Ensuring access to justice

Why in news?
  • The justice system in any democracy is set up, under the Constitution to serve the public without fear or favour, affection or ill-will.
  • Yet the protagonists, as far as India is concerned, in operating the system have stopped that very access.
  • At an informal meeting, all of the then sitting judges of the Supreme Court advised the then Chief Justice of India to decide against the request of the then Central government to sit in other places in the country under Article 130 of the Constitution.
More in news
  • Discussion over SC’s sitting in other places:
    (1) Judges express concern of authority of the Supreme Court would get diluted.
    (2) But Bombay High Court has four Benches and the quality of its decisions or status have certainly not been diluted thereby.
  • Direct consequence of the wrong decisions are three-fold:
    (1) Supreme Court sitting only in Delhi has resulted in excellent lawyers from other High Courts not appearing before the Supreme Court, possibly because it casts too large a monetary burden on their clients, many of whom are impoverished.
    (2) All lawyers who happen to be in Delhi now appear in the Supreme Court. Some of the good lawyers who were able to leave lucrative practices in the High Courts have settled down in Delhi, but they have established a monopoly, and, as a result, charge unconscionable fees even from charitable concerns.
    (3) The third fallout of the failure to act under Article 130 is that the Supreme Court in Delhi has been flooded with work and been reduced to a District Court instead of a Court of Final Appeal and Constitutional Court as envisaged under the Constitution.
  • Question of disciplinary jurisdiction over lawyers:
    (1) Hundreds of letters are written to Chief Justices for relief on the judicial side.
    (2) It is not possible to deal with all letter-appeals simultaneously on the statutory, administrative or judicial side given the huge workload before all judges unless they are drawn specifically to the Justices’ attention.
    (3) This is because disciplinary powers available to Bar Councils both in Delhi and in States are ineffective.
    (4) Some are politically motivated and some States do not have disciplinary committees at all.
    (5) The disciplinary jurisdiction over lawyers was originally with the courts.
    (6) This continued till the power was taken away by the Advocates Act, 1961.
    (7) The solution to the present situation is to give the disciplinary jurisdiction back to the courts and to repeal the Advocates Act, 1961.
Problems/ Unethical lawyers:
  • Victim compensation cases:
    (1) Some of the lawyers specialising in victim compensation cases do not charge any fees for their services and render services free of cost.
    (2) hey generally obtain a blank cheque from the victim which is filled in after credit of the compensation to the bank account of the victim.
    (3) Some of the lawyers specialising in victim compensation cases thus take huge money as a percentage of compensation amount awarded towards victim compensation.
    (4) Such a practice is frustrating the whole purpose of victim compensation.
  • Other cases:
    (1) As soon as an award of victim compensation is made by any Legal Services Authority (LSA) the lawyer gets in touch with the victim and somehow convinces him to file a writ petition before the High Court to show that without such writ petition the compensation will not be disbursed by the State LSA (SLSA).
    (2) LSA a statutory body which render free legal services to the impoverished all over India.
    (3) Ultimately when the amount of compensation is finally disbursed by the SLSA, the lawyer takes credit and shows that it was because of his noble initiative that the victim got the relief, and in exchange claims a hefty share in the compensation.
Way forward
  • Supreme Court should reconsider setting up Benches in different States in keeping with the recommendations of the Law Commissions (125th Report and 229th Report).
  • Bar Council of India should exercise its powers under the Advocates Act, 1961 more effectively.
  • If not, the disciplinary jurisdiction must be returned to the judiciary as was the position prior to the Advocates Act, 1961 by repealing the 1961 Act.
  • Lawyers should be made irrelevant by referring more cases to trained mediators, as the Supreme Court has done in the Ayodhya dispute.
Source
The hindu


Posted by Jawwad Kazi on 2nd Apr 2019
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