The Rest of the Act: Public Servants, Good Faith, Overriding Effect, Rules and Regulations

"Good faith" is the key. The protection is not a licence: an act done dishonestly, or with knowledge of its illegality, is not done in good faith and is not protected.

The provision exists for a practical reason. A body that decides whether a person qualifies for legal aid, and that refuses some of them, would be sued constantly without it.

Section 25: the Act overrides other laws

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of law other than this Act.

This is the most consequential section in Chapter VII, and it should be in any answer about the force of a Lok Adalat award.

A non obstante clause is a provision that tells you what happens when two laws conflict: this one prevails. So where another statute says something inconsistent with this Act, the Legal Services Authorities Act wins.

"Or in any instrument having effect by virtue of law" extends it beyond statutes, to rules, orders and other instruments.

Two places in the Act rely on it. Section 20(2) itself opens with "Notwithstanding anything contained in any other law for the time being in force", for pre-litigation references. And section 22B(1) opens with "Notwithstanding anything contained in section 19", separating the Permanent Lok Adalat from the ordinary one. Section 25 is the general version of both.

Section 26: power to remove difficulties, and why it is spent

If any difficulty arises in giving effect to the Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the Act as appear necessary or expedient for removing the difficulty. Every such order shall be laid before each House of Parliament as soon as may be after it is made.

The proviso is the point: no such order shall be made after the expiry of two years from the date on which the Act receives the assent of the President.

Assent was 11 October 1987, so the power expired on 11 October 1989 and section 26 is spent. A clause of this kind is always time-limited, because it lets the executive alter the working of a statute and Parliament does not leave that open indefinitely.

Sections 27 and 28: rules

Section 27: the Central Government, in consultation with the Chief Justice of India, may by notification make rules to carry out the provisions of the Act. Sub-section (2) lists the matters, and three of them have been met earlier in this Module:

• clause (i): the upper limit of annual income entitling a person to legal services under section 12(h), if the case is before the Supreme Court. This is the provision under which the Supreme Court limit is prescribed, and it is why chapter 70 says the figure in the section is not the operative one.
• clause (k): the experience and qualifications of the other persons on Lok Adalats organised by the Supreme Court Legal Services Committee, under section 19(3).
• clause (la), inserted with Chapter VIA: the other terms and conditions of appointment of the Chairman and other persons of a Permanent Lok Adalat under section 22B(2).

Section 28: the State Government, in consultation with the Chief Justice of the High Court, may by notification make rules to carry out the provisions of the Act, including the corresponding matters at the State, district and taluk levels, and the upper limit of annual income entitling a person to legal services under section 12(h) where the case is before a court other than the Supreme Court.

Sections 27 and 28 together are the answer to the question chapter 70 raises. Two different Governments prescribe two different income limits, which is why the figure differs between the Supreme Court and everywhere else, and between States.

Sections 29 and 29A: regulations

Section 29: the Central Authority may, by notification, make regulations consistent with the Act and the rules, to carry out its purposes.

Section 29A: the State Authority may do the same for its own purposes. It was inserted by Act 59 of 1994.

These two short sections are the source of everything this Module has used beyond the Act itself. The NALSA (Lok Adalats) Regulations 2009, the NALSA (Free and Competent Legal Services) Regulations 2010 and the NALSA (Legal Services Clinics) Regulations 2011 are all made under section 29, and each recites it. Without section 29 there would be no front office, no panel lawyer scheme, no para-legal volunteers and no legal services clinics.

Rules and regulations are not the same thing, and the Act keeps them apart deliberately:

Section 30: laying before the legislature

Every rule made by the Central Government and every regulation made by the Central Authority shall be laid, as soon as may be after it is made, before each House of Parliament, and every rule made by a State Government and every regulation made by a State Authority before the State Legislature.

Laying is the mechanism by which delegated legislation is brought to the notice of the legislature that authorised it, and it is the counterpart of section 18(5) and (6), which do the same for accounts and audit reports. Between them, the Act's money and its subordinate law are both accounted for to the legislature.

A worked example

A State enacts a law providing that no proceeding relating to a particular class of land dispute shall be settled otherwise than by the tribunal it creates, and a party wants such a dispute taken up at a Lok Adalat as a pre-litigation matter.

Which law prevails? Section 25 gives the Legal Services Authorities Act effect notwithstanding anything inconsistent in any other law for the time being in force. Section 20(2) also carries its own non obstante clause for pre-litigation references. So the Act's provisions on Lok Adalats operate despite the State law's exclusivity clause.

Would that make the tribunal irrelevant? No. The Lok Adalat can still only record what the parties agree, so nothing is decided against anybody, and if there is no settlement the parties go to the tribunal as before.

Now suppose the Lok Adalat member who took the matter is later accused of having taken money from one side. Section 23 deems him a public servant within the meaning of section 21 of the Penal Code, so the offences applicable to a public servant are available, and section 24 does not protect him because what is alleged is not an act done in good faith.

What beginners get wrong

Section 25 is not a general power. It resolves inconsistency; it does not enlarge what the Act does.

Section 24 protects good faith only. It is not immunity from everything.

Section 26 is spent. The power to remove difficulties expired two years after assent, on 11 October 1989.

Rules and regulations are different instruments made by different bodies. "Prescribed" in the Act points to rules; the NALSA Regulations are made under section 29 by the Central Authority.

Quick revision

• Section 23: members, Member-Secretaries and Secretaries, officers, employees, members of Lok Adalats and persons constituting Permanent Lok Adalats are public servants within section 21 of the Indian Penal Code.
• Section 24: no suit, prosecution or other proceeding for anything done or intended to be done in good faith under the Act.
• Section 25: the Act has effect notwithstanding anything inconsistent in any other law in force, or any instrument having effect by virtue of law.
• Section 26: power to remove difficulties, exercisable by the Central Government, spent two years after assent on 11 October 1989; orders to be laid before Parliament.
• Sections 27 and 28: rules by the Central Government in consultation with the Chief Justice of India, and by a State Government in consultation with the Chief Justice of the High Court, including the income limits under section 12(h) for the Supreme Court and for other courts respectively.
• Sections 29 and 29A: regulations by the Central Authority and the State Authority. The NALSA Regulations of 2009, 2010 and 2011 are all made under section 29.
• Section 30: rules and regulations to be laid before Parliament or the State Legislature.

Test yourself

1. What does section 25 do, and where else in the Act is the same technique used? It gives the Act effect notwithstanding anything inconsistent in any other law in force or in any instrument having effect by virtue of law. The same technique appears in section 20(2), for pre-litigation references, and in section 22B(1), which establishes Permanent Lok Adalats notwithstanding section 19.

2. Is a member of a Lok Adalat a public servant? Yes. Section 23 deems the members of Lok Adalats and the persons constituting Permanent Lok Adalats, along with the members, officers and employees of the Authorities and Committees, to be public servants within the meaning of section 21 of the Indian Penal Code.

3. Can the Central Government still make an order under section 26 to remove a difficulty in working the Act? No. The proviso bars any such order after two years from the date the Act received the President's assent, which was 11 October 1987, so the power lapsed on 11 October 1989.

4. Under which provision are the NALSA (Lok Adalats) Regulations 2009 made, and what is the difference between a rule and a regulation under this Act? Under section 29, by the Central Authority. Rules are made by the Central Government under section 27 or a State Government under section 28, in consultation with the Chief Justice concerned, and are what the Act means when it says "prescribed"; regulations are made by the Central Authority under section 29 or a State Authority under section 29A.

5. Who prescribes the income limit for legal services, and does it differ between courts? It differs. Under section 27(2)(i) the Central Government prescribes the upper limit of annual income where the case is before the Supreme Court; under section 28 the State Government prescribes it for cases before other courts. That is why the figure can vary between the Supreme Court and the courts of a State, and between one State and another.