Table of Contents
THE CONTEXT: Speaking at the convocation ceremony at the National Law University in Cuttack in September 2022, the CJI UU Lalit admitted that legal aid work is still a neglected field in India and that young law graduates should devote their time and energy to provide the legal aid services and instil a sense of compassion. This article presents the various aspects of free legal aid in India and why they shall be improved.
LEGAL SERVICES AUTHORITIES (LSA) ACT
- In 1987, the Legal Services Authorities (LSA) Act was enacted to give free and competent legal services to the poor and paved the way for the constitution of the National Legal Service Authority (NALSA) and other legal service institutions at the State, district and taluka levels.
- Free legal services under LSA Act are available to a person belonging to Schedule Tribe and Schedule Caste, a woman, child, victim of human trafficking, a differently abled person, an industrial workman, and a person in custody in a protective home and the poor.
CONSTITUTIONAL PROVISIONS
- The preamble of the Indian constitution aims to secure for the people of India justice – socio-economic and political. Justice P.N. Bhagwati aptly stated that legal aid means providing an arrangement in the society which makes the machinery of administration of Justice easily accessible and within reach of those who have to resort to it for enforcement of rights given to them by law. Article 38(1) avows that the State shall promote the welfare of the people by securing and protecting the social order, including justice.
- Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on the 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 disability.
- Articles 14 and 22(1) also make it obligatory for the State to ensure equality before the law and a legal system which promotes justice on the basis of equal opportunity for all.
FREE LEGAL AID
ABOUT
- It entails the provision of free legal aid in civil and criminal matters for those poor and marginalized people who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority
INSTITUTIONS
India has a robust institutional framework of legal aid bodies. This has National Legal Services Authority at the helm, 37 state legal services authorities, 673 district legal services authorities, 2351 taluka legal service authorities, 39 High Court legal services committees and the Supreme Court legal services panel for oversight.
- National Level: National Legal Services Authority (NALSA). It was constituted under the Legal Services Authorities Act 1987. The Chief Justice of India is the Patron-in-Chief.
- State Level: State Legal Services Authority. It is headed by the Chief Justice of the State High Court, who is its Patron-in-Chief.
- District Level: District Legal Services Authority. The District Judge of the District is its ex-officio Chairman.
- Taluka/Sub-Division Level: Taluka/Sub-Divisional Legal Services Committee. It is headed by a senior Civil Judge.
- High Court: High Court Legal Services Committee
- Supreme Court: Supreme Court Legal Services Committee.
ELIGIBLE PERSONS
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- Women and children
- Members of SC/ST
- Industrial workmen
- Victims of mass disaster, violence, flood, drought, earthquake, and industrial disaster.
- Disabled persons
- Persons in custody
- Those persons who have an annual income of less than the amount prescribed by the respective State Government if the case is before any court other than the Supreme Court and less than Rs. 5 Lakhs if the case is before the Supreme Court.
- Victims of Trafficking in Human beings or begar.
CONCERNS RELATED TO FREE LEGAL AID
- According to Justice A P Shah, despite having a formidable structure for free legal aid, the scheme has failed to attract competent lawyers, and there is no mechanism for the clients to question.
- Justice S Muralidhar of the Delhi high court is of the opinion that there is a need to pay the legal aid lawyers better otherwise, ‘legal aid for the poor, will continue to be ‘poor legal aid’.
- Justice UU Lalit has also highlighted two basic difficulties in providing free legal aid:
- Most of the population is entitled to legal aid but they are not aware that they are eligible for legal aid due to various factors – lack of knowledge, lack of experience, or lack of exposure to the entire set-up. Legal aid continues to be the “hope” that many persons in custody turn to for a fair trial. Almost 80% of India’s 132 crores (1.32 billion) population is eligible for legal aid. An overwhelming number (41.5%) of those accused of criminal acts in India are from the economically weak and disadvantaged sections of society. Few are aware of their rights or procedures relating to the police, prosecution and courts or what the services of a lawyer involved.
- The second pressing issue is Infrastructure. For example, if we have a legal aid set up in a remote district, that area must have the facility of an e-library where lawyers can have the assistance of law reports and the latest judgments at the click of a mouse, but we lack in that aspect also.
- Inadequate monitoring frameworks have also contributed towards the less effectiveness of the free legal services, such as many lawyers do not visit their clients or even neglecting to represent them.
ANALYSIS OF LEGAL AID SERVICES IN INDIA
Legal aid is not a charity or bounty but is an obligation of the state and the right of the citizens. The focus of legal aid is on distributive justice, effective implementation of welfare benefits and elimination of social and structural discrimination against the poor.
Twenty-eight years on, however, the Legal Services Authorities Act has become yet another example of a social justice law that is well-intentioned on paper but riddled with problems on the ground. From daunting procedures that deter lawyers from taking up free cases to corruption, lawyers and social workers pointed out, legal aid is far from being ideally implemented. Hence it is imperative to improve the quality of free legal aid services in India to further the objectives and ideals enshrined in the Constitution.
Legal aid is a key element of access to justice. It is also at the heart of the equality requirement and of the overarching objective of the 2030 Agenda: to leave no one behind. Access to legal aid translates into access to justice for the poor, the marginalized, and the disadvantaged. Access to justice features prominently in the 2030 Agenda for Sustainable Development, whose Target 16.3 of Goal 16 is about promoting the rule of law at the national and international levels and ensuring equal access to justice for all. This is particularly important when a person’s fundamental rights to life and liberty are put at risk.
The Basic Principles on the Role of Lawyers further place responsibility upon the government and the legal profession to ensure that everyone has access to counsel, regardless of means or background, to protect the right to equality before the law.
THE WAY FORWARD
EXPAND THE SCOPE OF SECTION 12
- There is an urgent need to expand the scope of Section 12 so that more and more areas can be covered under the Act and assistance can be rendered. State Government should come up with appropriate amendments to the law and provide legal services in an effective and efficient manner.
ROLE OF NGOS
- Involving and increasing the role of non-governmental organisations to create awareness amongst the people about their rights and effective justice delivery.
LEGAL AID PROGRAMMES AND LEGAL AWARENESS
- There should be an organisation of legal aid camps and Lok Adalats at a mass level to spread awareness about the rights of the people and awareness about the free legal aid programmes for the needy ones.
- There should be the establishment of entitlement centres at various backward areas to make them aware of their rights and laws and encourage them to opt for free legal services.
BETTER REMUNERATION TO THE LAWYERS
- There should be an increase in remuneration paid to the lawyers by the courts or government, appearing or defending the accused for free.
FEEDBACK APPROACH
- The monitoring of the work of the counsels should be evaluated through the feedback approach, i.e. by asking the people for the feedback of the work of the counsel and then there should be proper progress reports of every advocate. This all could be done by setting up a proper monitoring committee.
THE CONCLUSION: Reginald Heber Smith, in his book ‘Justice and the Poor’ wrote that “Without equal access to the law, the system not only robs the poor of their only protection, but it places in the bands of their oppressors the most powerful and ruthless weapon ever invented.” To have a successful legal aid movement in India, the government needs to take appropriate steps by spreading awareness and educating the people about their basic fundamental rights. The only objective or aim of the government should be to provide ‘equal justice to all.’
Mains Practice Questions:
- “Free legal aid does not mean poor legal aid; free legal aid must mean quality service”. Comment.
- Poor and marginalised citizens are legally entitled to get lawyers free of charge when they need them. Why do they often have to struggle for it? Suggest measures to improve the quality of free legal aid in India.
- The guarantee of equal justice is meaningless if vulnerable sections cannot enforce their rights because of poverty, illiteracy or weakness. Discuss.