Human Rights Litigation

Legal aid system faces fundamental questions as scattered approach, problems with data, and state-level neglect don’t help

Sumathi_Chandrashekaran_LongRoadToJusticeReformThe Prime Minister’s now forgotten comment about “five star activists” in India’s courts provoked some introspection on public interest lawyering and legal aid systems. Some of the questions that arise do not have simple answers. For instance, do we know how much it costs to take up a cause in the court system and fight it through till the end? Do the funds allocated towards legal aid meet that requirement?

The most visible form of public interest lawyering is in that of the PIL, or “public interest litigation”. PILs came into their own in the 1980s as a form of litigation to protect the rights of people who are disadvantaged in some way or other. They necessarily involve public rights.

The cost of public interest lawyering

There is limited data on how many PILs are filed each year and on whose behalf, what course they take, and how much it costs. Varun Gauri of the World Bank, who attempted an empirical study some years ago of PILs at the Supreme Court, faced many challenges relating to the classification of cases and other data, and interestingly, concluded that only a very small number of cases were brought to the courts by co-operative entities like non-governmental organisations (“NGOs”).

The classification of cases as being those in public interest is one challenge. Identifying the costs involved is quite another. One method of studying this question is by understanding how the authorities fund the protection of the rights of disadvantaged persons. Since privately-backed NGOs are not likely to make their expenses public, public authorities are a better source of information. The government does not, as would be expected, have a budget for public interest litigation. However, it does make provision for legal aid, through the elaborately structured Legal Services Authorities Act, 1987 (“LSA Act”).

The cost of providing free legal services to the needy

The main body constituted under the LSA Act is the National Legal Services Authority (“NALSA”). It was set up in 1995 to provide “free and competent” legal services to the needy. The challenge it has faced over the years has been to ensure that this goal is really met.

NALSA’s funding has increased by more than five times between 2008-09 and 2015-16. According to the Union Budget, which apportions funds to NALSA, this money is meant to provide for “Law Officers, Legal Advisers and Counsels and also for Legal aid to the poor through National Legal Services Authority (NALSA).” It is not clear as to what portion of this amount is meant for the NALSA secretariat and its administration and management.


We may be able to understand NALSA’s expenditure in connection with legal aid better by dividing its budgetary allocation for a given year by the number of cases it addressed that year. Unfortunately, NALSA does not provide this data in a proper form. Its website only hosts one spreadsheet, according to which 7,178,178 cases were addressed through a lok adalat held on November 23, 2013.

Assuming that this was the only lok adalat held that year, then the approximate expense per settlement (based on the budget for 2013-14) would be a little less than Rs. 150. If more than one lok adalat was held by NALSA that year, which is a more likely scenario, then the cost per settlement would be much less. Does that seem odd? Or is it that India’s premier legal aid institution, in fact, functions with great efficiency and fiscal prudence?

Lok adalats are only a small part of NALSA’s role in providing legal aid. And that, in fact, is a major area of concern in the manner in which publicly funded legal aid services are designed in India. Under the LSA Act, the body is responsible for a host of activities.

It is supposed to assist identified categories of persons (such as women, children, members of scheduled castes and scheduled tribes, and disabled persons) in various aspects of mundane legal proceedings, such as the payment of court fees, arranging for lawyers, preparing briefs, and obtaining certified copies of documents.

It also has to host lok adalats periodically to help affected persons resolve their problems through alternate dispute resolution methods.

The NALSA is supposed to establish legal aid clinics in universities and colleges. It is also expected to periodically support the government of the day in implementing social sector schemes (such as through the Scheme for Supporting the Implementation of National Rural Employment Guarantee Scheme (NREGA), 2008).

Scattered approach, lack of data

In effect, NALSA is expected to multi-task on issues that actually need to be dealt with separately. The implementation of social sector schemes for instance, should not be mixed up with lok adalats. If the lakhs of cases that lok adalats “settle” include ensuring the issue of an Aadhaar card, is NALSA really performing its role in providing legal aid services? In fact, it appears as though NALSA has become a repository of leftovers in the legal aid landscape.

It also does not help that data on NALSA is practically absent. Besides occasional newspaper articles that claim that an extraordinarily large number of cases have been settled at a lok adalat (for example, see this), there is no information about the institution’s operations. The LSA Act requires it “to maintain up-to-date and complete statistical information, including progress made in the implementation of various Legal Services Programmes from time to time” (Section 6(g)). The information on its website (where such statistical information ought to be made available) suggests this requirement has not been met for several years.

NALSA is not the only body responsible for legal aid. It is, in fact, at the helm of an entire network of legal services authorities that permeate through the state, district, and taluka system in India.

Neglected state legal aid system poised for further neglect

The State Legal Services Authorities  (“SLSAs”) perform a role similar to NALSA at the state level. They have received funds from the Thirteenth Finance Commission grants-in-aid made to state governments, but the Fourteenth Finance Commission has changed the funding structure slightly.

Unlike previous Finance Commissions that had recommended that state governments should receive a share in tax collections as well as sector- or scheme-specific grants-in-aid, the Fourteenth Finance Commission (download report) reduced grants-in-aid, and instead recommended an increased devolution of tax revenues to state governments.

In the area of justice reform, the Finance Commission specifically endorsed a proposal made by the Department of Justice (in the Union government) to strengthen judicial systems in states, but instead of offering grants-in-aid, urged state governments to use the additional tax revenues to meet such requirements.


The history of the utilitisation of the funds received by state governments from the Thirteenth Finance Commission suggests that most states are not inclined to fully use the funds they receive in aid. Since it is very unlikely that they will voluntarily allocate funds to projects that they are anyway not interested in, the future for SLSAs and legal aid at the state level does not look rosy.

In order to truly provide “free and competent” legal aid, it is essential to address some fundamental questions. What are the contours of legal aid? Is it ever-expanding and osmotic, or should it be restricted to court-related services? How many people really need free legal aid? Should there be economic criteria for providing such aid, or should criteria be socially prescribed? For instance, should every woman, regardless of her financial position, be entitled to free legal aid? How much does it cost to provide such legal aid? And what is the optimal organisational structure, if any such structure is required at all, for such an arrangement? The existing legal aid services mechanism in India needs to be urgently recast in light of these, and many other, questions.

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)

History Uncategorized

Ringing out the old – identifying and removing deadwood from India’s statute books


India has many laws that are over a hundred years old. Several of them have lost their relevance over time for various reasons, either due to a change in circumstances, or because the original objectives that these laws served have been achieved, or because they have been subsumed under more recent legislation. The old laws however, continue to remain in the statute book, causing confusion by adding to the ever-expanding maze of statutes that govern us, and creating scope for abuse.

Weeding out obsolete laws has become a priority for the present government. In August 2014, it set up a committee to identify obsolete laws and make recommendations for their repeal. How have we fared till now and what else needs to be done to put a streamlined process in place for spring-cleaning these laws?

The age of laws in India

The list of central laws maintained by the Union Law Ministry features 1,138 current statutes without taking into account the large number of Appropriation Acts and Amendment Acts that are also part of the statute book. As estimated by the P.C. Jain Commission in 1998, there are also about 25,000 to 30,000 state laws.

An examination of the ages of the existing central laws brings out some interesting facts. Of the 1,138 listed laws, 298 date back to the pre-Independence era. 140 of them are from the 1800s. While vintage by itself does not signify redundancy – the Indian Contract Act, 1872 and the Indian Penal Code, 1860 are clear examples – it does signal a need to rethink the relevance of these laws in light of changing social and economic contexts. In the case of state laws, the absence of a comprehensive database makes it difficult to conduct a similar assessment of their number and antiquity.

Since many of the pre-Independence laws also fall under subjects that are now within the exclusive legislative competence of the states, state legislatures are responsible for their repeal. Better co-ordination is therefore required between the Union and the states on this issue.

Identifying dead wood

Of the types of laws that are in need for immediate repeal, the most obvious are the Amendment Acts, (that is, laws that were originally intended to amend or change the text of a parent statute, and which changes have already been incorporated) and Appropriation Acts (that is, laws that were meant to operate for a fixed period that has since expired).


The Law Commission has undertaken a number of exercises to help identify the ‘dead wood’ that needs to be removed from the statute book. The 1998 PC Jain Commission also made recommendations on this subject (See table below). While many of the identified laws have already been repealed, 253 statutes remain, which have been identified for repeal, but on which action is still awaited from the government (Appendix II, Law Commission of India, 248th Report).


In 2014, the Law Commission undertook the detailed exercise of classifying all laws into 49 subject-categories and then identifying those laws that were in need of repeal. The four-part series of interim reports released by the Commission identifies a total of 265 laws that need to be repealed. The image below represents for each decade, the number of existing laws and the number of laws that have been recommended for repeal by the Law Commission.

Following these reports, the Legislative Department at the Ministry of Law and Justice sought the views of various departments regarding the proposed repeals. Two Repealing and Amending Bills have already been placed before the Parliament to give effect to the repeal of 126 laws that have “either ceased to be in force, have become obsolete or their retention as separate Acts is unnecessary”. Almost all of these are Amendment Acts.

Spring-cleaning the statute book

How do we ensure that the statute book keeps pace with changing times? One option followed by countries like United States and Canada is to have a “sunset clause” which sets out upfront, an expiry date for a law. In practice however, sunset clauses are often treated as a “snooze button” with the laws being extended as a matter of course. The more immediate solution may be to mandate the Law Commission or another body to undertake a statutory review exercise on a regular basis. This is crucial for both central as well as state laws. However, our experience from the past has been that such reviews do not always lead to their logical end, mainly because of legislative inaction. While introducing any system of regular review therefore, it is necessary to ensure that central and state legislative departments are made responsible for formulating draft bills based on these suggestions. Finally, of course, it is up to the Parliament and the State Legislatures to recognise their responsibility to clear the statute book of redundant and conflicting laws.

(Sumathi Chandrashekaran and Smriti Parsheera are lawyers working in the area of public policy.)

Human Rights

What can literacy rates and telephone use teach us about the problem of undertrial prisoners?

Sumathi_Chandrashekaran_LongRoadToJusticeReformOf all the categories of persons incarcerated in prisons, the worst are the stories of undertrial prisoners. In the widest sense, undertrials are people who have not been proven guilty, but whose innocence is yet to established. The history of the prison system is rife with tales of undertrials who have spent years and years in jail for petty crimes, usually because they are unable to pay bail amounts, or worse, because they have no access to the justice system. This situation has not gone unnoticed. In September 2014, the Supreme Court directed the release of undertrial prisoners who have spent half of the maximum sentence prescribed for the offences they are alleged to have committed.

This is not the first time that undertrials have been the focus of judicial attention, but as advocate Vrinda Bhandari pointed out, while many deeper problems remain unaddressed, releasing undertrials is only a short-term solution. The condition of the other participants in the criminal justice system (police, prosecutors, judges, and prison administrators) is a significant problem in itself, as these professions tend to be  “overworked, understaffed and underpaid”.

Some of the richest data available for analysing questions of law and policy in India relates to prisons and prisoners, through the National Crime Records Bureau, and its annual Prison Statistics India, the latest edition of which was published in October 2014. Combined with other data available from different sources, many interesting correlations can be drawn, with the usual caveats about data quality and the fact that mere correlation does not imply causation. The note focuses on state-wise undertrial populations, taking into consideration that several relevant issues are under the control of individual states, notably the police and prisons. The lack of access to the justice system and the inability to post bail suggests it might be interesting to examine two sets of intersections, between undertrial populations and first, the criminal justice system, and second, development indicators in states. Each scatterplot drawing below plots the undertrial population on the vertical axis against the other indicator on the  horizontal axis. The dotted lines indicate the median values (the value in the middle of the dataset) of each indicator and they divide the plot into four quadrants.

Undertrials and the criminal justice system

As proxies for the criminal justice system, two parameters were looked at. First, the note examined the health of district and subordinate courts, based on data from Court News (Q4, 2013). This was derived as a measure of the working strength of the courts relative to the sanctioned strength of the courts, to arrive at a percentage of how “healthy” the courts were. The hypothesis was that states with more “healthy” court systems, that is, states where district and subordinate courts were working closer to their sanctioned strength, were also the states that had lower undertrials as a percentage of all prisoners. The relationship, as the image shows, is indistinct, but might become significant if the data are studied in greater detail (which this note does not attempt). Illustratively, if health of courts and undertrial populations for each state are studied over a longer period of time, it might be possible to show individual trendlines for each state, and test for inverse trends between the indicators.


Second, the note examined the police force per 10,000 people in various states, based on data for 2011, from, and the population census. The police force was taken as a measure of the total armed and civilian police force in states relative to the population of the states. The analysis discounted for outliers such as states in the north-east and Jammu & Kashmir, given their special situation regarding police and law enforcement. However, there did not appear to be any correlation between the strength of the police force, and the percentage of undertrial prisoners.


A better proxy for the criminal enforcement and prosecution system might have been the number of public prosecutors in various states. Unfortunately, the central government does not maintain any data as regards the number of public prosecutors working in various courts in various states.

Undertrials and development

The fate of undertrials is often attributed to their inability to understand their rights or their inability to post the bail amounts that might otherwise let them out of prison. As proxies for these, two indicators were looked at. First, the percentage of undertrials in prisons was compared with literacy rates in various states, based on data from the 2011 census. It appears that states that are relatively more literate also tend to be states that have a fewer number of undertrials in prison.


Second, the percentage of undertrials was compared with the tele-density of wireless connections across several areas in India, based on regulatory data, which was taken as a proxy for income. (Tele-density, or telephone density, means the number of telephone connections for every hundred people in an area.) Here, too, it appears that states with higher wireless tele-density tend to have a fewer percentage of undertrials in prison.


The degree of civilisation in a society, Dostoevsky is believed to have written, can be judged by entering its prisons. Could it be that society, too, has something to tell us about the prisons we create?

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)


Sparse data shows tribunals have failed at speedy resolution of disputes

Sumathi_Chandrashekaran_LongRoadToJusticeReformTribunals are notorious for having advocates on both sides of the fence in discussions on judicial remedies in India. Defendants of India’s tribunals argue that they offer an alternative forum for addressing subject-specific disputes and allow the parties to a dispute to move away from conventional courts and their accompanying problems. The subject-specific jurisdiction of tribunals, theoretically, requires them to be staffed by experts in those subjects, who are expected to understand better, the technical aspects of such disputes. And, because no standards have been set for their functioning, tribunals have the freedom to define their administrative processes and requirements (which, the argument goes, makes them superior to conventional courts).

The opposition to tribunals usually picks on these very features. They argue that tribunal structures in India are anything but standardised. With differences in compositions, eligibility requirements for members, procedures, and reporting standards, their performance and accountability is difficult to monitor. Further, subject-specific experts may not have enough of an understanding of the law.

The legal position of tribunals in the edifice of Indian democracy also remains unresolved. In the form that many of them operate today, tribunals in India perform functions that are inherently and integrally judicial in nature. But they continue to be staffed by bureaucrats who have no judicial experience or qualifications, and offer judicial remedies after following non-judicial processes. The question that is often asked is, are tribunals a part of the executive or the judiciary? For the purpose of public administration, are they to be regarded as quasi-judicial bodies, or administrative bodies? This issue reemerges every few years, phoenix-like, as it did in the September 2014 decision of the Supreme Court, which, following a rich jurisprudential history that includes Sampath Kumar and Chandra Kumar, held the National Tax Tribunal unconstitutional.


Legality apart, there are also questions about whether tribunals have met their specific objectives, that is, avoiding the problems faced by traditional courts such as long delays, high pendency, and the lack of specialised knowledge. To answer this, we need to explore the little that we know about tribunals in India.

Poor data

Firstly, the data about tribunals is sketchy, because they operate under different ministries that have no standardised processes for gathering information about them. The annual reports of various ministries are usually the best source of information. These reports, though, do not provide information in the same format. Where tribunals are split between the Centre and states, data collection is in complete disarray, and often, entirely absent. Indeed, for many large tribunals that have been functioning for several years, there is no authoritative information available at all. This is the case with the Motor Accident Claims Tribunals, which works under various states and union territories. The Ministry of Road Transport and Highways has admitted that there is no centralised repository of cases pending for disposal in such tribunals.

Unclear classification

Secondly, the system of classification of tribunals is unclear. For instance, we know that there were 62 tribunals in India as of May 2013, according to the Ministry of Law and Justice, but we know little else. The definition of tribunals that the ministry used to arrive at this number is unclear. Is it an administrative body exercising quasi-judicial functions, like the Securities and Exchange Board of India? Is it an adjudicatory body outside the control of the administrative department, exercising judgement like a third party arbiter? Or is it an administrative tribunal formed under the Constitution of India? This problem of classification comes into sharp focus when the legislature shows an increasing but irrational proclivity to create tribunals, as it did with the National Company Law Tribunal and its appellate tribunal in 2002, the Intellectual Property Appellate Board in 2003, and soon perhaps, a tribunal for addressing disputes in the infrastructure sector. Arvind Datar, who has spearheaded a series of constitutional challenges against tribunalisation in India, has argued that tribunals have become a “tragic obsession” for us.

Failed objectives

The third issue relates to whether tribunals achieve the objective they have been established for. At two large tribunals for which data is relatively more accessible – the Central Administrative Tribunal (“CAT”) and the Debt Recovery Tribunals (“DRTs”), the number of pending cases (note that different bodies may calculate it differently) has been, generally, on an upward march over the past few years.

Sources: The 2013-14 annual report of the Ministry of Personnel, Public Grievances and Pensions, starred question no. 441, answered on April 26, 2013 by the Minister of Finance in the Lok Sabha, and unstarred question no 3445, answered on August 1, 2014 by the Minister of Finance in the Lok Sabha.

Further, if we make simplistic calculations about the workload for various benches of the CAT and the DRTs, the number of pending cases that each bench of the two tribunals has to hear is also on the rise (for the CAT, this number has been taken to be 17, and for the DRTs, 33). The workload at the CAT is already more than the workload of judges in subordinate courts, and the DRTs are also nearing that number.

Workload, that is cases pending at each bench, has been calculated on the basis of 17 benches of the CAT and 33 benches of the DRT. Sources: The 2013-14 annual report of the Ministry of Personnel, Public Grievances and Pensions, starred question no. 441, answered on April 26, 2013 by the Minister of Finance in the Lok Sabha, and unstarred question no 3445, answered on August 1, 2014 by the Minister of Finance in the Lok Sabha.

Evidently, these tribunals have failed to address the one major problem for which disputes were originally taken out of the mainstream system of judicial remedies, that is, to offer speedy disposal of disputes.

The limited data that is available shows that the tribunal “system”, if it can be called that, has not met its objectives. An increasing number of appeals to the Supreme Court against the decisions of tribunals indicate that disputing parties remain unsatisfied with their solutions. Quick-fixes, such as the creation of additional benches, as in the case of CESTAT in 2013, are not the answer. But a true assessment of the health of tribunals in India remains impossible without proper and complete information. Data collection needs to improve. The legislative mandates of tribunals and tribunal-like bodies need to be reassessed. Their functioning and their processes need to be standardised. Until then, any analysis of tribunals in India will remain in the realm of speculation.

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)


Why we urgently need judicial impact assessment for new laws

Sumathi_Chandrashekaran_LongRoadToJusticeReformLawmaking is at the heart of the democratic process. The number, the types, and the quality of laws made each year are significant indicators of the health of a democracy. A very large number of laws passed in a year, for instance, draw attention to the standard of parliamentary or legislative debate. An excessively detailed law on a simple subject, or a terse law on a complex subject, brings to focus, the question of delegation of powers. Too many amending laws demand an examination of the quality of the original parent legislations.

One feature of lawmaking that is only occasionally a subject of public debate in India is the effect of new laws. Studying the impact of new laws, also known as judicial impact assessment, involves estimating the additional case-load, expenditure, and other burdens that such laws are likely to impose on the judicial system.

Bills and financial memoranda

A large number of bills are introduced by the Parliament as well as the state legislatures every year. Between 2009 and 2014, an average of 172 bills were introduced in both houses of Parliament every year. Among these, the government alone introduced an average of about 60.

Bills introduced in Parliament-01

Not all these bills get passed, of course. Most (and practically all private member bills) remain pending. Nevertheless, these numbers indicate the enthusiasm with which legislators at the centre participate in the lawmaking process.

Bills tabled in Parliament are expected to be accompanied by three documents – a financial memorandum, a statement of objects and reasons, and a memorandum regarding the delegation of legislative powers. Under the Rules of Procedure and Conduct of Business in the Lok Sabha, financial memoranda are required to “invite particular attention to the clauses involving expenditure”, and provide “an estimate of the recurring and non-recurring expenditure” if the Bill is passed into law. In practice, however, these financial memoranda serve only as token appendices, providing little insight into the true implications on the exchequer, and no information on the effects on the populace. In effect, there is very little effort by the legislature to foresee the effect of laws they pass on the court system.

Burdensome legal provisions

A frequently-cited example of a burdensome legal provision is the law on dishonoured cheques. A 2014 report of the Law Commission of India highlighted the disproportionate number of “cheque bounce” cases under Section 138 of the Negotiable Instruments Act, 1938 pending before Indian courts between 2010 and 2012. Acknowledging that the data was error prone due to incorrect reporting, it estimated that an average of about 7.8% of cases pending before various high courts in the country during this period was due to the law on negotiable instruments.

Some states struggling with the pendency of cheque bounce cases

The “avalanche of litigation” invited by Section 138, introduced in its present form by way of an amending act in 1988, was the subject of a Madras High Court decision in 2008, which observed, “Had a judicial impact assessment been made … regarding the litigation this enactment would generate and the consequent financial impact on the State, we do not know if the result would have been in favour of enacting S. 138.

Task force on judicial impact assessment

The effect of new laws became a subject matter of discussion in a 2005 case before the Supreme Court, Salem Advocate Bar Association v. Union of India, where a report submitted to the Court suggested a radical change to the nature of financial memoranda accompanying bills. The report studied amendments to the Code of Civil Procedure and said:

Further, there must be ‘judicial impact assessment’, as done in the United States, whenever any legislation is introduced either in Parliament or in the State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many Courts are necessary, how many Judges and staff are necessary and what is the infrastructure necessary.

The report spawned a larger discussion on judicial impact assessment in India, and was followed by a full-blown Task Force on Judicial Impact Assessment, which submitted its two-volume report (see here and here) in 2008. The task force said that judicial impact assessments must be carried out scientifically to estimate the additional case-load that any new legislation (introduced in Parliament as well as state legislatures) would place on courts. It also recommended that the cost of adjudicating such cases must be estimated and adequate budgetary provisions must be made accordingly. The task force further proposed an elaborate institutional structure to project such estimates, in the form of “judicial impact offices” located all over the country, modelling it on similar arrangements in the United States. Critically, in the proposed model, the role of the judicial impact offices included a continuous assessment of the impact of laws, including by way of post-facto verification of the original estimates, once the law was passed, to understand whether the projections were exaggerated or understated.

Judicial impact assessment has its detractors, such as G Mohan Gopal. He has argued that such assessments are “a blunt, ineffective and unnecessary instrument” for two reasons: first, reliable estimates of future litigation are impossible to obtain in India, where even basic court statistics are unavailable; and second, the recognition and creation of rights should not be linked to the existence or creation of judicial system capacity. He has suggested, instead, conducting “judicial use assessments”, which could measure if people were actually using courts to enforce their rights. Arguably, judicial use assessments have already been factored in by the mechanism proposed by the 2008 task force, through the verification of data relating to the impact of new laws, after they come into existence.

Judicial impact assessments continue to bear meaning for a country facing compound problems of high pendency and understaffed courts, besides fundamental concerns of legal literacy and access to justice. Unreliability of data remains a key concern, but it is very likely that data quality will improve with subsequent iterations. Such assessments offer at least one indicator of the impact of lawmaking, which has otherwise remained a black hole for statisticians and policymakers.

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)