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Free Legal Aid in India: Concept, Constitutional mandate and Challenges

The concept of Legal Aid as observed by Justice Bhagwati pertains to accommodating an order in the society by which the mechanism of providing justice is availed, in an easy manner to the people who need the same for protection of their rights conferred on to them by law and such services may not only aim to provide lawyers to indigent but also spread legal awareness, promote PILs, Lok Adalats and various law reform that may help in providing justice.[1]

History of Legal Aid in India:
Also being recommended by the 14th Law Commission Report, many states starting with Kerala and followed by Tamil Nadu and Maharashtra provided for free legal aid services to the poor. In 1971 a committee was set up to analyse the role of judges as also various committees (State/Taluka/District Legal aid Committees) and was headed by Justice Bhagwati. However, enforcing the concept through statutory enactment and facilitating legal aid clinics inside law schools was emphasised by the 1973 report “Processuals Justice to Poor”[2] authored by a committee headed by Justice Iyer.[3]

The concept of NALSA was established in the joint report by Justices Bhagwati and Krishna Iyer which also analysed the efficiency of legal aid programmes and role of lawyers. Thus, in 1976 by the 42nd Constitutional Amendment, article 39A was introduced in Chapter IV, Directive Principles. The Lok Adalats were added in 1980 by the Committee for Implementation of Legal Aid Scheme (CILAS) headed by Justice Bhagwati.[4]

Legal Service Authority Act:
The Legal Services Authority Act, 1987 enforced in 1955 enshrines its objectives as follows[5]:
  1. Promoting justice to poor and weaker sections of the society and ensure that the same is not denied due to their economic inabilities.
  2. This has to be done through setting up Lok Adalats
According to Section 304, CrPC, if in case the accused is not able to hire an advocate and the Court feels the same, it owes the responsibility of hiring one for the accused at the expense of the State.[6] Similarly, under Rule 9 A, Order XXXIII of the CPC, the Court has been given the authority to exempt court fees for an “indigent person” as well as appoint a lawyer for him.[7] Further, according to the Legal Service Authority Act, the following persons can avail of these services if they have a case to defend/prosecute[8] and if an affidavit of their annual incomes has been filed[9]:
  1. A SC/ST person[10
  2. A person who has been a victim of human trafficking[11]
  3. A person falling under the ambit of beggar as defined under article 23 of the Constitution[12]’
  4. A child[13]
  5. A woman[14]
  6. A person who is mentally not fit or who is disabled[15]
  7. An industrial worker[16]
  8. A person under custody[17]
    Also, if the case is before the Supreme Court of India, a person having an annual income of less than 12,000 rupees may apply for the services while the bar for annual income in the cases of other courts is 9000 rupees.[18]

Framework of Legal Services in India
  1. National Legal Services Authority (NALSA): Being the apex body, it is headed by a retired judge of SC nominated by the President and it formulates various policies/ schemes and looks behind the overall implementation of legal aid programmes and services
  2. State Legal Services Authorities: Legal Services Authority Act mandating the establishment of State Legal Services Authority that implements the policies, rules, and strategies laid down by NALSA, conducts Lok Adalats and other programmes. Under Section 8A of the Act, the High Court Legal Services Authority is to be set up by the State Legal Services Authority. The Chief justice of the High court is the chairman.
  3. District Legal Services Authorities: Each State further needs to make District Legal Services Authorities also with District judge as chairman.
  4. Taluk Legal Services Committee: Constituted by the State Legal Services Authority, it is headed by senior-most Judicial Officer.

All the above bodies run Lok Adalats and the Higher body supervises the running of the lower ones in the order:
NALSA> SALSA> DALSA> Taluka Legal Service Committee.

Supreme Court Legal Services Committee:
Section 3A of the act mandates the establishment of this committee which provides various services, organises Lok Adalats and runs a Mediation Centre in the Supreme Court.[19]

Lok Adalat:
The Lok Adalat set according to provisions under Chapter VI of the 1987 Act, are a type of alternative dispute resolution system which charges no fees and is dedicated to speedy disposal of suits.[20]

Free Legal Aid, rule of law and promotion of justice:
As enshrined in the preamble of the Indian Constitution, securing “social, economic and political justice” being the objective[21], article 38 of the Constitution, further lays down the responsibility of the State to promote social welfare by guarding social order inclusive of justice.[22] Under article 14 it has been Said that all persons will be treated equally without any discrimination.

Thus, it ensures equality of law and equal protection of laws. Further, according to the concept of “Audi Alterem Partem” no person shall be convicted being unheard. Article 22(1) further provides the individuals with the fundamental right to consult a lawyer of their choice.

Thus, the legal aid jurisprudence as emerging from these fundamental rights have been covered under various cases as follows:
In Hussainara Khatoon v. Home Secretary, State of Bihar, having highlighted the plight of the people undertrial that were restrained in the jails, most of them being convicted for small offences bearing punishments for a few months, it was found that they had already served quite larger sentences for years as they could not receive a trial. The ground cause behind this delay was that the convict was not capable of hiring an advocate for themselves.

It was thus held that if such legal services are not facilitated by the State to indigent persons not capable of hiring lawyers, then it would vitiate the “reasonable, fair and just procedure” principle as necessitated by article 21.[23] This responsibility being born by the State and arises from article 39 A and 21 as again explained in State of Maharashtra v. Manubhai Pragaji Vahi .[24] Facilitating such an indigent person with legal aid services does not only fulfill the responsibility as laid under article 39 A, but also under article 14 and 21 of the Constitution.[25]

Further, in Khatri v. State of Bihar, the Court expounded that administrative and financial hurdles could not be excuses to facilitating such services.[26] In the case the Court explored India’s social background and laid the duties of a trial judge in administering justice via such services as follows[27]:
It was held that, most of the people in rural India being illiterate( 70%) and being ignorant of their rights granted to them by the Indian Constitution and the law, the promotion of legal literacy forms an inseparable part of the legal aid justice, without which, it would just be reduced to rights on paper.

This is because we cannot expect illiterate people to ask for their rights when they don’t know about that in the first place. Thus, the onus of the trial judge as expounded by the Court is to make sure that the indigent person in front is informed about his rights to avail of free legal aid services if in case, he is not capable of paying.

As such services were held to be an integral part of the Criminal justice system in Hussainara case, in Sukh Das v. Union Territory of Arunachal Pradesh, whereby 4 people convicted by the trial court under Section 506 and 34 of the Indian Penal Code without being given the facility of any legal aid services, their appeal to the HC was dismissed on the grounds that they had not pleaded for such services.

When the matter came upto the SC reiterating the social set up of India wherein most poor people aren’t aware of their rights, it was held that facilitating such services form a part of social justice and thus the Court reiterated the trial judge’s duty to inform as laid in Sukh das, failing which it would be considered a gross constitutional departure, and the convicting being rendered unfit.[28]

Thus, social justice needs such legal aid services to be provided, the exceptions being certain economic offense, or crimes relating to prostitution and child abuse where in deed social justice itself would require to not provide such services.[29]

In Manoharan v. Sivarajan,[30] the Court has emphasized on a holistic approach towards imparting justice which may not be limited to only appointment of lawyers for cases of such legal aid beneficiaries but also ensuring that financial obstacles do not hinder the administration of justice. Accordingly, a reflection of such a fundamental right based on equality and the responsibility of the State has been observed in Ranjan Dwivedi v. UOI, whereby a lawyer appointed to represent Ranjan was being payed only Rs. 24 per day and the condition in contrast with his counterparts who had hired senior lawyers looked quite unfair, thus the Court increasing the payment to Rs. 500 per day for a senior lawyer and Rs. 350 for a junior one to ensure fairness.[31]

The provisions were also extended to be applicable to accident claims tribunals as laid in State of Haryana v. Darshana Devi[32], however, being denied in front of custom authorities as he is not an accused”.[33]

Plight of Legal Aid services in India:
The total beneficiaries of legal aid services from April2017 to June 2018 were approximately 8.22 lakh according to what has been state by NALSA.[34] The various reasons why people usually don’t avail of Legal aid services is as follows:
  1. Poor shape of Legal Aid Counsels:
    As estimated by a study, 81% of Legal Aid counsels taking up the job with the aim of serving the poor[35]. However, this may be undermined by the following problems:
    1.  Low salary and delay in payment:
      The major issue affecting lack of incentive and preference for private law practice is the meagre amount of payment they receive with almost 23% of the candidates complaining regarding the same according to a study.[36] Further, around 34% of these candidates have confirmed delay in due payments by the District Legal Service Authorities (DLSAs), which add to the grievances of the counsels who throughout the case, bare the expenditures out of their own pockets.[37] The research states the major cause of such delay to be non-availability of funds with the DLSAs.[38]
       
    2. Lack of private chambers for LACs:
      Most of the empanelled LACs being junior lawyers, not having a chamber of their own but only interim workplaces, most of them interact with the clients/beneficiaries in the Court complex itself that may eventually result into a communication gap because of various reasons like[39]:
      1. Not being able to prolong the communication with beneficiaries after working hours
      2. Public environment inducing uncomfortableness, distrust in the clients.

        While 76% LACs have confirmed meeting the beneficiaries at court complexes, a study shows that the following believe that this is the normal set pattern:
        1. 48% of LACs
        2. 49% of beneficiaries
        3. 63% of regulators
           
    3. Lack of supporting infrastructure:
      Infrastructural obstacles like unavailability of any library or e-database with the LACs and their reliance on the printers in the DLSA office for accessing any documents increases the difficulty with around 19.7% of LACs supporting the proposition that infrastructural obstacles deteriorate the services offered.
       
    4. Long-term jobs:
      The LACs usually being hired in an ad-hoc manner, almost 45% of candidates believe that hiring counsels on a full-time basis would help better efficiency and devotion as the counsel may not be able to leave a case midway as presently, he can do so after giving a reason. Also, it will be beneficial in guarantying the counsel’s devotion if payment similar to private practice is received by them.[40]
       
    5. Experience as criteria and non-transparent manner of selection:
      Usually, the norm for hiring LACs being based on the number of years of practice or experience, almost 81.80% of regulators prefer the same and mostly the selection is done on this criterion after an informal interview.[41] Besides, there being noticed cases of arbitrary or non-transparent allocation of cases to LACs, this affects the efficiency of the process as well as does not help in encouraging competent and enthusiastic young counsels.[42]
       
    6. No recognition and incentive:
      The amount of payment received by an LAC not being dependant on the amount of time a case takes, the amount of effort that a counsel is willing to take is usually less. Further, there being any absence of incentives, along with low payment and no recognition, the job does not seem lucrative.[43]
       
  2. Awareness about Legal Aid Services:
    Having been exclaimed by Justice Ranjan Gogoi that the prime reason behind the non-realisation of rights and exploitation is the “absence of legal awareness” and thus the legal aid services will not fulfil their aims until people are informed about their rights.[44] In the metropolitan area of Delhi itself, only 76. 2% women possessed the knowledge of how and what the legal aid services were and 23.8% were absolutely having no clue about the same.[45]Thus, the plight can be understood where the literate citizens of the Country themselves don’t know their legal rights and thus nothing can be said about illiterates that form a significant amount of the population. Thus, legal awareness forms a verry essential part of the legal aid services to provide justice in the Nation.
     
  3.  Good legal education:
    Also as correctly observed by the Court in State of Maharashtra v. Manbhai Pragaji Vashi [46], improvising upon legal education by increasing the number of law schools and alleviating the efficiency of law professors is a pre-requisite to make way for decent legal aid services.
     
  4. People’s perceptions shape their decisions:
    According to the Delhi based report, 76.2% women knowing the types of poor services offered by Legal Aid counsels did not engage with them, while 23.8% women ignorant of such services, engaged in the decision-making process of not hiring a LAC just based on their perception (that itself was shaped by other) that the quality of the services suffers.[47] Further the Research also proved the fact that most of the women make these decisions on the base of perceptions of low quality as 97.2% of them had not previously engaged in any kind of legal aid services and had no direct exposure to the same. Only 2.8% of them had engaged in such services. [48]
     
  5. Legal aid as last option resorted to by people [49]:
    Usually, people adopting legal aid services as a last option, only when the private lawyer’s fees aren’t affordable, almost 75% of people adopting such services believe in doing so as last resort. Almost, 22.6% people have also shown their disapproval for resorting to such services in the future. Also, due to lack of trust and reliability over legal aid services, 60% of women under the Study, despite being familiar with such services went on to adopt private lawyers.

Reasons:
  1. LACs demand money:
    It has been observed that almost 16.30% of the clients under legal aid have paid the LACs who asked for money despite the services being free of cost.[50] Similarly in another Delhi based study, 37% beneficiaries had allotted money to LACs while the case was running and 56.4% of them were not quite willing to reveal whether they paid or not as they felt it would jeopardise their case and the LACs hired would backout from their case.[51]
     
  2. LACs spend less time on a legal-aid case:
    Usually spending 20 hours per week on a private case, counsels tend to only give half of it i.e., within 10 hours a week to legal aid cases.[52]
     
  3. LACs are not highly skilled:
    Most of the LACs are ranked lower to private counsels when examined by Judicial officers.[53]

According to the Delhi based Study, 18.2% complained that dedication needed by LACs on a case as well as DLSAs non-supportive nature was a problem, whereas 6.7% confirmed that LACs demanded money despite the services being free of cost, which consequentially resulted in many hurdles before the beneficiaries.[54]

Conclusion:
Thus, we’ve understood that free legal aid is an obligation of state as under various fundamental rights and article 39A of the and is mandated according to rule of law. However, despite such services not being costed for in India and being provided by statutory enactments explained above, there are many inherent deficiencies (e.g. Lack of infrastructure, low payment of LACs, etc.) in them due to which people rather do not prefer resorting to them. These need to addressed to ensure the enforcement of the fundamental rights of the citizens by ensuring proper legal aid facilities to them.

End-Notes:
  1. Shivansh Saxena, The unparalleled legacy of Justice PN Bhagwati, Bar and Bench, Dec 21, 2020, http://14.139.60.114:8080/jspui/bitstream/123456789/15279/1/037_The%20Report%20of%20the%20Law%20Commission%20on%20the%20Reform%20of%20Judicial%20Administration%20%28331-341%29.pdf
  2. The Report of the Law Commission on the Reform of Judicial Administration, Indian Law Institute, http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20expert%20committee%20in%20legal%20aid,%201973.pdf
  3. Ministry of Law, Justice and Current Affairs, PROCESSUAL JUSTICE To THE PEOPLE, Government of India, May 1973, http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20expert%20committee%20in%20legal%20aid,%201973.pdf
  4. Rachit Garg, Challenges and solutions to free legal aid, i pleaders, https://blog.ipleaders.in/challenges-solutions-free-legal-aid/amp/
  5. The Legal Services Authorities Act, 1987, § 12, Acts of Parliament, No. 39 of 1987(India). [hereinafter, The Legal Services Authorities Act
  6. The Code Of Criminal Procedure, 1973, § 304, ACT NO. 2 OF 1974, Acts of Parliament, 1974 (India).
  7. The Code Of Criminal Procedure, 1908. ACT NO. 5 OF 1908, Acts of Parliament, 1908.
  8. The Legal Services Authorities Act, § 13(a).
  9. The Legal Services Authorities Act, § 13(b).
  10. The Legal Services Authorities Act, § 12(a).
  11. The Legal Services Authorities Act, § 12(b).
  12. The Legal Services Authorities Act, § 12(c).
  13. The Legal Services Authorities Act, § 12(c).
  14. The Legal Services Authorities Act, § 12(d)
  15. The Legal Services Authorities Act, § 12(e).
  16. The Legal Services Authorities Act, § 12(f).
  17. The Legal Services Authorities Act, § 12(g).
  18. The Legal Services Authorities Act, § 12(h).
  19. Rachit Garg, Supra note 60.
  20. The Legal Services Authorities Act, 1987, Chapter IV, No. 39, Acts of Parliament, 1987 (India
  21. India Const. Preamble, https://www.constitutionofindia.net/constitution_of_india/preamble
  22. India Const. Article 38(1).
  23. Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 SCR (3) 532 (India).
  24. State of Maharashtra v. Manubhai Pragaji Vahi, AIR 1996 SC 1(India).
  25. 8TH Edition, MP Jain, Indian Constitutional Law, Lexis Nexis, pg. 1187
  26. Khatri v. State of Bihar, AIR 1981 SC 928 (India).
  27. Id.
  28. Sukh Das v. Union Territory of Arunachal Pradesh ,AIR 1986 SC 991(India
  29. Sheela Barse v. State of Maharashtra, AIR 1983 SC 378(India).
  30. Manoharan v. Sivarajan, (2014) 4 SCC163(India).
  31. Ranjan Dwivedi v. UOI, AIR 1983 SC 624(India).
  32. Haryana v. Darshana Devi , 1979 SCR (3) 184(India).
  33. Poolpandi v. Supdt. Central Bureau, AIR 1992 SC 1795(India).
  34. Soibam Rocky Singh, Most see free legal aid as last-ditch option: report, The Hindu, JULY 01, 2019 01:22 IST,
    https://www.thehindu.com/news/cities/Delhi/most-see-free-legal-aid-as-last-ditch-option-report/article28237300.ece#:~:text=According%20to%20the%20statistics%20provided,April%202017%20to%20June%202018.
  35. Jeet Singh Mann, Plight of Legal Aid Counsels in the District Courts of India, Engage, May9, 2020, https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india?fbclid=IwAR2-mm83sJhBIyBlPr5so7paPTdZs-JRxhFdsgRwrTztOD--sms_76H-CjA
  36. Id.
  37. Id.
  38. Id.
  39. Id
  40. Soibam, supra note 89.
  41. Jeet Singh, supra note 90.
  42. Jeet Singh, supra note 90.
  43. Jeet Singh, supra note 90.
  44. PTI, Absence of legal awareness root cause of rights' deprivation:
    Business Standard, August 18, 2019, https://www.business-standard.com/article/pti-stories/absence-of-legal-awareness-root-cause-of-rights-deprivation-119081800664_1.html
  45. Jeet Singh Mann, Plight of Legal Aid Counsels at the District Courts of India, Engage, May9, 2020, https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india?fbclid=IwAR2-mm83sJhBIyBlPr5so7paPTdZs-JRxhFdsgRwrTztOD--sms_76H-CjA
  46. State of Maharashtra v. Manbhai Pragaji Vashi, 1 1995 SCC (5) 730
  47. Jeet Singh Mann, Plight of Legal Aid Counsels in the District Courts of India, May9, 2020, https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india?fbclid=IwAR2-mm83sJhBIyBlPr5so7paPTdZs-JRxhFdsgRwrTztOD--sms_76H-CjA
  48. Id.
  49. Soibam, supra note 33
  50. Id.
  51. Jeet Singh Mann, Plight of Legal Aid Counsels in the District Courts of India, Engage, May9, 2020, https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india?fbclid=IwAR2-mm83sJhBIyBlPr5so7paPTdZs-JRxhFdsgRwrTztOD--sms_76H-CjA
  52. Id.
  53. Id.
  54. Jeet Singh Mann, Plight of Legal Aid Counsels in the District Courts of India, Engage, May9, 2020, https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india?fbclid=IwAR2-mm83sJhBIyBlPr5so7paPTdZs-JRxhFdsgRwrTztOD--sms_76H-CjA

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