"EVALUATING THE IMPACT OF LEGAL AID PROGRAMS ON ACCESS TO JUSTICE IN INDIA"

 

AUTHORED BY: ADV. MEGHA SACHAN

 

 

ABSTRACT

Access to justice is a fundamental right enshrined in the Indian Constitution. However, the realization of this right remains a significant challenge for millions of marginalized and underprivileged individuals in the country. Legal aid programs have been established with the aim of bridging this gap and providing legal assistance to those who cannot afford it. This research paper aims to evaluate the impact of legal aid programs on access to justice in India, focusing on their effectiveness, challenges faced, and potential areas for improvement. By examining the socio-legal aspects of legal aid programs and analyzing their outcomes, this study seeks to shed light on the extent to which these initiatives have been successful in ensuring equal access to justice for all citizens particularly during the pandemic. The research will involve a comprehensive review of existing literature, analysis of statistical data, and surveys with beneficiaries, legal professionals, and policymakers. The findings of this research will contribute to the ongoing discourse on improving access to justice in India and may inform future policy decisions and program implementation.

 

Research Question: How effective are legal aid programs in ensuring access to justice for marginalized and underprivileged populations in India?

 

INTRODUCTION

India is a developing country with a population that is extremely diverse in terms of culture, religion, and language, but it also has a population that is extremely stratified in terms of caste, sex, race, and wealth. There is still a protracted battle for emancipation and actual equality after more than 70 years of independence. The preamble itself states that our state should work towards social, economic, and political justice. The elimination of inequalities from society is referred to as social justice.

 

The legal profession in India expanded during the colonial era, but because of the high fees, the natives were deprived of justice. The practise of imposing fees has been used frequently to relieve the burden on the judiciary, which obstructs access to justice for the underprivileged and other disadvantaged groups of society. But the majority of people in the country are poor.[1] Free legal aid is the leading initiative to make it possible for these underprivileged and marginalised communities to approach the courts and seek justice.

 

The Indian government has established a framework for offering the poor and other specific individuals free legal aid, with the aid of constitutional provisions as well as other statutes and government policies. The Covid 19 pandemic has had negative effects on the entire world, but has particularly hurt the poor. India, a social welfare state where the rule of law is upheld, guarantees its citizens that justice will not be withheld because of socioeconomic disadvantages and other limitations.

 

The preservation of the rule of law, which is essential for the existence of an orderly society, depends on providing legal assistance to the poor and weak. Poor illiterate man is denied equal access to justice up until and unless he receives legal assistance. The Lok Adalat system has been introduced as one of the ways to provide free legal aid and swift justice at the doorsteps of the poor, in addition to public interest litigation and judicial activism, with the goal of making justice cheap and simple. The author of this article emphasises the value of free legal assistance in a constitutional democracy like India, where a sizable portion of the populace has yet to experience the constitutional guarantees of even the most basic fundamental rights being fulfilled for them.

 

UNDERSTANDING LEGAL AID

Legal aid refers to providing free legal services to the underprivileged and disadvantaged who cannot afford a lawyer to represent them in a case or legal proceeding before a judge, jury, or other authority. Legal Aid is the strategy used to make sure that no one is denied access to expert counsel and assistance due to a lack of funds. Therefore, the main goal of ensuring equal justice is to make it accessible to the underprivileged, oppressed, and weaker members of society. In this regard, Justice P.N. Bhagwati made the following observation[2]

“The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, 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.”

Therefore, by establishing a system of government funding for those who cannot afford the cost of litigation, legal aid is to be made accessible to the poor and needy. Legal aid works to ensure that the constitutional guarantee is upheld in letter and spirit and that the poor, oppressed, and weaker segments of society have access to equal justice. It is important to note that the Indian Constitution[3] mandates that the State ensure that the functioning of the legal system promotes justice on the basis of equal opportunity, and in particular, shall provide free legal aid, by appropriate legislation or schemes or in any other manner, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic circumstances.

 

In order to ensure that everyone receives justice based on equal access to defense, free legal aid for the poor is a crucial component of a fair trial procedure[4].

 

Free legal aid for the aforementioned two reasons became urgently necessary and was implemented on a global scale:

• A party who is financially sound is represented by a skilled and competent lawyer to defend his lawsuit effectively; however, a party who cannot afford legal representation would obviously be at a greater disadvantage and risk losing the case even if he has a strong case to win.
• A person who is put on trial for an offense needs a lawyer to uphold the trial because he is unfamiliar with the law, lacks knowledge of the evidence and procedural law, and lacks the expertise to refute the allegations. As a result, even an innocent person may be found guilty of an offense even if he has been falsely accused.

 

 

 

 

PROVISIONS REGARDING LEGAL AID

• INTERNATIONAL CONVENTIONS

Article 7 & 8 of the Universal Declaration of Human Rights 1948 proves Legal aid is a human right. Article 7 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law”[5], whereas Article 8 says that “Everyone has the effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law”[6].

According to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was signed in 1953, legal assistance is given to a citizen accused of committing a crime as part of the recourse to justice process[7]. Article 6 (3) of the European Convention states that a person who has been charged with a criminal offence has the right, “To defend himself in person or through legal assistance of his choosing for if he has no sufficient means to pay for legal assistance to be given it free when the interest of the justice so requires”. Therefore, it appears from the outset that international agreements and declarations recognise legal aid as a fundamental human right. International law mandates that legal aid be acknowledged as a fundamental component of a country's justice system.

 

• CONSTITUTIONAL MANDATE AND LEGISLATIVE FRAMEWORK

"We the people of India" have solemnly resolved, according to the preamble of the Indian Constitution, "to secure to all citizens justice, social, physical, and political," as well as "equality of rank and opportunity." The founding fathers thus made social and economic justice the sacred goal of the constitution and also left plenty of room for legal aid. Legal Aid is therefore implied rather than explicitly stated in the preamble[8].

According to Article 14 of the Indian Constitution, "The State shall not deny to any person within the territory of India, equality before the law or the equal protection of the laws." The phrase "equal protection of laws" refers to the idea that everyone should have the same legal rights under the law, regardless of their financial situation. Since it will act as a shield for the poor in the context of democratic and fundamental rights enshrined in our Constitution, legal aid for the poor is therefore necessary to ensure equality of justice[9].

According to Article 21, everyone's life or personal freedom is protected. This article guarantees that no one's life or personal freedom should be taken away; it may only be done in accordance with "provision established by law." Both advocates of liberty and judicial sentinels have a strong sense of significance when it comes to the laws' procedures. A fair trial requires the application of natural justice[10].

 

According to Justice Bhagwati, the process by which a person's life or personal freedom is restricted must be reasonable, equitable, and just. The right to unrestricted access to counsel, one of the most important developments in the field of human rights, was preceded by this point of view. The right to free assistance is a fundamental component of a reasonable, equitable, and just process for someone who has been found guilty of a crime, according to the Supreme Court, which interprets Article 21 implicitly.

 

The SC reminded the state of its constitutional obligation to provide free legal assistance in Sukh Das v. Arunachal Pradesh[11]. The Supreme Court continued by declaring that even if the vulnerable do not request it, the state must provide them with free legal services as a matter of right. It is now equally established that Article 21 of the Indian Constitution envisions the right to free legal assistance and a speedy trial as a promise to protect citizens' human rights, according to the case of the State of Maharashtra vs. Manubhai Pragaji Vashi[12].

 

According to Article 22(1) of the Indian Constitution, no one who has been arrested "shall be denied the right to consult and be defended by a legal practitioner of his choice or shall be detained without first being informed of the reason for his detention." Therefore, if a marginalised or underprivileged person doesn't seek legal advice, the state will do so; however, if the state fails to do so, Article 22 (1) of the Indian Constitution is nullified, and a constitutional violation has occurred[13].

 

Some railway personnel staged a Satyagraha in the case of Hansraj v. State of Uttar Pradesh[14]. Under the guidelines of the Railways Act, they were detained, accused, and sentenced. They were not informed of the trial's date or that Article 22's right to contact and be represented by counsel applied to them. It was agreed that Article 22(1) had been broken under these circumstances.

 

While Article 39-A of the Directive Principles of State Policy provides for the provision of free legal aid to indigent people, the Indian Constitution does not expressly recognize the right to free legal aid as a fundamental right. Equal justice and free legal assistance are guaranteed by Article 39-A[15]. The state must make sure that the judicial system functions in a way that guarantees equal justice for all. It alludes to justice that upholds the law. The state's primary concern in a democratic policy under the rule of law should be a decent legal framework.

 

According to Section 303, "Any person accused of a crime in a Criminal Court, or against whom charges are instituted under this Code, may of right be defended by a pleader of his choice[16]." In these situations, Section 304 provides free legal representation to those who have been charged with a crime. It says that "where the accused is not served by a pleader in a courtroom before the Court of Session, and it appears to the Court that the accused lacks adequate means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State[17]."

The most significant legal aid law is the Legal Service Authority Act of 1987. It creates legal service authorities to organize Lok Adalat to secure justice, ensure that no citizen is denied the opportunity to obtain justice due to financial or other barriers, and provide free and competent legal services to the weaker segments of society. The law includes a number of provisions that work towards achieving this objective. The Legal Services Amendment Act of 1994 amended the Legal Services Authorities Act of 1987, which went into effect on November 9th, 1995.

 

This act's Section 12 establishes a list of citizens who are qualified for free legal assistance. At the national, state, district, and taluka levels, this Act also aims to create the National Legal Services Authority, State Legal Services Authority, District Legal Services Authority, and Taluka Legal Services Authority[18].

 

 

 

 

 

THE PANDEMIC AND LEGAL AID IN INDIA

Although the lockdown forced the courts to withdraw and operate online, justice cannot be denied. Only those who are at least literate can afford and access justice administration in these times. Communities that are poor and marginalised have been seen to be denied fundamental human rights. Numerous fundamental rights were being violated, but in order to challenge them, lawyers and courts must step in, which was not a requirement at the beginning of the pandemic for the operation of state functions.[19] The struggle for justice for the poor and marginalised is also at stake because of how badly the pandemic has affected them. It has increased poverty and led to the emergence of a new class of the poor.[20]

 

To help those for whom access to justice is difficult due to social standing and financial struggles is a huge task for NALSA. As a result, NALSA assigns tasks to the State Legal Services Authority and District Legal Services Authority, who carry out the duty of coordinating other legal awareness campaigns and delivering free legal services.

 

The availability of resources was constrained, and generalised justice administration without special considerations for the weaker segments of society resulted in the legal aid services being in a compromised state, especially more recently. The budgetary allotment for the ministry of law and justice, particularly for the NALSA, is on the decline. The grants given to NALSA in 2018 were 150 crores, but in the following years—2019, 140 crores, and 2020–2021—only 100 crores were given to the organisation to carry out its duties[21]. The population is growing, and poverty is increasing along with it, but the amount of money allocated to one of the most crucial government agencies that ensures justice for the underprivileged is decreasing. The NALSA also holds Lok Adalat at the district level[22]; it is firmly held that cutting funding for expedient dispute resolution is no better than denying justice.

 

Even during the lockdown, NALSA did a commendable job of providing people with legal aid. Whether for a remand lawyer appointment, basic legal advice, or a domestic violence case, NALSA ensured the beneficiaries' right to free legal aid throughout the lockdown. NALSA kept the door of free legal aid open, especially for the protection of women against domestic violence, maintenance, cruelty, and harassment.[23] Protection Officers and Duty Magistrates were available at the district levels to support the victims in enforcing their rights.[24]

 

According to NALSA statistics from April 2020, more than 11,000 prisoners awaiting trial were released from jails in more than 200 districts to avoid overcrowding during the lockdown.[25] NALSA and District Legal Services Authorities also assembled a team of panel solicitors and paralegal volunteers to provide food, masks and other essentials to the underprivileged migrant worker. Domestic abuse was on the rise during the lockdown, but it's important to remember that in our nation, poor women in particular hardly ever report cases of domestic abuse.[26]

 

By coordinating the One Stop Centre's[27] and SLSA's efforts to protect women's rights, NALSA has undertaken a thorough investigation into the rising number of domestic violence cases. Even during the pandemic, NALSA was able to dispose of pre-litigation and pending cases in an impressive and cost-effective manner through the use of Lok Adalat as an ADR mechanism. This was done by facilitating the service through a virtual platform called e-Lok Adalat. According to the statistics, approximately 33 e-Lok Adalat have been held in 17 States, with 5.41 lakh cases being accepted and 3 lakh cases being resolved, settling for a total of Rs. 2918.00 cr.[28] All of this demonstrates that citizens continued to receive legal aid even during a lockdown, but one might wonder if all the statistics accurately reflect the situation.

 

As a result, those in positions of privilege could hire well-known solicitors to represent them in court via modern video conferencing technology, while the underprivileged had to wait for the courts to open physically.[29] Given the evils of ignorance and poverty, there is still a pressing need to increase legal literacy among the populace.

 

OBSTACLES TO LEGAL AID IN INDIA

According to the Indian Express, the facts indicate that the majority of the population is illiterate and unaware of their protected rights (8.4 crores 84 million Indians are poor, while India continues to be home to 313 million illiterates).

1. Lawyers cannot be compelled: It is an undeniable fact that the attorneys providing pro bono assistance are not the public prosecutor, so it is entirely up to their individual decision whether to proceed with the case. Neither can they be pressured nor compelled to do so. Although on numerous occasions the admirable work of many lawyers helping the underprivileged section of society by providing them with pertinent legal assistance without charge has not been given any deserving recognition.
2. Legal Aid Statistics in India: There is a State Legal Services Authority in each state. In India, there were 50,394 panel advocates (46,385 district + 4,009 high court) as of March, 2023. According to a 2018 study by the Commonwealth Human Rights Initiative, Indi has five legal aid lawyers per 100,000 people, or one lawyer for every 18,609 people.

 

1. Funding Legal Aid:  According to a 2018 Commonwealth Human Rights Initiative study[30] that included 29 states and seven Union Territories, India has one of the lowest per capita legal aid expenditures in the world at Rs 0.75. According to Tata Trusts' India Justice Report 2020[31], the country spent Rs 1.05. per person on legal aid in 2019–20.

1. Lack of power to Lok Adalat: Compared to civil courts, Lok Adalats have lesser powers. First, there aren't enough formalities. The parties cannot be forced to appear for the proceedings in this case, so. There is frequently a delay in the resolution when one of the parties does not show up for the hearing.

 

SCOPE FOR IMPROVEMENTS

• Education and Awareness: To raise awareness about human rights and programmes that provide free legal aid to those in need, there should be a massive organisation of legal aid clinics and Lok Adalats. To educate residents of various underdeveloped areas about their rights and the law and to persuade them to choose free legal services by resolving disputes through ADR, Lok Adalats, etc., entitlement centres should be established there. Establishing an intended interest group before launching informative projects or educational sessions in print or online media requires a prior strategy because it will help drive significant traffic. Other developed nations have 2-year or 5-year missions to educate people about the law and their rights. India can also announce a five-year plan to inform people of their legal rights and obligations.
• Better Remunerations to lawyers: Due to their disinterest in providing free legal services and expectation of payment in the form of a set fee, it is difficult to find a good lawyer representation today. So, instead of appearing in court or representing an accused person without payment, the government or courts should pay their solicitors more. The provision of rewards, certificates, letters of recommendation, and compensation to solicitors and paralegals is necessary as it serves as a motivating factor for volunteer services. Incentives must be given on time.
• Role of Judiciary: Legal Aid should receive more attention from the judiciary because it is crucial in the current environment, where the gap between the wealthy and the poor is growing wider by the day. And when free legal aid is used as a key tool in enacting distributive justice, social and structural discrimination against the poor will be eliminated. There are numerous laws and precedents that support the right to free legal aid, but their ineffective application has made them appear to the general public to be a myth. In order to make legal aid in the country a reality rather than just a myth in the minds of the countrymen, one should therefore focus on effective and proper implementation of the laws that are already in place rather than passing new legislation.
• To expedite the process of compromise between the parties to the case and ensure that the matter is resolved without the need for further appeal, Legal Aid institutions at all levels should use appropriate ADR techniques when providing legal assistance.

 

CONCLUSION

In conclusion, this paper has shed light on the significance of legal aid in India, highlighting both its achievements and drawbacks while offering valuable recommendations for improvement. The achievements of legal aid in India cannot be undermined, as it has played a crucial role in ensuring access to justice for marginalized and underprivileged sections of society. It has helped bridge the justice gap and empower individuals to exercise their rights, fostering a more equitable and inclusive legal system.

 

However, this paper has also identified several significant drawbacks that need to be addressed. The inadequate funding and resource allocation, limited reach and awareness of legal aid services, bureaucratic hurdles, and lack of coordination among stakeholders have hampered the effectiveness and efficiency of legal aid in India. These challenges have resulted in a gap between the ideal and the ground reality, preventing many deserving individuals from accessing justice.

 

To overcome these limitations, it is imperative that the Indian government and relevant authorities take concrete steps to strengthen and revamp the legal aid system. First and foremost, there should be increased funding and resource allocation to ensure the availability of quality legal aid services across the country. Additionally, efforts should be made to enhance public awareness about legal aid schemes and their benefits, employing various mediums such as mass media, community outreach programs, and digital platforms.

Moreover, streamlining administrative procedures, reducing bureaucratic red tape, and fostering better coordination among legal aid providers, judiciary, and other stakeholders are crucial for an efficient and responsive legal aid system. Training and capacity-building programs should be implemented to enhance the skills and knowledge of legal aid professionals, ensuring a higher standard of representation and assistance.

 

Furthermore, embracing technology and digitization can revolutionize legal aid delivery, making it more accessible, efficient, and cost-effective. Mobile applications, online portals, and virtual platforms can be utilized to connect individuals with legal aid providers and enable remote consultations, reducing geographical barriers.

 

In conclusion, while legal aid in India has achieved significant milestones in promoting access to justice, there is still work to be done. By addressing the drawbacks and implementing the recommendations discussed in this paper, India can take great strides toward creating a robust and inclusive legal aid system. Such a system will not only enhance the overall functioning of the justice system but also uphold the fundamental principles of equality, justice, and the rule of law.

 

REFERENCES

Books

1. Rao Mamta, Public Interest Litigation – Legal Aid and Lok Adalat, Eastern Book Company (2018).

2. Mukherjee Roma, Women, Law & Free Legal Aid, Deep & Deep, (1998).

 

Statutes/Acts Referred

The Code of Criminal Procedure, 1973

The Civil Procedure Code, 1908

The Constitution of India

Legal Services Authorities Act, 1987

The Legal Services Authorities (Amendment) Act, 2002

 

Journal Papers:

1. Kushwaha, Anurag, “Effects of Economic Distress on Legal Aid Services Amid Covid-19 Pandemic in India” LexForti Legal Journal 6 (2020).

2. Koppell, G. O., “Legal Aid in India” Journal of the Indian Law Institute 8 (1966):224–251.

3. Higgins, Andrew, “Legal Aid and Access to Justice in England And India” National Law School of India Review 26 (2014): 13–30.

4. Pye, A. Kenneth, “Recent Developments in Legal Aid in America: Lessons for India” Journal of the Indian Law Institute 9 (1967): 153–170.

5. Koppell, G. Olive, “Abstract of The Indian Lawyer as Social Innovator: Legal Aid in India.” Law & Society Review 3 (1968): 299–300.

6. Mallikarjun, G, “Legal Aid in India And Judicial Contribution” NALSAR Law Review 7 (2013).

 7. Supriyo Routh, “Providing Legal Aid: Some Untried Means” Journal of the Indian Law Institute 50 (2008).

 

Websites

https://www.academia.edu/36325912/Legal_Aid_and_Awareness_in_India_Issues_and_Challenges?auto=download

http://www.legalserviceindia.com/legal/article-82-legal-aid-and-awareness-in-india-issues-and-challenges.html

 

 

 

 

---

[1] Legal Aid, available at: http://www.legalserviceindia.com/article/l206-Legal-Aid.html

[2] Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College, Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice between the rich and the poor.

[3] Article 39A of the Indian Constitution

[4] Justice J.N.Bhatt:Right to Legal Aid- A basic Human Right. Naya Deep Vol VII Issue 4 on page 50 October 2006.

[5] Article 7 of Universal Declaration of Human Rights, 1948

[6] Article 8 of Universal Declaration of Human Rights, 1948

[7] Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953

[8] Preamble, Constitution of India

[9] Article 14 of The Constitution of India

[10] Article 21 of The Constitution of India

[11] Suk Das & Anr vs Union Territory Of Arunachal, 1986 AIR 991, 1986 SCR (1) 590

[12] Manubhai Pragaji Vashi vs State Of Maharashtra And Ors. on 19 August, 1988, AIR 1989 Bom 296, (1989) 91 BOMLR 13, 1989 MhLJ 344

[13] Article 22(1) of The Constitution of India

[14] Hansraj And Ors. vs State on 15 May, 1956, AIR 1956 All 641, 1956 CriLJ 1267

[15] Article 39 A of The Constitution of India

[16] Section 303 in The Code Of Criminal Procedure, 1973

[17] Section 304 in The Code Of Criminal Procedure, 1973

[18] Section 12 of the Legal Services Authority act

[19]  Unlocking Justice In The Lockdown, available at: https://www.thehindu.com/opinion/op-ed/unlocking-justice-in-the-lockdown/article31456524.ece

[20] New Class Of Poor, available at: https://theprint.in/india/new-class-of-poor-emerging-after-job-losses-in-lockdown-95-8-bpl-slum-families-hit-study/433785/

[21]  Ministry of Law and Justice available at: https://www.indiabudget.gov.in/doc/eb/sbe64.pdf

[22] About Us, available at: https://nalsa.gov.in/about-us/mission

[23] Legal Aid in India Amid the COVID-19 Lockdown, 

available at: https://www.jurist.org/commentary/2020/05/agrawal-mishra-india-legalaid/

[24] Legal Issues Arising During Pandemic, available at: https://nalsa.gov.in/notifications/35

[25] 11,077 undertrials freed to decongest jails following COVID-19: NALSA, available at: https://www.thehindu.com/news/national/11077-undertrials-freed-to-decongest-jails-following-covid-19-nalsa/article31350752.ece

[26] NCW Records Sharp Spike In Domestic Violence Amid Lockdown, available at: https://www.thehindu.com/news/national/ncw-records-sharp-spike-in-domestic-violence-amid-lockdown/article31835105.ece

[27] One Stop Centre Scheme, available at: https://wcd.nic.in/sites/default/files/OSC_G.pdf

[28] Department of Justice-Year End Review 2020, available at: https://pib.gov.in/PressReleseDetail.aspx?PRID=1684945

[29] The Judiciary in Lockdown available at: https://www.theleaflet.in/the-judiciary-in-lockdown/

[30] CHRI Legal Aid Report Hope Behind Bars Volume 1

[31] TataTrust Overall Report January 26,2020