By Prachi Chindarkar

The Protection of Women from Domestic Violence Act, 2005 (the DV Act), was enacted to address abuse suffered by women and children below the age of eighteen years. The DV Act provides welcome relief to victims of domestic violence. In addition to addressing forms of domestic violence common to all cultures, the DV Act includes provisions addressing the unique socio-cultural elements of abuse and violence in marital and household relationships in India, making it a particularly powerful aid to battered women and children. This article reviews the salient aspects of the DV Act.

The DV Act protects women and children who fall prey to violence of any manner either within the family or in a shared household (i.e. in a domestic relationship). “Domestic violence” under the DV Act includes actual, or threat of, abuse, including physical, sexual, verbal, emotional, and economic abuse. It also includes harassment, such as unlawful dowry demands from a woman or her relatives. A domestic relationship under the DV Act includes the relationship between any woman who lives or has lived together in a shared household by virtue of kinship, marriage, a relationship in the nature of marriage, by adoption, or a joint family. Even women who are sisters, widows, mothers or single women living with the perpetrator of the violence are entitled to protection under the DV Act. All children, including adopted, step, and foster children below the age of eighteen years, are protected under the DV Act.

Enforcement of the DV Act is entrusted to state governments and each state is required to appoint one or more protection officer(s) in each district with clearly notified jurisdictional rights within which the protection officer(s) shall exercise their powers and perform the duties conferred on them under the DV Act. The protection officer(s) shall as far as possible be women with specified qualifications and experience. Any person who has reason to believe that an act of domestic violence is being, has been, or is likely to be committed can inform the local protection officer. To encourage people to come forward and report domestic violence, the statute provides that the informer will not be subject to any civil or criminal liability. An aggrieved person, any person on behalf of an aggrieved person, or a protection officer may present an application directly to the local magistrate seeking relief under the DV Act.

Judicial relief under the DV Act is available in many forms. The court may enjoin the abuser from committing any further act of abuse, communicating with the victim, and entering the victim’s place of employment or school. The court may award compensation or damages for losses suffered by the victim of abuse. The magistrate may, at any stage of the proceedings, direct the respondent or the aggrieved person, either singly or jointly, to undergo counseling. The magistrate may conduct the proceedings in camera, if the circumstances of the case warrant. Every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title, or beneficial interest in the same. The courts are authorized to pass restraining orders so that the abused woman may continue to reside in the same house. The DV Act also provides that the aggrieved person shall not be evicted or excluded from the shared household or any part of it. Before the DV Act was passed, a complainant faced the risk of eviction by the abuser.

The magistrate may grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf. The magistrate also may provide for visitation between the child and respondent, unless he is of the opinion that visitation by the respondent may be harmful to the interests of the child, in which case visitation shall not be permitted.

Before the DV Act was passed, domestic violence victims sought relief from the courts under the Indian Penal Code (IPC). The DV Act is more expansive than the IPC because the DV Act broadly defines (a) abuse subject to judicial sanction and, (b) the range of victims subject to protection. The IPC does not use the term domestic violence; instead, it addresses offences similar in nature to the offences described in the DV Act, but restricted to cruelty to married women. All other cases of household domestic violence had to be addressed under the offences of that respective act of violence under the IPC.

Before the DV Act was passed, those abusing women and children could only be prosecuted under the IPC. Victims who were dependent on their abusers often faced legal hurdles because the IPC is not gender specific. For example, section 498A of the IPC provides that a husband (or a relative of the husband) who subjects his wife to cruelty shall be punished by imprisonment for a term which may extend to three years and subject to fine. For the purpose of this section, “cruelty” means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. This provision did not adequately safeguard domestic violence victims. The victim would most likely have to move out of her marital home to ensure her safety or face further violence in retaliation. There was no provision that would permit her to continue living in her marital home and raise her voice against the violence committed against her. The DV Act also deals with different types of abuses that were not addressed earlier. For instance, it provides relief against sexual abuse, including marital rape which is excluded under the IPC. Thus, the DV Act remedied many deficiencies in the law.

An offence under the DV Act is cognizable, that is, the police may arrest the suspected abuser without a warrant or investigation. The DV Act makes the offense non-bailable and provides for imprisonment for a term that may extend to one year or a fine up to twenty thousand rupees, or both. These provisions help bring the perpetrator to justice in a speedy manner. Importantly, on March 23, 2010, in an, as yet, unreported ruling, the Delhi High Court gave retroactive effect to the DV Act so that women who were subjected to domestic violence before the DV Act was passed in October 2006 may seek judicial relief.

The DV Act was crafted to directly and forcefully address family and household violence, taking into account the unique socio-cultural aspects that surround it in India. Together with the court’s decision to give the DV Act retroactive effect, battered women and children now have significant legal protections to combat abusive treatment.

Prachi Chindarkar is an associate with LawQuest and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at prachi@lawquestinternational.com.

by Madhooja Mulay

As more women join the Indian workforce the judiciary has recognized the need to address sexual harassment in the work place. Although India does not have a specific law to protect individuals from sexual harassment in the work place, individuals enjoy certain fundamental rights under the Indian Constitution, such as the right to equality before law (Article 14), freedom of speech (Article 19), and protection of life and personal liberty (Article 21). Over ten years ago, in Vishakha v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court of India, in a welcome form of judicial activism, applied the provisions of the Constitution to establish a set of guidelines with regard to sexual harassment at the work place. This case involved the brutal gang rape at the work place of a social worker, who tried to prevent a child marriage as part of her duties with the Women Development Programme. The feudal patriarchs became enraged, decided to teach the social worker a lesson, and raped her repeatedly. The social worker did not receive justice before the Rajasthan High Court and the rapists, “educated and upper caste affluent men,” were freed. Vishakha, a women’s rights organization, filed a public interest litigation in the Supreme Court of India. The Court found that the social worker was raped while she was working in her role as a social worker and thus had been raped at the work place. Based on this finding the Court established guidelines regarding sexual harassment, to be followed at all work places. The guidelines were formed on the basis of gender equality and the fundamental rights guaranteed by the Constitution, as well as international conventions and norms.

All employers are required to adhere to the guidelines announced in Vishakha. However, in the absence of a regulatory body or enforcement mechanism it is difficult to monitor compliance. The guidelines require employers to form a complaints committee to address sexual harassment of female employees. Additionally, the guidelines state that if an act of sexual harassment also amounts to a specific offence under the Indian Penal Code (IPC) or any other law, the employer is obligated to initiate an appropriate action in accordance with the law, primarily by filing a complaint with the appropriate authority. In addition to protection under the guidelines, victims of sexual harassment may initiate criminal proceedings against the offender under the IPC.

Important Features of the Guidelines

 Employers are required to establish a complaints committee chaired by a woman with at least 50% of committee members being women.

• As soon as there is an incident of sexual harassment the victim should file a complaint with the complaints committee supported by a written report of the incident. The victim should ask for a receipt or a copy of the report.
• Employers must ensure confidentiality of the complaint and vigilantly monitor victimization of or discrimination against the complainant.
• The complaints committee is required to initiate an inquiry and, when it is established that the perpetrator was guilty of sexual harassment, impose immediate and appropriate disciplinary action.
• The complaints committee is required to prepare and submit to the government an annual report regarding its functions and a list of complaints filed with it along with a description of steps taken by the Committee to address the complaints.
• Employees must raise sexual harassment issues at employee meetings, employer-employee meetings, and other appropriate forums, and, if necessary, lobby to establish a complaints committee if the employer has failed to do so.

Vishakha was re-affirmed recently in D.S Grewal v. Vimmi Joshi and Ors, (2009) 2 SCC 210, where the Supreme Court ordered the employer to follow the guidelines and, in an unprecedented move, awarded costs of litigation to the victim of harassment. There is a bill pending before Parliament, the Protection of Women Against Sexual Harassment at Workplace Bill, 2007. However, until the bill becomes law, the guidelines continue to be treated as the law, even though they are not enforceable in the same manner as a statute.

Madhooja Mulay is an associate with  LawQuest and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at madhooja@lawquestinternational.com.

By Rishabh Jogani

Human rights, or droits de l’homme, dechos humanos, menschenrechte, and the rights of man, are, literally, the rights one has because one is human. There are two sets of rights – civil and political rights, and social and economic rights, each as important as the other. Deprivation of either set would defeat the very essence and purpose of the concept of human rights. Man is not provided with these rights. Rather, he possesses them since birth. To have a right to something means to be entitled to it – it is owed to you, belongs to you in particular. If it is denied, then you are allowed to make a claim for its protection. The State, in turn, must do what is necessary to ensure that a man can freely enjoy his own rights. This article explains how the world has moved from proclaiming to realizing basic human rights, and then examines India’s efforts to live up to its own constitutional human rights mandates, taking into consideration India’s practical and economic realities.

A NEW DAWN IN HUMAN RIGHTS

Any discourse on human rights would be incomplete without mention of the Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations on December 10, 1948. The Universal Declaration of Human Rights was the first global effort for the actual realization of human rights and, thus, represented a new dawn in the discourse of human rights. It enumerated rights that are fundamental to all human beings, such as the right to life, liberty, security of person, equality and dignity, a fair trial, a nationality, freedom of thought, conscience and religion, freedom of opinion and expression, to work, to free choice of employment, to just and favorable conditions of work and protection against unemployment, and to education. These rights were declared to be an inalienable part of every person.

The Declaration, however, only proclaims human rights in theory. Those rights may not be realized unless a mechanism is put in place for their protection. Many believe that a proclamation is the first step towards actual realization. According to B.R. Munro, “The Universal Declaration could be proclaimed by a body representative of most of the world’s states is a remarkable achievement and worthy of celebration.” According to M. Faghfoury, “The moral appeal of the declaration is its greatest achievement.” The Declaration has inspired many nations to include human rights in their constitutions and domestic laws. Different regional organizations also have adopted the Declaration as part of their charters.

ENFORCEMENT AND PROTECTION OF RIGHTS AROUND THE WORLD

Before we look at how human rights are protected in India it would be meaningful to know how these rights are enforced the world over. There exist many international agreements, treaties, covenants, and conventions concerning human rights. They provide for certain remedies for the enforcement of human rights. The remedies may be legal, extra-legal, charter-based, treaty-based, or pursuant to customary international law. As an example, one may seek redress before the International Court of Justice (“ICJ”) established under the United Nations Charter. The ICJ may provide advisory opinions regarding human rights issues or “address human rights issues by interpreting conventions incumbent upon states or by evaluating state conduct implicating human rights concerns.” The ICJ also can order a State to desist from a particular action that in its opinion violates human rights as enshrined in the Declaration. In addition to the ICJ, one may seek redress before the International Criminal Court (“ICC”) established by the Rome Statute. “The Court has jurisdiction in accordance with the Statute with respect to the crimes of genocide, crimes against humanity, war crimes and the crime of aggression.” The ICC has the power to summon a violator and to bring him before it.

Along with the ICJ and the ICC, certain countries have their own domestic courts that are competent to try cases for human rights violations. The domestic courts in fact have been the best and most successful enforcers of human rights because their orders have the force of law in their respective nations and territories, and local governments and agencies are bound by their constitutional provisions to obey and enforce them. Domestic courts of many countries have played an instrumental part in enforcing human rights provisions and upholding them for decades.

Besides judicial methods for enforcement of human rights, there exist extralegal measures for the protection of the same, such as the Security Council of the United Nations. “The Security Council may react to gross human rights abuse through a number of non-coercive measures,” such as non-binding resolutions and “peace keeping operations.” As a coercive measure, the Security Council is authorized to order economic sanctions, as well as military action, against a state. Before 1986, the United Nations Commission on Human Rights, which reported to the United Nations Economic and Social Council (“ECOSOC”), considered human rights complaints through its sub-commission, and appointed special rapporteurs to several countries to investigate human rights abuses. If substantial human rights abuses were found, then it would make a recommendation to the ECOSOC. On March 15, 2006, the Human Rights Commission was replaced by the United Nations Human Rights Council (“UNHRC”), which reports directly to the General Assembly. The UNHRC may only make recommendations to the General Assembly. Additionally, through General Assembly Resolution 48/141, 1993, the Office of the High Commissioner of Human Rights (“OHCHR”) was established. “As the principal United Nations office mandated to promote and protect human rights for all,” the OHCHR leads global human rights efforts and speaks out objectively in the face of human rights violations worldwide.

Most international human rights agreements establish their own enforcement systems, albeit subject to state governance. A state may choose what part of an international agreement it agrees with or accepts to be bound by and what part it does not submit itself to, keeping with the notion of state sovereignty. The enforcement bodies are committees of independent experts that monitor implementation of the core international human rights treaties and are created by the treaty that they monitor. The expert committees serve different functions: doing justice in individual cases, creating a deterrent and encouraging behavior modification, and interpreting and explaining human rights law beyond the individual case or particular set of state actors. The treaty bodies may ask for periodic state reports on human rights issues, entertain interstate and even individual complaints, and conduct inquiries. The effectiveness of treaty bodies can ultimately be measured in relation to the different purposes they set out to achieve.” There exist many treaty bodies that have done substantial work in the field of human rights, such as the Commission on the Elimination of Racial Discrimination, the Commission on the Elimination of Discrimination Against Women, and the Committee Against Torture.

Customary international law is another international system that protects human rights. It is accepted by the ICJ and the ICC, and is binding on all nations except a state that is a persistent objector. There also exist certain high standards of norms called “jus cogens.” Even a persistent objector is bound by them, as they aim to protect basic human dignity.

THE INDIAN PERSPECTIVE ON HUMAN RIGHTS ENFORCEMENT

India has staked out its own position in the world of human rights. India’s Constitution guarantees the civil and political rights enshrined in international agreements and declarations such as the United Nations Declaration of Human Rights, and mandates the State to enforce and protect such rights. However, it does not bind the State to protect economic and social rights; rather, it lists them as a Directive Principle of State Policy, which the State cannot be forced to obey but is only guided to follow. One of the possible reasons for this distinction is that civil and political rights are what the people need to be assured of now to participate in a liberal constitutional democracy. On the other hand, it is impracticable for a developing nation like India to immediately guarantee economic and social rights. The framers of India’s Constitution have chosen the middle path between the ideal and the practicable. Sadly, the Constitution (Article 37) does not precisely define how and when the State must provide economic and social rights to the populace; rather, it provides ideals (see, the Chapter on Directive Principles of State Policy) and states that it shall be the duty of the State to apply these principles in making law.

The average citizen, the poor man on the street, and the debt ridden farmer is most interested in economic rights such as the right to work, education, public assistance, or a living wage and conditions of work ensuring a decent standard of life. However, a mere constitutional guarantee is ineffective if the State is not in the financial position to provide such rights. The poor and hungry remain poor and hungry irrespective of a Constitutional right to basic economic security because the State is practically unable to provide for them. India’s situation as far as economic and social rights are concerned can only improve once the governance of the country has the machinery and ability to truly do something. That would require a focused government with strong and effective administration. The Government has taken some steps in the right direction to ensure economic and social rights, such as passing the Workmen’s Compensation Act, which protects the rights of workmen and provides compensation for disability arising out of employment, and providing for a public distribution system for food-grains and other essential commodities to indigent persons at subsidized rates. However, much more remains to be done.

Article 13 of the Indian Constitution, addressing “laws inconsistent with fundamental rights,” bars the State from making any law that would take away or abridge fundamental rights. “The Courts of India have the power to declare as invalid, any legislative enactments transgressing the fundamental rights.” See A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.

The courts have exercised this power on many occasions. In Minerva Mills v. Union of India AIR, 1980 S.C. 1789, the Supreme Court struck down a Constitutional Amendment by which Parliament had given itself an absolute power to amend the Constitution, including fundamental rights, without any limitations, and any law made by Parliament for the furtherance of fundamental rights could not be challenged in any Court of India. The Court held that Parliament had limited amending power and it could not in exercise of that limited power give itself unlimited power. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, Mrs. Gandhi’s passport was impounded without any reason or justification. Mrs. Gandhi sought relief in the court, arguing that her right to life and personal liberty (under Article 21) and her right to free speech (under article 19) were violated because she was being prevented from traveling outside the country without a reason. The Court agreed. In Keshavan v. State of Bombay, AIR 1951 S.C. 228, the Supreme Court held that anything done under an unconstitutional law was wholly illegal and the Government could not claim immunity and privilege from such a law. Recently, in the Naz Foundation case [WP(C) No.7455/2001], the Delhi High Court considered whether sexual intercourse between two consenting adults could be punishable under Section 377 of the Indian Penal Code which criminalizes ‘unnatural sex,‘ which it defines as [provide definition provided in Indian Penal Code]. The Court held that such a provision would violate the fundamental rights of the people under articles 14 (equality before the law), 15(prohibition of discrimination based on religion, race, caste, sex, or place of birth) and 21 (protection of life and personal liberty) of the Constitution of India.

The Supreme Court (under Article 32 of the Constitution) and the various High Courts of the States (under Article 226 of the Constitution) may issue writs, or orders, to mandate the State either to take steps to protect a particular right or to desist from engaging in an act that would abridge a fundamental right of the Constitution.

In 1993, the Indian Parliament enacted the ‘Protection of Human Rights Act’ for the establishment of human rights commissions at the national, state and district levels. This Act does not necessarily provide for the protection of rights, but merely establishes commissions and their jurisdictional limits. The commissions are given hardly any power by the Act; they can simply issue recommendations to the concerned governmental agencies against which there exists a complaint. The recommendations, however, are not as powerful or binding as an order of a Court. The states have created commissions but have not given them any power or authority to force the government to protect human rights. State level commissions are established by state governments, many of which have dragged their feet. For instance, the State of Maharashtra only formed its own Human Rights Commission after the Bombay High Court directed it “to constitute the Maharashtra State Human Rights Commission immediately to perform its pronounced duties in the Act” in the case of People’s Union for Civil Liberties & others v. The State of Maharashtra & others., 1999(4)Bom CR 608. In the State of Uttar Pradesh, as observed by the High Court of Allahabad in 2000 (1) AWC 729, it was only pursuant to the orders passed by the High Court in C.M.W.P. No. 32984 of 1994, Uttarakhand Sangharsh Samiti, Mussoorie v. State of U. P., State Human Rights Commission was constituted. However, no members were appointed to the Commission and it existed merely on paper, until the Allahabad High Courts’ subsequent decision in the People’s Union for Civil Liberties Case.

The Government of India also has created schemes like the National Rural Employment Guarantee Scheme, which provides employment to one member of a rural household helping the masses of India’s rural villages, and the Mid-day Meal Scheme, which provides one free cooked meal everyday to children going to government schools throughout the county, ensuring that they receive nutrition and attend school. These two schemes have been very widely implemented and have been very helpful in helping the people obtain their economic rights. The Government of India also decided to write off the interest on loans taken by farmers for agricultural purposes in the State of Maharashtra, largely in response to recent suicides by debt ridden farmers in that state.

India has ratified most international treaties, but has refused to submit itself to international inspection. The Constitution of India mandates that the State protect the same rights listed in the Universal Declaration or International Covenant on Civil and Political Rights. Although the State is bound by its own domestic law to protect the fundamental rights of its people, India has chosen not to ratify an optional protocol to the Covenant, which would make it answerable to an international court.

There exist many international organizations, mechanisms, treaties, and courts for the enforcement of human rights. It can be safely said that a lot has been done in the field of human rights but there is still a very long way to go and the path from proclaiming to realizing human rights, for the world and for India in particular, can be only forged through an honest and whole hearted approach by the State, which must relinquish its own protective stance and provide its people their fundamental and inalienable human rights.

Rishabh Jogani is a third year student at the Government Law College, Mumbai and may be contacted by email at rishabhjogani@gmail.com.

By Rita Roy
The Women’s Reservation Bill was passed on March 9, 2010, International Women’s Day. The male-dominated upper house of the country’s federal parliament voted overwhelmingly to set aside seats for women in the national and state assemblies. Several women have held and continue to hold leadership positions in Indian politics, including the late Indira Gandhi, India’s first woman Prime Minister; her daughter-in-law; Sonia Gandhi, current leader of the Congress Party; Pratibha Patil, President of India; and Sheila Dixit, the incumbent Chief Minister in Delhi.

Still, politics in India continues to be a male stronghold. The Guardian newspaper mentioned that India ranks 99th in the world when it comes to representation of women in government. In neighboring Bangladesh, women constitute 15% of parliamentary representatives, while this number is 30% in Pakistan. The literacy rate among women (55%) continues to be much lower than that of men (77%). Large numbers of women also continue to suffer from poverty and lowered social status.

The Bill, which aims to earmark one-third of seats for women in the Lok Sabha (or lower house of Parliament) and Assemblies, was first introduced in parliament more than a decade ago. Women currently hold only 10% of the seats in both the Upper and decision-making Lower house of Parliament combined. Once the Bill is passed into law, the number of women representatives in the lower house will rise dramatically, nearly quadrupling the number of women in the upper house (Indian parliament approves plan for women’s quota, Jason Burke, Guardian.co.uk, March 9. 2010).

WOMEN’S BILL: OPPOSITION AND SUPPORTERS

The National Congress Party supported the Bill right from its early days. Brinda Karat of the Communist Party of India (Marxist), along with Arun Jaitley, a senior leader of the BJP Party, both supported the Bill. The Bharatiya Janata Party (BJP) and leftist parties had also been longstanding advocates of women’s reservation.
However, the legislation was opposed by several male party leaders, who believed that the Bill’s passage would result in a loss of seats for their own party members. The “three Yadavs” posed a formidable barrier to the Bill’s passage: Mulayam Singh Yadav, a key player in the Samajwadi Party, Lalu Yadav, a member of the Rashtriya Janata Dal Party, and Sharad Yadav of the Janata Udal (United) Party (a supporter of the pro-Mandal drive to reserve representation for the Other Backward Classes) all opposed the Bill’s passage. Luckily, the National Congress Party President, Sharad Pawar, later counseled the three Yadavs against stalling the Bill and informed them that the Bill could later be amended to address their concerns in respect of OBC (Other Backward Classes) and Muslim women. Pawar communicated to all three party heads that although they had the right to present their views, creating barriers to the smooth passage of this historical legislation was ill-advised (Just what the three Yadav’s don’t want, Shekhar Iyer, March 8, 2010, Hindustan Times).

Others argued for even more far-reaching reservation of political seats for ethnic, religious, and lower caste minority groups. Scores of women panchayat council representatives demanded a quota within the women’s quota. Panchayats already reserve a portion of their seats for women and this has reportedly provided women with much greater status within their own communities. Thus, over 50 village council representatives from the states of Bihar, West Bengal, Karnataka, Maharashtra and Uttar Pradesh all fought for additional reservations (Women in Panchayat Councils Seek Quota Within Quota, Aarti, The Hindu, March 20, 2010).

WHAT DOES THE FUTURE HOLD FOR WOMEN IN INDIAN POLITICS?

Now that the Bill has passed, what is to be expected of this legislation in the near future? The new statute is part of a larger effort to correct the great gender divide which still exists in India, particularly in the areas of education, healthcare, and poverty. In a recent Hindustan Times editorial, a “panchayati raj reservation experiment” showed that women leaders were likely to “pay more attention to issues of healthcare, education, and other social development issues than their male counterparts. Thus, it is hoped that the central reservation will lead to an increased focus on these issues.” However, as good governance is not gender-specific, it must receive equal support from male politicians on these issues as well (Editorial, Hindustan Times, March 9, 2010).

The introduction of quotas for women in politics appears to have had a positive effect as evidenced by the recent results and data from Mumbai’s municipal corporation elections. The corporation shows that municipal wards reserved for women in one election, but open to both genders in the next, are five times more likely to elect a woman than a ward that had not previously been reserved for women. Yet another study on women’s success rates in Indian politics was conducted by Stanford University political scientist, Rikhil Bhavnani. The study covered both the 1997 and 2002 Indian elections. Approximately 21.6% of the wards reserved for women in 1997, but left open for both genders in 2002, were won by women in the latter election. This figure turned out to be much lower during the second election when no wards were reserved for women during the earlier election. Overall, women won 3.4% of all open seats in 1997, which more than doubled to 8.6% of open seats in the 2002 elections. The results seemed to show that post reservation of seats, more women were successful seeking public office even after the quota ended (Women Win More Than Quotas, The Times of India, Rukmini Shrinivasan, March 21, 2010).

The overall effect of reservation or quotas seems to have been positive, resulting in an electorate that is far more willing to vote for women. As women are perceived capable of winning elections, other women are more likely to run for office themselves even when the reservations are withdrawn. Hopefully, the passage of the Bill will inspire more women to enter politics. And hopefully, the Women’s Reservation statute is the first of many measures that uplift Indian women and pave the way for more inclusive change.

Rita Roy is a lawyer working at Gowling Lafleur Henderson, LLP in Toronto, Canada with an interest in public international law, and a Vice Chair of the India Committee. She may be contacted by email at rita.roy@utoronto.ca.

By Ajay Verma

“The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away.”
Attorney General Robert Kennedy, Law Day Speech, May 1, 1964
What can we, in contemporary Indian society, do to assure the poor that they do not need to be afraid of the law? If the poor lack faith in the legal system, access to free legal aid in criminal cases, a fundamental right under the Indian Constitution, means nothing. In that context, I suggest that India may implement a more effective and efficient legal aid system by employing best practices from the United States and France.

Article 39A of the Indian Constitution requires the state to “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 disability.” Moreover, Section 304 of the Criminal Procedure Code guarantees that where “the accused is not represented by a pleader, and where it appears to the court that accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the state.” The main question this article poses is how can India deliver on its constitutional promise for free legal aid? This article first provides a brief history of the development of legal aid in India, and then discusses the inadequacies of the system. It then compares the legal aid systems in India with the systems in United States and France. Finally, it suggests how the Indian system could be improved.

THE DEVELOPMENT OF FREE LEGAL AID IN INDIA
Two cases are crucial to understanding the development of free legal aid in India. In Hussainara Khatoon vs. State of Bihar: (1980) 1 SCC 98, a writ of habeas corpus petition was brought on behalf of the shockingly large number of men, women, and children, who were detained in jail in the State of Bihar for years awaiting trial for minor offences, which, even if proven, would not have warranted punishment for more than a few months, or perhaps for a year or two. Despite this, they were deprived of their freedom for periods ranging from three to ten years without even as much as a trial date. The Supreme Court issued a clarion call to the government:

We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service program with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the law. They have always come across law for the poor rather than law of the poor. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.

In Khatri(II) v. State of Bihar: (1981) 1 SCC 623, two prisoners lost their eyesight as a result of police torture while in custody. The Court directed the Registrar of the Supreme Court to conduct an enquiry with respect to the torture. He determined that legal representation was not provided to the prisoners because neither requested counsel when they were brought before the magistrate initially or on remand. The Court directed that unless the accused is not willing to take advantage of free legal services provided by the state, he must be provided legal representation at the cost of state. Justice P.N. Bhagwati, referring to Supreme Court’s mandate in Khatoon, wrote:

It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence, and whatever is necessary for this purpose has to be done by the State.

Beginning in 1952, the Indian government started addressing the question of legal aid for the poor in various conferences of law ministers and law commissions. In 1960, guidelines were drawn by the government for legal aid schemes. Legal aid programs were initiated in different states through various legal aid boards and societies, and law departments. In 1980, a national committee was constituted to oversee and supervise legal aid programs throughout the country under the chairmanship of Mr. Justice P.N. Bhagwati, then a judge of the Supreme Court of India. This committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and began to monitor legal aid activities throughout the country.

The real first step towards free legal aid was taken in 1987, when the Indian Parliament enacted the Legal Services Authorities Act (“LSAA”), giving an expansive meaning to “legal services.” The purpose of the act was to constitute legal services authorities to provide free and competent legal services to weaker sections of society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability, and to organise lok adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The introduction of lok adalats, or public courts, added a new chapter to the justice dispensation system in India and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes.

The following categories of persons are entitled to legal services under section 12 of the LSAA:
a. a member of a scheduled caste or scheduled tribe;
b. a victim of trafficking in human beings or beggar;
c. a woman or child;
d. a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995, which means persons suffering from blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation or mental illness;
e. a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
f. an industrial workman;
g. persons in custody, including in a protective home, juvenile home, or psychiatric hospital or nursing home; and
h. a person whose annual income “from all sources” does not exceed Rs.50,000/-. (as per notification no. F.27/3/2003- Judicial./CD/07/2260 dated 12th April 2007)

LSAA established the National Legal Services Authority to provide a network of legal aid at the village, district, and state levels. The two mains objectives of the National Legal Services Authority are the delivery of free legal aid and the organization of lok adalats. Under the LSAA, legal aid is provided to people of “weaker” sections of the society through the appointment of counsel. The National Legal Services Authority, after examining the eligibility criteria of an applicant, provides the applicant with counsel at the State’s expense, pays the required court fees, and bears all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a legal services authority. Under the LSAA, every citizen whose annual income does not exceed Rs 25,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the Supreme Court, the limit is Rs 50,000. The state governments are empowered to increase this limit. The income limitations do not apply to, among others, persons belonging to the scheduled castes, scheduled tribes, women, children, and disabled persons.

A lok adalat is intended to be a mechanism to encourage consensual resolution of a dispute in order to avoid unforeseeable delays, prohibitive costs and uncertain results of litigation in the courts. A lok adalat has jurisdiction to determine a compromise or settlement between the parties to a dispute in any pending case. In addition, it has jurisdiction over any matter not pending before the court for which the lok adalat is organized, but for which the court has jurisdiction. The lok adalat does not have jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. The court may refer a case to the lok adalat where the parties agree, or where one party makes an application to refer the case to the lok adalat for settlement. If the court is satisfied that there is a possibility of settlement and an appropriate matter for cognizance by the lok adalat, then the court shall refer the case to the lok adalat.

INADEQUACIES OF THE CURRENT SYSTEM
The legal aid system in India has largely proven ineffective. There are four main reasons why the National Legal Services Authorities has not been able to deliver real legal aid: (1) there is a general lack of awareness of the availability of legal aid; (2) there is a perception that free service is incompatible with quality service; (3) there are not enough lawyers delivered by the legal services authorities, and; (4) lawyers generally are uninterested in providing competent legal assistance because of financial constraints. So, in spite of the fact that free legal aid has been held to be a necessary adjunct of the rule of law, the legal aid movement has not achieved its goal.
Moreover, too often lawyers assigned to provide legal aid and paid with public funds do not faithfully represent their clients, casting serious doubt on the credibility of the scheme of legal aid provided to weaker sections of society. Some lawyers engaged by legal aid committees hold their clients’ cases for ransom by employing delay tactics. These lawyers compel their clients, many innocent, to pay additional amounts of money to them, even though they are supposed to obtain their fee from the legal aid committee. One factor that may be contributing to this is that the remuneration paid to lawyers by the legal aid committee is very low and sometimes does not even meet the lawyer’s incidental expenses.

Another major obstacle to the legal aid movement in India is that the delivery system for legal aid is far too inefficient. More lawyers must be encouraged to delivery free legal aid and a campaign should be launched to inform people about the existence of free legal aid. The legal aid movement cannot achieve its goal so long as people are not aware of their basic rights. When the poor are not aware of their legal rights, they are subject to exploitation and ultimately deprived of the rights and benefits provided to them under law. Thus, the key to a successful free legal aid system is increased awareness among the populace and more efficient delivery processes.

THE AMERICAN AND FRENCH LEGAL AID SYSTEMS
The legal aid systems in the United States and France are ideal models for the legal aid movement. In France, the earliest form of legal aid was provided in 1851 when legislation was passed providing for legal assistance to the poor. In the United States, free legal aid in criminal cases was introduced with the landmark decision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963). A public defender is a lawyer, employed by the government, to represent those who are charged with a crime and cannot afford to pay an attorney. Public defenders work in an office of the public defender. This office is an agency of the government and its employees work for the state or the county. The Office of the Federal Public Defender operates under the authority of the Criminal Justice Act of 1964, 18 U.S.C. §3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person’s eligibility for defender services is determined by the federal court. Public defender agencies are supported by public funding but are independent. Thus, they do not take direction from the government regarding representation of clients or hiring of staff attorneys. Federal public defender offices are well-funded. By law, lawyers employed by federal public defender offices have salaries that match those of lawyers in the federal prosecutor’s offices. The combination of salary, benefits, and support teams tends to attract, and more importantly, retain highly qualified attorneys.

The French legal system is based on civil law. Thus, laws are written into a collection and codified, not determined by judges as in common law jurisdictions. France has developed its own system of legal aid services. Legal aid in France is offered through the “avocat commis d office,” or court appointed lawyers. This advocate is the equivalent of the public defender in the United States, but is not affiliated with an agency. The function of “avocat commis d office” is different from other advocates because of his nomination rules, his role in the proceedings, and the clients he will defend. His role consists of representing every person who requests services without regard to the person’s ability to pay for his services. If an individual is unable to pay the advocate, the advocate will assist the client in seeking free legal aid or reduced fee legal aid proportional to the client’s salary. In that case, the advocate may be paid by the state. The current legal aid scheme (which replaced the older one dating from legislation of 1972) is governed by the Legal Aid Act (No 91-647 of 10 July 1991) and Decree No 91-1266 of 18 December 1991. Legal aid entitles the recipient to free assistance from an advocate or other legal practitioner (bailiff, avoué, notary, auctioneer, etc.) and exemption from payment of court costs. A useful first port of call for anyone wanting legal aid is the “Maison de Justice,” usually attached to the local Tribunal d’Instance. When free legal aid is obtained, advocates are paid by their Tribunal d’ Instance, which is funded directly by the State.

Any person tried criminally may obtain the counsel of an advocate at any time during the proceedings irrespective of his/her income. Article 6 of the Human Rights European Convention says that “every accused has the right to defend himself or to be helped by the advocate he chose and, if he cannot pay this advocate, he can obtain a free assistance.” As a result, in most criminal cases, an advocate is automatically provided to the accused, while in India, the number of lawyers provided by legal aid authorities is not enough to satisfy the large number of detainees awaiting trial.

LESSONS LEARNED FOR THE INDIAN LEGAL AID SYSTEM
Instead of changing the entire structure of the Indian legal aid system, India should incorporate parts of the French and American systems. The French easy access to counsel and the American concept of a well-paid advocate are key ingredients to a successful legal aid system in India. Furthermore, the National Legal Services Authority should become more selective in choosing advocates to deliver free legal aid. Recently, the Delhi High Court ordered a new trial in a case based on circumstantial evidence where the defendant’s lawyers failed to cross examine material witnesses, finding that the defendant’s trial was not conducted fairly and that his basic rights were violated. Justice S. Muralidhar, a judge on the Delhi High Court, in his article, “The Expectations and Challenges of Judicial Enforcement of Social Rights,” wrote that it was a “constitutional requirement to ensure a fair trial in accordance with the procedure established by law that every accused facing trial for a grave offence is represented by the competent legal aid counsel.”

Successful legal aid delivery in India requires the government to embark on a campaign to inform and educate the public of its right to free legal aid. Further, the government must employ more efficient processes to improve legal aid delivery, including but not limited to increased compensation for legal aid lawyers. Absent that, the constitutional right to free legal aid rings hollow.

Ajay Verma is a practicing advocate in New Delhi. He is a Fellow of International Bridges to Justice and a Vice Chair of ABA International’s India Committee. He may be contacted by email at averma@me.com.