Where does India rank in terms of access to justice?

Basavanagouda Patil

The Global Initiative for Access to Justice recently released the Access to Justice Index 2016. The Index, which found mention at the World Economic Forum, was the brainchild of NLSIU graduate Basavanagouda Patil.

The Index attempts to quantify the level of access to justice in the five BRICS countries (Brazil, Russia, India, China and South Africa), based on various parameters like Government, Judiciary, Legal Profession and Legal Education. Among other findings, India was ranked second after South Africa overall, and was ranked last under the Legal Profession head.

Bar & Bench’s Aditya AK caught up with Basavanagouda and Chief Editior of the 2016 Index, Bhuvanyaa Vijay, to delve deeper into the Index.

Aditya AK: What is the aim behind the Access to Justice Index™?

Basavanagouda Patil & Bhuvanyaa Vijay: The Sustainable Development Goals 16! Never has there been a global initiative solely concentrating on seeking to compute/quantify in measurable terms, the concept of access to justice.

The question of accessibility plagues every person, from poor litigants to start-ups. So, our aim is to facilitate and improve the access-to-justice situation world-wide, and further the cause of legal-aid & pro-bono/low-bono movements across the globe.

The Index holistically evaluates a nation’s effectiveness in providing access to its justice-dispensing mechanisms, serving as an information-tool for other countries. We focus specifically on access for the most vulnerable sections of society.

Aditya AK: How did you come up with the parameters for the Index?

Basavanagouda Patil & Bhuvanyaa Vijay: We came up with the parameters after much deliberation among the core members of the Global Initiative for Access to Justice. One of our firm beliefs is that in order to remedy the problem of (in)accessibility, we have to address it from all possible quarters: the government, the judiciary, the legal profession, and legal education.

We have advisors who reviewed our parameters, with assistance from faculty, researchers and also clinics from across the five BRICS nations who were involved from the initial days of designing this project. Considering that the 2016 Index Report is only a beta-version, we are still working on refining the parameters for our global index.

Basavanagouda Patil & Bhuvanyaa Vijay (extreme right) at the launch of the Index with Prof Madhava Menon and former SC judge Justice Santosh Hegde

Aditya AK: How did you arrive at the conclusions?

Basavanagouda Patil & Bhuvanyaa Vijay: These parameters were sent across to our researchers and faculty in these five countries and their responses, once received, were attached with pre-decided points/weightages arrived at after discussions within the core team and with our advisors.

The final tabulation arose from a close and comparative scrutiny of this data, using well-received statistical methods. The more detailed calculation methodology and the weightages are all made available in the 2016 Report. The rankings/conclusions were derived from these responses, backed with sources.

Aditya AK: As regards clinical legal education in Indian law schools, what were your findings?

Basavanagouda Patil & Bhuvanyaa Vijay: India’s performance is satisfactory under this category. Clinical legal education was a sub-category under the broad category of Legal Education, the other sub-categories being student-civic engagement, faculty-civic engagement and existence of regulatory mechanisms.

South Africa, which does the best here, has a robust system ensuring students are involved  with hands-on training with legal organizations, or firms or even courts. India’s prowess in this field is limited to the extent of only the BCI mandating an legal ethics course.

We do not see much progress in terms of incentive-driven grading of courses other than ones mandated by the BCI. Involvement of students at clinics is, nevertheless, developing at a better pace in India, but it needs to be recognised by institutions by designing a grading system for the same.

Aditya AK: India features last under the head ‘Legal Profession’.

Basavanagouda Patil & Bhuvanyaa Vijay:  It is a concerning conclusion. It becomes even more glaring when compared to jurisdictions like China, South Africa and Brazil which are all relatively young but still have a better system in place.

Some reasons for India’s poor performance include:

  • Rendering pro-bono services is not mandatory;
  • The dismal role played by the bar councils in promoting accessibility;
  • The role of the NALSA and State Legal Aid Authorities.

Aditya AK: What role can lawyers, more specifically, bar councils play in improving this situation?

Basavanagouda Patil & Bhuvanyaa Vijay: The BCI needs to go beyond its conventional role, from merely regulating the profession to promoting accessibility to it.

Aditya AK: Do you think law firms can play a role as well?

Basavanagouda Patil & Bhuvanyaa Vijay: Yes, most definitely. Law firms, whether those operating in a corporate context or not, will often have more resources at their disposal. Even if a minute bit from the same can be used towards pro bono services, etc., it will hugely and positively impact the current situation.

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The Index ranks India in second place, after South Africa

Aditya AK: How different is the 2018 survey going to be?

Basavanagouda Patil & Bhuvanyaa Vijay : The 2018 Global Index will be different on several counts, with at least 60 nations included in the index.

It would be wrong to hold it to be an exclusively survey-based Index, because we will also take into account a quantitative assessment component,

That is to say, not only would it comprise a set of parameters to which objective answers (in terms of yes/no) can be given, but also indicators that qualitatively assess the access to justice situation in various countries, gauging the perceptions and responses of those at the grass-roots through descriptive survey questions.

Further, we plan on including surveys conducted for both, experts and the common man. We are still deliberating on this, but to give you an idea: the index won’t concentrate merely on case pendency, but on a host of other issues which get side-lined when dealing with the access to justice movement: including but not limited to, student-civic engagement, land rights, and right to education.

We are also deliberating on a policy of colour-coding the nations on the Index instead of ranking them, because at times rankings may not encourage nations but only draw them into a cycle of demotivation.

Aditya AK: Who are the different stakeholders for the 2018 survey?

Basavanagouda Patil & Bhuvanyaa Vijay: International Bridges to Justice in Geneva, Instituto Pro-bono from Brazil, and several such organisations have begun to collaborate with us on the project. We have started to include some judges as well.

We would encourage the universities, clinics, firms, along with voluntary organisations at an institutional level, while lawyers, faculty and paralegals can collaborate with us at an individual level. They can write to us at [email protected] 

Aditya AK: What are your solutions to improve access to justice in India?

Basavanagouda Patil & Bhuvanyaa Vijay: Before proposing the solution, identifying the problem itself is crucial. The mammoth problem here has two-fold layers: one, is accessing the formal/informal justice-dispensing mechanisms and two, is assessing the chances of securing justice once access is ensured.

While the three waves of the access to justice movement have been met on paper in India, there are still several challenges that exist in practice, thereby pointing to implementation hurdles as the chief issue that needs addressing.

The other issues include linguistic barriers (court language for instance), financial constraints, geographical distances, obscure legal procedure, colonial origins of the Indian legal system, the abysmal judge to population ratio (17 judges per a million) etc.

Supreme Court of India
“The Social Justice Bench of the Supreme Court has officially cease due to lack of delivery of even a single judgment.”

Each rung of the problem and its diverse attending issues need to be addressed simultaneously: this is the solution.

Resilience is important in this area as, at times, even the limited attempts at facilitating access to justice, such as a Social Justice Bench by the Supreme Court, seem futile. This Bench has now officially ceased due to lack of even a single judgment.

Aditya AK: To this end, what can we learn from other countries?

Basavanagouda Patil & Bhuvanyaa Vijay: The 2016 Report has sought to structure these issues in a more coherent manner by dividing them into categories based on the stakeholder involved: Government, Judiciary, Legal Profession and Legal Education. Under each head, some or the other best practices emerge that can be emulated.

However, a caveat here is that before emulating the best performing practices of other nations, our own ground realities need to be borne in mind. What may work for Russia, may be inept in the Indian scenario. At times, the differences between a common law system and civil legal traditions also play a key role.

At least from among the 2016 BRICS Rankings, India seems to be doing well at the Governmental (policy) level and even in Legal Education. We can look to South Africa and Russia for the category of Legal Profession, by mandating compulsory pro bono hours for lawyers, mandating counsels to provide pro bono legal assistance in case of clients unable to afford it, etc.

Read the findings of the Index:

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