IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 27937 of 2001(A)
1. FORUM FOR SOCIAL JUSTICE
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.R.SURENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/09/2009
O R D E R
S. SIRI JAGAN, J
...............................................
O.P.No. 27937 of 2001
.................................................
Dated this the 7th day of September, 2009
J U D G M E N T
Article 39A of the Constitution of India, forming part of the
Directive Principles of State Policy lays down thus:
“39A. Equal justice and free legal aid. 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
opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.”
2. Prior to coming into force of the Legal Services Authorities
Act, 1987, there was no statutory body for implementation of this
policy of providing legal aid to the needy as envisaged in Article
39A. That duty was mainly performed by non-governmental and
voluntary organisations apart from the Kerala State Legal Aid and
Advice Board, a body constituted by the Government by executive
orders. At the time various voluntary and non- governmental
organisations engaged in providing legal aid to the needy were not
supported by the Government. In fact by a letter dated 28.6.1985
the Secretary to the Government, Law Department, Government of
Kerala directed the District Collectors in the State that they need
O.P.No. 27937 of 2001 -2-
not render any assistance to voluntary organisations to conduct
legal aid camps other than the Kerala State Legal Aid and Advice
Board. This led to some litigation and some voluntary organisations
approached the Supreme Court of India challenging the stand of
the Government. The Supreme Court in the decision of Centre for
Legal Research v. State of Kerala 1986 SCC (Cri) 246 rendered
the following judgment:
“This writ petition raises a queation as to whether
voluntary organisations or social action groups engaged
in the legal aid programme should be supported by the
State Government and if so to what extent and under
what conditions. There can be no doubt that if the legal
aid programme is to succeed it must involve public
participation. The State Government undoubtedly has an
obligation under Article 39-A of the Constitution which
embodies a directive principle of State policy to set up a
comprehensive and effective legal aid programme in
order to ensure that the operation of the legal system
promotes justice on the basis of equality. But we have no
doubt that despite the sense of social commitment which
animates many of our officers in the Administration, no
legal aid programme can succeed in reaching the people
if its operation remains confined in the hands of the
Administration. It is absolutely essential that people
should be involved in the legal aid programme because
the legal aid programme is nto charity or bounty but it is
a social entitlement of the people and those in need of
legal assistance cannot be looked upon as mere
beneficiaries of the legal aid programme but they should
be regarded as participants in it. If we want to secure
people’s participation and involvement in the legal aid
programme, we think the best way of securing it is to
operate through voluntary organisations and social action
groups. These organisations are working amongst the
deprived as vulnerable sections of the community at the
grass-root level and they know what are the problems and
difficulties encountered by these neglected sections of
Indian humanity. They have their finger on the pulse ofO.P.No. 27937 of 2001 -3-
the people and they know from their own experience as to
what are the unmet legal needs of the people, what are
the sources of exploitation and injustice to the under-
privileged segments of society and what measures are
necessary to be taken for the purpose of ending such
exploitation and injustice and reaching social or
distributive justice to them. We are therefore definetely
of the view that voluntary organisations and social action
groups must be encouraged and supported by the State in
operating the legal aid programme. it is now
acknowledged throughout the country that the legal aid
programme which is needed for the purpose of reaching
social justice to the people cannot afford to remain
confined to the traditional or litigation oriented legal aid
programme but it must, taking into account the socio-
economc conditions prevailing in the country, adopt a
more dynamic posture and take within its sweep what we
may call strategic legal aid programme consisting of
promotion of legal literacy, organisation of legal aid
camps, encouragement of public interest litigation and
holding of lok adalats or niti melas for bringing about
settlements of disputes whether pending in courts or
outside. The assistance of voluntary agencies and social
action groups must therefore be taken by the State for
the purpose of operating the legal aid programme in its
widest and most comprehensive sense, and this is an
obligation which flows directly from Article 39-A of the
Constitution. But at the same time it is necessary to point
out that the Stte cannot be asked to encourage and
support any and every voluntary organisation or social
action group because there are types and types of
voluntary organistions and social action groups in the
country and if the State were required to encourage and
support other voluntary organisation or social action
group for operating the legal aid programme and
particularly the strategic programme comprising legal aid
camps and lok adalats, the possibility of abuse of such
encouragement or support cannot be ruled out. It is
therefore necessary to lay down norms which should
guide the State in lending its encouragement and support
to voluntary organisations and social action groups in
operating legal aid programmes and organising legal aid
camps and lok adalats or niti melas. We are of the view
that the following norms should provide sufficient
guidance to the State in this behalf and we would direct
that the State Government shall, in compliance with itsO.P.No. 27937 of 2001 -4-
obligations under Article 39-A of the Constitution extend
its cooperation and support to the following categories of
voluntary organisations and social action groups in
running the legal aid programme and organising legal aid
camps and lok adalats or niti melas:
(1) Voluntary organisations and social action
groups which are recognised by the Committee for
Implementing Legal Aid Schemes set up by the
Government of India or whose programme or
programmes are supported by way of grant or otherwise
by the Government of India or the State Government or
the Committee for Implementing Legal Aid Schemes or
the State Legal Aid and Advice Board.
(2) Voluntary organisations and social action
groups which organise legal aid camps or lok adalats or
niti melas in conjunction with or with the support of the
Committee for Implementing Legal Aid Schemes or the
Kerala State Legal Aid and Advice Board.
(3) Voluntary organisations and social action
groups which are recognised by the State Government or
the State Legal Aid and Advice Board on an application
being made in that behalf.
Every voluntary organisation or social action group
falling within clause (1), (2) or (3) above and to which
cooperation and support are directed to be extended by
the State Government shall furnish whatever factual
information is required by the Central Government or the
State Government or the Committee for Implementing
Legal Aid Schemes or the State Legal Aid and Advice
Board, but we may make it clear that such voluntary
organisation or social action group shall not be under the
control or direction or supervision of the State
Government or the State Legal Aid and Advice Board
because we take the view that voluntary organisations
and social action groups operating these programmes
should be totally free from any governmental control.
2. The writ petition will stand disposed of in these
terms”
3. Pursuant thereto, the Government of Kerala framed Ext.P2
guidelines regarding Governmental co-operation in respect of the
O.P.No. 27937 of 2001 -5-
legal aid activities of private organiations. The petitioner is one
such private organisation engaged in the various legal aid
programmes. They approached the Government for recognition as
a voluntary organisation for rendering legal aid. Pursuant thereto,
the Government granted them recognition and extended support
for conducting Legal Aid Clinics, and Neethimelas. While matters
stood thus, the parliament enacted the Legal Services Authorities
Act, 1987, creating statutory bodies for the purpose of providing
legal aid service to weaker sections of the society, as per which a
National Legal Services Authority was constituted as an apex body
under whom various State Legal Services Authorities were to
function. Additional 3rd respondent herein is the state authority
(KELSA) constituted under the Legal Services Authorities Act,
1987. When the KELSA was constituted, the Government decided
to cancel the accreditation granted by them to various voluntary
organisations in the matter of rendering legal aid services. The
petitioner, a voluntary organisation took up the matter with the
Government by Ext.P12, pursuant to which, the Government
passed Ext.P13 order dated 24.11.2000, wherein the Government
held that on the advent of the Legal Services Authorities Act, 1987,
the Government ceased to be the authority to give accreditation to
O.P.No. 27937 of 2001 -6-
voluntary organisations like the petitioner and it is for the KELSA
to take up that responsibility under the Act. Accordingly, by
Ext.P13 order, the Government held thus:
“In the light of the conclusion reached above the
recognition granted by the Government to FSJ, PCSJ,
KANFED and SALT as per the G.O. read as 2nd paper
above prior to coming into force Central Act 39 of 1987
and the formation of KELSA as per the rules framed
thereunder, cannot be continued on account of the
changed statutory setting. Accordingly, the recognition
granted to FSJ, PCSJ, KANFED and SALT as per
Government orders read as papers 3 to 6 above will stand
withdrawn. This order is passed without prejudice to the
accreditation, if any, obtained by any of the above
organisations from KELSA and also without prejudice to
right of any of the organisations to move KELSA for
accreditation. “
4. The petitioner again approached the Government for
reconsideration of the matter, which was also rejected by Ext.P17
and P18 orders of the Government. The petitioner is challenging
Exts.P13, P17 and P18 in this writ petition.
5. The contention of the petitioner is that the yeoman service
rendered by voluntary and non governmental organisations have
been recognised and applauded by the Supreme Court in the
decision in Centre for Legal Research’s case. By that decision, the
Government was directed to render appropriate assistance to
voluntary organisations for rendering legal aid. According to the
petitioner even after coming into force of the Legal Services
O.P.No. 27937 of 2001 -7-
Authorities Act, situation has not changed. The counsel for the
petitioner points out that under Rule 14 of the Kerala State Legal
Services Authorities Rules, 1998, the Kerala State Legal Aid and
Advice Board has been dissolved, which would go to show that
what has been conferred on the KELSA is only the role of the
Kerala State Legal Aid and Advice board. Therefore even after
coming into force of the Legal Services Authorities Act, the rights
conferred on voluntary organisations by the Supreme Court
decision (supra) continues to be in force and therefore the State
Government is liable to continue giving assistance to voluntary
organisations for providing legal service to the needy, which
according to the petitioner is not in any way curtailed by the Legal
Service Authorities Act, 1987. The petitioner would therefore
submit that the Government went wrong in abdicating their powers
of recognising voluntary organsations for the purpose of rendering
legal aid to the needy in accordance with Ext.P2 guidelines framed
by it. The petitioner therefore seeks the following reliefs:
” a) issue a writ of certiorari or any other
appropriate writ, order or direction quashing Exhibit-
P13, Exhibit-P17 and Exhibit-P18;
b) Issue a writ in the nature of mandamus or any
other appropriate writ, order or direction commanding
the State of Kerala and its Officers to continue to
support and render assistance to the petitioner society
for carrying out its objects and activities in the State ofO.P.No. 27937 of 2001 -8-
Kerala in the light of the decision of the Hon’ble Suprme
Court reported in AIR 1986 SC 2195 and Exhibit-P4
government order dated 4.6.1987;
c) Issue a writ in the nature of mandamus or any
other writ, order or direction commanding the
respondents to consider and pass orders on Exhibit-P14
representation after notice to and affording the
petitioner society an opportunity of being heard.
d) Issue an interim order directing the
respondents to render all assistance and support to the
petitioner society so as to enable the petitioner society to
take follow up action in disputes that were settled at the
Nitimelas and legal camps organised by it before
24.11.2000; “
6. The additional 3rd respondent stoutly opposes the
contention of the petitioner. According to the additional 3rd
respondent, the Parliament has decided to create statutory
authorities for providing legal service to the weaker sections of the
society as mandated by Article 39A of the Constitution of India for
which the Legal Services Authorities Act, 1987 has been enacted.
According to the counsel for the 3rd respondent the Legal Services
Authorities Act, 1987 does not envisage any role for the State
Government in the matter and a hierarchy is prescribed under the
Act for controlling and streamlining providing of legal services to
weaker sections of the society by constituting a National Legal
Services Authority as an apex body functioning with national
jurisdiction with state legal services authorities in each State. The
powers and responsibilities which were hitherto conferred on the
O.P.No. 27937 of 2001 -9-
State Government has been by law conferred on the National Legal
Services Authority and State Legal Services Authorities with no
role for the State Government in the matter. According to the
learned counsel for the additional 3rd respondent, on coming into
force of the Legal Services Authorities Act, 1987, as far as the state
is concerned, the KELSA is the authority to provide free and
competent legal service to the weaker sections of the society and to
ensure that the opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities and to
organise Lok Adalats to secure that the operation of the legal
system promotes justice on a basis of equal opportunity. Therefore
according to the learned counsel, once KELSA was formed, the
authority in respect of legal services in the state vested absolutely
with the KELSA to the exclusion of the State Government
regarding responsibilities hitherto exercised by the Government.
Consequently according to the petitioner, the power to recognise
volunatary organisations for the purpose of granting assistance of
Government departments in the matter of providing legal services
also vested with the KELSA. He therefore supports the impugned
orders. The Government Pleader appearing on behalf of the
Government also supports the additional 3rd respondent. They have
O.P.No. 27937 of 2001 -10-
also filed a counter affidavit taking identical contentions.
7. I have considered the rival contentions in detail.
8. I am of opinion that the decision in Centre for legal
Research’s case cannot be relied upon for the proposition that even
after coming into force of the Legal Service Authorities Act, the
Government continues to be the authority competent to recognise
voluntary organisations and that despite the Legal Services
Authorities Act and the formation of the KELSA, the voluntary
organisations can insist on the Government continuing to provide
assistance to them for the purpose of rendering legal aid by
conducting legal aid clinics and Neethimelas without reference to
the KELSA is misplaced. I am of opinion that if any voluntary
association wants assistance of the Government departments in the
matter of providing legal aid, that voluntary organisation has to
obtain approval from the KELSA. According to me, the Legal
Services Authorities Act, 1987 is a complete code in itself in
respect of rendering legal aid services in the state as envisaged in
Article 39A of the Constitution of India. The objects and reasons of
the Act reads thus:
“Statement of Objects and Reasons
Article 39A of the Constitution provides that the
State shall secure that the operation of the legal system
promotes justice on a basis of equal opportunity, andO.P.No. 27937 of 2001 -11-
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 disabilities.
2. With the object of providing free legal aid,
Government had, by Resolution dated the 26th
September, 1980 appointed the “Committee for
Implementing Legal Aid Schemes” (CILAS) under the
Chairmanship of Mr. Justice P.N. Bhagwati (as he then
was) to monitor and implement legal aid programmes on
a uniform basis in all the States and Union territories.
CILAS evolved a model scheme for legal aid programme
applicable throughout the country by which several legal
aid and Advice Boards have been set up in the States
and Union territories. CILAS is funded wholy by grants
from the Central Government. The Government is
accordingly concerned with the programmes of legal aid
as it is the implementation of a constitutional mandate.
But on a review of the working of the CILAS, certain
defeciencies have to come to the force. It is, therefore,
felt that it will be desirable to constitute statutory legal
service authorities at the National, State and District
levels so as to provide for the effective monitoring of
legal aid programmes. The Bill provide for the
composition of such authorities and for the funding of
these authorities by means of grants from the Central
Government and the State Governments. Power has
also been given to the National Committee and the State
Committees to supervise the effective implementation of
legal aid schemes.
3. For the some time now, Lok Adalats are being
constituted at various places in the country for the
disposal, in a summary way and through the process of
arbitration and settlement between the parties, of a
large number of cases expeditiously and with lesser
costs. The institution of Lok Adalats is at present
functioning as a voluntry and consiliatory agency
without any statutory backing for its decisions. It has
proved to be very popular in providing for a speedier
system of administration of justice. In view of its
growing popularity, there has been a demand for
providing a statutory backing to this institution and the
awards given by Lok Adalats. It is felt that such a
statutory support would not only reduce the burden ofO.P.No. 27937 of 2001 -12-
arrears of work in regular courts, but would also take
justice to the door-steps of the poor and the needy and
make justice quicker and less expensive.
4. The Bill seeks to achieve the above objects. ”
The preamble of the Act provides thus:
“An Act to constitute legal services authorities to
provide free and competent legal services to the weaker
sections of the society to ensure that opportunities for
securing justice are not denied to any citizen by reason
of economic or other disabilities, and to organise Lok
Adalats to secure that the operation of the legal system
promotes justice on a basis of equal opportunity.”
9. Under Section 3, the Central Government is to constitute a
body to be called the National Legal Services Authority to exercise
the powers and perform the functions conferred on, or assigned to,
the Central Authorities under the Act. The functions of the Central
Authority are enumerated in Section 4 thus :
“4. Functions of the Central Authority.- The
Central Authority shall [* * *] perform all or any of the
following functions, namely:-
(a) lay down policies and principles for making
legal services available under the provisions of this Act;
(b) frame the most effective and economical
schemes for the purpose of making legal services
available under the provisions of this Act;
(c) utilise the funds at its disposal and make
appropriate allocations of funds to the State Authorities
and District Authorities;
(d) take necessary steps by way of social justice
litigation with regard to consumer protection,
environmental protection or any other matter of special
concern to the weaker sections of the society and forO.P.No. 27937 of 2001 -13-
this purpose, give training to social workers in legal
skills;
(e) organise legal aid camps, especially in rural
areas, slums or labour colonies with the dual purpose of
educating the weaker sections of the society as to their
rights as well as encouraging the settlement of disputes
through Lok Adalats;
(f) encourage the settlement of disputes by way of
negotiations, arbitration and conciliation;
(g) undertake and promote research in the filed of
legal services with special reference to the need for
such services among the poor;
(h) to do all things necessary for the purpose of
ensuring commitment to the fundamental duties of
citizens under Part IV-A of the Constitution;
(i) monitor and evaluate implementation of the
legal aid programmes at periodic intervals and provide
for independent evaluation of programmes and schemes
implemented in whole or in part by funds provided
under this Act;
[(j) provide grants-in-aid for specific schemes to
various voluntary social service institutions and the
State and District Authorities; from out of the amounts
placed at its disposal for the implementation of legal
services schemes under the provisions of this Act;]
(k) develop, in consultation with the Bar Council
of India, programmes for clinical legal education and
promote guidance and supervise the establishment and
working of legal services clinics in universities, law
colleges and other institutions;
(l) take appropriate measures for spreading legal
literacy and legal awareness amongst the people and, in
particular, to educate weaker sections of the society
about the rights, benefits and previleges guaranteed by
social welfare legislations and other enactments as well
as administrative programmes and measures;
(m) make special efforts to enlist the support of
voluntary social welfare institutions working at theO.P.No. 27937 of 2001 -14-
grass-root level, particularly among the Scheduled
Castes and the Scheduled Tribes, women and rural and
urban labour; and
(n) Coordinate and monitor the functioning of
[State Authorities, District Authorities, Supreme Court
Legal Services Committee, High Court Legal Services
Committees, Taluk Legal Services Committees and
voluntary social service institutions] and other legal
services organisations and give general directions for
the proper implementation of the legal services
programmes.”
10. Section 5 stipulates that in the discharge of its functions
under this Act, the Central Authority shall, wherever appropriate,
act in co-ordination with other governmental or non-governmental
agencies, universities and others engaged in the work of promoting
the cause of legal services to the poor. Section 6 of the Act
postulates that every State Government shall constitute a body to
be called the Legal Services Authority for the state to exercise the
powers and perform the functions conferred on, or assigned to, a
State Authority to the Act
11. Section 7 enumerates the functions of the state authority
thus:
“7. Functions of the State Authority.- (1) It shall
be the duty of the State Authority to give effect to the
policy and directions of the Central Authority.
(2) Without prejudice to the generality of the
functions referred to in sub-section (1), the State
Authority shall perform all or any of the following
functions, namely:-
O.P.No. 27937 of 2001 -15-
(a) give legal service to persons who satisfy the
criteria laid down under this Act;
(b) conduct [Lok Adalats, including Lok Adalats
for High Court cases;]
(c) undertake preventive and strategic legal aid
programmes; and
(d) perform such other functions as the State
Authority may, in consultation with the [Central
Authority], fix by regulations.”
12. Section 8 stipulates that in the discharge of its functions
the State Authority shall appropriately act in co-ordination with
other government agencies, non-governmental voluntary social
service institutions, universities and other bodies engaged in the
work of promoting the cause of legal services to the poor and shall
also be guided by such directions as the Central Authority may give
to it in writing. Section 3A of the Act further requires the Central
Authority to constitute the Supreme Court Legal Services
Committee, and Section 8A of the Act requires the State Authority
to constitute the High Court Legal Service Committee and the
District Legal Services Committees Section 11A provides for
constitution of Taluk Legal Services Committee by the State
Authority. Each of the authorities under the Act has been
specifically entrusted with specific duties and functions in the
matter of providing legal aid to the needy. The Act does not
O.P.No. 27937 of 2001 -16-
envisage any specific function on the part of the State Government
in the matter of recognition of voluntary and non-governmental
organisations, in the matter of giving assistance to them for
conducting legal aid clinics and neethimelas. On the other hand
Sections 5 and 8 would go to show that such function also has been
required to be performed by the Central and the State authorities.
Therefore going by the scheme of the Act, I have no doubt in my
mind that the power of recognising voluntary and non-
governmental organisations, for rendering legal services in the
State, has been conferred on the authorities under the Act, which
as far as State of Kerala is concerned is the KELSA. It is also in the
fitness of things, since if two parallel authorities function for the
same purpose, that would create confusion in the implementation
of the provisions of the Act and would result in the legal aid
programmes itself ineffective. That being so, I do not find any merit
in the contentions of the petitioner to the effect that despite
coming into force of the Legal Services Authorities Act, the power
of the Government to recognise voluntary and non-governmental
organisations and their duty to render assistance to them for
conducting legal aid clinics and Neethimelas is not affected. I am
of opinion that it is in the best interest of the legal aid programmes
O.P.No. 27937 of 2001 -17-
in the State that every facet of the same is controlled by the
National Legal Services Authority at the national level and the
State Legal Services Authority at the state level. In fact that only
has been recognised by the impugned orders. Therefore, I do not
find any merit in the writ petition and accordingly the same is
dismissed.
S. SIRI JAGAN, JUDGE
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