RESEARCH TOPIC- ROLE OF LEGAL AID IN PROMOTING JUSTICE

The Role of Legal Aid in Promoting Access to Justice in the Indian Context

Introduction

Legal aid serves as a critical mechanism for ensuring that justice is accessible to all, irrespective of socio-economic status. It embodies the principle that justice should not be the preserve of the affluent, but a right available to every individual. In a country like India, where economic disparities and social inequalities are profound, legal aid is pivotal in bridging the gap between law and the marginalized sections of society.

Access to justice is a fundamental right enshrined in the Indian Constitution. However, the realization of this right requires more than just the presence of courts and legal systems; it demands that individuals are able to understand, access, and utilize the law to protect their rights. This is where legal aid plays an indispensable role.

This article delves into the historical evolution, constitutional mandates, statutory frameworks, and the judiciary’s role in promoting legal aid in India. It also examines the mechanisms, challenges, recent developments, and the impact of legal aid on access to justice. The article concludes with future prospects and recommendations for strengthening legal aid in India.

Historical Background of Legal Aid in India

The concept of justice in ancient Indian law was rooted in the principles of Dharma, where the ruler was expected to be the upholder of justice. The ancient texts, including the Manusmritiand Arthashastra, provided frameworks for dispute resolution. The idea of justice was holistic, integrating both legal and moral dimensions. Local institutions like Panchayats played a crucial role in resolving disputes within communities, ensuring that justice was accessible at the grassroots level.

During the medieval period, especially under the Mughal rule, the justice system was influenced by Islamic jurisprudence. Qazis were appointed to adjudicate cases, and while the system was more formalized than in ancient times, access to justice was still localized and community-driven.

The advent of British rule marked a significant shift in the Indian legal system. The British introduced their legal principles and court systems, which were largely alien to the Indian populace. The introduction of codified laws and formal courts created a distance between the law and the common people. The legal system became complex, expensive, and inaccessible to the poor.

During the colonial period, access to justice was largely limited to the wealthy and the educated. The British legal system was seen as an instrument of control, rather than a means to deliver justice to the masses. This period saw the emergence of a dual system—formal British courts for the elite and traditional systems for the rural populace.

After India gained independence in 1947, the focus shifted towards creating a more equitable justice system. The Indian Constitution, adopted in 1950, laid the foundation for ensuring justice for all citizens. The framers of the Constitution recognized that access to justice is fundamental to the realization of other rights and incorporated provisions to promote legal aid.

The early years after independence saw the establishment of various committees and commissions to explore ways to provide legal aid to the poor. However, it wasn’t until the 1970s that legal aid gained significant momentum as a crucial aspect of access to justice in India.

Article 39A of the Indian Constitution

One of the most significant milestones in the history of legal aid in India was the inclusion of Article 39A in the Indian Constitution through the 42nd Amendment in 1976. This article, part of the Directive Principles of State Policy, mandates the State to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 39A reflects the commitment of the Indian State to promote equal justice and provide legal aid to the underprivileged. While the Directive Principles are not justiciable in a court of law, they serve as a guiding principle for the government in policy-making and governance.

The enactment of the Legal Services Authorities Act, 1987,marked a significant step in institutionalizing legal aid in India. The Act led to the establishment of the National Legal Services Authority (NALSA) and various State and District Legal Services Authorities. These bodies are responsible for providing free legal services to eligible citizens, organizing Lok Adalats, and promoting legal literacy.

The Legal Services Authorities Act provides a statutory framework for legal aid services in India. It defines the criteria for eligibility for legal aid and outlines the functions of legal services authorities. The Act also emphasizes the role of legal aid in promoting justice for marginalized communities, including women, children, Scheduled Castes, Scheduled Tribes, and other socially and economically disadvantaged groups.

Several other legislations and amendments complement the legal aid framework in India:

​​Criminal Procedure Code, 1973: Section 304 of the CrPC mandates the provision of legal aid to the accused at State expense if they cannot afford legal representation.

​​The Civil Procedure Code, 1908 (Amendment): The amendment of Order 33 of the CPC allows indigent persons to sue in forma pauperis, thus facilitating access to civil justice for the poor.

​​Public Interest Litigation (PIL): The concept of PIL, introduced by the judiciary in the 1980s, has become a powerful tool for ensuring access to justice, especially for those who are unaware of their rights or lack the resources to approach the courts.

Role of Judiciary in Promoting Legal Aid

Landmark Judgments

The Indian judiciary has played a proactive role in promoting legal aid and ensuring access to justice. Several landmark judgments have shaped the legal aid landscape in India:

​​Hussainara Khatoon vs. State of Bihar (1979)

This case is a watershed moment in the history of legal aid in India. The Supreme Court, while addressing the issue of undertrial prisoners languishing in jails for extended periods without trial, emphasized the right to a speedy trial as part of the right to life and personal liberty under Article 21. The court also stressed the need for providing free legal aid to indigent accused persons.

​•

​Khatri (II) vs. State of Bihar (1981)

In this case, the Supreme Court reiterated that the right to free legal aid is an essential part of the right to life and liberty under Article 21. The court held that the State is under a constitutional obligation to provide legal aid to indigent accused persons at the time of their first production before the magistrate.

​​Sheela Barse vs. State of Maharashtra (1983)

This case highlighted the need for legal aid for women in custody. The Supreme Court directed the State to provide legal assistance to women prisoners and emphasized the importance of legal aid in protecting the rights of marginalized sections of society.

These judgments underscore the judiciary’s recognition of legal aid as a fundamental right and its role in ensuring that justice is not denied to anyone due to poverty or ignorance.

Judicial Activism and Legal Aid

Judicial activism in India has often been a catalyst for social change, particularly in the realm of access to justice. The judiciary, through its innovative interpretations of constitutional provisions, has expanded the scope of legal aid and reinforced the State’s obligation to provide free legal services to the needy.

The concept of Public Interest Litigation (PIL) is one of the most significant contributions of judicial activism. PIL allows individuals or groups to file petitions in the public interest, even if they are not directly affected by the issue at hand. This has made the judiciary more accessible to marginalized communities and has brought to the fore issues related to human rights, environmental protection, and social justice.

Role of Public Interest Litigation (PIL)

PIL has emerged as a powerful tool for promoting legal aid and ensuring access to justice. It has allowed the courts to address issues affecting large sections of society, particularly those who are unable to approach the courts due to economic or social constraints.

PIL cases have led to significant legal reforms and policy changes, including the implementation of legal aid schemes, protection of the rights of marginalized groups, and improvements in the criminal justice system. The judiciary’s proactive approach in PIL cases has also led to the establishment of guidelines and mechanisms for providing legal aid to underprivileged sections of society.

Legal Aid Mechanisms in India

National Legal Services Authority (NALSA)

The National Legal Services Authority (NALSA) is the apex body responsible for overseeing the implementation of legal aid services in India. Established under the Legal Services Authorities Act, 1987, NALSA’s primary objectives include providing free legal services to eligible citizens, organizing Lok Adalats for the amicable settlement of disputes, and promoting legal literacy and awareness.

Functions and Initiatives

NALSA has undertaken various initiatives to ensure that legal aid reaches the most vulnerable sections of society. Some of its key functions include:

​•​Provision of Free Legal Services: NALSA provides free legal representation, advice, and assistance to eligible individuals in civil and criminal cases.

​•​Legal Awareness Programs: NALSA conducts legal literacy camps and awareness programs across the country to educate people about their rights and the availability of legal aid services.

​•​Lok Adalats: NALSA organizes Lok Adalats at the national, state, and district levels to facilitate the speedy and cost-effective resolution of disputes. Lok Adalats play a crucial role in reducing the burden on regular courts and providing an alternative dispute resolution mechanism.

CONCLUSION

So we can conclude that legal aid had been continuing since ages prior to its codification and it has been an inherent part of our social structure. Legal aid had been an effective tool in the hands of discriminated, marginalised section, women and children also as it helps them to be adjudicated at ground level and without too much intricacies.

ALL RIGHTS RESERVED (SOHAM LAKRA) INTERN VIIPS

Manorama versus Vishal SA 371/24 05/04/24 [ HON’BLE SHRI JUSTICE ACHAL KUMAR PALIWAL] [ MADHYA PRADESH HIGH COURT ]

Suit for declaration of title based on a family settlement deed Both parties filed a compromise petition, which was accepted by the trial court Whether the first appeal was maintainable against the trial court’s order based on a compromise petition The first appeal was not maintainable as the order was passed with the consent of the parties, and such orders can only be challenged in the same court The first appeal was maintainable, and the trial court’s condition regarding the registration of the gift deed was rightly set aside by the appellate court The first appeal was not maintainable The appellate court’s judgment was set aside, and the trial court’s order was restored The first appeal was barred under Section 96(3) of CPC as the order was based on a compromise The court relied on precedents and provisions of Order 23 Rule 3 and Rule 3A CPC, which bar appeals against consent decrees The appeal was allowed, and the appellate court’s judgment was set aside The trial court’s order was restored.

Relevant Paras 

22) The learned counsel for the private respondents has vehemently argued that merely because the private respondents have filed a civil suit against the petitioners does not mean that the criminal proceedings should be quashed. It has been contended that once it is  shown that a criminal offence is made out against the petitioners, the
investigating agency should be allowed to investigate all aspects of the case and that the prosecution cannot be quashed at its inception. In this regard, the learned counsel has relied upon the judgments of the Supreme Court in the cases of Priti Saraf & anr. vs. State of NCT of Delhi & anr, (2021) 16 SCC 142, M/S SAS Infratech Pvt. Ltd. Vs. State of Telangana & anr. (Criminal Appeal No.2574/2024 decided on 14.05.2024) and Sakiri Vasu vs. State of UP & Ors. (2008) 2 SCC 409.
23) There can be no quarrel with the legal position that same set of facts can give rise to both a criminal action and an action of civil nature but before taking recourse to a criminal action, it has to be shown that the allegations made in the FIR/complaint coupled with the material collected by the investigating agency during investigation of the case discloses commission of a criminal offence. In the instant case, none of the petitioners is shown to have made any 28) In view of the aforesaid legal position and having regard
to the fact that the allegations made in the impugned FIR and the material collected by the investigating agency do not disclose commission of any criminal offence by the petitioners, this Court would be failing in its duty if it does not come to the rescue of the petitioners and quash the impugned proceedings by exercising its power vested under Section 482 of the Cr. P. C. Allowing the criminal proceedings to go on in the case of present nature would encourage the people to settle matters of civil nature by taking resort to criminal proceedings which is impermissible
in law.

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SA_371_2024_FinalOrder_05-08-2024 The Law Literates

all rights Reserved (Vaibhav Tomar Adv)

Supreme Court decision on advocates enrolment fees.

The Supreme Court of India has capped advocate enrolment fees at Rs. 600, stating that State Bar Councils cannot charge more than this statutory limit.

The Supreme Court of India recently delivered a significant ruling regarding the enrolment fees charged by State Bar Councils for new advocates. The ruling, based on Section 24(1)(f) of the Advocates Act, 1961, mandates that the enrolment fee must not exceed Rs. 600.

WHAT IS SECTION 24(1)(f)?

24. Persons who may be admitted as advocates on a State roll.

(1)Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely

(a)he is a citizen of India:Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country

(b)he has completed the age of twenty-one years

(c)he has obtained a degree in law(i)before the [12th day of March, 1967,] [ Substituted by Act 60 of 1973, Section 18, for ” 28th day of February, 1963″ (w.e.f. 31.1.1974).]from any University in the territory of India; or(ii)before the 15th August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or(iii)[ after the 12th day of March, 1967, save as provided in sub-clause (iii-a), after undergoing a three year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or ] [ Substituted by Act 60 of 1973, Section 18, for sub-Cl(iii) (w.e.f. 31.1.1974).](iii-a) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or

iv)[ in any other case, from any University outside the territory of India, if the degree is recognised for the purposes of this Act by the Bar Council of India or;] [ Inserted by Act 21 of 1964, Section 13.][he is a barrister and is called to the Bar on or before the 31st day of December, 1976;[or has passed the article clerks examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] [ Substituted by Act 60 of 1973, Section 18, for ” he is a barrister” (w.e.f. 31.1.1974).] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act;][* * *] [ Clause (d) omitted by Act 60 of 1973, Section 18 (w.e.f. 31.1.1974).]

e)he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter

(f)[ he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2of 1899), and an enrolment fee payable to the State Bar Council] [ Substituted by Act 60 of 1973, Section 18, for Clause (f) (w.e.f. 31.1.1974).] of [six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favourof that Council] [[Substituted by Act 70 of 1993, Section 6, for ” two hundred and fifty rupees” (w.e.f. 26.12.1993).]]:Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to that effect from such authority as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be [one hundred rupees and to the Bar Council of India, twenty-five rupees] [ Substituted by Act 70 of 1993, Section 6, for ” one hundred and twenty-five rupees” (w.e.f. 26.12.1993).].[Explanation  [ Inserted by Act 14 of 1962, Section 2.].For the purposes of this sub-section, a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice board or otherwise declaring him to have passed that examination

(2)Notwithstanding anything contained in sub-section (1), [a vakil or a pleader who is a law graduate] [ Substituted by Act 21 of 1964, Section 64, Section 13, for certain words.] may be admitted as an advocate on a State roll, if he

makes an application for such enrolment in accordance with the provisions of this Act, not later than two years from the appointed day; and

(b)fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).(3)[ Notwithstanding anything contained in sub-section (1) a person who] [ Inserted by Act 21 of 1974, Section 13

](a)[* * *] [ The words and figures ” before the 31st day of March, 1964″ omitted by Act 33 of 1968, Section 2 (w.e.f. 5.6.1968).] has, for at least three years, been a vakil or a pleader or a mukhtar, or, was entitled at any time to be enrolled under any law [* * *] [ The words ” then in force” omitted by Act 33 of 1968, Section 2 (w.e.f. 5.6.1968)] as an advocate of a High Court (including a High Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or(aa)[ before the 1st day of December, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or] [ Inserted by Act 60 of 1973, Section 18 (w.e.f. 31.1.1974).][* * *] [ Clause (b) omitted by Act 60 of 1973, Section 18 (w.ef. 31.1.1974).](c)before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935; or(d)is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf,may be admitted as an advocate on a State roll if he(i)makes an application for such enrolment in accordance with the provisions of this Act; and(ii)fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).(4)[* * *] [ Sub-Section (4) omitted by Act 107 of 1976, Section 6 (w.e.f. 15.10.1976).]

RECENT OBSERVATION

Background and Key Points:

​1.​Legal Basis and Court’s Interpretation:

​•​The Advocates Act, 1961, specifically Section 24(1)(f), sets the enrolment fee at Rs. 600. The Supreme Court emphasized that this statutory provision is clear and binding, meaning no state bar council can legally charge more than this amount without legislative amendment.

​2.​Current Fee Disparities:

​•​Before this ruling, there was significant variation in enrolment fees across different states. For instance, states like Maharashtra, Kerala, and Delhi charged up to Rs. 15,000, while Odisha charged as much as Rs. 41,000. These disparities prompted petitions challenging the high fees, arguing they were prohibitive for many law graduates, especially those from economically weaker sections.

​3.​Supreme Court’s Observations:

​•​Chief Justice of India DY Chandrachud and Justice JB Pardiwala highlighted that while State Bar Councils cited increased costs as justification for higher fees, any adjustment to the fee amount should be made by Parliament, not by the councils themselves.

​•​The Court recognized the financial hardships faced by many law graduates. For example, a petitioner from the marginalized Pardhi community had to conduct a private fundraising campaign to afford the enrolment fee.

​4.​Future Implications:

​•​The ruling aims to standardize and make the enrolment process more equitable, ensuring that financial barriers do not prevent capable individuals from entering the legal profession. This decision underscores the need for transparency and fairness in the legal profession’s administrative processes.

​5.​Next Steps:

​•​The Supreme Court has reserved its judgment on the petitions and indicated that it would ask Parliament to reconsider the fee structure. The Bar Council of India and other state councils were also directed to submit details of their enrolment fees and annual collections.

This decision by the Supreme Court not only clarifies the statutory limit on enrolment fees but also addresses broader issues of accessibility and fairness within the legal profession.

All Rights Reserved (SOHAM LAKRA)

India has over 1.4 million practising lawyers, which easily renders it as one of the top contributors in the legal industry globally. However, commercialisation of legal professional has been discouraged by the legislature of India. Bar council of India has laid down strict standards and the code of conduct with respect legal community as law is considered highly noble profession and an individual approaches a lawyer when he is in dire need for protection from government machinery, in contrary to a businessman who advertises its product so large consumers are attracted towards the product, this is not in case of lawyers.

FACTS OF THE CASE

The petitioner, Mr. P.N. Vignesh, filed the writ petition as a “Pro Bono Publico” in the interest of the legal profession. He alleged that online service providers were offering lawyers services on their platforms, where advocates openly solicited legal work. The petitioner contented that such practices violated the BAR COUNCIL OF INDIA rules and amounted to misconduct under section 35 of the Advocates act.

LET’S KNOW WHAT IS SECTION 35 ABOUT?

SECTION 35 OF ADVOCATES ACT

Punishment of advocates for misconduct.

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

1[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]

(2) The disciplinary committee of a State Bar Council 2*** shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:–

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

3[Explanation  – In this section, 1[section 37 and section 38], the expressions “Advocate-General” and “Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]

ISSUES BEFORE THE HIGH COURT

OBSERVATION BY COURT

DIRECTIVES ISSUED BY THE COURT

STATE BAR COUNCIL’S VIEW

The Bar Council of India (BCI) has directed all State Bar Councils to enforce stringent disciplinary measures against advocates who engage in advertising or soliciting work through online platforms, which directly contravenes the Bar Council of India Rules.

Following a July 3 judgment by the Madras High Court, this directive underscores that the legal profession serves society nobly and should not be driven by profit motives. The judgment scrutinized online platforms offering legal services and found them to violate BCI Rules. The High Court reaffirmed that Rule 36 of the BCI Rules prohibits advocates from advertising or soliciting work, whether directly or indirectly. The High Court emphasized that marketing lawyers “diminishes the nobility and integrity of the profession.“Furthermore, the court concluded that the participation of online intermediaries in facilitating lawyer services violates professional conduct standards. In response, the BCI has issued cease and desist notices to prominent online service providers, such as Quikr India, Sulekha.com, Just Dial Limited, and Grotal.com. These notices address the unlawful advertising and solicitation of legal services on these platforms. The online platforms have been instructed to promptly remove all listings, profiles, and advertisements related to legal practices by advocates, with a deadline of four weeks from the date of the notice. They have also been directed to cease any operations facilitating the advertisement or solicitation of legal practice by advocates. In a press release, the BCI warned, “Failure to comply with these directives will lead to the initiation of legal proceedings and imposition of appropriate penalties against non-compliant organizations.” The BCI further emphasized in its statement, “All portals, online platforms, and advocates must strictly adhere to Rule 36 of the Bar Council of India Rules. Any advertisements violating this Rule must be withdrawn immediately.”

RECENT DEVELOPMENTS

However, the BAR COUNCIL OF INDIA (BCI) has not completely ignored the developments in the liberalised generation. The BCI recently decided to amend RULE 36 of BCI rules by adding a clause that allows advocates to maintain websites about themselves or their law firm to provide information about their business and help people to make more informed choices.

J. KRISHNA IYER once noted that “law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarise the legal profession”. However over the years, courts have adopted the view that legal services form a part of services rendered to consumers.

In 2008, the complete ban on advertising by lawyers was lifted and relaxed to a certain extent. This amendment allowed advocates to mention their names, telephone numbers, email ID and professional and educational qualification on the website of their choice. In contrary, laws in USA and other nation are more developed in which attorneys are free to advertise o

REASON WHY ADVERTISING IS PROHIBITED BY ADVOCATES?

C.D. SEKKIZHAR VS. SECRETARY BAR COUNCIL 1967

In this case, court stated that it was improper for advocates to advertise their work as it can create jealousy and was unsuitable to the noble profession.

TATA YELLOW PAGES VS MTNL 1995

The supreme court in this case supported the validity of rule 36 of BCI rules. It held that right to advertise falls within the purview of commercial speech and is thus protected under ARTICLE 19(1) of the constitution which guaranteed right to speech and expression.

WRIT PETITON FILED BY V.B. JOSHI 2000

This writ petition challenged the restriction on advertising of legal work as imposed through rule 36 of BCI rules. The court relaxed the restriction  and bought an amendment to rule 36 by allowing the legal community and professionals to promote themselves and provide precise information about their field.

CONCLUSION

In conclusion, regulated advertising can potentially contribute to maintaining the dignity of the legal profession, as long as it is carried out in accordance with the law. Rather than an outright ban or limiting it to certain websites, legitimate  advertising should be allowed across all platforms and media. There are many movies and T.V. programme which depicts how misleading advertisement leads to improper impression on general public..

All Rights Reserved (Soham Lakra Law Intern)

On 1st July 2024, 3 new legislations bharatiya NyayaSanhita (BNS), Bharatiya nagrik Suraksha Sanhita(BNSS), Bharatiyasakshya adhiniyam (BSA) were introduced as they replaced their older counterparts: Indian penal code (IPC1860), Indian evidence act (IEA1872) and code of criminal procedure 1973(CRPC 1974) respectively. These changes are considered draconian legislations and there was huge dismay over their implementation by legal experts. 

The predominant precedent in criminal law of LALITA KUMARI VS STATE OF UTTAR PRADESH (2014) is overturned in the new legislation, this case mandated the registration of FIR  mandatory in cognizable cases by police officials as prior to 2014, there was huge laxity on governmental functionary and there was unnecessary delay in investigations too. This Supreme court ruling aimed to strengthen the legal safeguard for complainants. Earlier investigating officer used to have discretionary power to delay the registration of FIR as they laid emphasis on “preliminary inquiry” prior to registration. CRPC mandated that preliminary inquiry will only be conducted in certain cases like medical negligence, dowry death etc. Now BNS section 173(3) replaced and overturned the prevalent practice and gave widespread power to police in cases of imprisonment of 3-7 years. This new provision requires prior permission from deputy superintendent of police and a preliminary inquiry to determine if a prima facie case exist. 

RECENT CANCELLATION OF FIR REGISTERED IN DELHI 

The recent incident where the first FIR under new criminal laws in Delhi was quickly canceled highlights significant concerns about the Bharatiya Nyaya Sanhita and its impact on the Indian judiciary. The first FIR registered in Delhi under provisions of the new criminal code (BNS) against a street vendor was cancelled after police filed a closure report in TIS HAZARI court on Tuesday (02/07/2024). Pankaj was booked for allegedly obstructing a public way in central Delhi’s Kamala Market area on Monday, when the BNS and two other new criminal laws came into effect. 

KAMLA NAGAR MARKET

HOME MINISTER AMIT SHAH CLARIFICATION ON THE SAME

Union home minister Amit Shah said the first information report (FIR) registered by Delhi Police against a street vendor was not the first case under the new criminal code, Bharatiya Nyaya Sanhita (BNS). Earlier media reports suggested that the Delhi Police registered its first FIR under the BNS against a street vendor for allegedly obstructing a public way in Kamala Market.

However, Amit Shah clarified that the police have dismissed this case by using the provisions of review, PTI reported.

Police had initiated the process on Monday but it was formally cancelled after they submitted a closure report before the Tis Hazari court on Tuesday, a senior officer said.

Pankaj was booked under section 285 of the BNS for allegedly obstructing a public way while selling water bottles, bidi and cigarettes from a cart under a foot overbridge near the New Delhi railway station around 12:15 am. The FIR was registered at 1.57 am on Monday.

IMPLICATION OF BHARATIYA NYAYA SANHITA(BNS) 2023

Key Concerns

1. Ambiguity and Vagueness: – 

The quick annulment of the FIR against a street vendor for obstructing a public way underscores potential ambiguities in the new laws. These ambiguities can lead to wrongful accusations and misuse of the legal provisions. The fact that the FIR was deemed invalid suggests that the laws might not be as clear-cut as they should be, leading to confusion among law enforcement officers and the public alike. 

2. Political Influence=: – 

The involvement of Home Minister Amit Shah in canceling the FIR raises concerns about political interference in the judicial process. When high-profile political figures intervene in legal matters, it can undermine the perceived independence and impartiality of the judiciary. This can erode public trust in the judicial system and lead to perceptions of bias and favoritism. 

3. Impact on Marginalized Communities: – 

Street vendors and other marginalized groups are particularly vulnerable under ambiguous legal frameworks. The initial FIR against the street vendor highlights how easily these laws can be misapplied, leading to unnecessary harassment and legal troubles for those who are already disadvantaged. It is crucial for laws to protect these groups rather than subject them to further victimization. 

4. Judicial Overload – The introduction of new and potentially ambiguous laws could lead to an increase in FIRs and legal cases, placing an additional burden on an already overburdened judiciary. This can slow down the judicial process, delaying justice for more critical cases and contributing to a backlog of cases. Ensuring that laws are clear and unambiguous can help prevent such scenarios and maintain the efficiency of the judicial system.

 Conclusion 

While the Bharatiya Nyaya Sanhita aims to reform the criminal justice system in India, the recent incident in Delhi highlights the need for careful consideration of its implications. Ensuring clarity in the laws, protecting judicial independence from political influence, and safeguarding the rights of marginalized communities are essential steps in ensuring that the new legal framework achieves its intended goals without unintended negative consequences and BNS would lead to confusion in interpreting the legal provisions by legal experts and would lead to whole process of judicial overlapping as all Indian judicial system is well versed and used to pre-colonial legislations and new legislation would only lead to whole reinterpreting of all legislations which is superfluous.

All Rights Reserved (Soham Lakra Law Intern)

On 1st July 2024, 3 new legislations bharatiya NyayaSanhita (BNS), Bharatiya nagrik Suraksha Sanhita(BNSS), Bharatiyasakshya adhiniyam (BSA) were introduced as they replaced their older counterparts: Indian penal code (IPC1860), Indian evidence act (IEA1872) and code of criminal procedure 1973(CRPC 1974) respectively. These changes are considered draconian legislations and there was huge dismay over their implementation by legal experts. 

The predominant precedent in criminal law of LALITA KUMARI VS STATE OF UTTAR PRADESH (2014) is overturned in the new legislation, this case mandated the registration of FIR  mandatory in cognizable cases by police officials as prior to 2014, there was huge laxity on governmental functionary and there was unnecessary delay in investigations too. This Supreme court ruling aimed to strengthen the legal safeguard for complainants. Earlier investigating officer used to have discretionary power to delay the registration of FIR as they laid emphasis on “preliminary inquiry” prior to registration. CRPC mandated that preliminary inquiry will only be conducted in certain cases like medical negligence, dowry death etc. Now BNS section 173(3) replaced and overturned the prevalent practice and gave widespread power to police in cases of imprisonment of 3-7 years. This new provision requires prior permission from deputy superintendent of police and a preliminary inquiry to determine if a prima facie case exist. 

RECENT CANCELLATION OF FIR REGISTERED IN DELHI 

The recent incident where the first FIR under new criminal laws in Delhi was quickly canceled highlights significant concerns about the Bharatiya Nyaya Sanhita and its impact on the Indian judiciary. The first FIR registered in Delhi under provisions of the new criminal code (BNS) against a street vendor was cancelled after police filed a closure report in TIS HAZARI court on Tuesday (02/07/2024). Pankaj was booked for allegedly obstructing a public way in central Delhi’s Kamala Market area on Monday, when the BNS and two other new criminal laws came into effect. 

KAMLA NAGAR MARKET

HOME MINISTER AMIT SHAH CLARIFICATION ON THE SAME

Union home minister Amit Shah said the first information report (FIR) registered by Delhi Police against a street vendor was not the first case under the new criminal code, Bharatiya Nyaya Sanhita (BNS). Earlier media reports suggested that the Delhi Police registered its first FIR under the BNS against a street vendor for allegedly obstructing a public way in Kamala Market.

However, Amit Shah clarified that the police have dismissed this case by using the provisions of review, PTI reported.

Police had initiated the process on Monday but it was formally cancelled after they submitted a closure report before the Tis Hazari court on Tuesday, a senior officer said.

Pankaj was booked under section 285 of the BNS for allegedly obstructing a public way while selling water bottles, bidi and cigarettes from a cart under a foot overbridge near the New Delhi railway station around 12:15 am. The FIR was registered at 1.57 am on Monday.

IMPLICATION OF BHARATIYA NYAYA SANHITA(BNS) 2023

Key Concerns

1. Ambiguity and Vagueness: – 

The quick annulment of the FIR against a street vendor for obstructing a public way underscores potential ambiguities in the new laws. These ambiguities can lead to wrongful accusations and misuse of the legal provisions. The fact that the FIR was deemed invalid suggests that the laws might not be as clear-cut as they should be, leading to confusion among law enforcement officers and the public alike. 

2. Political Influence=: – 

The involvement of Home Minister Amit Shah in canceling the FIR raises concerns about political interference in the judicial process. When high-profile political figures intervene in legal matters, it can undermine the perceived independence and impartiality of the judiciary. This can erode public trust in the judicial system and lead to perceptions of bias and favoritism. 

3. Impact on Marginalized Communities: – 

Street vendors and other marginalized groups are particularly vulnerable under ambiguous legal frameworks. The initial FIR against the street vendor highlights how easily these laws can be misapplied, leading to unnecessary harassment and legal troubles for those who are already disadvantaged. It is crucial for laws to protect these groups rather than subject them to further victimization. 

4. Judicial Overload – The introduction of new and potentially ambiguous laws could lead to an increase in FIRs and legal cases, placing an additional burden on an already overburdened judiciary. This can slow down the judicial process, delaying justice for more critical cases and contributing to a backlog of cases. Ensuring that laws are clear and unambiguous can help prevent such scenarios and maintain the efficiency of the judicial system.

 Conclusion 

While the Bharatiya Nyaya Sanhita aims to reform the criminal justice system in India, the recent incident in Delhi highlights the need for careful consideration of its implications. Ensuring clarity in the laws, protecting judicial independence from political influence, and safeguarding the rights of marginalized communities are essential steps in ensuring that the new legal framework achieves its intended goals without unintended negative consequences and BNS would lead to confusion in interpreting the legal provisions by legal experts and would lead to whole process of judicial overlapping as all Indian judicial system is well versed and used to pre-colonial legislations and new legislation would only lead to whole reinterpreting of all legislations which is superfluous.

RUKMANI vs UNION OF INDIA

FAO  503/17 17/11/23[ DELHI HIGH COURT ]

[HON’BLE MR. JUSTICE DHARMESH SHARMA ]

Railways Act Sections 123 (c)(2) and 124A – Railways Claims Tribunal Act Section 27 Untoward incident Claim for compensation – Mere fact that rail ticket was not recovered from the dead body is hardly of any consequence as deposition of AW-2 is manifestly truthful, ticket was purchased and deceased travelled in the general compartment – Rail ticket might have fallen out of the pockets probably on account of the impact of jerks due to the momentum of the body on its fall on the rail tracks – Dead body was found at a place where the deceased could not have otherwise been, unless he was travelling in the train – Impugned order set aside – Appeal allowed – Appellant is awarded a compensation of Rs. 8 lakhs with interest @ 9% per annum from the date of the incident.

FINAL DECISION
14. In view of the aforesaid discussions, this Court finds that the appellant /claimant has been succeeded in proving by preponderance of probabilities that her deceased husband was a bonafide passenger
travelling in general compartment of Lichhavi Express within the ambit of Section 2 (29) of The Act2 and that he met with an „untoward incident‟ as defined under section 2 (n) read with clause (c) of Section
123 of The Act

3. Mere fact that the rail ticket was not recovered from
the dead body is hardly of any consequence as deposition of AW-2 is manifestly truthful, that the ticket was purchased and the deceased travelled in the general compartment. It is probable that the rail ticket might have fallen out of the pockets probably on account of the impact of jerks due to the momentum of the body on its fall on the rail tracks. Reference can be invited to the decision in Union of India vs Rina Devi4 , wherein it was reiterated that if a dead body is found in the precincts of the Railway Station, there is a presumption that thedeceased was a „bonafide passenger‟. In the instant case, the dead body was found at a place where the deceased could not have otherwise been, unless he was travelling in the train.

15. In view of the foregoing discussion, the impugned order dated 29.05.2017 passed by the learned RCT cannot be sustained in law for being perverse, based on erroneous appreciation of evidence on the record and suffering from patent illegality. The same is set aside and the appeal is accordingly allowed and the appellant is awarded a compensation of Rs. 8 lakhs with interest @ 9% per annum from the date of the incident i.e., 19.10.2016 till this date.

To read the Judgment click here 

RUKMANI versus UNION OF INDIA judgment The Law Literates

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