to be a very expensive affair, much more than ordinary court proceedings. It is most likely to involve the payment to the arbitrators, conciliators, mediators or negotiators for their services. This compels the poor from not resorting to the ADR process. Further, the absence of professional liability for poor quality legal aid presents the current situation of depriving the legal professionals of more options like ADR in the settlement of their disputes. Unfortunately, in spite of our Indian legal system encouraging dispute settlements through mechanisms like ADR, our citizens have failed to embrace them.
 Murali Krishnan, 3.7 million cases pending in courts for over 10 years: Data, HINDUSTAN TIMES, (June 29, 2020, 7:30 AM), https://www.hindustantimes.com/india-news/3-7-million-cases-pending-in-courts-for-over-10-years-data/story-ytI7P0rm5Plwe5r8ubNVyJ.html.
 Lok Adalat, NATIONAL LEGAL SERVICES AUTHORITY, https://nalsa.gov.in/lok-adalat.
Mr. Loknath Mohapatra, Dr. Rangin Pallav Tripathy, Mr. Badri Narayan Nanda & Mr. Satya Prakash Raychoudhury, An Analysis of the functioning of Lok Adalats in the Eastern Region of India, 22, OJA. 595, 616 (2019), https://doj.gov.in/sites/default/files/OJA.pdf.
 Supra note 3.
 State of Punjab & Anr. v. Jalour Singh & Others, (2008) 2 S.C.C. 660 (India).
 Supra note 1.
 Constitutional 42nd (Amendment) Act, 1976, No. 91, Acts of Parliament, 1976 (India).
 Citings: The Constitution of India (Article 39), ECONOMIC TIMES, (Aug 16, 2005 12:22 AM) https://economictimes.indiatimes.com/citingsthe-constitution-of-india-article-39/articleshow/1201161.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
 Sheela Barse v. State of Maharashtra, A.I.R. 1983 S.C. 378 (India).
 Hussainara khatoon v. State of Bihar, A.I.R. 1979 S.C. 1369 (India).
 M.H. Hoskot v. State of Maharashtra, (1978) 3 S.C.C. 544 (India).
 Khatri & Ors. v. State of Bihar & Ors., (1981) 2 S.C.R. 408 (India).
 Suk Das v. Union Territory of Arunachal Pradesh, A.I.R. 1986 S.C.R. 991 (India).
 Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
 Dineshbhai Dhemenrai v. State of Gujarat, (2001) 1 G.L.R. 603 (India).
 Tehsildar Singh v. State of Madhya Pradesh & Anr., (1995) Cri.L.J 1678 (India).
 Vedva Vaghari Ramesh Ramabhai v. State of Gujarat, (1994) 1 G.L.R. 901 (India).
 Supra note 15.
 Supra note 1.
 Supra note 3.
 Legal Services Authorities (Amendment) Act, 2002, No. 37, Acts of Parliament, 2002 (India).
MADABHUSHI SRIDHAR, ALTERNATIVE DISPUTE RESOLUTION – NEGOTIATION AND MEDIATION 375 (1st ed. New Delhi: Lexis Nexis Butterworths 2006).