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Saturday 19th of October 2019

Press Room

IJJO Interviews- Mr. Vijay Hansaria. President. Legal Assistance Forum. India.

Wednesday 30th of March 2011 | National, India

Mr Vijay Hansaria analyses the legal situation and legal context of young offenders in India after the recent legislative reform. In this way he sets out the monitoring mechanisms in order to strengthen the justice system of minors and the adopted measures that favor legal assistance for minors in conflict with the law in India.


LAF President, Mr. Vijay Hansaria is a senior Advocate practicing in the Supreme Court of India for last 30 years. It is the vision of Mr. Hansaria that no one should be denied justice because of his economic disability and everyone should have equal opportunity to defend his cause in a court of law. Mr. Hansaria apart from a well known legal luminary has authored books on 'Writ Jurisdiction' and on 'Sixth Schedule to the Constitution of India'. He has also occupied the position of Vice President of the Supreme Court Bar Association. Legal Assistance Forum (LAF) is an association of concerned and socially committed lawyers, academicians, journalists, students and other likeminded citizens with an aim to bring about equal justice to the poor and under privileged section of the society.

QUESTION.- What is the Indian legislation concerning legal assistance for Juveniles. Are young offenders treated differently from adults?

ANSWER. -Constitution of India [Article 22 (1)1 ] guarantees every person, right to consult and to be defended by a legal practitioner of his choice. Indian Parliament enacted Legal Services Authorities Act, 1987 to provide free legal service to certain section of society to ensure that justice is not denied to a citizen by reason of economic and other disability. Section 122 of this Act enumerates 8 categories of the persons entitled to free legal services which include children also. The Central Juvenile Justice Model Rules, 2007 (Rule 143) specifically mandate Juvenile Justice Boards to ensure that the 'juveniles in conflict with law' receive free legal service and they can even deploy services of students studying law for this purpose.
Young offenders are treated differently from adults to the extent that every child irrespective of his economic status and family background is entitled to free legal aid; whereas adults are entitled to free legal aid only if their income is less than a specified amount.

Q.– What has the Juvenile Justice (Care and Protection of Children) Act 2000 passed by the Parliament in 2006 changed for young offenders? In what aspects has it contributed to the development of juvenile justice in India?

A.- Juvenile Justice (Care and Protection of Children) Act, 2000 amended by Parliament in 2006 has brought major changes in dealing with young offenders. Some of major amendments in 2006 are the following:

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The aforesaid amendments made by the Parliament in 2006 have substantially contributed to the development of the juvenile justice in India by way of:

• Constitution of Juvenile Justice Boards in all the Districts (226 Nos.);

• Granting benefit of juvenility to those who have crossed the age of 18 years on the date of commencement of the 2000 Act (1.4.2001);

• Granting benefit of the Act to those juveniles whose cases were already decided;

• Preventing lodging of juvenile in police lock up or jail.

Q.- What is the situation between the Indian state and NGOs? Is there cooperation, collaboration between the government and the civil society?

A.- There has been steady progress in development of Non Governmental Organisations (NGOs) sharing the social responsibility for the uplift-ment of marginalized sections of the society. The Government has also realized that the NOGs can supplement the Government effort and reach into areas and sectors where the Government is not able to reach and the local NGOs can perform better than the Government machinery. With this view in mind, the Government enters into formal partnership with NGOs for various welfare activities in different sectors. Presently as per Government records they are total number of around 30,000 NGOs registered with the Central and various State Governments. Grants –in-are also provided by the Government to the NGOs. The Planning Commission of India has launched a website ngo.india.gov.in for facilitating NGO partnership with Governmental agencies. The website gives information to the various Governmental schemes for which NGOs can offer their partnership. LAF is also a registered NGO with the Government of India.

Juvenile Justice Act, 2000 provides for involvement of NGOs in a big way. Under this Act, NGOs could be registered in the following areas:

a. ‘Observation Homes’ and ‘Special Homes’ for reception of juvenile in conflict with law;

b. ‘Protection Agencies’ to provide the services of probation, counselling, case worker;

c. ‘Fit Institution’ for taking the responsibility of juvenile during the pendency and ex-post enquiry by the Juvenile Justice Board;

e. 'After Care Organisations' for rehabilitation and social reintegration of juvenile after they leave Special Homes.

Q.- Considering the social and economical situation in India, what is the current condition of children and young people in India regarding the judicial system? What are the consequences of the cast system on juvenile justice?

A.- The current condition of children and young people in India regarding judicial system is not too happy and satisfactory considering the prevailing social and economic situation. There are large number of laws to protect children and encourage young people; however, most of them are on papers. Some of the areas in which the laws need effective enforcement are (1) abolition of child labour, (2) elimination of beggary (3) continuing education to the drop out children, (4) prevention of child abuse and trafficking, (5) prevention of foeticide, etc.
Supreme Court of India, however, has taken proactive approach and has passed large number of orders for the welfare of the children. Some of them can be noticed as under:

a. Free and Compulsory Primary Education: Supreme Court4 (1993) recognized that every child upto the age of 14 years has fundamental right under the Constitution have to free and compulsory education. This led to the Constitutional Amendment in 2002 by inserting Article 21A5 in the Constitution. Thereafter, Right of Children to Free and Compulsory Education Act, 2009 was enacted by the Parliament. Both Article 21A and the Right to Education Act have been brought into force only with effect from 1.4.2010. It has thus taken 17 long years to make the right to free and compulsory education as an enforceable right after the Supreme Court Judgment; and 63 years after the country gaining political independence. However, the actual benefits are yet to be received as the nearly 10 million children in India who are out of schools are upto the age of 14 years.

b. Adoption: Supreme Court6 (1984) noticed that large scale mal practices are being committed in the inter country adoption and children of tender age are abused under the guise of adoption. There was no law to regulate inter-country adoptions and such lack of legal regulation could cause incalculable harm to Indian children. Considering the possibility of child trade for prostitution as well as slave labour, legal regulation of such adoptions was essential. Therefore, Supreme Court framed a scheme for regulating both inter-country and intra-country adoptions. The Court recognized that the children are 'supremely important national asset' and passed series of directions to regulate the inter country adoption to safeguard the interest of the children.

c. Malnutrition: Supreme Court7 (2004) also directed supply of nutritious food to the children in the age group of 0 – 6 years through centres set up or funded by the Government.

d. Female Foeticide: Indian society unfortunately discriminates against female child and there has been large number of cases female of feticides. Despite law8 preventing determination of sex of a child in the mother's womb, such tests are routinely conducted. Girls not only face inequality, they were not even allowed to be born. Supreme Court (2001) intervened and directed the Government to create mass public awareness against such a practice in media & all public places; and also carry out surprise inspection where such tests are conducted & take strict action. Pursuant to this we now find public awareness about such law and female foeticide has been reduced.

e. Child Labour: Even after 60 years of independence and despite numerous legislation, child labour has remained a major problem in our country. Children are employed in hazardous industries and employed in dangerous activities on meager payment. One such activity where children are employed in manufacture of fire works. Supreme Court10 (1996) took note of such exploitation and analyzed the reasons of child labour being poverty, unemployment, illiteracy and hence for directed constitution of a 'Child Labour Rehabilitation cum Welfare Fund' to be used for welfare of the child. The Court11 also gave direction for regular health check up, supply of nutritious food to the working children.

f. Trial of cases involving sexual abuse of children: In many cases involving sexual abuse of children, the victim or witnesses were facing embarrassment and humiliation while giving evidence in the courts resulting in acquittal of accused persons. The Supreme Court12 introduce following safeguard in cases of trial of child sex abuse:

  1. The inquiry or trial shall be held not in open court but in camera;
  2. A screen or some such arrangements may be made where the victim or witnesses do not see the body or face of the accused;
  3. The questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
  4. The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

g. Juvenile In Conflict with Law: Juvenile Justice (Care & Protection of Children) Act, 2000 though enacted by the Parliament in 2000 and extensively amended in 2006; yet implementation of the beneficial provisions are yet to take place. Supreme Court in two Public Interest Petitions13 is monitoring implementation of the Act by giving directions and seeking status report from time to time.

h. Caste system on Juvenile Justice: Caste system is considerably dominant in Indian political and social context. Though in the urban society its effect is gradually decreasing but in rural part of the country it is still quite dominant. However, the caste system has very little and no consequence so far as the juvenile justice system is concerned. Recently, there have been many instances where young couples were killed due to inter caste marriage which was not acceptable to certain orthodox community in Indian Society. Role of caste system is very dominant in the Indian society.

Q.- What is the proportion of young offenders who do not have access to a legal counselor? Do they have access to pro-bono lawyers?

A.- There is no data available in our country to indicate as to what is the proportion of young offenders or any other offenders who do not have access to legal counselor. However, Legal Services Authority Act, 1987 provides that every juvenile is entitled to free legal aid. There are Legal Services Authorities at the National, State and District levels and some lawyers are empanelled at all levels who render free legal assistance. The Juvenile Justice Boards are duty bound to provide free legal aid to all those juveniles who are not able to afford lawyers. The law also provides for para-legal services by law students.

Despite there being ample provisions of law to provide free legal aid to juvenile, ground reality is that very few juvenile get free legal aid. Even in those cases where the free legal aid is provided the juvenile, the quality of service is far from satisfactory except at very few places.
For example, in the capital city Delhi, till about 2 years back, service provided by the lawyers on the panel of the Legal Services Authority was minimal both quantitatively and qualitatively. However, due to the intervention of some social workers and a team of pro-bono lawyers, things have improved to a great extent. Now there are full time lawyers appointed by the Legal Services Authorities and also pro-bono lawyers who are giving quality service to the juveniles free of charge.
I personally feel that NGOs who are dealing with Juvenile in Conflict with Law must hold or organize workshop for giving special legal training to lawyer relating to Juvenile in Conflict with Law who are engaged in Government panel giving legal aid to Juvenile in Conflict with Law.

Q.– What training do the lawyers in charge of legal assistance get? Are they trained by the Legal Assistance Forum?

A.- No special training is given to the lawyers rendering legal assistance to juvenile. However, most of them are practicing experienced lawyers and before their empanelment, the Legal Services Authority looks into their qualification and experience.

No specific training is given by the Legal Assistance Forum to the Legal Aid lawyers. Nevertheless, LAF motivates lawyers in general to render pro-bono service to the marginalized section of the society in all their seminar, and meetings, as a part of social responsibility of the legal fraternity.

Q.– What is the situation of lawyers in charge of legal assistance forum? Do they exercise other positions?

A.- Lawyers in charge of Legal Assistance Forum all are practicing and highly qualified advocates having expertise in the different fields of law. They regularly appear in the various courts particularly in the Supreme Court of India and various High Courts and represent their clients. The members of the LAF are also associated with various other fields relating to academics, journalism etc.

Q.- What actions do you take in order to provide and guarantee legal assistance in rural areas?

A.- LAF has organized several legal aid camps in rural areas in India to provide free legal service to the under privileged sections of the society. This camps have assisted in solving many issues like land dispute, matrimonial disputes, issue of ration card, eradication of dowry system and female foeticide, etc. (link)

LAF during their visits to some of the jails in the State of Assam found that juveniles were lodged in jails for many years with hardened criminals against which representation was made to various authorities including High Court (Link). Gauhati High Court treated the said representation of LAF as Public Interest Petition (PIL) and directed release/ shifting of all juveniles from jails (Link). National Human Rights Commission of India (NHRC) have also issued notices to all State Governments in the country to intimate the status of juvenile kept in jails in the respective States on the basis of a representation made by LAF, pursuant said direction it has been found that many States large number of juvenile were kept in jails with hardened criminals (Link). LAF has made further representation to NHRC and award of suitable compensation for violation of law (Link). The matter is pending for compliance before NHRC.

Q.- What are the national measures necessary to guarantee legal assistance to all?

A.- Legal Services Authorities, at all levels, are presently providing free legal aid to the litigants who are entitled to free legal aid in terms of section 12 of the Legal Services Authority Act, 1987, through a panel of lawyers maintained by each authority. The concerned authority earmarks a particular case to a panel lawyer and it is the duty of the said lawyer to prosecute the case on behalf of the litigant whose case was referred to him/her by the Legal Services Authority. The marking of the case to the panel lawyer depends on the discretion of the concerned officer of the Authority and every lawyer gets paid on per case basis. The panel lawyers are free to take other private cases.

It has been the experience of LAF that the services provided by the legal aid lawyers particularly in the District Judiciary is not fully satisfactory. LAF has thus suggested to the National Legal Services Authority (NALSA) that the practice of empanelling a large number of lawyers and marking cases to them may be replaced by appointing a smaller number of lawyers on contract basis for a limited period of 3 to 5 years. Such appointed lawyers may be paid on monthly basis and may not be allowed to take up private cases during the contract period. They may be given common legal aid office in each court complex with reasonable infrastructure and supporting staff to maintain the records. The advantage of appointment of lawyers on contract basis may provide following benefits:

1. Legal aid lawyers would devote full time to the cases marked to them by the Legal Services Authority.

2. They would be available during the working hours to the litigants at a particular place.

3. Legal aid lawyers will not be required to look for private cases to earn their living.

4. There may not be much additional finance requirements, since fee is not required to be paid on per case basis under this proposal.

5. The competency and merit of the legal aid lawyers be better as they would be selected by a proper selection process.

To get the right talent the following points can be considered:-

a. Selection of young lawyers by competitive examination.

b. Full time work on consolidated monthly pay for a period of 3-5 years with annual increments.

c. Legal aid lawyers completing the contractual period of appointment satisfactorily may be given preference / reservation in the matter of appointment in the State Judicial Service.

NALSA is seriously considering the aforesaid proposal of LAF. The Executive Chairperson of NALSA (Hon'ble Mr. Justice Altamas Kabir, Judge Supreme Court of India) in his letter addressed to the LAF responded to the aforesaid proposal as hereunder:
'Only this weekend 13th and 14th March, 2010, a national meet of all the Executive Chairmen and Member Secretaries of the different State Legal Service Authorities was held in Chandigarh. One of the matters discussed in the Conference was the subject matter of your letter and almost all the delegates present thought on the same lines as suggested by you.'

Q.- You have an ongoing project on the monitoring mechanism for strengthening juvenile justice system in India. What actions have you taken? What conclusion have you reached?

A.- The monitoring mechanism for strengthening the Juvenile Justice system in India being developed by us is ' self corrective system' for the two major stake holders namely 'Special Juvenile Police Unit' and 'Juvenile Justice Board'. The monitoring mechanism is divided in three broad heads:
Firstly, use of forms by the stake holders which will remind the authorities of their duties under the law and obligate them to follow the same in a uniform pattern.
Secondly, the stake holders at the grass root level would be required to submit periodical reports to the various authorities which will ensure compliance of the law and identify the gap or the areas where corrective action needs to be taken.
Thirdly, there will be periodical meetings between all the stake holders so that there is cooperation and coordination among themselves for smooth functioning of the Juvenile Justice System.
We had prepared a draft paper for consultation which was extensively debated and views of the functionaries were obtained. A national consultation was held on 23.4.2010 which was attended by Judges of the Supreme Court of India, various High Courts, representatives of Unicef, members of the Commission for Protection of Child Rights, members of Juvenile Justice Board and Special Juvenile Police Unit, NGOs, etc. (Link). Based on views received from various quarters operating in Juvenile Justice, a Monitoring Mechanism has been prepared (Link). LAF is now co-coordinating with two piloted States in India (Assam and Tamil Nadu) for its implementation.

In my view, once the monitoring mechanism is put in place and is implemented, it will bring remarkable reforms and fill up the gaps in the system.
 


1 'No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.'
2 'Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is— (c) a woman or a child'
3 'The Board shall ensure that the Legal Officer in the District Child Protection Unit and the State Legal Aid Services Authority shall extend free legal services to all the juvenile in conflict with law'
4 Unni Krishanan vs. Union of India 1993 (1) SCC 645
5 'The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.'
6 Lakshmikant Pandey v Union of India 1984 (2) SCC 244, 1985 Supp SCC 701
7 People’s Union for Civil Liberties vs. Union of India ; 2004 (12) SCC 104, 2007 (1) SCC 719
8 Pre-Natal Diagnostic Test Act, 1994
9 Centre for Enquiry into Health and Allied Theories (CEHAT) vs. Union of India; 2001 (5) SCC 577, 2003 (8) SCC 398
10 M.C.Mehta v State of Tamil Nadu ; 1996 (6) SCC 756
11 Bandhua Mukti Morcha vs. UOI; 1996 (6) SCC 756, 1997 (10) SCC 549
12 Sakshi v. Union of India,(2004) 5 SCC 518
13 Writ Petition (C) No.51 of 2006; Bachapan Bachao Andolan vs. Union of India, and Writ Petition (C)No.473 of 2005; Sampurna Behrua vs. Union of India.


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