IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 OP.No. 27937 of 2001(A) -------------------------------- PETITIONER(S): ---------------------- FORUM FOR SOCIAL JUSTICE, P.O. KALAVOOR, ALLEPPEY, PIN - 688522 REPRESENTED BY ITS GENERAL SECRETARY, KALAVOOR JOHNSON, RESIDING AT PANANCHICKAL HOUSE, P.O. KALAVOOR, ALLEPPEY DISTRICT PIN - 688 522 BY ADV. SRI.R.SURENDRAN RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, LAW DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM ADDL. R3 - THE KERALA STATE LEGAL SERVICES AUTHORITY, BUILDING NO. 62/1293, NEAR ACS TEMPLE, KALOOR, ERNAKULAM REPRESENTED BY ITS MEMBER SECRETARY. IMPLEADED AS ADDITIONAL R3 AS PER I.A. NO. 8161/07 ALLOWED ON 8.8.07. BY GOVERNMENT PLEADER MR. K.S. MOHAMMED HASHIM FOR R1 -R2 SRI.P.K.IBRAHIM FOR ADDL.R3 SRI.THOMSTINE K.AUGUSTINE FOR ADDL.R3 SRI.C.N.GOPAKUMAR FOR ADDL.R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 27937 of 2001(A) APPENDIX PETITIONER'S EXHIBITS: EXT P1 - TRUE COPY OF LETTER NO. 11243/H/85/LAW DATED 28.6.1985 FROM THE LAW SECRETARY TO THE DISTRICT COLLECTORS. EXT.P2 - TRUE COPY OF G.O.(P) NO. 225/86/LAW DATED 5.12.1986. EXT.P3 - TRUE COPY OF LETTER DATED 4.5.1987 SENT BY THE DISTRICT COLLECTOR, ALLEPPEY TO THE LAW SECRETARY. EXT.P4 - TRUE COPY OF G.O.(MS) NO. 138/87/LAW DATED 4.6.1987. EXT.P5 - TRUE COPY OF G.O.(MS) NO. 452/97/LAW DATED 10.11.1997. EXT.P5(a) - TRUE COPY OF G.O.(MS) NO. 225/2000/LAW DATED 24.4.2000. EXT.P6 - TRUE COPY OF G.O.(MS) NO. 225/2000/LAW DATED 24.4.2000. EXT.P7 - TRUE COPY OF JUDGMENT DATED 5.10.2000 IN O.P. NO. 13717 OF 2000. EXT.P8 - TRUE COPY OF BOOKLET PUBLISHED BY THE KERALA STATE LEGAL SERVICES AUTHORITY. EXT.P9 - TRUE COPY OF THE PAMPHLET DISTRIBUTED BY THE PETITIONER SOCIETY AT THE NEETHIMELAS HELD BY IT. EXT.P10 - TRUE COPY OF NOTICE DATED 15.3.2000 ISSUED BY THE PETITIONER SOCIETY. EXT.P11 - TRUE COPY OF THE PRO-FORMA USED BY THE PETITIONER SOCIETY TO RECORD THE DETAILS OF DISPUTES. EXT.P12 - TRUE COPY OF THE REPRESENTATION DATED 25.10.2000 SUBMITTED BY THE PETITIONER SOCIETY BEFORE THE HON'BLE MINISTER FOR LAW. EXT.P13 - TRUE COPY OF G.O.(MS) NO. 608/2000/LAW DATED 24.11.2000. EXT.P14 - TRUE COPY OF REPRESENTATION DATED 22.12.2000 SUBMITTED BY THE PETITIONER SOCIETY BEFORE THE MINISTER FOR LAW. EXT.P15 - TRUE COPY OF LETTER NO. 161/H/2001/LAW DATED 22.1.2001 SENT BY THE DEPUTY SECRETARY, LAW DEPARTMENT TO THE PETITIONER SOCIETY. EXT.P16 - TRUE COPY OF REPRESENTATION DATED 17.5.2001 SUBMITTED BY THE PETITIONER SOCIETY BEFORE THE HON'BLE CHIEF MINISTER WITH COPY TO THE MINISTER FOR LAW. EXT.P17 - TRUE COPY OF LETTER NO. 161/H1/2001/LAW DATED 18.6.2001 SENT BY THE LAW SECRETARY TO THE PETITIONER. EXT.P18 - TRUE COPY OF LETTER NO. 11865/H1/2001/LAW DATED 2.8.2001 SENT BY THE LAW SECRETARY TO THE PETITIONER. EXT.P19 SERIES - TRUE COPY OF REPORTS RELATING TO THE NEETHIMELAS ORGANISED AND HELD BY PETITIONER SOCIETY. EXT.P20 - TRUE COPY OF LETTER DATED 9.8.2000 SENT BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT TO THE PETITIONER. // TRUE COPY // PA TO JUDGE rhs 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 of O.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 its O.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 of O.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, and O.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 of O.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 for O.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