Right to Legal Aid in India – An Unawared Right

“ Legal aid — is fundamental to giving everybody in this country access to justice ‘’ Jeremy Corbyn

The above saying is truly said because legal aid is the system adopted to provide professional services to needy people who because of their financial capacity are deprived of justice. And we also know that the road to justice has never been a cheap one as one has to pay a hefty amount at each stage while seeking justice in a court of law[2]. Legal aid as a constitutional right is supported by Articles 39A, 14, and 21 of the constitution.

Article 14 of the constitution provides that every person shall be treated equally before the law, and ensures equal protection of the law, to everyone irrespective of religion, caste, race, sex, or place of birth.[3] Article 22(1) [4]also states that whoever is being arrested cannot be denied the right to consult and to be defended by a legal practitioner of his/her choice, and there is a basic principle of law that should be followed, that is, Audi Alteram Partem, that no party shall be left unheard [5].

The preamble of the Indian constitution also aims to secure justice for the people of India and Article 38(1) also creates an obligation on the state that it shall promote the welfare of the people by securing and protecting the social order including justice.

But despite the insertion of these articles in the Indian constitution which promotes justice for every individual still many poor and downtrodden people have to suffer injustice due to their inability to afford the expensive legal system.

Legal aid is the torch bearer for those people who cannot afford court proceedings because of their financial incapacity The only objective of this service is to provide equal justice to the poor and downtrodden people. And this service not only includes free access to the representation of an advocate in court proceedings but also Legal Awareness, Legal Advice, Public Interest Litigation, Legal mobilization, Lok Adalats, law reforms, and many such services that could prevent injustice.[6]

 It can also be said that legal aid is necessary for the helpless and needy people in order to preserve the rule of law which is an essential element in maintaining the existence of an orderly society and its objective cannot be achieved if the last person of the nation is denied justice because as said by Martin Luther King that “ injustice anywhere is a threat to justice everywhere ‘’. In my opinion India being acknowledged itself as a “welfare state’’ should work for the common good of its people by providing them legal aid at a lower cost or free of cost so that they can also get justice.

Concept of Legal Aid

The term legal aid is not defined under any law or Act so we have to look for a general definition. But before Knowing more about legal aid we should first understand what the term aid means. As per the general definition, aid implies the act of helping and providing support or relief or advice that will make something easier or that will solve a problem.

So it can be said that legal aid means providing support or help to needy people in the legal system. Legal aid implies providing free legal services to the poor, weak and downtrodden people who cannot afford the services of a lawyer for the conduct of a case or legal proceedings in the court, tribunal or before an authority. This system was adopted to ensure that every individual gets equal representation and no one is deprived of professional advice because of a lack of funds.

According to Justice P.N Bhagawati, legal aid means “ providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its rights given by the law, the poor and illiterate people should be able to approach the courts and their poverty and ignorance should not be an impediment in the way of obtaining justice from the courts. Legal aid should be available to the poor and illiterate people who do not have access to the courts. One needs to be a litigant in order to seek aid by means of legal aid. ‘’

Therefore legal aid should come as a rescue to the needy and poor by providing a system of government funding for those who cannot afford the expensive legal system of India. And this legal aid is not a charity or bounty but it is an obligation of the state and the right of the citizens of India. The constitution of India also provides that the state had a legal obligation to ensure equality before the law and equal opportunity to all and a legal system which promotes social justice [7]. Following are some of the main objectives behind adopting the legal aid system.

It ensures that[8] –

• “No person should be denied justice only on the ground of poverty or other social disability.
• All the persons should be able to reap the fruits of democracy.
• There should be easy and guaranteed access to justice.
• The poor and marginalized people should not face the painful side of the law.
• Due regard must be given to the principles of natural justice and no person should be condemned unheard.
• The rigour law shall be softened in favour of indigent people. 
• In this way, free legal aid ensures that constitutional provisions are fulfilled in their letter and spirit by ensuring equal justice to all segments of society.
• Every person including men, women and children get equal protection of the law.”

How Article 39A Was Enforced ( Historical Background)

The legal aid movement in India had a long and rich history as it had its roots in the Vedic period and its traces can be found in the elements of Dharma. Its elements can be found in Rig Veda. In the medieval period also the “Manusmriti’’ empowered the king to do equity without minding his wimps stressing on religion.

During the Mughal period, Emperor Jahangir was credited to do justice irrespective of birth, profession and official rank which was known as ‘Jahangiri Nyaya ‘[9]. In modern times the earliest legal aid movement started to develop in France and later in the United States and Britain. In England, the movement got a major acceleration when Lord Chancellor, Simon appointed the Rushcliffe committee to make recommendations on free legal services. [10]

After Independence India addressed the concept of legal aid for needy people. In 1952, it addressed the problems of lack of legal aid in various conferences of law ministers and law commissions. [11]At that time the state government was directed by the government of India to make provisions for legal aid in criminal cases. Various law boards, legal aid societies and departments boosted the legal aid programmes in several states of India. Following are the recommendations given by various major committees which contributed to this field.

14^th law commission Report on judicial administration reform (1958):

This report highlighted the importance and necessity of providing legal aid because of the increase in industrialization and upgraded lifestyle. The report also recommended that the state should take the duty of providing legal aid and considered that all legal professionals should take it as their social responsibility because an actual welfare state can function only if every citizen renders some services at a sacrifice and the lawyers, advocates working in their financial capacity are not an exception to it. The commission made certain recommendations for legal aid [12]

Firstly, the committee recommended that legal aid should be made available in all courts and in such a manner as will enable persons in need to have the help they require.

Secondly, it recommended that the provisions related to legal aid should not be limited to only those who are normally classified as poor but should include a wider income group.

Thirdly it recommended that those who cannot afford to pay anything for legally should receive it full of cost and those who can pay something towards the cost, a scale of contribution should be prescribed.

It also recommended that the state should accept the above-mentioned obligation and make available funds for providing legal aid to poor persons or persons with limited means.

Legal professionals owe a moral and social obligation to poor members of society which must be discharged by every member of the profession doing a certain amount of legal work free for poor persons.

P.N Bhagwati committee report (1970):  

In 1970, PN Bhagwati committee report was formed by the Gujarat Government under the chairmanship of Justice PN Bhagwati. In this report Bhagwati observed that “even while retaining the adversary system, some changes may be effected whereby the judge is given a greater participatory role in the trial so for poor, placing them on equal footing with the rich in the administration of justice.” It considered the question of grant of legal aid in civil, criminal, revenue, labour and other proceedings to poor persons and rendering legal advice more easily available and making justice more easily accessible to such persons. [13]

Krishna Iyer Committee Report (1972):  

This committee was formulated on the 22^nd of October 1972 under the chairmanship of Justice Krishna Iyer. The 273-page report of the committee named “processional justice to poor ‘’ was released in the year 1973. Its aim was to formulate a scheme for legal aid and advice for weaker sections of the community and persons of limited means in general and the citizens belonging to the socially and educationally backward classes in particular. This report came to mark the cornerstone of legal aid development in India. [14]

So in 1976, keeping in mind the need for providing free legal aid, it was made a statutory right by the 42^nd Constitutional Amendment by inserting Article 39A under the Directive Principles of State Policy (DPSP), on “Equal Justice and Free Legal Aid” which stated that the State must the Court has to ensure equal opportunity of justice to everyone and provide free legal aid to the ones in need so that economic or any other disability does not stop anyone from seeking Justice.[15]

Then in 1980 Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati the committee was known as Committee for Implementation of Legal Aid Scheme (CILAS) which aimed at monitoring and supervising the legal aid activities going on in the country and also introduced Lok Adalats which are an effective tool to settle disputes amicably. [16]

So in pursuance of this in 1987, Parliament enacted the “ Legal Service Authorities Act ‘’ which came into force on the 9th of November, 1995 in order to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of society. This act made it obligatory for the state to provide equality before the law which promotes justice on the basis of equal opportunity for all. This act provides for the creation of legal service authorities at various levels like at the national level, state level, district level and at Taluk level which would make sure that every needy person gets the services.

Bodies under the Act and their hierarchy

National Legal Services Authority (NALSA)

National Legal Service Authority was constituted on the 5th of December in 1995 under the Legal Service Authorities Act, 1978 to monitor and evaluate the implementation of legal aid programmes and to lay down the policies and principles for making services to all people under the Act. The prime objective of NALSA is the speedy disposal of cases and reducing the burden of the judiciary.

It formulates policies, principles and various economical schemes to make legal services easily accessible. Programmes organised by it include conducting ‘Lok Adalats ‘ in colleges and legal literacy camps and many more [17]. So as stated above that its main objective is to reduce the burden of the judiciary by speedy disposal of cases but there are also other objectives which it fulfils:

• Firstly it spreads legal awareness among illiterate people.
• Secondly, it organizes Lok Adalats
• Thirdly it promotes dispute settlements
• Fourthly it contains provisions for providing the victims of crime with compensation.

State Legal Service Authorities (SLSA)

In every state, a state legal services authority is constituted in order to give effect to the policies and directions of the central authority i.e. National Legal Service Authority. This Authority is headed by the Chief justice of the state High court who is its patron–in–chief. A serving or retired judge of the High Court is nominated as its executive chairman[18]. The following are the functions which are performed by the State Legal Service Authority :

• “To give effect to the policies and directions of the central authority.
• To provide legal services to the persons who satisfy the criteria laid down under Legal Service Authorities Act, 1987
• To conduct Lok Adalats at various levels.
• To secure the legal rights of poor, weaker and downtrodden people of society.
• To encourage the settlement of legal disputes by way of Negotiations, Arbitration and Conciliation.
• To Organize various literacy and awareness camps in various parts of the state in order to make people aware of their rights.
• To act in coordination with the Governmental authorities, non-governmental authorities, universities and Other bodies engaged in the work of promoting the cause Of legal services to the poor people.
• To make people aware of the aims and objectives of the Legal Service Authorities Act,1987 and their legal rights. ‘’

District Legal Service Authority

This Authority is constituted in every district to implement legal aid programmes and schemes in the district and to ensure that fundamental rights are not denied to any citizen by reason of poor economic conditions or other disabilities[19]. The main functions of the District Legal Service Authority are as follows :

• It provides free and competent legal aid in the conduct of cases before courts and tribunals.
• It organises regular Lok Adalats every month for solving pending cases of all types and special Lok Adalats for special categories of cases.
• It spreads legal awareness among the public at large on various issues of legal importance.
• It organises legal literacy classes and awareness camps in colleges, jails and Legal Awareness programmes for women and children in need of care and protection. [20]

Taluk Legal Service Committees

This committee is constituted by the State Authority for each Taluk or Mandal or for a group of Taluks and Mandalas. Section 11A and 11B of the Legal services authorities act deals with the Taluk Legal services committee. The committee shall consist of a Senior Civil Judge operating within the limits as an ex-officio Chairman, and other such members prescribed and nominated by the state government. This committee may perform the following functions namely: [21]

• Coordinate the activities of legal services in the Taluks.
• Organizes Lok Adalats within the Taluk.
• Perform such other functions as the District Authority may assign to it.

Lok Adalat

Lok Adalat is one of the alternative dispute redressal mechanisms which got statutory status under the Legal Service Authorities Act, 1987 in order to promote the constitutional mandate of Article 39-A of the Constitution of India, which directs the state to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. These Lok Adalats provide three fold advantages to the people and they are- speedy disposal of cases coupled with reduced cost of litigation and avoiding further appeals.

One of the features of Lok Adalat is that no court fee is payable when a matter is filed in a Lok Adalat and in case a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties. So the basic philosophy behind the Lok Adalat is to resolve the people’s dispute by discussion, counselling, persuasion and conciliation so that it gives speedy and cheap justice, and mutual and free consent of the parties. [22]

Issues and challenges with Legal Aid in India

Even after making legal aid a constitutional right under article 39A and organizing various committees and authorities for providing free legal services, thousands of people settle for injustice because they cannot afford the services of lawyers or an advocate to defend themselves. The legal aid system in India is proved to be ineffective because there is a huge difference between the goal set and the goal met.

The major obstacle to the legal aid movement in India is the lack of legal awareness among the people about their rights to free legal services and it is the lack of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor. So following are some of the issues and challenges which come in the way of the implementation of legal aid services :

•  Lack of public awareness: This is the major obstacle in the implementation of legal aid services as these legal aid services are for the poor, weaker and illiterate people and the major issue is that they are not educated and aware of it which leads to exploitation of their rights. So if people are still not aware of their rights then how legal aid movement’s goal can be achieved?
• Lack of devotion: Lack of devotion among the Legal Aid Counsels is also one of the obstacles in meeting the goal of the legal aid movement as this lack of devotion has hampered the quality of services provided by them and due to which people lose faith in the legal aid system and prefers private lawyers over legal aid counsels.
• Lack of support by the advocates and lawyers and many more: These days all professionals want a salary for their work and legal professionals are also one of them and they are least interested in providing free legal assistance because of financial constraints. Reportedly there are lawyers who don’t faithfully represent their clients and one of the reasons behind this is that the lawyers are not getting fair remuneration, not even to meet the incidental expenses.
• Lack of powers of Lok Adalats: Lok Adalats have limited powers as compared to civil courts. Firstly there is a lack of proper procedure and then in this, they cannot compel the parties to appear for the proceedings. And many times one of the parties does not appear for the hearing and then there is a delay in the disposal here as well. [23]

Suggestions and Recommendations

•  Firstly, the major obstacle should be removed and i.e. lack of awareness and legal education among poor people as a lot of people in India are still not aware of the constitutional provision such as Article 39A which ensures equal justice to all individuals. So in order to educate the poor and underprivileged people about their basic rights the government should organize legal literacy programs. Law students, Teachers, paralegal workers, Women and children of various NGOs should contribute to spreading legal awareness by organizing various seminars, workshops, talks and street plays. The best way to create legal awareness is through legal aid camps and also through social media platforms like Instagram, Twitter, Youtube and many more as these platforms have millions of downloads and it is easily accessible to every person in India.
• There is a need to provide better remuneration and incentives to lawyers and advocates as nowadays a good representation of lawyers and advocates is difficult because they are not interested in it due to financial constraints. So there should be an increase in the remuneration paid to the lawyers by the courts or government, appearing or defending the accused for free.
• More and more Alternative Dispute Redressal mechanisms should be utilized to provide cheap justice to the masses of people. And in order to make people aware of these mechanisms the Bar Council and University Grants Commission should coordinate and introduce diploma courses in the Alternative Dispute Resolution and the Consumer Protection Act. [24]
• Nowadays less importance is given to the concept of legal aid cells but there can be a change in the approach of legal aid cells if the institutions and universities decide to make legal aid a compulsory subject for at least the first two years in the 5 years integrated course of law.
• Most colleges and universities still do not have a dedicated legal aid centre for the common public to come and get their grievances redressed like National Law Institute University Bhopal. So it’s time for each and every University to have a dedicated legal aid Centre.

Conclusion

As it was explained above legal aid is a system adopted to provide legal assistance to the needy and poor people who because of lack of funds cannot defend themselves in a court of law. And it is a legal obligation of the state and it should not be given a name of charity or moral obligation. The prime objective of every state shall be equal justice for all and this objective can be fulfilled only when poor illiterate people are imparted with legal knowledge and are provided with free legal aid. If people are educated and aware of their rights there will be proper utilization of free legal aid services.

[1] Mr. Hrishikesh Jaiswal , Good quality free legal aid in India a distant dream (volume 7 , IJRAR , 2020)

[2] Rachit Garg , Challenges and solutions to free legal aid ,( ipleaders  ,  2020)

[3] Article 14 of the Constitution

[4] Article 22(1) of the Constitution

[5] Ibid

[6] Ibid

[7] The constitution of India , 1950 , Article 14 and 22(1)

[8] Report of the Committee on legal aid and advice in state of Bombay , 1987,(1950)

[9] Mr. Hrishikesh Jaiswal , Good quality free legal aid in India a distant dream , ( IJRAR , 2020)

[10] Ibid

[11] www.legalservicesindia.com/article/1176/Right-to-free-legal-Aid.html

[12] XIV Report of Law Commission , at 597

[13] Committee of Justice Bhagwati on Free Legal Aid , 1971

[14] Report of the Expert Committee on legal aid ( Processual ) Justice to the people ( 1973) .

[15] Rachit Garg , challenges and solutions to free legal aid , ( ipleaders , 2020)

[16] Ibid

[17] Ibid

[18] Dr. J Mallikarjun , Legal Aid in India and the Judicial contribution , ( NALSAR Law Review , 2013)

[19] Ibid pg.. 240

[20] https://byjus.com/ias-questions/what-are-the-functions-of-the-district-legal-service-authority/#:~:text=Provides%20free%20and%20competent%20legal,for%20special%20categories%20of%20cases

[21] Ibid

[22] https://www.legalserviceindia.com/legal/article-82-legal-aid-and-awareness-in-india-issues-and-challenges.html#:~:text=The%20major%20obstacle%20to%20the,and%20benefits%20of%20the%20poor.

[23] Suchitra Yadav ,  Issues in implementation of free legal aid schemes – critical analysis of article 39A of the constitution of India , (ipleaders , 2019)

[24] Ibid .

By: Monika Bidiyasar, a student at Manipal University Jaipur