Legal Aid Services to Marginalized Section
“Freedom of mind is the real freedom. A person, whose mind is not free though he may not be in chains, is a slave, not a free man. One, whose mind is not free, though he may not be in person, is a person and not a free man. One whose mind is not free though alive, is no better than dead. Freedom of mind is the proof of once existence.” said B.R. Ambedkar
In the following article, the Legal Aid Services provided by the Non-Governmental Organisations or Voluntary Organisations which are completely independent on Governments is being showcased in detail. Minorities who were unable to seek compensation because of precedent laws have now been provided with a voice. Further the Article discusses the problems faced by the Marginalized Groups in a broader aspect as to how the unequal and unfair means of treatment have been faced by them in recent years even after the abolition of ‘Untouchability’ law. It has taken into account the right to equality and equality before law into consideration and how the NGOs worked to disable this harshness against them through different case laws. NGOs by providing different schemes in their legal aid service like Nai Roshni, Seekho aur Kamao (Learn and Earn) and Jio Parsi amongst many have also been elaborately discussed which showcases all the aspects of different authorities which provides ‘Access to Justice for Marginalized People in India’.
In a country like India, where lies and assorted section of communities who fulfill different demands of society, contains another group of people amongst them. This special group of people though is not given much significance, having less powers and opportunities. In the society as they are considered to be the “unwanted populace”. This particular society is known as “Marginalized Groups”. Marginalized group are the ones who face social exclusion.
In spite of this societal austerity towards Marginalized Community, our Constitution of India recognizes them and has provided them with equal rights as the ideals of equality and justice gives equal chance for every being in the society to present them.
- Article 46 of the directive Principles enjoys the State to take special care in promoting the educational and economic interest of the weaker section of the people and in particular the Scheduled Castes and Schedules Tribes and to protect them from social inequality. ‘Any such provision made by the State cannot be challenged on the ground of being discriminatory.’ has been provided under The Constitution (First Amendment) Act, 1951.
- Part III of the Constitution which guarantees fundamental rights also provides for minorities.
- Article 14 ensures equality before law along with equivalent protection of laws.
- Article 15 disables discrimination by state on the basis of religion, caste, colour, creed etc in regard to access to public places. This Article shall not prevent from initiating any social provisions for the advancement of socially and educationally backward classes.
- Article 16 represents equality of opportunities in context of public employment as it disregards discrimination on the basis of caste, colour, sex, religion etc.
Note: The State can make reservation of appointments or post which are favorable to backward class of citizens.
- Article 17 completely abolishes untouchability. It forbids anyone who practices in any form and is an offence punishable in accordance with the law.
- Article 19(6) imposes reasonable restrictions on the fundamental rights enabled by Article 19(d), (e), (f) which present protection of interests of Schedule Tribes.
- Article 25-30 protect the religion and culture of the minorities.
- Article 275 avails grants-in-aid to the States for endorsing the welfare of Scheduled Tribes.
- Article 164 provides for special Minister of Tribal Welfare in Bihar, Madhya Pradesh and Orissa.
- Article 330-342 make special provisions for safeguarding the interest of Scheduled Castes, Scheduled Tribes, Anglo-Indians and Backward Classes.
- Article 347, 350-A, 350-B make provisions for protecting the interest of linguistic minorities.
Legal Aid Services are for those people who are unable to afford the expense of an advocate for the conduct of a case. It aims at providing equal justice to every citizen. Article 14-18 of the Constitution guarantee the right to equality to every citizen. Article 14 exemplifies the general principles of equality before law and proscribes unreasonable discrimination between persons.
Free legal aid for socially and economically vulnerable people was introduced across India in 1955, when the Legal Services Authority Act came into force. The law aimed at ensuring justice for all on the basis of equal opportunity. The preamble of Indian Constitution basically aims to secure to the people of India justice in context with socio economic and political freedoms.
Provision of free legal aid includes:
- Representation by an advocate in legal proceedings.
- Drafting of legal documents.
- Giving advice on legal matters.
- Process fee
- Court fee
Legal aid can be granted to:
- Scheduled Castes
- Scheduled Tribes
- Victims of human trafficking
- Disabled persons
- Victims of natural disasters
The Economic and Social Council of the United Nations has defined the non-governmental organizations (NGOs) as ‘any international organization which is not instituted by inter-governmental agreements’. Its main object is that every public fund is used for the public welfare. NGOs have co-operative and humanitarian object and not commercial objectives.
- Non-governmental organisation is entirely independent of the Government.
- NGOs are private organisations.
- NGOs are non-profit organizations.
- NGOs are the aided or non-aided.
- NGOs are such private organisations which promote for the protection and promotion of human rights and do not promote violence or terrorism at all.
- NGOs are development organisations working at national or international level.
- NGOs are an association who believe in social welfare.
- NGOs are group of persons that largely independent of government in their working.
- They are working independently of any external control.
- It works with specific objective to bring desirable change in a given community and to help the needy ones.
- It does not promote violence or terrorism at all.
Functions of NGOs are:-
(1) Spectator of Public Opinions
The propaganda and message on current issues and news are dealt by NGOs so as to create awareness among all parts of the society. Their main focus is reach to all parts including rural areas also so that the underprivileged get a say in the legal aspects. They organise seminars and conferences wherein they make sure that powerful authorities like Administrative Officers, Jailers, Police Officers, Judges, Advocates and Journalists take a part and step forward to increase the betterment of the society. They act as an intermediary between not just the minority and authorities but also between the needy people as well. By this more aspects of legal services are taken into consideration and broaden the aids of many people.
(2) Publicity Tasks
The information and facts related to all the new amendments like the condition of jails, treatment given to prisoners especially to the ones who are under trials is being showcased by NGOs so as to bring the equality amongst all the vulnerable groups. They create a transparency inside the ongoing system to showcase a clear view to everyone.
(3) Legal Assistance
They take initiative in bringing out and putting forth the cases that are unfinished and are not given much importance. Giving legal assistance is the main function of NGOs as they take care of all those cases before the court of laws where the rights are violated and yet no action have been taken against it because of lack of resources or by ignorance of law.
In Center of Legal Research v. State of Kerela,(AIR 1986 SC p.1322) the Supreme Court of India observed that the voluntary organizations and socially active groups must be encouraged and supported by the States in operating the legal aid grounds and if so then to what extent and under what conditions.The Court further observed that such voluntary organisations or social action groups must not be under the control or direction or supervision of the State Government or the State Legal Aid and Advisory Board because voluntary organisations and social action groups operating these programmes should be totally free from Governmental Control.
(4) Provide Information
NGOs also perform the task of educating the people by making them aware of their rights by taking workshops and campaigns. In these workshops they have to basically educate the people and make them aware that if their rights are being violated they are free to seek assistance from the non-governmental organisations.
(5) Implementing Direct Services
By providing the task of service providers, NGOs create a healthy link to dissolve the unnecessary issues faced the victims. With the help legal assistance, organisations like Vital Voices Global Partnership (VVGP) which work with an extensive network of NGOs engaged in the fight against human trafficking and help the victims to overcome from physical and psychological abuse. Particularly human rights NGOs defend the vulnerable section of the society such as to woman, children, refugees, older people and disabled persons by contacting them directly. They often collaborate with the learned advocacy groups to provide appropriate legal knowledge and assistance to present themselves before the governmental authorities.
(6) Pressurizing Governmental Authorities
To keep a check on the growing problem of torture and inhuman treatment NGOs have a dialogue with the Government in order to be in line with the international standards for human rights. NGOs extend pressure on international bodies as well. The persistent pressure of the Amnesty International on the UN General Assembly to adopt a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or of American Jewish to win the General Assembly’s acceptance of a Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, for another, lends credence to the conclusion that international human rights law has been greatly advanced by global popular support.
(7) Provide Justice
To provide fair means of equality NGOs offer to file writ petitions for Public Interest Litigation (PIL) to present someone who is vulnerable before the courts, in this way they make sure that justice accessed by a large number of people especially the ones who are denied their basic rights and are underprivileged.
(8) Human Rights Resolution (1503)
It was adopted by the Economic and Social Council in 1970 which helped the NGOs to act in good faith in accordance with recognized principle of Human Rights and spread awareness about them. This communication between the NGOs and the Commission on Human Rights has resolved many queries as to what principles are legally right and legally wrong.
(9) Human Rights Education
Formal education system cannot only create awareness among the people, the informal sector also has to play and active and increasing role in the development of the masses. NGO’s role is to make sure that the updated version of the Formal Education is received in all parts of the country. Hence, they have trying to technically tackle all the issues not only in theory but in a practical sense.
Role of NGOs: Indian Approach
NGOs nowadays are very significant and effective. Some of the leading NGOs are succeeding in creating a check and balance of Governmental authorities which creates a transparency among people of the society and reduces violation of human rights.
Vishakha vs. State of Rajasthan (AIR 1997 SC 3011), the Supreme Court has laid down certain guidelines to prevent sexual harassment of working women in their workplaces. It was held that, it is the responsibility of the employer of that institution, whether public or private to prevent the working women from the cases of sexual harassment.
Thus, NGOs play a landmark role by filing petitions for the protection of the working women at their workplaces.
People’s Union for Civil Liberties vs. Union of India (AIR 1997 SC 568), popularly known as Phone Tapping Case. In this case, it was held that, telephone tapping is a serious invasion as it’s the individual’s Right to Privacy which is Article 21 of the Constitution “Life and Personal Liberty”. An individual’s phone should not be resorted to by the State unless there is a public emergency or for the public welfare. It also laid down certain guidelines for the purpose of phone tapping and unlawful exercise of power by the government.
In Centre for Environmental Law, Worldwide Fund- India vs. Union of India (AIR (2013) 8 SCC 23), the Supreme Court has defined “biological diversity”. The court observed that biodiversity and biological diversity includes all the organisms found on our planet i.e. animals, plants and micro organisms, the genes they contain and the different ecosystems on which they form a part. The extinction of the species or the rapid deterioration of the ecology is due to poaching and wildlife trade, habitat loss, human interference, epidemic etc.
Indian laws and working of NGOs are the private organisations which are completely independent of the government. Certain laws which can be helpful for the working of NGOs in various fields are-
1) Child Welfare:
- The provisions under Article 23, 24, 39, 41, 45, 47 etc. Of the Constitution of India
- Child Labour (Prohibition and Regulation) Act 1986
- Hindu Adoption and Maintenance Act, 1956
- Juvenile Justice Act, 2000
- Right to Education Act, 2009 etc.
2) Welfare of Women:
- Maternity Benefit Act, 1961
- Dowry Prohibition Act, 1961
- Domestic Violence (Protection) Act, 2005
- Section 498 – A of the Indian Penal Code, 1860 etc.
3) Consumer Rights:
- Consumer Protection Act, 1986
- Consumer Protection (Amendment) Act, 1993
- Prevention of Food Adulteration Act, 1954
4) Human Rights:
- Protection of Human Rights Act, 1993
- The Provision under Part III and IV of the Indian Constitution
5) Prisoner’s Right:
- The Provisions under Article 20, 21 and 22 of the Constitution of India.
- Prisoner’s Act, 1894
NGOs of repute should be invited to play the role of designated agents and informants and identify cases of untouchability, atrocities and other forms of discrimination based on caste, colour, creed, sex, religion etc. They need to be encouraged to assist the implementing agency in the investigation and trial to safeguard against various pressures which are aimed at nullifying the impact of legal proceedings. Marginalized group are the section who continuously deal or rather suffer the societal and economic hardships. Hence, they should be given an equal opportunity to compensate the unjust precedent principles formed either by society or governmental authorities. Despite the progressive measures, ‘Access to Justice’ in India has been costly and beyond the reach of poor citizens. Poor and marginalized sections of the society have not yet been able to fully contemplate their legitimate stake in the protections provided by the Constitution and legal system because of which the realization of justice remains a challenge while the minority community comprise a little over 20 percentage of India’s population. Their contribution to the workforce lags at 44 percentage versus the national average 54 percentage. In context with this, there is still a limited reach of non-governmental organisation or voluntary organisations extending legal aid services. The majority of the respondents in seven States did not even know about the services or even the existence of legal aid because of lack of infrastructure, lack of adequate human resources and lack of awareness about the benefits that the NGOs legally assist. Suffice to say that even though there are associations assisting legally the number of the same also matters to reach all the aspects to physically meet the needs of the minorities in the society.
Schemes and measures
NAI ROSHNI : Through a Non-Governmental Organisation, this scheme is envisaged to reach out to women with financial assistance so that the sense of independence is easily accessible in a society where true meaning of Feminism i.e., equal opportunities to all the genders is rising as the day goes by. This scheme enables a training and development programme for women to start on their own feet which empowers and emboldens them to go beyond the patriarchal thinking of society.
Seekho aur Kamao (Learn and Earn): The main objectives of this scheme are to reduce unemployment among the rate of minorities and to conserve and update their traditional skills so that they have a comfortable link between the ongoing economies. Also, for those minority groups who are already employed helps in creating a better working condition by giving adequate incentives and increasing their skills required during the employment. At a national level it will also create a wide range of human resource.
JIYO PARSI: Its main objective is to reverse the decline of the Parsi community, adults/ young men, women/ adolescents boys/ girls who are detected with diseases. This scheme facilitates medical provisions so as to make sure that the basic healthy standard of living is followed in all marginalized groups.
The basic review is that the Formal Justice Mechanisms in India are very complex, expensive and beyond the reach of the minorities. As the report, of the Working Group for Twelfth Five Year Plan of the Department of Justice highlights the litigation costs has been constantly increasing which has put the chances for most of the minorities to present themselves before the courts when a right is violated. They lack a chance to justify their defense as they have been undesirable since the beginning of the time. Realizing this issue NGOs or voluntary organisations have come forward in helping and gaining all the basic and Constitutional rights that they should integrate in their lives from birth itself. Apart from giving them a fair chance to represent themselves in the society NGOs have not only legally assisted them but also have created a remarkable transition to be able to present themselves in the eyes of law.
Author: Gayatri Sharma,
GGSIPU, Jims School of Law, 2nd year/ Student