By Dr Abhishek Atrey
The essence of the right to free legal aid is based on the principle that justice should not be constricted to those who can afford legal representation. It concedes that there are individuals facing legal proceedings, especially the marginalised and disadvantaged sections, who may be unable to traverse the legal system productively without professional assistance. Under the right to free legal aid, people in need are provided legal services at all stages which includes advice, consultation and representation which could be either fully funded by the government or legal-aid organisations. The concept of right to free legal aid came into existence with a landmark judgment in Hussainara Khatoon vs State of Bihar. In this case, the Supreme Court emphasised the need for free legal aid services to the needy persons at the cost of the State.
The Law Commission of India stated in its report on “Reform of Judicial Administration” published in 1958 that providing legal assistance to destitute litigants is a fundamental issue, not a minor procedural issue. The government drew some guidelines for legal-aid schemes in 1960. In 1976, Parliament inserted Article 39A in the Constitution, which entrenched free legal assistance as a cardinal dictum. Article 39A says that the State shall secure that the operation of the legal system promotes justice, on a 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 disabilities. This constitutional provision underscores the commitment of India to promote justice and provide free legal aid to the last person of India. It recognizes that access to justice is a fundamental right and steps must be taken to remove barriers that may prevent citizens from securing justice.
Initially under the chairmanship of Justice PN Bhagwati, a Committee for Implementing Legal Aid Schemes was formed in 1980 to oversee and supervise legal-aid projects. Thereafter, based on Article 39A, Parliament enacted the Legal Services Authorities Act, 1987, which provides the legal framework for the provision of legal aid in India. Under this Act, the National Legal Services Authority (NALSA) was established in 1995 to facilitate the implementation of legal-aid programmes and services at the national and state levels, respectively, to formulate policies and guidelines for providing legal assistance in accordance with the statutory provisions, as well as to develop the most efficient and cost-effective legal service schemes. Under Legal Services Authorities Act, 1987, State Legal Services Authorities were also established in all states. Apart from this, the Bar Council of India also enacted Bar Council of India Legal Aid Rules, 1983. In Sheela Barse vs State of Maharashtra, it was held by the Supreme Court that getting free legal assistance is a fundamental right stipulated not only under Article 39A, but also under Articles 21 and 14 of the Constitution.
Legal-aid clinics are set up in various parts of the country to provide legal assistance at the grassroots level. These clinics are often run by lawyers and paralegals. Legal aid is generally provided to economically disadvantaged individuals, members of marginalized communities, women, children and other vulnerable groups. The particular aspect of eligibility may differ from state to state.
Section 12 of the Legal Services Authorities Act, 1987, outlines the eligibility criteria, which include—members of the Scheduled Castes or the Scheduled Tribes; victims of human trafficking or beggars; women or children; persons with disabilities as defined in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; individuals in underserved circumstances such as victims of mass disasters, ethnic violence, caste atrocities, floods, droughts, earthquakes or industrial disasters and industrial workers; individuals in custody, including those in protective homes; in cases before the Supreme Court; individuals with an annual income of less than Rs five lakh; for cases before other courts; and individuals meeting the income criteria prescribed by state governments.
Legal aid includes legal advice, representation in court, drafting of legal documents, and other forms of legal assistance. It also covers a wide range of legal matters, including criminal cases, civil disputes, family matters, and more. According to Section2(c) of the Legal Services Authorities Act, 1987: “legal services” include services related to any case or legal proceeding before a court, authority or tribunal, as well as advice on legal matters, representation by an advocate in legal proceedings, payment of process fees, witness expenses and other charges associated with legal proceedings. In appropriate cases, legal aid also includes preparation of pleadings, appeals, paper books, including document translation and printing. Legal services can be rejected or withdrawn if it is found that the applicant has sufficient means to access justice and can afford legal services independently or the applicant does not meet the eligibility criteria. In some cases, legal aid can be denied if the case lacks merits or there is no reasonable legal action required.
There are certain category of cases which are excluded from the perview of legal aid such as defamation, malicious prosecution, contempt of court, perjury, election petitions or fine imposed up to Rs 50, economic offenses and offences against social laws. The legal services may be withdrawn in the circumstances where the applicant is found guilty of misrepresentation or fraud while receiving legal aid or if there is any material change in circumstances that renders the applicant ineligible for continued legal aid or when the aided person engages in misconduct, misbehaviour or shows negligence in their actions or if the aided person fails to cooperate with the assigned advocate or does not actively participate in legal proceedings. Legal aid can also be terminated in case of death of aided person except in civil cases where legal representation may continue on behalf of their estate or if the legal proceedings amount to abuse or misuse of the process of law or the legal services provided.
One major obstacle in getting legal aid is the poor and illiterate population’s lack of legal education and awareness. Many people are unaware of their basic rights and the legal aid services available to them. This lack of awareness hampers the goal of the legal-aid movement, as people are unfamiliar with initiatives like Lok Adalats. Another major factor behind the debilitated institutional system is a dearth of awareness of the presence of such legal help. Most often the accused is unaware of his rights and entitlement of legal representation. Another important factor is the view that such free services tend to be of poor quality. Besides, the legal services authorities are short of attorneys, and even if they are appointed, they may not be able to provide effective assistance.
The legal-aid movement in India is yet to catch up. For now, it is unorganised, dispersed, and intermittent. Furthermore, it lacks coordination. The concept has not reached the level it was expected to initially and majorly collapsed. There is a lack of coordination. The concept of equal access to the availability of legal justice has nearly collapsed. Many advocates and lawyers earning well prioritise receiving proper fees for their services and they give priority to the cases in which they receive handsome fees. Only a few actively participate in social service programmes like legal aid. The scarcity of dedicated legal professionals willing to contribute their services becomes a barrier to delivering quality legal representation to those in need.
In order to create awareness, the masses need to be educated about their legal rights and potential legal remedies. We need to adopt several measures to accomplish this task such as connecting the law school legal clinics with local courts in various regions, which will let the needy to first contact the non-judicial professionals who will first lay hold of all the rights given by the Constitution. Another method could be to run campaigns in remote areas and connect with the masses via speeches in local languages in order to ensure that even the illiterate people know their rights. This work of raising awareness at different levels could be done by the NGOs. This could be followed by the idea of promoting the pro bono culture wherein the law students should be provided the social education.
In addition to this, the existing legal-aid system is deficient in structured and well-planned methods for tracking, analysing and providing feedback on the potency of the help offered to intended recipients. The enactment of the Legal Aid Defence Council System is a significant step in this direction, but the absence of the infrastructure for live tracking of legal-aid cases by in-charge court officials severely limits the efficient provision of legal-aid services. The application of technology, for example, online legal-aid portals, virtual legal clinics, and e-filing systems are expected to swell in the distribution of legal-aid services. It is believed that this could be helpful in bridging the geographical gaps and make legal assistance more accessible.
—The writer is Advocate-On-Record, Supreme Court