Socialism, Constitution and Legal Aid Movement in India

I am most grateful to the Jodhpur Chapter of the Indian Association of Lawyers for giving me this opportunity of participating in this I function to celebrate its Foundation Day. I was told that I could choose any topic that I liked for my lecture. I have made bold to choose the subject of ''Socialism, Constitution and the Legal Aid Movement in India'. The occasion appears to be half-festive and half serious. You will pardon me, I am sure, if my speech is wholly serious.  Ours is a socialist republic. The Preamble to our Constitution so declares it. What does socialism mean and why was it necessary to declare ourselves as a socialist republic and what is the connection between Socialism, Constitution and Legal Aid? These are the questions which I have asked myself and the answers to which I propose to explore with your help.  One of the most striking features of the Indian scene is the massive ignorance of the people of their constitutional and other legal rights, ignorance of what law and lawyers may do for them, ignorance of the availability of lawyers and the system of justice-delivery, the sullen and morbid apathy of the poor towards them arid the uneven distribution of the practitioners of law, their concentration in large numbers where so many are unwanted and their Scarcity, where they are needed. This is so and this has necessarily to be so in a society in which the vast masses of the people tare illiterate, ignorant, ill-fed arid ill-clad. It has to be so in an exploitative society based on the existing system of property and social relations in which law is a mere super-structure on an economic base, a mere tool of exploitation in the hands of the ruling-classes and in which private enterprise is the pillar on which the edifice of legal services is built and, the best man can be hired for the most money.  In a system of property and social relations where law is a tool for the protection of the ruling classes, for the preservation of the status quo, for the obstruction of progress and for the exploitation of the oppressed classes, the vested interests of society may not be expected to be interested in providing legal services to the weak and the oppressed when there is every likelihood of its being used against themselves by the poor demanding their rights with the aid of the law. In the ultimate analysis, any effective scheme of legal aid to the poor is bound to furnish the poor with weapons to fight for their rights against the exploiting classes. This has always been the course of history. In every historical epoch, economic power has always been gained by the development of the forces of production and this has inevitably resulted in a class struggle for the control of society between the existing ruling classes and the classes striving to gain economic power through the new forces of production. Every class struggle has resulted in the creation of a new society and every new society then establishes its new classes and its new forms of oppression and exploitation. The exploited class would transform itself into a revolutionary class and using the very weapons, fashioned by the ruling classes, in the struggle against them, they will triumph over the ruling classes. Law is such a weapon and the ruling classes may not, therefore, be expected to be ready to make it available to permit its use by the oppressed. Every form of resistance is likely" to be offered. The legislatures will make indifferent laws, the bureaucracy will be apathetic to the implementation of the Jaws, lawyers and judges will not depart from their hide-bound procedures and precedents and legal services will not be readily available to the poor and the needy.  In a system of administration of justice where legal services are founded on free enterprise, lawyers are not interested in spreading legal literacy among the people but would as a class prefer to be the priests of a mysterious and an exclusive cult or craft in which all importance is given to what the laity may well-call the jingoistic jargon of the law, the interpretation of which has been made the monopoly and the privilege of the legal profession. Again in a society of free enterprise lawyers are not interested in advising the poorer sections of the people either about the availability and the potential of legal services or upon the legal problems actually thrown up by the conflicts in society because that is not where the money is. The poor distrust lawyers and the justice-delivery system because they have no reason to have the slightest faith in them. Over the generations, lawyers as a class have been ranged against them and the justice-delivery system has always been used as a tool of exploitation to harass them. Again legal services tend to concentrate in certain areas and away from other areas for the simplest of reasons, service is where the money is. I may here quote Prof. Mauro Cappelletti, the famous Italian Scholor-jurist. He said :  "In the first place, in a free market economy, a lawyer will necessarily tend to concentrate this time, effort, and skill on the remunerative business, the source of his livelihood and reputation. Secondly, the highly skilled and financially successful lawyer will tend to avoid matters of little financial importance leaving them to the young and inexperienced or to the unsuccessful. Finally, a steady diet of non-remunerative work is distasteful even to the charitably minded, and there will be a tendency to keep the volume of such work at a low level, whether more formally, through a demanding admissions procedure or less formally, through a failure to publicize the programme, or a simple tendency of practitioners to be unsympathetic to non— paying clients." (24(1972) Stanford Law Review 347).  What is the remedy? How are the legal profession and the justice-delivery system to be made sensitive and to respond to the requirements of the people of India who have been assured by the Constitution, economic and social justice, equality before the law and equal opportunity for development — I am deliberately saying equal opportunity for development as that is how I view the equality clauses of the Constitution —, and equal access to justice and legal assistance.  First we must clear our minds of the cobwebs of the notion that Legal Aid or Legal Assistance to the poor is an act of charity, and, that as an act of philosophic and philanthropic duty to our fellowmen, some of us should devote a few hours a week to the 'good works' even as the devout among us make weekly visits to the local temple and an annual pilgrimage to Tirupati, when we give alms to the beggars crowding the gates of the temple and place our gifts to the Lord in the temple hundi, to atone for the sins of all of us and to earn salvation. Such an attitude towards legal aid is but a reflection of the laissez-faire philosophy which encourages 'good works' by those that can afford the time and the money and of course, by a few devoted sentimental saints and socialists. Such an attitude is consistent with the assured right of equality which only means 'formal equality', that is, the right of all citizens to freely enjoy all those cherished rights, oblivious to the fact that only those with the means to enjoy those rights can enjoy them and others, that is, the poor, the ignorant and the inarticulate can never take advantage of them. To them, the right to enjoy property means the necessity of circumstances to suffer poverty, the right to move freely and reside anywhere means the compulsion to wander along the back streets and sleep on the pavements for want of shelter, the right to free speech means the duty to be dumb and the right to equal opportunity means the liability to be rejected for lack of 'merit'. Now, the philosophy of laissez-faire has vanished, and it is increasingly realised that the era of formal equality is over and as a matter of historical necessity, formal equality must yield to real equality. Access to equal justice is part of the general right to equality and so in this field also, there is now the slow recognition of the right to real access to justice for every one. The concept of legal aid is no longer Confined to exemption from court-fees and providing a lawyer for the indigent whose cases have already reached the Court. Legal aid is now to be treated as part of a programme to secure to the poor and the disadvantaged their just share of the benefits of society. The change in attitude is disclosed by the entry into the Constitution, word 'socialist' in the Preamble, Art. 39A as a Directive Principle of State Policy, as a result of the greatly maligned 42nd amendment. Article 39A provides "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 opprtunities for securing justice are not denied to any citizen by reason of economic or other disabilities." Article 39 A is a Directive Principle and as benefits a mere Directive Principle, it is couched in vague, general terms. Why is it not a Fundamental Right and why is it not more precise? Obviously, because Parliament is still unable to wholly divest itself of the traditional view which regards legal aid as a charitable dispensation and is unsure about the true content of legal aid and how far it can go. But the very introduction of Art. 39A into the Constitution is significant and reveals a movement in the proper direction. The retreat of the judiciary from the traditional attitude is illustrated by what Bhagwati, J. has to say in his 'Legal aid newsletter', the official journal of the Legal Aid Implementation Committee, Government of India. He says:  "The Committee is of the view that more important and essential than the traditional Court-oriented legal aid programme is the preventive legal service programme if we want to bring about socio-economic change in the country through the process of law. The preventive legal service programme also aims at prevention and elimination of various kinds of injustices which the poor as a class suffer because of poverty and end eavours to launch a frontal attack on the problem of poverty itself with the ultimate goal of its eradication from the society. It does not involve merely quantitative extension of traditional legal services to the poor but instead requires a qualitative and radical change in the whole emphasis, aims and functioning of the legal service programme. It involves novel radical, more dynamic and multi-dimensional use of the skills of a lawyer and expects the lawyer to I perform the role of providing representation to groups of social and economic protest. It does not regard litigation as playing an important or even significant role in the life of the poor and hence refuses to consider the Court as the centre of all legal activity and is concerned with the problems of the poor as a class rather than with the individual problems of the poor which may be projected in litigation in Court. And it is calculated to help organise the poor so that they may be able to act on the realisation that real political power rests with them and they can come out of the condition of helplessness and despair and begin to play. their legitimate role in shaping not only the decisions affecting them but also the destiny of the country. Briefly speaking, the preventive legal service programme contemplated by the Committee is calculated to strike at the root of the problem of poverty by seeking to change the social and economic institutions and at the same time, educate and organise the poor so that they may become conscious and powerful and the institutional changes may become real and permanent."  Undoubtedly, in the words of Michael Zender, 'there is a change in the rhetoric, but what of reality? I will come back to this question later.  Once we perceive that the poor have a right to the aid of the law, indeed that it is the duty of the law to seek and protect them, to solve their problems and to advance their cause to secure to them economic and social justice, it will be realised at once that private enterprise and professional hegemony in the legal field must yield in a big way to the public sector. I have nothing against the 'good works' of the rich, I have nothing against the charitable impulse : I have nothing against the legal aid. programmes and services offered by private organisations. They represent the troubled conscience of an otherwise indifferent, oppressive society. But with all the good will available to them, the most well meaning of them can achieve but little.  The magnitude of the problem is so great that it is now universally recognised that legal aid programmes and schemes offered by organisations funded by private resources are unable and will never be able to touch even the fringes of the problem. In order to make the slogans about equal access to justice effective, State action, and, in particular, State funding is. indispensable.' In a country like India, if the legal system is proposed to be used as it has to be, as part of the weaponry to break the chains of poverty, it is necessary to bring on the scene highly motivated, well- trained, State-salaried lawyers, who offer their services wherever needed and operate without charge. The concept of State-salaried lawyers is not unknown in our country. We have a system of public prosecutors, who conduct the prosecutions in the criminal Courts, apart from various other Government lawyers who appear for- other departments of the Government. As is well known, public prosecutors in Sessions Courts have the duty to conduct prosecutions whether launched by the State or by private individuals. They act as Ministers of Justice in assisting the Court and not as mere Government servants. It has to be the duty of the State-salaried lawyers not merely to take up the causes which come to them, but also the causes which will never come to them unless they look for them. It has to be the duty of the State-salaried lawyers to propagate Social Welfare legislation and educate the people on their rights, to convince them about the uses to which the legal system may be put to their advantage and to convert apathy into enthusiasm, indifference into courage and finally to act as pressure groups to secure lawre forms wherever they notice during the course of their activities that the existing system is working injustice to the economically disadvantaged. In India, the extent of ignorance and illiteracy is such that the vast majority of the people are not aware of the laws which have been enacted for their benefit. Many laws exist only in the statute book and have never been known to be enforced in a Court. Most of the laws which are intended to benefit the weaker sections of society never benefit them for the simple ; reason that they are either ignorant of their rights or they are not in a position to take advantage of them. Take for example the legislations intended to benefit the small peasants, the agricultural workers, the landless labourers, artisans, etc. either by way of relieving them of their indebtedness or by way of securing the lands held by them on lease.In some States, there are legislations prescribing minimum wages for agricultural workers. There are various municipal and panchayat laws which make it obligatory for municipalities and panchayats to take steps to provide public drainage, sanitation, etc. There are laws against child labour and there are laws which make primary education compulsory. , The Constitution itself declares that untouchability is abolished. So also bonded labour, yet one has only to go to the nearest village to discover that notwithstanding the Constitution and the legislations, interest is charged at usurious rates and families reduced to penury, small tenant farmers thrown out of lands few years' tenants changed annually, starvation wages being paid to agricultural workers, children employed in unsuitable vocations instead of being provided educational opportunity and  people living in the most unhealthy and in sanitary conditions. Bonded labour will be found to be flourishing and it will be discovered that untouchability and segregation are still practised and even blessed by the authorities. Housing colonies are pretended to be started for members of the scheduled castes, but never in the village proper, but always in the outskirts at some distance away from the village. If the several laws which are supposed to be in force are strictly enforced and if the benefits of the laws reach those who are intended to be benefited by them, surely there will be social and economic regeneration in rural India. If Socialism does not thereby dawn, it will at least bring a ray of hope.  It is obvious that neither pompous legislative declarations nor pontific judicial pronouncements are of the slightest use to the masses of the people who know nothing about the laws enacted for their benefit or the cases decided to advance their cause. It is evident that a massive national programme of legal literacy has to be the basic and the most vital step in any scheme genuinely intended to provide legal aid. Now, we have agricultural extension officers to popularise scientific methods of agriculture and to instruct rural folk in the application of such scientific methods. We have family planning doctors and health visitors, who visit rural areas to propagate family planning and advise people on the methods and advantages of family planning. Why cann't we have State-salaried law counsellors or legal officers for every small group of villages assisted by a staff of social investigators whose duty is to go round the rural areas and investigate into the legal requirements of the people with particular reference to the social and economic problems of the weaker sections of the people, to identify their legal problems and needs, to acquaint and advise them about their legal rights and generally to in still a feeling of awareness or consciousness about their rights driving out the all pervasive despondency which generally envelopes poor rural folk. They must be readily available to the people, at least a few days in the week; they must not only be readily available to the people, but they must also be ready to take up, uninvited, all cases of social and economic oppression; they must do this just as a Police Officer, on more information, investigates into a crime, files a charge-sheet in a Court and thereafter the Public Prosecutor conducts the prosecution. He must combine in himself the functions of a publicist, adviser, investigator, litigant and lawyer. Certain classes of disputes he may himself decide then and there. He must be invested with sufficient judicial and executive power for this purpose. Other classes of disputes he may take or refer to a Court or other administrative agency. For example, he may make official representations to local authorities to secure drainage, water supply and sanitation facilities to neglected areas in a village where the poor of the community live; he may intercede on behalf of small farmers before irrigation authorities to secure regular turns of canal water to them to their lands; he may make representations to educational authorities to open higher classes in village schools and to provide more teachers, etc.; he may negotiate and secure minimum wages for agricultural workers; he may institute class actions on behalf of the people to secure relief generally to the poorer sections of the community; he may institute individual actions taking up the causes of individuals against oppression by landlords, money-lenders, and so on. There are several things which he may do and several battles which he may fight on behalf of the weaker sections of the community. In addition he may form pressure groups to induce the executive and the legislature to change their policies and reform the laws whenever difficulties arise in the way of justice and progress, etc., in other words, he may take up a programme of community legal education, voluntary legal advice, instant justice and free Court assistance. Thus, perhaps, the law may be brought to the door of the common man and justice may be done to him without his seeking it Lawyers may be employed as whole-time, part-time and honorary officers and social investigators and thereby the legal profession may be directly involved in the programmes for comprehensive legal aid. The suggestion is not merely for free legal aid to the poor, but for the involvement of the legal profession in the war against poverty an exploitation and for making the legal system more relevant to society.  But this will mean the development of a "different breed of trained lawyers, call them barefoot lawyers, call them people's lawyers, call them non-professional lawyers, call them poverty lawyers or don't call them lawyers at all. They may not be well versed in corporate law, income-tax law, excise law, customs law, import and export laws and such like fashionable, expensive branches of the law which fetch greater returns to the lawyers, but they must be person, who are specially taught and trained to identify the problems of the poor, not merely individual problems, but the problems of. the community, particularly the legal problems hidden behind socio-economic problems and vice versa, persons who are trained to make a special study of the procedural and the substantive laws which may help fight the cause of the poor and who are trained to promote among the poor a consciousness of their rights, a consciousness which may replace their difference and apathy, with 'confidence' and enthusiasm. The stranglehold of the legal profession over the existing system of providing legal services is such that we cannot hope to have this new breed of lawyers unless the hegemony of the professional lawyers is removed. The Advocates Act may have to be amended and the procedures of Court may have to be revised. But of one thing, I am certain : there cannot be any effective legal aid service without a massive national programme of legal literacy and there cannot be such a programme of legal literacy unless legal services are freed from the shackles of the legal profession which presently is over-whelmingly rooted in private Enterprise.  Earlier I referred to what Bhagwati, J. had to say about Legal Aid and made the facetious remark that the rhetoric has changed but what of reality? The Committee appointed by the Government of India for implementing Legal Aid Schemes of which Bhagwati, J. is the Chairman has propounded 'a model scheme' which mentions, among other things, two objects of the scheme as the 'promotion of legal literacy and creation of awareness amongst the weaker sections of the community in regard to the rights, benefits, privileges conferred upon them by social welfare legislation and other enactments and the preparation of a cadre of social workers for para-legal services. But my complaint is that in the last three years not a single step has been taken in the direction of either of these objects. All that has been done is to liberalise the means test in offering legal services to those who come to Court and to hold an occasional legal-aid camp where disputes are I purported to be settled on the spot. Whether any real disputes are settled at these once-a- while camps is doubtful but let us not go into that question. What is disappointing is that no programme of legal literacy or para-legal training has been undertaken or even prepared and no research-work has been taken up either, on what ought to be done. Apparently the executive has an alibi which the judges are always in the habit of providing them and here it is that it has done its duty by constituting a committee presided over by a judge of the Supreme Court and of which two members are High Court Judges. The Committee, of course, feels helpless because it is in no position to launch a massive nation-wide scheme, for which it has neither the manpower, nor the funds nor the expertise. Meanwhile Legal Aid languishes. Why does this happen? Why does it happen despite the high sounding promises of Art 39A? I will come back to these questions later but what do we do now in the existing situation. In this situation it is imperative that the people organise themselves and committed and high-motivated private individuals and organisations must come forward to help the people to organise themselves to fight against rigid and tough private enterprise in the legal profession and to spread the cause of legal literacy, legal training, legal advice and legal assistance. They cannot of course wage the war against legal ignorance and legal poverty except in isolated pockets but then one must hope that every action will act as a catalyst for more action and action elsewhere and every where, sparking off a legal revolution perhaps. That, I presume is what this workshop is about And, we may remind ourselves that revolutions have never been set in action by governments though they may be the cause of it. It is most heartening to note that several social action groups have sprung up all over the country, inspired by the sense of justice and have actively taken up the cause of the oppressed and handicapped.  I mentioned that Art 39A, the directive principle enjoining the State to secure equal justice and free legal aid so that no citizen may be denied the opportunity of seeking and securing justice by reason of economic or other disabilities, was introduced into the Constitution by the Forty-second Amendment simultaneously with the introduction of the word 'socialist' into the Preamble of the Constitution. Another directive principle which was also introduced at the time was Art. 43A enjoining the State to take steps by suitable legislation or otherwise to secure the participation of workers in the management of industry. Apparently the induction of these two articles into the Constitution as Directive Principles supplementing and complementing the other directive principles already there was thought sufficient to make India a socialist republic. It is one of the extraordinary and tragic features of our Constitution that every article which may bring about equality and usher in some element of socialism is relegated to the category of non-justiciable Directive Principles. Art. 38(1) for example, enjoins the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. This surely is what socialism and equality are all about. Article 38(2), calls upon the State to strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst the groups of people residing in different areas or engaged indifferent vacations. Art. 39 requires the State to direct its policies towards securing: Â

1. that the citizens, men and women equally, have the right to an adequate means of livelihood;
2. that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
3. that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; and
4. that there is equal pay for equal work for both men and women; Art. 39A requires the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity. Articles 41,42 and 43 require the State to make provision to secure the right to work, to education and to public assistance in cases of old age, unemployment, etc., to provide for just and humane conditions of work, to secure living wage for workers, and so on. Article 46 specially enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from all forms of exploitation. Thus everyone of the Directive Principles just mentioned by me aims at Equality and if they do not constitute a Charter for Socialism, they certainly constitute a Charter towards Socialism.

Article 37 of the Constitution provides that the Directive Principles of State Policy are fundamental in the governance of the country and that it shall be the duty of the State to apply those principles in making laws. Yet 34 years after the coming into force of the Constitution, we are nowhere on the road to equality or socialism. Why is this happening? The answer is not far to seek. It is obvious that the provision for socialism and the high ringing Directive Principles are a facade and that to the ruling classes equality has never meant more than 'formal equality' and socialism has never been more than a verbal mask. We must not forget that the ruling classes, legislature, judges and the bureaucrats are all from the same class, that is, the bourgeoisie. The ruling classes function through the legislature and via the legislature, through the bureaucracy via the bureaucracy and through the judiciary and via the judiciary. That the legislature, the bureaucracy and the judiciary make occasional excursions into socialism only means that it is a concession to the pressures of the situations and no more. Relunctantly and under pressure from the oppressed classes, the legislature makes half-hearted laws to implement the directive principles, indifferently and sluggishly the bureaucracy seeks to implement the laws : Impersonally and insensitively, the judiciary interprets the laws. A combination of reluctance, inertia and reaction on the part of these three organs of State has succeeded in subverting the Directive Principles in practice. No wonder Art. 39 A which is but a part of the pattern has met the same fate. It is up to you, who are gathered here, to probe deep into this problem and discover ways and means of tackling it. To me it appears to be a general problem requiring a general solution. It is mixed up with the problems of inequality and social and property relations and has to be dealt with as such. While, without doubt law is a superstructure founded on an economic base, it is nevertheless not wholly disautonomous and reacts upon the economic basis of society. While the relations of production fashion the law, law also influences the relations of production. The inherent conflicts of the economic and social system surface and expose themselves in the law. While law is an instrument of the ruling classes, it also furnishes some of the weapons with which the oppressed classes may fight and claim their rights, It is in this context that legal literacy and legal aid assume a certain amount of importance. It is up to those of you who are interested in legal literacy and legal aid, not as acts of charity, but as weapons in a revolutionary class struggle, to organise yourselves, identify the specific contradictions in the system, find opportunities to expose the interests which are protected by the existing legal system, use and adopt the system to assert the rights of the oppressed classes make use of the equality clauses of the Constitution and the revolutionary principles of fairness, equality, justice and liberty, to prevent the ruling classes from turning back from their promises and demand that the promises made in the chapter of Directive Principles of State Policy be kept and that justice, political, economic and social be secured. Let each of you be an island of hope for the future of our country and let there be many such islands of hope in this country.

Author Name: Hon’ble Justice O Chinnappa Reddy