Access To Legal Aid In India : An Unfulfilled Promise ?
Why Legal Aid?
Access to legal services continues to be a challenge for a substantial segment of the Indian population due to geographical, resource and infrastructure constraints. Since legal representation is costly and out of reach for the disadvantaged, the need for legal aid arises. The problem has been compounded by the failure to mainstream legal-aid services, particularly for the marginalized sections at the panchayat levels. Marginalised communities, especially rural and tribal population; senior citizens; persons with low income; persons with disabilities; victims of drug abuse, human trafficking; prison inmates- the rightful recipients of legal aid- are unable to avail it. India has an expansive history of legal aid, backed by decades of legislation, jurisprudential interpretation, and numerous state-funded programs. But the absence of a structured and economically viable format has hindered lawyers in actively offering legal assistance to those in need of it. The pro bono culture is still a work in progress. While legal aid is provided and organized by non-governmental organizations, law schools, bar associations, and also individual advocates, the demand for legal aid clearly exceeds the supply. India’s tremendous diversity; population; socio-cultural barriers; liberal laws and jurisprudence in relation to legal aid; and economic growth coupled with the expectations that come with growth have made it a unique and challenging environment for meeting the demand for legal assistance.
On the question of inequality in the administration of justice, Justice P.N. Bhagwati, speaking through the Legal Aid Committee in 1971 had famously observed, “Legal aid means providing an arrangement in the society so that the mission of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement… the poor and illiterate should be able to approach the courts, and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don’t have access to courts. One need not be a litigant to seek aid by means of legal aid.” While Justice Bhagwati hailed legal aid as “equal justice in action”, Justice Krishna Iyer considered it a catalyst which would enable the aggrieved masses to re-assert State’s responsibility. An important report of the Expert Committee on Legal Aid in 1973 titled “Processual Justice to the People” (Processual Justice Report), presided over by Justice Iyer, dealt with the nexus between law and poverty and the relevance of Public Interest Litigation in this context. It emphasized the need for widespread legal aid system which enabled law to reach the people, rather than requiring people to reach the law! It is worth noting that the two judges went on to work together in the two-member Committee on Juridicare, which released its final report in 1977. The Report titled “National Juridicare: Equal Justice-Social Justice” (National Juridicare Report) recommended the establishment of National Legal Service Authority (NALSA) accountable to the Parliament. More importantly, the Report specifically rejected the notion of case-by-case or litigation-based legal services for India, opting instead for services designed to reach out to the most helpless sections of the society and to identify the broadest possible types of assistance that could be made available to them under the law, including education, community development and community organizing. As a consequence, the early models for legal aid programs in India focused relatively less on individual client representation and more on larger projects aimed at mapping the legal needs of particular communities, providing community education on selected legal issues, and attempting to institutionalize informal, alternative dispute resolution techniques in select types of cases (including property matters, financial disputes, matrimonial issues, and motor accident claims) through lok adalats and legal aid camps. (For further reading, see Legal Aid, Public Service and Clinical Legal Education: Future Directions from India and the United States, Frank Bloch and Iqbal Ishar, Michigan Journal of International Law, 1990, Volume 12, Issue 1, at https://repository.law.umich.edu/cgi/viewcontent.cgi?referer=https://www.google.com.sg/&httpsredir=1&article=1639&context=mjil)
The Constitution of India articulates the significance of broadly accessible legal aid. Under Article 39A of the Constitution of India Part V [the Directive Principles of State Policy] inserted by the Constitution (42nd Amendment) Act 1976, the State is committed to securing that “the operation of the legal system promotes justice on a basis of equality” and providing free legal aid “to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.” The object of this provision is to promote equality so that no citizen is denied the right to seek justice because of economic incapacity to bear the cost of legal aid. (See M.P. Jain, Indian Constitutional Law, 2003, vol. 2, 5th edn, p 1616). Notwithstanding the unenforceability of Article 39A in a court of law, as with all other directive principles set forth in the Constitution, it is considered fundamental in the governance of the country. (Refer Agarwala, Directive Principles of State Policy, in Constitutional Law of India, M. Hidayatullah ed. 1984). Further, Article 22(1) of the Constitution requires that any person who is detained be given the right to “consult, and to be defended by, a legal practitioner of [their] choice”.
The Right to free legal- aid along with the right to speedy trial have been recognized as being part of the Right to Life and Personal Liberty under Article 21 of the Constitution. Expeditious relief entails that the right is to be made available to every pauper, indigent, impecunious and destitute. (Read Access to Justice via PIL and Legal Aid, Prof. Dr. Ranbir Singh, December 2015, Speaking Threads, at https://speakingthreads.org/2015/12/06/access-to-justice-via-pil-and-legal-aid/)
In furtherance of the Constitutional mandate enshrined in Article 39A, The Legal Services Authorities Act 1987 was enacted which allowed any person to seek legal aid under the Act to defend or file a case and if belonging to any of the specified category, viz., member of Scheduled Caste or Scheduled Tribe; or poor (with an annual income of not more than Rs.50000/- for cases in the Supreme Court and Rs.25000/- in other courts); or a victim of human trafficking or a beggar; or a woman or child; or if the individual suffers from any disability; or a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, industrial disaster; or an industrial workman; or in custody, including protective custody; or facing a charge which might result in imprisonment.(See section 12, Legal Services Authority Act 1987). In addition, legal aid may also be granted in cases of public importance and special cases considered deserving of legal aid/services.
The 1987 Act envisaged legal service schemes with respect to paralegals; legal clinics; programmes for unorganised workers, etc. It also made an attempt towards reducing the workload on the courts by providing for setting up of lok adalats (under the aegis of National Legal Services Authority) in the court premises to serve as an alternate dispute resolution system- an initiative welcomed by the Supreme Court. The Legal Services Authorities Act 1987, as amended by the Act of 1994 (which came into force on 9th November 1995) established a nation-wide network of Legal Services Authorities at the National, state and district levels. The Legal Services Authorities (Amendment) Act of 2002 led to the setting up of Legal Service Committees at the Supreme Court and High Courts. Upon receiving completed application forms (along with the requisite documents), these Legal Services Committees refer the matter of the applicant to a Screening Committee for scrutiny and evaluation as to whether the litigant is entitled for legal aid and whether prima facie case is made or not.
Some studies indicate that the Legal Services Authorities have been significant to the development of legal aid programmes by expanding the right to justice for the discriminated sections of the society (Refer MARG, Needs Assessment Study of Selected Legal Services Authorities, 2012, available at http://www.in.undp.org/content/dam/india/docs/DG/Marg_Needs-Assessment-Study.pdf). However, with the bulk of legal services being rendered by entities outside of the national network of legal service authorities, the extent of legal aid actually made available to marginalized groups is difficult to assess. The expansive entitlement provided in the Legal Services Authorities Act to give effect to the Constitutional mandate of “equal access to justice” has remained somewhat of an unfulfilled promise.
The National Juridicare Report had highlighted the need to interpret the articles of the Constitution in the context of ground realities. The initial judicial attitude towards legal aid was not progressive in the sense that the larger role of legal aid went unrecognized. As seen in Janardhan Reddy v. State of Hyderabad (AIR 1951 SC 217) and Tara Singh v State of Punjab AIR 1951 SC 411, the apex court took a restrictive interpretation of statutory provisions giving a person the “right to a lawyer”, The step to recognize legal aid as a fundamental right under Article 21 (reversing the earlier stance), was taken in Sunil Batra v. Delhi Administration (AIR 1978 SC 1675) which dealt with two situations in which a prisoner would be entitled for legal aid. First, to seek justice from the prison authorities and second, to challenge the decision of such authorities in the court. In effect, the need for legal aid was seen not only in judicial proceedings, but also in proceedings before the prison authorities (an administrative authority). The issue of right to free legal aid of an indigent and poor accused was specifically considered for the first time by the Supreme Court in M.H. Hoskot v. State of Maharashtra (AIR 1978 SC 1548) wherein the right to legal aid was considered as an inalienable element of fair procedure. “…This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity”, said Justice Krishna Iyer.
Subsequently, the Judiciary, through its creative and expansive interpretations, conferred an encyclopedic meaning to the concept of legal aid. In a series of pronouncements, the apex court reiterated that legal aid may be treated as a part of Right to Life under Article 21 and also Right to Equality before law under Article 14. (Refer Hussanara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1377; Khatri v. State of Bihar AIR 1981 SC 928; Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 99; Kishore v. State of Himanchal Pradesh AIR 1990 SC 2140).
Challenges to Legal Aid
The Legal Services Authorities Act of 1987 was aimed at streamlining the mechanism whereby eligible categories (women, persons with disabilities, certain disadvantaged classes, and those from low-income groups, to name a few) could access free legal services. When applications for legal representation are made under the Act, a lawyer is assigned to each applicant who fulfills the given criteria- in theory an ideal system, but in practice doubts persist over its efficacy, in particular the quality of legal service offered. Furthermore, while the publicly-funded legal aid services organised under the said Act are acessible to the vast middle class, the marginalised and rural communities are largely left out. Interestingly, the 1973 Report of the Expert Committee on Legal Aid, Processual Justice to the People- considered a precursor to the enactment of the Legal Services Authorities Act of 1987- talked about the futility of the court-centric litigative aid to the poor and marginalised sections, and recommended alternative strategies emphasizing on legal empowerment, preventive and strategic legal services, and developing a public sector in the legal profession for addressing the problems of the rural and tribal communities. Instead, the 1987 Act focused on assigning a lawyer to the needy client in the traditional style of protracted litigation with its attendant costs, uncertainty and delay, thereby defeating the purpose of a legal aid law for the poor. The legal aid system is essentially based on three assumptions— that the aggrieved party is aware of it’s rights and the court system; that legal aid offices are available in remote villages and settlements; and that the assigned lawyer possesses the required aptitude and attitude to act in the best interests of the victim. But since these assumptions are not applicable in the rural and remote landscape, the conventional legal aid proved to be of little value and use for the marginalized. To be fair, the Legal Services Authorities Act did provide for the Lok Adalats, which have helped in making justice accessible for those who cannot reach the courts. But these Adalats have sometimes faced criticism for being too informal and an exercise to reduce arrears in courts through “forced settlements or hurried justice”. (Refer Serving the Justice Needs of the Poor, by NR Madhava Menon, December 2013, The Hindu)
Another sore point is that of fee for legal services payable to empaneled lawyers, which is typically determined in accordance with a prescribed schedule. Private lawyers who are not on the panel of any committee constituted by the Legal Services Authority for legal aid are not required to accept pro bono matters assigned to them and if they do, it is purely voluntary. Typically, such private lawyers accepting pro bono matters voluntarily charge no fee or a minimal fee for such matters. But, if they were to be empanelled on the legal aid committee, they would be entitled to a prescribed legal fee.
Further, given the tardy pace of legal aid movement in the country, there is a need to work on capacity building. This would entail strengthening the skills of all the relevant stakeholders of legal aid- not just lawyers, but also law students, academicians, teachers, volunteers including aanganwadi workers, local panchayats. This step will be key to connecting the rural and tribal population with legal assistance. In State of Maharashtra v. Manubhai Pragaji Vashi [(1995) 5 SCC 730] the Supreme Court while widening the scope of the right to free legal aid also highlighted the necessity for capacity building. The marginalized and disadvantaged are not aware of rights and protection available under the law. For legal aid awareness to spread at the grass root level, anything short of a combined effort from the Government, legal fraternity, law academia and students, social organisations will not make the desired impact. Promotion of para legal services in areas which lack the requisite infrastructure to offer legal services deserve a special mention in this context. Lastly, assigning a “policing role” for legal aid to the bureaucracy will not be wise as that will tantamount to using the government machinery for litigation against itself in a bid to vindicate the legal rights of the disadvantaged.
Building a Pro bono Culture
The term Pro bono is derived from the Latin expression pro bono publico meaning “for the public good”. As a concept, pro bono legal service has not gained much momentum in the country and “remains more of an ad hoc, individualized practice lacking an institutional structure” (Refer About Pro Bono, Department of Justice, at http://doj.gov.in/page/about-pro-bono)
The Expert Committee on Legal Aid had observed that “[a]ccess to the Courts would be illusory unless representation of the under-privileged by counsel is recognised as a professional mandate.” (Processual Justice to the People, Report of The Expert Committee on Legal Aid, 1973, pp 159-60.). It accordingly recommended that the privilege of representing a client before judicial tribunals to the exclusion of all others must carry with it a binding obligation to appear in cases of legal aid clients assigned to advocates by legal aid organizations. The Expert Committee submitted a scheme for implementing this proposal recommending that failure to carry out the assigned legal aid duties should be treated as professional misconduct. However, these recommendations were not given full effect and the Bar Council of India Rules, which govern the practice ethics of lawyers, continue to require the members of the profession only to bear in mind in the practice of law that “within the limits of an advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.” (Rule 46 of Chapter II of Part VI the Bar Council of India Rules). The only outcome of the recommendations of the Expert Committee was the amendment of the Advocates Act 1961 to include in the functions of the Bar Council of India and the State Bar Councils that they organize legal aid to the poor in the prescribed manner- although compulsory appearance for legal aid clients was not prescribed. [See Advocates Amendment Act of 1973, sections 6(eee), 7(ib)]. But the Bar Councils were not bound by the requirement which was also inserted by the amendment to constitute legal aid committees.
In essence, the obligation of advocates to give legal aid is only moral. In the absence of a framework governing advocates’ discharge of this obligation, only the conscientious individual lawyers extend aid/representation and that too on an ad hoc basis, which is difficult to organize or measure. Lamentably, the number of people in need of legal aid by far exceeds the number of lawyers who are willing to take up briefs pro bono. Since Bar Council of India Rules do not include a mandatory requirement for advocates to spend part of their time on offering pro bono legal services, these services are merely seen as an ideal to aspire to! Most law firms in India do not have mandatory pro bono programs or requirements for their associates. Only a few law firms work on a pro bono basis with NGOs, and some allow their associates to count their pro bono hours as billable hours. (See Law Companies Now Joining in Pro-Bono Activities, Legal Eagles Offering Free Services to Needy, Economic Times, August 24, 2013, at https://economictimes.indiatimes.com/industry/services/consultancy-/-audit/law-companies-now-joining-in-pro-bono-activities-legal-eagles-offering-free-services-to-needy/articleshow/22014273.cms).
Legal Education and Legal Aid: Connecting the Dots
It has been widely acknowledged by legal aid experts (as well as the members of the Bar) that legal education can play a larger role in the country’s legal aid movement and that exclusion of law schools from legal aid programs would be self-defeating not just for the cause of legal aid, but also the legal profession. (See Objectives of Legal Education, in Legal Education in India, Jethmalani, 1973, pp 56-57; Expert Committee Report of 1973; and National Juridicare Report 1977). The service-mindedness acquired by law students from performing legal aid work is a useful tool in influencing the social sensitivity of the Bar in the long run. Ironically, the rationale of involving law students in the delivery of legal services, particularly to poor and weaker sections, neither occurred nor found favour with our legal educational reformers for a long time. Even the legal aid authorities, failed to recognize the potential of using legal educational institutions and law students to participate in the budding legal aid movement in the country. It was only in 1997 that the Bar Council of India (BCI) made Legal Aid a compulsory practical paper to be taught in law colleges all over the country, thereby granting a fresh lease of life to the cause of legal aid. In this context, it is relevant to take note of the Access to Justice Project of UNDP India titled “Study of the Law School based Legal Service Clinics” undertaken in the year 2011 in the 7 states of Orissa, Bihar, Chhattisgarh, Jharkhand, Uttar Pradesh, Madhya Pradesh, and Rajasthan. The purpose of the study was to understand the functioning of legal aid cells established by law colleges in these states and suggest ways to improve their functioning to be effective instruments of access to justice. In an alarming finding, despite 82% of the colleges having designated faculty to conduct legal aid activity, only a miniscule of them were providing academic credit to the faculty for the workload/lecture hours; and to the students in terms of grades or marks. This naturally reduced the enthusiasm and motivation needed to conduct legal aid activities making them burdensome or additional work for teachers and students of law. Although majority of the colleges had a good track record in conducting legal literacy programmes, the methods for the same were not entirely useful, being limited to ‘public talk’ by lawyers with limited or no follow up service. (See A Study of Law School Based Legal Service Clinics, UNDP India, July 2011, available at http://www.in.undp.org/content/india/en/home/library/democratic_governance/a_study_of_law_schoolbasedlegalservicesclinics.html)
Of late legal aid clinics/camps have emerged as an important component of legal education with many reputed law schools/colleges actively organizing the same, yet many law schools tend to have an ad hoc approach towards legal aid activities. In the other words, the success of these efforts is largely dependent on the enthusiasm of the faculty and the students (Refer Clinical Legal Education as a means to advance access to justice in India, by Avani Bansal, at http://www.livelaw.in/clinical-legal-education-means-advance-access-justice-india/).
Future of Legal Aid
A comprehensive national policy on pro bono legal services in tandem with the legal community and the Bar Council of India taking up the responsibility of expanding the breadth of pro bono services will help in make a visible impact. (See Early Days for Pro bono in India, Thomson Reuters Foundation in India News, July 2016, http://news.trust.org/item/20160722115456-3r4f2). It has been suggested that for strengthening the pro bono culture, the existing statutory framework should also include, better fees; facilities; and training for lawyers on the panel of legal aid Committees (constituted by the relevant Legal Services Authority), especially in the lower courts where free legal aid often results in inferior legal services. A competitive and transparent selection process, monitoring of the empaneled advocates’ work, and an easy complaints mechanism have also been recommended. Most importantly, a “change in the attitudes within the legal profession are essential to ensure a sustainable system of legal aid and access for justice to all in a country steeped in caste, class, economic and gender inequality”. (See Legal Aid in India: The Need for Strong Laws and High Minds, Persis Sidhwa, available at Oxford Human Rights Hub- http://ohrh.law.ox.ac.uk/legal-aid-in-india-the-need-for-strong-laws-and-high-minds/). Clearly, lawyers, law schools and NGOs have a dynamic role to play in securing the rights and entitlements of marginalized sections. Enhancing the current framework of the National Legal Services Authority as well as the subordinate Legal Services Authorities, and placing requirements on law schools to conduct regular legal aid clinics in remote corners of the country, would go a long way in realizing the mainstreaming of legal aid movement in India.
In a recent promising development, the Ministry of Law in April 2017 launched “Pro Bono Legal Service”, a web-based platform, through which interested lawyers can register themselves on a website to volunteer pro bono services for the underprivileged litigants. The initiative is aimed at (a) encouraging lawyers to provide pro bono legal services; (b) recognizing pro bono legal work being provided by lawyers and legal professionals; and (c) creating a database capturing vital information of lawyers for appropriate positions in the relevant field. Pro bono legal assistance provided by lawyers as a yardstick for appointment to appropriate positions is also proposed to be included by the Government. In furtherance of this initiative, an online application on the Department of Justice website to enroll advocates who are keen on providing legal aid has been launched. Any practicing Advocate enrolled with a Bar Council (irrespective of age) interested in volunteering for pro bono services can register on the website. The aim is to enable litigants to apply for speedy legal aid online and seek advise. (See http://www.livelaw.in/need-know-pro-bono-legal-services-tele-law-service-nyaya-mitra-scheme/). Through another initiative, also launched at the same time by the Law Ministry, the Department of Justice will be partnering with CSC- E- Governance Service Limited (a Special Purpose Vehicle set up by the Ministry of Electronics & IT) for mainstreaming legal aid to the marginalised communities. This initiative, called ‘Tele Law’, will reportedly be launched across 1,800 panchayats in Uttar Pradesh, Bihar, North Eastern States and Jammu & Kashmir. The aim is to facilitate delivery of legal advice through an expert panel of lawyers – stationed at the State Legal Services Authorities. The key aspect of this project is that it proposes to connect lawyers with clients through video conferencing facilities at common service centres, operated by para legal volunteers. (Poor to get free-of-cost legal aid, govt urges lawyers to offer pro bono service, April 21, 2017, Hindustan Times, reported at https://www.hindustantimes.com/india-news/poor-to-get-free-of-cost-legal-aid-govt-urges-lawyers-to-offer-pro-bono-service/story-Szq2i16wd8eo9L8s789IRL.html)
Legal aid in India has evolved over the last three decades, with legislative, institutional and jurisprudential developments laying the foundation for the provision of free legal services to the needy. In practice, however, the number of individual lawyers and social/legal organizations engaged in delivering these services efficiently is low and still heavily reliant on the PIL mechanism. Experts say that the problem lies with India’s failure to accord priority to freedom of access to justice. Although the Supreme Court has emerged as a bastion of “liberty”, the finer details of the enactment have not been chalked out well by the lawmakers. The lower compensation to lawyers and lack of alternative incentives in attracting established litigators to offer legal aid is a testimony to this. “There is a convergence in Kantian duty of benevolence and Rawls’ liberty principle, but in the world of moral relativism, a fair compensation must precede before imposing any obligation on lawyers to take up pro bono matters, as doing so, is likely to compromise their ‘true needs’”. (For further reading, see Legal Aid in India, Retuning Philosophical Chords, Chandra and Solanki, BRICS Law Journal Vol 2 No. 2 (2015)).
Richa has over 10 years of experience in legal writing and editing. She completed her Masters (LL M) in Commercial Laws from the London School of Economics and Political Science and is a qualified Solicitor in England and Wales. Richa started her career with SNG & Partners, an established pan India banking law firm. She went on to pursue her keen interest in legal research and writing as the Senior Legal Editor with LexisNexis India Her subsequent stint as the Consulting Editor of Lex Witness, India’s first Magazine on Legal and Corporate Affairs, honed her analytical understanding of legal subjects. She was also involved with setting up of Live Law. A mother of two young children, Richa is currently based with her family in Singapore.