In this article, Suchitra Yadav discusses the failures in proper implementation of free legal aid schemes.

The Concept of Legal Aid

Free Legal aid (Article 39A of the Constitution) is providing assistance to the people who are unable to afford legal representation and access to the court system. It guarantees to provide equal access to the justice system to persons who are not in financial sound condition, by providing legal and professional assistance free of cost or at lower fees.

From April 2017 to March 2018, total no. of 8,22,856 and since inception 16,711,477 eligible persons including women, children, persons in custody, persons belonging to SC/ST and backward categories have been benefited through various free legal services authorities, viz. (State legal services authority) SLSAs/ (District legal services authority) DLSAs/ (Taluk legal service committees) TLSs/ Legal Aid Clinics/ Village Legal Care and Support Centres.

In the words of Justice P.N. Bhagwati, “Legal Aid means providing an arrangement in the society so that the mission of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement… the poor and illiterate should be able to approach the courts, and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don’t have access to courts. One need not be a litigant to seek aid by means of legal aid.”

Establishment of Legal Services Authorities

In the year 1987, the Legal Services Authorities Act was enacted by the parliament to establish a nationwide uniform network for providing free legal services to the weaker section of the society on the basis of equal opportunity. Under this Act, The National Legal Services Authority (NALSA) has been constituted to monitor and evaluate the implementation of legal aid programmes by laying down policies and principles for making the legal services available. Following are the authorities constituted under this act: –

Providing Legal Services includes

• Providing services of lawyers in a legal proceeding;
• Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings;
• Obtaining and supply of certified copies of orders and other documents in legal proceedings;
• Preparation of appeal, the paper book including printing and translation of documents in legal proceedings.

Procedural Intricacies

Any person in need of free legal aid can approach the concerned authority or committee in three ways that are as follow:

1. By sending an application which could be in written form or it can be made orally as well to the officer or the para legal volunteer of the concerned legal services authority.
2. By filling up the forms prepared by the authorities briefly stating the reason to seek legal aid.
3. A person can also apply online by filling up the Legal Aid Application form available online at NALSA’s website by going on the ‘Online Application’ link on the home page, and uploading of required documents. SLSAs/ DSLAs/ SCLSC/ HCLSCs/ TLSCs have forms available on their respective websites.

Legal aid is provided to the entitled persons through the legal service authorities from NALSA to Taluka levels. Applications received by NALSA are forwarded to the concerned authority. Once the application is submitted with the proper authority, it would be pursued by the legal service institutions and action would be taken upon the same. Information regarding the next step is sent to the parties concerned. The action taken on the application would vary from providing counselling or advice to the parties, and providing a lawyer to represent them in the court if required.

Persons eligible for getting free legal aid

i) Women and children;

ii) Members of SC/ST

iii) Industrial workmen

iv) Victims of a mass disaster, violence, flood, drought, earthquake, industrial disaster.

v) Disabled persons.

vi) Persons in custody

vii) Persons whose annual income does not exceed Rs. 1 lakh (in the Supreme Court Legal Services Committee the limit is Rs. 1,25,000/-).

viii) Victims of Human trafficking and begar.

Lok Adalats

Lok Adalats are one of the Alternative Dispute Resolution Mechanism. It is a forum where the disputes/cases pending in the court of law or at the pre-litigation stage are settled/compromised amicably. The Lok Adalat has been given statutory status under the Legal Services Authorities Act, 1987. Under this Act, an award made by a Lok Adalat is deemed to be a decree of a civil court and is final and binding on all parties and no appeal lies against thereto before any court.

Challenges to Legal Aid

The first conception of legal aid comes as a measure to effectively control the Indian populace by restoring their faith in the justice system. The free legal aid has proven to be ineffective in India.

Quality of free legal aid services

There is a perception that the free service is incompatible with the quality of service, and there are not enough lawyers under the authorities who deliver free legal aid services and they are least interested in providing legal assistance because of financial constraints. Reportedly, there are lawyers who don’t faithfully represent their clients. These lawyers hold many of their innocent client’s cases for ransom by using delay tactics and compel them to pay additional amount of money to them, even though they are supposed to receive their fee from the free legal aid committee. One of the reasons contributing to situations like these is that the lawyers are not getting a fair remuneration, not even to meet the incidental expenses.

Free legal services are made available to more than half of the population irrespective of their financial conditions, which a developing country like us should be proud of. But most of the citizens are not aware of under which provisions free legal aid is available to the them. One of the major steps required in making the free legal aid accessible to everyone is “the law making its reach to the people, not the people making its reach to the law”. Another major obstacle is the delivery of the free legal aid in India which is far too inefficient. More lawyers must be encouraged and campaigns should be launched to inform citizens about the existence of free legal aid. Free legal aid can only be achieved when the people are aware of their basic legal rights. When the people are not aware of their legal rights, they are exploited and ultimately deprived of the rights and benefits provided to them by the law.

Sensitisation

The Government has constituted many committees, introduced many schemes, have made qualitative policies which can yield great results and have taken remarkable steps. However, it is lagging behind in making its reach to the grass-root level because the government is not capable in spreading awareness amongst the people about the benefits accruing through this act. The Government needs to embark on a campaign to inform and educate the people of their right to free legal aid and employ more efficient processes to improve free legal aid delivery system. There is a need to suggest the government to pay more attention to the delivery of free legal aid services through the justice systems. The State generally fails to organize legal awareness camps, which should be at priority list of government. The government must organise these camps at regular intervals and an inspecting authority must also be appointed to oversee the working of the State authorities in this regard. In order to make free legal aid services effective, “legal dispensaries” or clinics inspired by the model of free medical aid in medical colleges, were set up. Here, poor person can come for free consultation and advice.

Poor condition of the lower courts

The provisions of this act seek to dispense justice in an informal and casual manner but it has over a period of time failed to do so as the matters are heard and disposed off in a “hurriedly” manner as the judges working in the subordinate courts are also under pressure to dispose more and more cases to reach the targets set for them by the High Courts. In my opinion, the quality of justice must not be compromised with in order to achieve the targets of the number of cases to be disposed-off. The lawyers should be given professional training on the laws concerned with the free legal aid and the procedures followed in the courts.

The Law Schools play an important role in advancement of awareness amongst people about the concept of free legal aid but this aspect has been largely ignored in the academic discourse. More subjects focusing on social issues must be inculcated in the course syllabus of law schools.

The Hon’ble Supreme Court of India has taken steps to encourage the Pro-Bono Legal Services. In 2017, the Ministry of law has launched a “Pro-Bono Legal Service” which is a web-based platform, through which the interested lawyers can register themselves to volunteer for pro-bono services for the people out of reach of the court. Many lawyers from time-to-time, have made attempts to provide people with free services at their personal levels, however,  they failed to do so due to lack of institutional support, and its success was short-lived.

Legal Awareness Programmes

Legal literacy is the basis for the survival of the constitutional democracy in any country and can bring a radical change in the society. The judicial system in India works on the presumption that all the citizens are aware of their rights and can approach the concerned institution. Educating individuals regarding issues affecting their lives regulated by the law, is legal education. Legal awareness can empower a person to demand justice and effective remedies at all levels. Each and every person should be made aware of the basic law of the country. Basic level of legal education should be made compulsory in the school. Awareness of the legal know-how helps the citizens to exercise their rights and duties and comply with the law.

Law schools actively through their registered college societies outreach to the people in the slums and provide them legal aid by giving them access a lawyer free of cost. Students, also through street play in the slums create legal awareness which is a quite different and much more attractive way to make them legally literate. This concept of teaching is relatively new, hence, the quality of the young minds is enhanced and is just not limited to the theory of the law, but balanced with the practical knowledge as well. Legal camps/clinics are emerging as an important part of the legal education and are highly promoted by the colleges and the authorities by giving them chance to work with them. The authorities must realize and recognize the needs of every area where the legal awareness camps are organized and should mainly focus to make a reach to the people at the ground level and keeping a track of the matters till they are disposed-off. Legal literacy material should also be properly and timely distributed to the participants. And such material should be in the simplest form with the least amount of legal jargon to make it easier to understand.

Statutory Recognition of Legal Aid

By virtue of article 39A of the Indian Constitution, the States are directed to provide free legal aid to the weaker and poorer sections of the society. Articles 14 and 22(1) of the Constitution also make it obligatory for the State to ensure equality before the law and a legal system which promotes justice on the basis of equal opportunity to all. Even in the procedural law of our country, the provisions of legal aid have been laid down under section 304 of Cr.P.C which states that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the expense of the State. The right to speedy trial and free legal aid have been recognised as being part of the Right to Life and Personal Liberty under Article 21 of the Indian Constitution.

Contribution of Judiciary to Free Legal Aid

The judiciary has played an active role in providing free legal aid to the needy and the weaker section of the society. The constitution has given the power to judiciary to protect and safeguard the rights of people.

The attention of Hon’ble Supreme court of India was brought towards this issue, when a petition was filed in the year 1979 before the bench headed by Justice P.N.Bhagwati regarding the conditions of the prisoners detained in the Bihar jail, whose suits were pending in the court. This petition was filed collectively by the prisoners of the Bihar jail in the name of Hussainara Khatoon, under the case title Hussainara Khatoon Vs State of Bihar. The prisoners had already undergone the punishment much more than they would have got if there was no delay in their conviction. The court with immediate effect released these persons and held that the State can not be permitted to deny the constitutional right of the speedy trial on the ground that the State doesn’t have adequate resources and apparatus. Thus, in this case, the court pointed out that Article 39A was an inalienable element of reasonable, fair and just procedure and right to free legal services were implicit in the Article 21 of the Indian Constitution.

In Sk Das vs Union Territory of Arunachal Pradesh, Justice P.N. Bhagwati emphasized creating legal awareness to the poor as they don’t know their rights and particularly their free legal aid rights.

Justice Krishna Iyer rightly said that “if a prisoner is sentenced to imprisonment and is virtually unable to exercise his constitutional and statutory right of appeal including special leave petition for providing legal assistance to the Supreme Court for want of legal assistance, there is an implied duty of 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”

In Khatri & Ors. State of Bihar & Ors., it was held that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

By the Act of 1987, an attempt is made to reduce the workload of the courts by setting up of Lok Adalats as an alternative dispute resolution system and which was welcomed by the Indian Judiciary. Judgements as mentioned above bring out that not only giving legal aid is an essential ingredient of the judicial system but also highlighted the role of judges in ensuring that this right will be available to the needy.

In Near Future

Strengthening the Pro Bono Culture and making the Legal professionals in India more accessible and feasible to public will help in making a positive impact on the legal aid system in India. The existing legal framework should be enriched with better facilities, trained lawyers, adoption of alternative ways to make people legally literate and focusing more on the areas which are least introduced to the free legal aid services. For the sustainable growth of the Legal Aid Services, the legal professionals with a positive attitude should be given exposure to the diversification of the laws and the extraordinary situations.