In this article, Mishika Bajpai discusses how effective is the legal aid service in India.
The exposition of A.V. Dicey propounded in 1885 still holds true today, because Rule of Law reflects a person’s sense of justice and order. While the court is possessed with the power to prevent acts of interference of justice, it is equally dutiful towards the protection of the rights and interests of every litigant and indeed, the public in general. Judiciary plays a special role in the society and “as the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties. 
Further, it is undeniable, that the administration of justice is the court’s duty alone, rather this administration also requires the able efforts of a resourceful and a competent lawyer, who, as an officer of the court ought to assist the court to the best of his knowledge and competence. Thus, a truly stable system of administration can only be achieved when all the stakeholders in the legal system are taken care of. Any form of denial of the same would defeat the purpose of judicial proceedings and circumvent the fair trial guarantees.
Right to Legal Aid – A Constitutional Commitment
Legal aid was introduced by way of the Forty-Second Amendment under Article 39A, of the Constitution of India. It obligated the State to provide free legal aid, by introducing legislation and to promote justice equality before law. This constitutional promise reads as under –
“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.”
Every person who has to file and defend a case becomes entitled for legal services under the Legal Services Authorities Act, 1987 if that person is–
- A member of a Scheduled Caste or Scheduled Tribe;
- A victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
- A woman or a child;
- A mentally ill or otherwise disabled person;
- A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
- An industrial workman; or
- In custody, including custody in a protective home or in a juvenile home
- Of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987; or
- A person whose annual income less than nine thousand rupees or such other higher amount as may be prescribed by the State Government, and less than twelve thousand rupees or such other higher amount as may be prescribed by the Central Government if the case is before the Supreme Court.
The above categorisation ensures that the opportunities for securing justice, are not denied to any citizen, by reason of economic or other disabilities. Legal aid assistance is thus, premised on the two contingencies that the party is unable to pay for the legal assistance and it is in the interest of justice that the party may receive legal assistance, nonetheless.
Legal Services Authorities Act, 1987
Amendments were also introduced in the Advocates Act, 1961, for instance by providing for constitution of legal aid committees. Our Apex Court has, thereunder, constituted a Supreme Court Legal Services Committee (SCLSC) under Section 3A of the Legal Services Authorities Act, 1987 (as amended by the Legal Services Authorities (Amendment) Act, 2002) to ensure free legal aid to the weaker and marginalised sections of the society approaching the Supreme Court.
Headed under the Chairmanship of a sitting judge of the Supreme Court of India, the committee includes such other members possessing such experience and qualifications prescribed by the Central Government, and nominated by the Chief Justice of India. The panel at SCLSC comprises of competent lawyers on record with certain minimum number of years of experience who handle the cases in the Supreme Court.
Upon receiving completed application forms along with the requisite documents, the SCLSC refers the matter of the applicant to one of the Screening Committee’s for scrutiny and evaluation as to whether the litigant is entitled for legal aid and whether prima facie case is made or not. Under the aegis of National Legal Services Authority (NALSA), the SCLSC also organises Lok Adalats (People’s Court) in the Supreme Court premises for different categories of matters such as property requisition, financial disputes, and matrimonial issues.
The Lok Adalat takes up matters which may be pending before the Hon’ble Supreme Court. This provides for yet another way of uncomplicated, free of cost and amicable way of settling disputes. Similarly, there is the Delhi State Legal Services Authority which constituted Committee in High Court of Delhi called High Court Legal Services Committee under Section 8A of the Legal Services Authorities Act 1987. It has opened 137 Legal Services Clinics i.e. 104 Legal Services Clinics in Gender Resource Centres in association with Mission Convergence, 09 Legal Services Clinics in Colleges and Universities, 24 Legal Services Clinics in JJBs, CWCs, All India Legal Aid Cell on Child Right, Central Jails in Delhi and Observation Homes.
Flip side of the coin
Despite such flexibility and mechanisms in place, the underfunded legal aid only receives hollow support. The issue, though fortified by the aforementioned provisions for the benefit of indigent litigants, is only bolstered with insubstantial legal services. This may be the resultant of inattention that is faced by the bar which is rarely incentivised for providing the much-needed legal support. Because legal aid counsels and panellists are remunerated insufficiently, the standard of legal aid service never receives its well-deserved attention and assistance. This in fact worsens in the lower courts. In reality, the legal aid fees that a lawyer merits would be impossible to make a decent living. Those who do take work and accept it for meagre remittances are the young and inexperienced ones. The entire system of justice delivery is therefore, eschewed of its benefits when there is missing deployment of meaningful legal services.
The onerous responsibility of a lawyer to provide free legal assistance to indigent applicants cannot be overlooked in light of the right to access courts and due process. Therefore, while importance ought to be assigned to applicants approaching the court, one cannot forego the other side of the coin i.e. the assistance. Since lawyers play a key role in conducting judicial proceedings, from preparing briefs to presenting arguments, any oversight of this inseparable relationship of the legal community and lawyers can cripple the entire system of justice. This is when we bring in the concept of quid pro quo which could become a legally accepted way of providing rightful remuneration to committed advocates in lieu of the services provided by them to their litigants.
For instance, the Supreme Court has adopted the stance and allowed the levy of additional court fee in respect of appeals and revisions to appellate authorities (other than civil and criminal courts). The Court not only gave legal sanction to the additional court fee which was in fact meant for a Legal Benefit Fund operated under the Kerala Legal Benefit Fund Rules, 1991, but also observed that this fund would essentially provide efficient legal services for the people. Since the purpose of the fund was to be utilised for providing competent legal services, this amounted to quid pro quo. The additional court fee was perceived to be levied for an effective, efficient and robust legal assistance. Moreover, it had direct nexus to the laudable objective sought to be achieved in the context of services available to the public at large seeking redressal before the courts.
While, the above provisions of legal assistance to the indigent parts of our society are reassuring, legal aid is mostly deprived of commensurate legal services. Such supplementary funds could be reasonably utilised by courts in order to recompense lawyers assisting litigants with meagre financial means. This can be beneficial when neither the state would be willing to subsidise nor would the litigant be able to bear the costs. This way even experienced lawyers would not resist in carrying out the demanding responsibility. There is no gainsaying that a sound stable system of administration is not only a harbinger of justice but is also a common law right stirring effective access to it. The above is only a step towards attaining access to justice and fair trial even if one does not have the means to pay for it. The goal is not only to palliate the issue of inconsequential legal aid services but to additionally provide commensurate services by supplementary funding by the Court itself towards legal aid assistance and its far-reaching consequences. Partly dissenting opinion of Judge Morenilla, In the case of De Haes and Gijsels v. Belgium, case numbered 7/1996/626/809 before the European Court of Human Rights