Free Legal Aid in India - Challenges and Recommendations to spread Legal Aid | Shweta Pathania
In the article, “Free Legal Aid in India – Challenges and Recommendations to spread Legal Aid”, author Shweta Pathania highlights the importance of free legal aid in India, discussing various means by which a person can get access to legal aid and ends the article with some recommendations to further strengthen and increase the outreach of free legal aid to… Read More »
In the article, “Free Legal Aid in India – Challenges and Recommendations to spread Legal Aid”, author Shweta Pathania highlights the importance of free legal aid in India, discussing various means by which a person can get access to legal aid and ends the article with some recommendations to further strengthen and increase the outreach of free legal aid to the needy.
Introduction
Free Legal Aid is necessary to obliterate the feeling that “Law grinds the poor and rich men rule the law”– The Law Commission of India (14th Report).
Justice and Equality are the solid foundation of any democracy. India is a democratic country where individuals have absolute independence to continue to live with liberty and dignity, they are additionally treated equally and securing justice to the citizen’s has been kept on supreme priority.
If an individual is unable to reach out to the court due to his economic compulsion, casteist discrimination, or for safeguarding himself against immoral allegations, it will be an injustice for the people whom the constitution assured beneath Article 14 “Equality before Law”.
For this reason, the laws that are aspired to the protection of an individual will cease to function. Barely jotting down the legal guidelines on the texts will not imply until and unless those laws are practically put into force in ordinary life, the justice will constantly be denied and its denial will too entail failure of the rule of law.
Unless some outlay is made for assisting the needy for the court expenses and attorneys allowances and other incidental expenses of prosecution, he is denied equality in the opportunity to seek justice.[1]
Provision under Indian Constitution
The provision for Legal Aid is not straightforwardly asserted underneath the Preamble, it is inferred in its phrases making social, political and economic justice[2] a divine ideal of our Constitution.
The forty-second amendment (1976), inserted Article 39(A)[3] which falls under chapter lV contains the provision for “Equal Justice and provision for the Free Legal Aid” makes it obligatory for the State government to ensure that every Indian citizen gets equal access to justice in terms of free and competent legal aid irrespective of their monetary status or specific disabilities.
In Hussainara Khatoon(IV) v. Home Secretary, State of Bihar AIR 1979 SC 1360 it was upheld that the right to free legal services is a constitutional right guaranteed under Article 21.
Need for the Concept of Free Legal Aid
Free legal aid to the poor is an essential element of fair trial procedure for securing justice to all based on equal opportunity for defence.[4]
Justice Douglas, in the case Richard v. Raymond Hamlin(1972)[5] contemplated that the right to be heard by the solicitor is itself entangled under “right to be heard”.
For the stated two purposes free Legal Aid became the need of an hour and was realized all over the world:
- A financial sound party to a dispute is represented by a skilful and competent counsellor to defend his lawsuit effectively, on the other hand, a party not having the assistance of an attorney because of his financial constraints obviously would be at a greater drawback and additionally, may lose the proceeding even if he has a good suit to win.
- A person who is put on trial for an offence requires a legal practitioner to uphold the trial since he is unacquainted with the science of law; does not have the understanding of the evidence and procedural law and without any proficient aptitude to refute the allegations even an innocent person may be condemned of an offence even if he has been falsely accused.
Thus leading the path by the attorney is not only indispensable in the case of a needy, illiterate person even in the case of an educated man he might occasionally lack the understanding of the law.
Understanding the Basic Structure on which Free Legal Aid works
It is based on the Legal Service Authorities Act 1987. Legal aid is the use of public funds to help to pay for legal advice, family mediation and court or tribunal representation so that justice can prevail for those underprivileged ones who are not in a position to manage the expenditures of a counsel.
How to avail of free legal aid in India?
The right of early access to legal representation is one of the fundamental elements of fair trial rights.[6]
Free legal aid can be availed either offline or online depending upon the preference of an individual.
- One can directly approach the nearest Legal Service Authority and can either opt for already filled up forms or can put down on paper necessary details stating, in brief, the purpose for seeking legal aid.
- Another alternative is to send the application online i.e. by email to NALSA (at nalsa-dla@nic.in) or through the online application form available at the official NALSA’s website[7].
A person who qualifies the expressed norms demonstrated in the Legal Service Authorities Act 1987[8] within working days action is taken upon the stated application, without investing a cent and irrespective of fact one having his counsel during all stages can get free legal guidance and aid.
Regardless of getting legal aid from DLSA, one can still avail the services of private counsel after taking permission from the member secretary of DLSA.
Various Means of Justices Delivery System
Lok Adalat
How can one approach Lok Adalat?
A person can simply put down on paper the essential details with intention and can move to the nearest Lok Adalat service. Subsequently, before the trial procedure if a party wishes to resolve in the Lok Adalat[9] they can through the format available with Legal Services Authorities[10] or through an application.
Mobile Lok Adalats: A New Initiative
Mobile Lok Adalat is also known as Justice at the doorsteps. A team consisting of skilled individuals visits numerous remote areas as per the agenda instructed with the aid of DLSA. They stress resolving confrontations through compromise, they provide assistance and necessary information in case one requires legal help and focus on organizing legal literacy campaigns.
Legal Aid Clinics
The paralegal volunteers operate these clinics focusing on fixing issues of common people with dedication and a sense of commitment.
Legal Aid Clinics camps are located in a habitat that is easily accessible to the local people. To make them conscious of their protected rights and equip them to avail the privileges of the several aid programmes financed by the State and Central Government.
Pro Bono Legal Services
Pro bono legal services is a complimentary service that can be accessed through the website[11] using which the weaker and downtrodden sections of the society can approach a professional pro bono solicitor.
Online Forums
Every year we observe an increase in the volume of lawsuits adding to this the underprivileged people residing in villages and remote areas struggle to approach the courtroom taking into account the above-mentioned reasons DOJ (Department of Justice) had launched “Nyaya Bandhu”, a mobile application for the purpose to the uplift condition of the people making convenience pro bono services for all persons.
While other apps including path legal, legal aid, free legal advice are too available on the Google Play Store. One can post law-related queries, as well as search for specific lawyer’s and can get online advice, free legal advice etc.
Cases in which Legal Aid in India is Not Available
- Defamatory or spiteful prosecution, contempt of the court, prevarication and so forth cases.
- Procedures identifying with political race (elections).
- Where the fine constraint is below Rs.50/-.
- Socio-Economic offences.
- Including those cases as well wherein a person is independent with the lawsuit while seeking the legal guidance his/her interest remained unaffected.
Obstacles to Legal Aid in India
According to the Indian Express (8.4 crores 84 million Indians are poor, while India continues to be home to 313 million illiterate people), the facts suggest that the majority of the population is illiterate and also unaware of their protected rights.
Lawyer’s cannot be Compelled
It is an undeniable fact that the attorneys furnishing pro-bono aid neither can be pressured nor can be compelled to go ahead with the lawsuit since they are not the public prosecutor so it’s up to their individual choice to continue with the case.
Although on many occasions the praiseworthy effort of many lawyers serving the impoverished area of society by means of imparting them relevant legal help free of cost has not received any worthy commendation.
Status Report on Providing Free Legal Aid in India
1) The total number of persons who benefited through legal services provided under the National Legal Service Authorities Act 1978 [12] were:
| 2017 to 2018 | 2019 to 2020 |
| 8,22,856 | 12,12,137 |
2) Statistical information in respect of legal literary, legal awareness camps:
| Year | Programmes Held | Person Attended |
| 2016-2017 | 1,21,126 | 209,80,159 |
| 2019-2020 | 2,27,394 | 316,31,228 |
3)Paralegal Volunteers Report:
(2016-2017)
| Total No. of PLVs | Legal Services Clinics | Legal Services Clinics in villages |
| 54,834 | 9,983 | 29,507 |
4) In India, 32% of people faced a legal problem in the last two years; only 17% were able to access help, of which only 25% of problems were fully resolved.[13]
5) 60% of women, who were aware of the free legal aid services, chose to opt for private legal practitioners because they could have better control over their lawyers. 75% of beneficiaries responded that they would never have approached the legal aid services if they had the resources to engage private legal practitioners.[14]
Case Law
In Khatri v. State of Bihar[15], the Supreme Court held that the state is constitutionally bound to provide legal assistance by hiring a lawyer to an accused person not only at a trial stage.
Also when they are first produced before the magistrate or remanded time and again and such a right shall not be denied on the ground of financial or administrative inability or that the accused did not ask for it.
Magistrates and Sessions Judges have the responsibility to inform the accused of his rights.
Major Drawbacks
- Lack of public legal awareness
- About 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the right conferred upon them by law.[16]
- It has been observed that even literate people on occasion lack awareness.
- In the metropolitan area of Delhi itself, only 76. 2% of women possessed the knowledge of how and what the legal aid services were and 23.8% were having no clue about the same.[17]
- Perception plays a significant role in shaping people decision
- According to the Delhi based report, 76.2% of 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.[18]
- Further, the research also proved the fact that most of the women make these decisions based on 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.[19]
- Poor shape of Legal Aid Counsels
- As estimated by a study, 81% of Legal Aid counsels take up the job intending to serve the poor[20]. However, this may be undermined by the following problems:
- 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.[21]
- The research states the major cause of such delay to be the non-availability of funds with the DLSAs.[22]
- Legal aid as last option resorted to by people[23]
- Almost 75% of people adopting such legal services believe in doing so as a last resort. Almost 22.6% of 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.
Recommendations
- The Legal Aid panel needs to begin with grass-root level, accordingly facilitating door to door services focusing on the layman and underprivileged section who seek legal guidance. A timely and coherent manner is vital for the sound working of the justice system and also enable the built-in trust of people.
- Legal awareness drives need to connect far off remote regions for this traditional media, roadshows, loudspeakers, banners, brochure distribution so forward can be effective.
- Informative projects or educational sessions running in the online media, print media requires a prior strategy i.e. set an intended interest group before dispatch of such projects as it will assist with bringing gigantic traffic.
- Among the legal profession incentive for pro-bono must be inculcated. Paralegal career advantages must be promoted among undergraduates as the employment of paralegals and legal assistants are projected[24] to grow 12 per cent from 2018 to 2028, much faster than the average for all occupations.
- As discussed above, the board working toward legitimate help should participate in discussion with the public authority as the active role of legislative organizations in supporting and providing funds are imperative to provide the right tract to any awareness drive.
- NGO’s, student organisations must promote informal paralegal services in isolated towns wherein basic amenities are not accessible.
- The Legal Aid policy drafted by the paralegal groups must be monitored and biannual reports must be submitted to the respective DLSA.
- Frequent meetings must be conducted by the head DLSA of a distinct state to work on the ambiguity in the laws and work on solutions that navigate around the problems.
- Mobile Lok Adalats must be backed financially by the government as it tends to be an effective instrument in settlement through compromise and facilitating legal counsel and direction.
- For the youth activities – vivid work of art, banner making, animated videos, reviews, survey, paper perusing, attire and embellishments can be utilized to show support for a reason, enrolling like-minded individuals through online portals and wireless networks are few prescribed ways to boost legal literacy.
- Incentives must be given on time and commendation by the aid of rewards, certificates, recommendation letters, remuneration to advocates and paralegals is requisite as it works as a motivating factor contributing to volunteer services.
Conclusion
Social empathy and consciousness can be effectuated when educational institutions, judiciary, people from distinct sectors, government agencies, municipality, village panchayats so forth at large come all together having a welfare-oriented attitude to participate in the up and coming legal aid movement.
Reference
[1] Law Commission of India, Fourteenth Report, 1958, p.587.
[3] Indian Constitution Article 39(A).
[4] Justice J.N.Bhatt:Right to Legal Aid- A basic Human Right. Naya Deep Vol VII Issue 4 on page 50 October 2006.
[13] World Justice Project, Global Insights on Access to Justice 2019, at 51 (2019).
[15] Khatri v. State of Bihar, AIR[ 1981] SC 262
[18] Jeet Singh Mann, Plight of Legal Aid Counsels in the District Courts of India, Available Here
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[20] Jeet Singh Mann is the Director at Centre for Transparency and Accountability in Governance, National Law University, Delhi, India.Vol. 55, Issue No. 19, 09 May 2020. Available Here
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