This article is written by Amrit Kaur, a student of Dr. B.R. Ambedkar National Law University, RAI, Sonepat. The article gives an overview of the pro bono cases in India.
Table of Contents
Introduction
Pro bono is an abbreviation for the Latin phrase pro bono publico, which translates as “for the public good.” The phrase typically refers to professional services that are provided for free or at a reduced cost. Professionals from a variety of disciplines provide pro bono services to nonprofit organizations. Hospitals, universities, national charities, churches, and foundations are among these organizations. It is also possible to do pro bono work for individuals who are unable to pay.
The phrase pro bono is primarily used in the legal profession. Pro bono lawyers serve the public interest by offering free legal services to people in need. Instead of working for profit, the practitioner is believed to work for the benefit of the larger good. The American Bar Association, which has a pro bono centre on its website, urges all attorneys to volunteer 50 hours per year to pro bono cases.
With so many people living below the poverty line, India’s economic situation makes providing efficient legal services challenging. When a substantial portion of the population struggles to obtain even necessities of life, it is unreasonable to ask them to pay for legal expenses. It is also unfair for lawyers to seek fees that are not proportional to their clients’ economic circumstances.
So, here comes the role of pro bono legal services which as stated above refers to the practice of providing legal aid to those individuals who cannot afford to hire an attorney. Those who are in actual need of legal assistance are represented by attorneys for free or at a low fee. In such instances, the lawyer realizes his responsibility to advance social objectives and thus works selflessly in the interests of society.
The legal perspective
The right to free legal aid is enshrined in Article 39A of the Indian Constitution. Part IV (Directive Principles of State Policy), added by the Constitution (42nd Amendment) Act 1976, states that the State is obligated to keep a check that the legal system provides equal justice to all its citizens. The state must offer free legal assistance to individuals who cannot access justice due to financial constraints.
In the case of Hussainara Khatoon v. Home Secretary, State of Bihar (1979), the Supreme Court held that the right to a speedy trial is a fundamental right guaranteed under Article 21 of the Constitution. Furthermore, according to Article 22(1) of the Constitution, the accused in a case, has the right to be represented by any legal practitioner of his choice.
The Supreme Court, in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Ors. (1995), held that failing to give free legal help to an accused at the expense of the state unless the accused himself refuses for the same, would jeopardize the whole trial. Further, Justice Krishna Iyer stated in the case of M.H Hoskot v. State Of Maharashtra (1978) that providing free legal assistance is the state’s responsibility and not the government’s charity.
Similar rules on free legal assistance can also be found in the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908. According to Section 304 of the Criminal Procedure Code, the state is obligated to offer legal aid to anybody accused of an offence that is to be tried in the Court of Sessions. Moreover, Order 33 of the Civil Procedure Code discharges a person from the liability of paying court fees if he/she does not have the required means to seek justice.
The Legal Services Authority Act, 1987 (LSA) was also enacted which took effect on November 9, 1995. The Act specifies the scope of legal assistance available for the economically weak, backward section and the disabled people. ‘No one must be denied access to justice because of economic or other limitations,’ is the vision of this Act. The Act strives to educate people about the law, provide free legal assistance, and organize Lok Adalats. The introduction of Lok Adalats under this Act marked the beginning of a new chapter in the country’s legal system. It was successful in providing litigants with a secondary forum for conciliatory conflict resolution. The Legal Service Committees were also established at the Supreme Court and High Courts as a result of the Legal Services Authorities (Amendment) Act of 2002.
At the International level, legal aid representation is stated in Article 14(3)(d) of the International Covenant on Civil and Political Rights. It stipulates that the accused has the right to choose his counsel, who must offer competent representation in the interests of justice.
The current state of pro bono cases in India
While pro bono work is encouraged under Indian law, it is fraught with difficulties. To begin with, India’s growing need for commercial attorneys stifles pro bono sector development. Furthermore, India’s enormous diversity, its liberal laws and jurisprudence concerning legal services for the underprivileged, its large population living in poverty, its history and current status as a secular, democratic, republic and its recent economic growth, as well as the expectations that growth has raised, all combine to create a unique and challenging environment in which the pro bono legal services sector is developing.
There are several public complaints about the formal legal system, including corruption, judicial efficiency, and lack of public faith in the judiciary, all of which leads to informal conflict settlement. Pendency has been one of the most serious issues confronting India’s legal system. Nearly 30 million cases were pending in Indian courts as of April 2015, according to estimates. Furthermore, there are more than 345 vacancies for judges pending confirmation and appointment at the High Court level, which exacerbates the situation. Lawyers, activists, and even Supreme Court judges have focused their attention on this issue, which is critical to understanding not only how legal services are provided and regulated in India, but also the real opportunities and challenges that lawyers interested in providing pro bono services in India face.
Over the last three decades, legislative, institutional, and jurisprudential reforms in India have provided the groundwork for the underprivileged to get free legal services. In practice, however, only a few organisations efficiently provide these services, relying on India’s unique PIL process for legal assistance.
Also, it is to be noted here that, at present, foreign-qualified attorneys are prohibited from representing pro bono clients under domestic Indian law. Foreign-qualified attorneys can, however, actively contribute to pro bono legal services by contributing research and writing skills in individual cases, as well as indirectly, by partnering with Indian organizations to build capacity. The demand for pro bono legal services in India greatly outnumbers the supply, and thus, determined, organized efforts by the legal professionals would go a long way towards ensuring legal aid to the needy and access to justice to all as stipulated by the Constitution.
Efforts of the government in providing free legal assistance
Under the Legal Services Authorities Act, 1987, the Central Government provides financial support to State Legal Services Authorities (SLSAs) through the National Legal Services Authority (NALSA). As per Section 12 of the aforementioned Act, one of the responsibilities is to provide free legal assistance to all eligible categories of persons, including the destitute and prisoners awaiting trial. Accordingly, NALSA allocates cash from grants-in-aid obtained from the Central Government to various SLSAs in order to fulfil those goals. SLSAs also get grants or donations from their respective state governments.
The Government has even introduced three legal empowerment initiatives, i.e., Tele-law, Pro Bono legal services, and Nyaya Mitra. Tele-law project was started in 1800 Gram Panchayats in 11 states of the nation to provide free legal assistance to marginalized individuals under Section 12 of the Legal Services Authorities Act, 1987. Other people can get legal advice for 30 rupees only. Lawyers on the panel are available by video conferencing or telephone conversation at Common Service Centres (CSCs). In February 2019, Tele-law released a mobile application and a dashboard to facilitate last-mile connectivity.
Free legal assistance, including legal representation, is offered to marginalized individuals via the Pro Bono legal services program also, which is governed by Section 12 of the Legal Services Authorities Act, 1987. Five hundred and thirty-three attorneys have signed up to offer pro bono legal services under the scheme.
Nyaya Bandhu, a mobile app was launched in February 2019, to connect registered pro bono advocates with registered applicants. Additionally, through the legal services clinics established in jails, NALSA provides free and competent legal assistance to under-trial prisoners and convicts. In magisterial and session courts, about 11,800 remand advocates have been appointed to provide legal services to arrestees in criminal courts.
Furthermore, at regular intervals, awareness camps/programs are held in jails to inform inmates about free legal assistance and their legal rights, including the right to bail. Legal Services Authority officials visit jails on a regular basis to identify inmates who want legal assistance and guidance. Besides these steps, a district judge-led Under Trial Review Committee has been established in each district to review the cases of all under-trial who have completed half of the maximum sentence allowed for the offences they are charged with.
Benefits of investing in pro bono cases
Here are a few reasons why law firms and individual lawyers should devote more time and effort to expanding its pro bono program:
Offers a lot of experience
Pro bono work typically allows lawyers to practise in areas of law that are not their primary focus. For example, when a firm partners with a legal aid clinic, it obtains a list of cases that require attorneys. In that list, if there is a benefits lawsuit, it may be handled by a corporate litigator whereas an IP attorney might assist someone with their immigration status. Thus, lawyers get a chance to work in different focus areas than their own. Attorneys can brush up on areas of law that they may not have thought about since law school. Most people find it rewarding, and in some cases even enjoyable.
Creates a conducive environment for collaboration
Pro bono cases provide attorneys with the chance to work with other lawyers in their firms who they would not otherwise know, as well as practice in areas outside of their day-to-day work. This fosters collaboration and increases future cross-firm prospects. It also assists attorneys in forming networks with other lawyers who work for legal assistance foundations. Networking leads to business development, which helps the firm as well.
Appeals to prospective candidates
The question of pro bono work of the firm is commonly asked by the prospective candidates, when a firm is recruiting new attorneys, particularly from younger generations. A pro bono program that is at least moderately active, can help a firm to recruit new talent in the coming several years. This is because work done by a law firm in the field of pro bono attracts prospective candidates to seek jobs in that particular law firm.
Enhances the talents of young lawyers
As long as one is talking about young talent, working in the field of pro bono helps young attorneys to develop their skills by gaining experience and exposure. It’s a win-win situation for the young attorneys and the society as it would help in tapping the youthful enthusiasm and desire of the young lawyers to serve society.
The reputation of the firm is enhanced
For the firm’s image, doing pro bono work is beneficial. Many, if not all, awards and recognitions for law firms now require information regarding pro bono work performed by the firm. If the firm is unable to demonstrate that it does not perform this type of community service, its chances of getting such accolades plummet.
Provides a sense of self-fulfilment
Perhaps the most essential feature of pro bono is the fact that it is done for free. It is believed that assisting others when in need with their legal work for free or at a reduced rate re-energizes and re-commits a firm or an attorney to the law. As a result of their pro bono work, attorneys are constantly reminded that they practice law to assist humanity. By providing pro bono legal services, lawyers have the potential to inspire and encourage people in dire and hopeless situations to face difficulties with courage.
Conclusion
The pro bono sector in India still needs to be developed more. Though the government is trying its best to foster this sector, the sector needs a constant commitment from the legal fraternity for its growth and development. Every lawyer should devote at least some part of their professional life towards such cases, after all, the right to justice is absolute and non-negotiable.
References
- https://www.investopedia.com/ask/answers/08/pro-bono.asp
- https://www.indianbarassociation.org/pro-bono-legal-aid/
- https://lawcorner.in/pro-bono-litigation-right-to-free-legal-aid/
- https://taxguru.in/corporate-law/legal-service-authority-act-1987-a-preview-of-application-on-society.html
- https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-india.pdf
- https://www.jaffepr.com/blog/5-reasons-why-pro-bono-win-win-firms-and-attorneys
- http://164.100.24.220/loksabhaquestions/annex/171/AU688.pdf
- https://blog.ipleaders.in/analysis-of-order-33-of-cpc-suits-by-indigent-persons/
- https://blog.ipleaders.in/right-speedy-trial-inalienable-right-article-21-indian-constitution/
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