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Free Legal Aid In India And Its Shortcomings

"The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice." - Justice Blackmun in 'Jackson v Bish'

Under Article 22(1) and 14 of the Indian Constitution, legal aid is a constitutional right, and Article 39A advocates the provisions for free legal aid to citizens in need. Free legal services are provided under the Legal Services Authorities Act, 1987.

Prisoners, undertrials and petitioners who cannot afford private lawyers can seek free legal aid facilities through the National Legal Services Authority wing located in almost every district court of India. Every state has its own Legal Services Authority. As of march, 2022 India had 50,394 free legal service providers. India has one legal aid lawyer per 18,609 population or five legal aid lawyers per 1,00,000 population.

Maharashtra has the highest number of legal aid lawyers and Mizoram has the least.

Free Legal Aid in India
The positive Contribution of Judiciary The Supreme Court of India got a major opportunity to make an emphatic pronouncement regarding the rights of the poor and indigent in judgment of Hussainara Khatoon where the petitioner brought to the notice of Supreme Court that most of the under trails have already under gone the punishment much more than what they would have got had they been convicted without any delay.

The delay was caused due to inability of the persons involved to engage a legal counsel to defend them in the court and the main reason behind their inability was their poverty. Thus, in this case the court pointed out that Article 39A emphasized that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services was implicit in the guarantee of Article 21.

In the case of Khatri v. State of Bihar, the court answered the question on the right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it.

Magistrates and Sessions Judges must inform the accused of such rights. The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid.

Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that 'if a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to the Supreme Court for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, the power to assign counsel for such imprisoned individual for doing complete justice'.

Reasons for such low numbers of free legal aid lawyers in India:
  1. Low fees
    The minimum pay structure for legal aid lawyers is suggested by the National Legal Services Authority. The minimum honorarium for drafting of cases like divorce, custody, writ petitions is RS 1,500 for panel lawyers, while for hearing of cases it is capped at RS 10,000 per case. If one practices private law, the fee can be a minimum of RS 20,000 going up to RS 1 lakh, based on the competence and reputation of the lawyer.

    Further, sometimes the lawyers have to pay for printing or photocopying for the litigants' documents and drafting expenses from their own pocket.

    The low fee impacts the number of legal aid counsel, it also dissuades the lawyer because it does not cover their costs of becoming a lawyer.

    Since panel lawyers are allowed to practice outside of their committed time to free legal counsel, many rely more on their private practice for their livelihood, impacting the quality of legal assistance offered.
  2.  Delayed payments
    The payment of free legal counsels are cleared through bill submission, a process that entails tedious requirements like stamped/attested order required to get clearance of the bill, the requirement that a bill should be submitted after the case is finally disposed and within a year of its disposal.

    According to National Judicial Data Grid, nearly 60% of both civil and criminal cases take more than one year to dispose of at subordinate level.

    Even if the pay is low, at least bills should be cleared timely.

Funding Legal Aid
As per the 2018 Commonwealth Human Rights Initiative Study including all the states and union territories of India, per capita spending on Legal Aid in India is Rs 0.75, one of the lowest in the world. In 2019-20 as per Tata Trusts' India Justice report, per capita spending in Legal Aid in India was Rs 1.05.

Legal service institutions receive funding from National Legal Services Authority and state budgets.

A study by Odisha High Court Chief Justice S Muralidhar (when he was a Delhi High court judge) in 2004 shows that the majority of the funds are utilised for administrative services, rather than legal aid itself.

Duties such as helping out on the front desk, jail visits etc. can help legal aid counsel make more money. But lawyers say there is a bias in who gets allotted this work, as the 'favourites' are assigned by the District Legal Services Authority.

Sometimes lawyers are asked to do tasks below their level of skill. Such as clear traffic challans, electricity bills, and even make an Aadhar card.

No Social Security
Panel advocates are not appointed by legal services, and as such do not qualify for leaves or social security. Even maternity leave is not provided, there's no leave-structure in place.

In September 2021, National Legal Services Authority came up with the defence counsel vacancies under the Legal aid defence counsel system, where applications have been invited to hire permanent, free legal aid lawyers in the criminal section. These lawyers will have fixed salaries ranging from Rs 20000 to Rs 100000 per month, depending on the population of states where they will be deployed. They will also have leaves, though maternity leave is not currently mentioned as one of the benefits.

Social work
Many who have been part of the legal aid system say that the work there should not be taken up as a source of livelihood but with the intent of helping those who cannot afford a lawyer and for the lessons it gives in practicing law.

But still there should be acknowledgement to their work to keep them motivated, the kind of treatment a private or a regular lawyer gets in front of a judge or magistrate, legal aid lawyers don't get even half that.

Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object of the state should be equal justice for all. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society.

But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law, the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.

The above mentioned problems should be rightfully resolved to meet the goals of free legal aid in India.

  • It is the need of the hour that the poor illiterate people should be imparted with legal knowledge and should be educated on their basic rights which should be done from the grass root level of the country (as done by my college's legal aid society).
  • Elimination of social and structural discrimination against the poor will be achieved when free Legal Aid is used as an important tool in bringing about distributive justice.
  • There are number of precedents as well as legislations to up hold the right to free legal aid but they have just proven to be a myth for the masses due to their ineffective implementation. Thus the need of the hour is that one should need to focus on effective and proper implementation of the laws which are already in place instead of passing new legislations to make legal aid in the country a reality instead of just a myth in the minds of the countrymen.
Free Legal Services Authorities must be provided with sufficient funds by the State because no one should be deprived of professional advice and advice due to lack of funds.

Written By:Aditya Sehrawat

Email: [email protected] [email protected]

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