Aim: This article titled “Equal access to Law and Justice” explains the genesis of legal aid and explores the problem of limited access to justice. It delves into cross-jurisdictional analysis of steps taken in various countries, in order to make legal assistance available to a larger stratum of the society and also analyses the roles of private law firms in the same, by means of pro bono cases.
“And yet again the poor and the uneducated were trampled under the heavy wheels of law. Law was far from serving its purpose, when the its doors were closed and guarded by people who denied respite to the poor and the uneducated folks.”
The lines above happen to be an explanation of the prose written by Franz Kafka, “Before the Law”, and published after his death in the year 1915. Thus, it is not hard to imagine how far in the sands of time does the problem of inaccessibility of law and legal aid lies.
Legal Aid is the professional legal assistance given, either at no charge or for a nominal sun, to the indigent persons in need of such help. It stretches across the various nations and has been internationally recognised that there is a dire need to provide legal aid to the indigent people, in order to have law and the justice dispensing mechanisms true to its spirit of equality before law.
Genesis of Legal Aid
Legal Aid Services are not something which arose as a fanciful imagination of an individual or a group of individuals. They have a very deep-rooted purpose in the legal system and hence, it has evolved over the years. Jurisprudence relating to legal aid can be traced back to the Magna Carta, which in its 40th paragraph provides that, “to no one will we sell, to no one will we deny, or delay, right or justice.” The earliest legal aid movement is considered to have started in France, in the year 1851, when a law had been passed on legal aid (assistance judiciaire), which forms the basis of the present legal aid system in France.
The legal structure of India has been greatly influenced by the structures existent in Britain. So, it is only imperative to look at the evolution of legal aid mechanisms in Britain and few other commonwealth countries. The system of justice existent in England and Wales are much more complex and hence, much more expensive than that of other developed countries. Hence, there arose a need of concentrating upon the legal aid mechanisms in England and Wales. Access to courts was recognised as a constitutional right, but there was no constitutional right to the provision of legal assistance at public expense if one could not afford a lawyer. There were some statutory or quasi-statutory arrangements made from time to time to help the ones who could not afford it.In 1944, the Coalition Government set up the Rushcliffe Committee, to advise on the issue of legal aid and access to law by all. The report made by the Committee in 1945 was accepted and a legislation was introduced. Under the Legal Aid and Advice Act 1949, legal aid was to be available in all courts and tribunals where lawyers normally appeared for private clients. Eligibility should be extended to those of“small or moderate means”, and above a free limit there should be a sliding scale of contributions.
The Poor Person’s legal Remedies Act 1918, was the first formal legal aid scheme in Australia. Thereafter, there have been a series of acts and provisions made in order to foster the legal aid schemes and make legal systems accessible to the deprived ones. Presently, the Legal Aid NSW looks after this program in Australia.
India traces the concept of legal aid and equal access to law back to the Vedic Ages. The Rig Veda includes a concept of “daan” wherein, the people were called upon to donate and extend aid to the ones who are deprived.During the times of Vikramaditya, the common man did not have to spend any money to seek justice from the courts; through the village and the community panchayats, justice reached even the poorest of the households. During the reign of Shahjahan & Aurangzeb, the state “vakeels” were directed to give advice free of charge to the poor. The introduction of the justice dispensing mechanisms by the British, made the whole process expensive hence, the provision of legal aid for the poor became a necessity. The Order 33 of the Civil Procedure Code, 1908, provides for filing of suits by indigent persons, without the payment of requisite court fees. The Bombay Legal Aid Society was formed in 1924 for making justice accessible to the poor and rescuing the costs of litigation. This society had written a letter to the Government of India asking for a similar set up of legal Aid to be done in India, as suggested by the Rushcliffe Committee in England. The Justice Bhagwati Committee in 1949 had made a detailed recommendation on the structure of the legal aid mechanism in the country. Legal aid came to be enshrined in the very Constitution of India, thereafter.
There are international conventions which has promoted the development of the legal aid provisions across the various nations. The Art. 8(e) of the American Convention of Human Rights, provides the accused with an ‘inalienable’ right to be aided by a state provided counsel, who may or may not be paid (according to the domestic law) in case the defendant is unable to defend himself on his own or appoint a counsel for the same in the time frame stipulated by law. Art. 6 of the European Convention of Human Rights gives the accused who doesn’t have adequate resources to afford legal assistance or fails to defend himself, the right to be given a lawyer of his choice by the state, in order to satisfy the aims of justice.
The Predicaments of Limited Access to Law & Legal Aid
The delivery of legal services in India involve a variety of facets, each being different for the different economical class of people. The rich and the affluent get a single-window legal service by means of law firms, who maintain highly specialised lawyers in various fields of law. The salaried class, who cannot afford the expensive services of the law firms, engage private lawyers to avail the legal services. In this scheme of things, it is the poor, educated and the marginalised rural and tribal communities who are left out. They suffer utter injustice or seek justice through informal means, including the “khap panchayats.” This acute vulnerability of a very large majority of the people in India provides, in turn, a fertile ground for them to be exploited by various social and political forces.
The problem with the indigent people is that a majority of the times they are not aware that a legal wrong has been done to them and they have a legal redressal available against it, due to the lack of awareness of their rights. The assumption that the people would have knowledge of their rights is a fallacy that plagues the entire legal system and thereby, rendering it inefficient.
Legal aid is essential to support the needs of legal services of the people belonging to these marginalised classes. It is required and delivered in many forms and various levels, like in courts, tribunals and other authorities which function under the dispute resolution mechanism. Although free legal aid is beneficial to the poor, it also becomes a breeding ground for further exploitation. Charging fee for free legal aid is a common form of corruption prevalent in the system. The helpless victims find the amount asked lower than the fees of individual lawyers and hence, indulge into giving that amount to the lawyer who was supposed to provide services for free. The low budgetary allocation and thereby, the low salaries paid to the lawyer serving legal aid is a major reason which breeds this corruption, besides the general greed and exploitation done by these lawyers.
Another pertinent issue is the poor quality of legal services rendered by the lawyers engaged under this mechanism. According to the data available on the NALSA website, there have been over 1.5 crores people who have obtained the legal services through the Legal Service Authorities (LSA) established in specific hierarchy across the country, since their inception.The enactment of the Legal Services Authorities Act in 1987 has entitled more than 60% of the Indian population to free Legal Aid. With such a huge number of people to oblige, the quality of services rendered tends to be very minimal.
Legal Aid: A Constitutional Rights
Evolution & Intent Behind the Right:
Justice Blackmun in Jackson v. Bishop says that; “The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”
Article 39A of the Constitution of India provides that 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 disability. Article 14 of the Constitution enshrines equality before law and Article 22(1) lays down that, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” Legal aid services strive to deliver this constitutional promises to the indigent people, in order to assure that they are treated equally before the law and are not denied justice because of their economic incapacity.
Thus, it can be assured that legal aid is a constitutional right available to all people. The efforts to mechanise the structure of legal aid services in India began right after independence, when the Law Ministry and Law Commissions started addressing the issue of legal aid in various conferences across the nation.
Justice Bhagwati Committee was set up in 1949 and it made various recommendations regarding the legal aid machinery in India and the scope of its application.
The 14th Law Commission Report (1958) under the chairmanship of the then Attorney General of India, M.C. Setalvad, dealt with the issue of legal aid and stated that unless provisions are made for helping poor individual for giving court expenses, legal advisors fees and other incidental charges of litigation, he is denied equal opportunity of access to justice. It also suggested for prompt setting up legal aid committees by every bar associations in every state.
The P.N. Bhagwati Board Report (1971) stated that legal aid and advice ought to be views not as an issue of charity but rather as an issue of right and it expressed that the imbalance between the rich and the poor in administration of the justice can be uprooted by building up and creating viable effective system of the legal aid programme.
The Krishna Iyer Committee Report (1973) urged upon the democratic obligation of the state towards its subject to guarantee that the legal system becomes an effective tool in aiding secure the ends of social justice and an effort was made to characterize those classes of persons who are most needing legal aid and the poor man’s confidence in the legal system ought to be improved by giving him non- governmental as well as governmental assistance.
The Judicare Committee Report (1977), which had both, Justice Bhagwati and Justice Krishna Iyer, was set up for giving satisfactory legal service programme in every one of the states on uniform basis. Committee in its report also included draft legislation for legal services in the name of National Legal Services Bill, 1977. It additionally prescribed that legal service organisation ought not be a department of the government but rather a self-governing establishment headed by the Judge of the Supreme Court having representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that would be a multi-tier set up for the legal aid organization.
In 1980, Committee for Implementing Legal Aid Schemes (CILAS), under the chairmanship of Justice Bhagwati, was set up by the central government. It was assigned to screen the implementation of legal aid programmes on uniform premise in every state and union domains and to satisfy the goal of providing free legal aid. Thus, the intention behind the right to legal aid and services has developed over the many years after the independence. It finally got a statutory recognition in India, with the passing of the Legal Services Authorities Act, 1987 (“the Act”, hereon).
Enforcement & Implementation of the Right:
The Supreme Court of India has time and again stressed upon the enforcement of the right to legal aid. In M.H. Hoskot v State of Maharashtra, the Supreme Court laid down the principles in the field of legal aid. The Supreme Court, in another case, stated that a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable fair and just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner that the legal services should have been made available to him who is to seek his liberation through the courts process. In the same case, it was further stated that Legal aid is a Constitutional right of every accused person who is unable to engage a lawyer and secure legal services because of reasons such as poverty, indigence. State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require.
The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services because of indigence and whatever is necessary for this purpose has to be done by the State. In Suk Das case, the Court held that free legal aid at State cost is a fundamental right of a person accused of an offence, which may involve jeopardy to his life or personal liberty, and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The right to counsel is recognized because of the obvious fact that ordinarily an accused person does not have the knowledge of law and the professional skill to defend him before the court of law wherein competent and experienced prosecutor conducts the prosecution. In a more contemporary case, it was held that under Article 21 of the Constitution, free legal assistance at state cost has become a fundamental right of a person accused of an offence when he cannot engage an advocate being poor or an indigent.
It is also to be noticed that it is not all roses with regards to the implementation of the provisions of the Act. The ex- CJI, J S Khehar had expressed concerns over India’s poor ranking in Rule of Law Index and hence, had appealed the ones involved in justice dispensation to make all efforts to make judicial redress accessible to all, particularly to the poor and neglected. He had also appealed the government to share the responsibility in spreading legal awareness which is done by NALSA and State Legal Services.
NALSA & State Legal Services:
The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authority Act, 1987 to monitor and evaluate implementation of legal aid programmes. Legal services Institutions have been set up at all level from Taluk Courts to Supreme Court. Apart from these legal services institutions, High Court Legal Services Committees have been constituted at all High courts and the Supreme Courts Legal Services Committee at the Supreme Court level to provide free legal services to the persons eligible under section 12 of the Legal Services Authorities Act.
The free Legal Aid Services include:
- Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings;
- Providing service of lawyers in legal proceedings;
- Obtaining and supply of certified copies of orders and other documents in legal Proceedings;
- Preparation of appeal paper book including printing and translation of documents in legal proceedings.
Receipts of requests in this regard is a continuous process. These are received very often and the same are forwarded to NALSA for taking up the matter with the concerned State Legal Services Institutions for appropriate action. NALSA closely monitors the action on such requests. Social organizations are also involved in various awareness and out reach programmes conducted by the State Authorities.
The Legal Services Authorities carry out extensive legal awareness programme across the nation. They do it by the means of carrying out Micro Legal Literacy Projects in all states, State Legal Awareness programmes relating to various laws, setting up legal aid clinics in various Gram Panchayats and in all Law Colleges and Law Universities.
The Legal Services Authority has been largely successful in implementing the scheme with a large number of indigent people approaching these institutions looking for justice and legal aid. Yet, the awareness of the people remains a major hinderance. The corruption which is inherent to the system is something which shakes the belief of the indigent people in such institutions. Lord Denning had said in the House of Lords, on January 14, 1985, “One has to remember that Legal Aid can be used most oppressively against the innocent people.” Hence, there arises a need to spread greater awareness to the indigent people with regards to their rights increase the budgetary allocation for these schemes to operate, in order to provide better remuneration to the lawyers providing services, which would curb the corruption to some extent.
Legal Aid Across Various Jurisdictions
Legal Aid in USA:
The legal aid services in USA are primarily looked into by the LSC. There are a few other organisations that provide legal aid to the ones who are need of it, but not all of them are funded by the LSC. The legal aid system in USA has some differences with that in the rest of the developed countries. Firstly, the US does not have a statutory or constitutional right to counsel in most civil cases. The paid private lawyers are not actively involved in such schemes; the system heavily relies on pro bono attorneys and pro bono programs of the firms. There are great variations in the way legal aid services is provided across the various states across USA, owing to the decentralised nature of governance.
The legal aid services in USA differ greatly from that in India, in various respects. There is a uniform agenda and structure in India of legal services mechanisms across the states. The right to legal aid is a constitutional and a statutory right in India and the private lawyers are actively involved in legal aid services in India, unlike in USA.
Legal Aid in United Kingdom:
In UK, the scheme of legal aid is controlled by the Legal Service Commission and is subjected to most of the criminal and civil cases but with exceptions such as libel, most personal injury cases and cases associated with the running of a business. Family law cases are also covered. The modern system related to civil aid was created by the Legal Advice and Assistance Act 1949 on the recommendation of the Rushcliffe Committee of 1945, which prohibits that lawyers in private practice should be paid to undertake cases on behalf of people of small or moderate means. At present, the Legal Aid Sentencing and Punishment of Offenders Act 2012 was enacted, which has initiated the deepest cuts to the legal aid scheme. The $2.2 billion legal aid bill has been reduced by $350 million. The consequence is that legal aid has stopped being available in many areas of law.
While the legal aid services in India is not adequately funded, the policy makers do realise the need of legal aid services and hence, significantly cutting down on the budget of legal aid services has not been on the agenda of the policy makers, unlike the ones in UK.
Legal Aid in Australia:
In Australia, the Legal Aid Commissions play a defining role in achieving equality before the law by striving to ensure that all citizens, including those who cannot afford to pay, have access to the legal services they need to obtain justice. The Commission provides financial assistance, information and advice about the legal rights, responsibilities and remedies, education programs to inform the community about the law and legal remedies.
The legal aid services in Australia seem to be very similar to the structure in India. The NALSA and the state authorities provide similar kinds of assistance to the indigent people across the country.
Pro Bono legal AidAcross Various Jurisdictions
The pro bono culture in India is still very much a work in progress as the demand for such services far exceeds the supply. The individual advocates, law firms, NGOs and bar associations do provide pro bono services. While The practice of pro bono services has been supported and encouraged by the Government. The pro bono services provided by the individual advocates tends to be ad hoc and hence, difficulty to organize or measure. The NGOs play an important role in providing pro bono legal services in India.
The Government has launched an Initiative by the name of ‘Pro Bono Legal Services’, which is a web-based platform, through which interested lawyers can register themselves to volunteer pro bono services for the indigent masses. The elevation as judges on a priority basis, is the incentive offered to the lawyers to volunteer. This pro bono services that are sought to be provided are in addition to the unstructured pro bono services rendered by the lawyers to the underprivileged people, out of sheer goodwill. This attempt, on the part of the Government, shall also provide recognition to such public-spirited lawyers and provide further impetus to the pro bono legal service mechanism in India.
There has been a growing commitment by the legal profession to the importance of pro bono legal services, and various organizations and institutions within England and Wales continue to work to foster and develop the pro bono legal activity. The private solicitors and barristers are not mandatorily required to provide pro bono service, but there has been a rise in the number of private attorneys taking up the pro bono work. The NGO, Free Representation Unit is a registered charity providing pro bono legal advice and continues to play a leading role in the pro bono community. The Bar Association Pro Bono Programs provide an increasing access to the legal services while, the Bar Pro Bono Unit does the same. The University Legal Clinics and the law students contribute to the pro bono legal service. 
Australia takes pride in itself being as one of the leaders in the world in providing pro bono legal services. Although, it is not as widespread as in USA, but the strategic approach that is applied provides for greater access to those in need of free legal services in Australia. There are no specific pro bono rules or requirements that the solicitors and barristers are required to adhere to but, there is an environment to promote the pro bono works amongst the lawyers. Each state and territory bar association or council in Australia engages in the promotion or facilitation of pro bono efforts by its member barristers. The University Legal Clinics and the Law students also contribute to the pro bono legal services.
The United States has a deep, longstanding, and evolved system and tradition of providing pro bono legal support to those in need, and there is widespread engagement in pro bono among non-profit organizations, private law firms, individual practitioners, and in-house counsel. Yet, the demand for the low cost legal services in USA far exceeds the supply of services available. In USA as well, there is no mandatory requirement to provide an y pro bono services by the American bar Association Model Rule promotes the pro bono services by the lawyers.
Pro Bono legal Aid by Law Firms in India & Abroad
Law firms in India and across the globe have realised the importance of pro bono legal work as it brings goodwill gains to the firm. AZB & Partners has been working closely with the poverty alleviation projects of various foundations, where the associates get credit for the work done but, the company doesn’t make any monetary profit from such work. All the big law firms, including the likes of Amarchand Mangaldas & Co., Khaitan & Co., and Luthra & Luthra, all are actively participating in various pro bono legal services across the country, wherein, these firms dedicate their time and resources on providing legal services to the indigent people who cannot afford such quality services. The pro bono activities in India got a boost with the launch of i-Probono, a platform connecting NGOs seeking legal assistance with lawyers, students and academics, willing to use their skills for public good.
In various other countries around the world as well, including USA and UK, the law firms are taking up major roles in providing pro bono legal assistance to the people who cannot afford their services. This has helped in plugging the supply shortage of such services to some extent, if not completely emancipate it.
Corporate Social Responsibility (CSR) is on the agenda of most significant businesses worldwide and the law firms are no exception to this, who are recognizing the role that CSR plays in reputation building, recruitment and retention, and client relationships.It gives a chance to the firms to give back to the society and engage with broader community. The lawyers are expected to do pro bono work because it is considered that each lawyer has an ethical professional responsibility to those who could otherwise not avail the legal services. On the other hand, the CSR is about the responsibility of the entity of the society to do some good for the society that it has been thriving in. But, the relation between pro bono legal program and CSR program has been under discussion.
One set of scholars are of the view that the CSR and the pro bono activities cannot be integrated together because pro bono activities are the responsibility of each lawyer as an individual, while CSR is the responsibility of the firm as an entity, to the society. Hence the two should not be integrated or used synonymously. Other set of scholars provide the rationale that the integration of the CSR and pro bono legal services is commendable as it helps strategic goal achievement of both the aspects of the firms and hence, the firms would provide more efficient services to that extent.
Key to Effective & Competent Legal Aid
Lack of awareness is a major reason for the lack of utilisation of legal aid services. The indigent people are unaware on various levels. They are unaware of their rights and hence, many a times do not realise that there has been a wrong to them. If they recognise that the fact that they have been wronged then, they are unaware of the redressal mechanisms. The existence of legal aid services is yet something unknown to the indigent people. Hence, there arises a need to have massive awareness campaigns organised to spread the awareness about it and the onus to organise such events and campaigns lie on each one of us, the privileged lot having a legal background, apart from the government agencies and the NGOs. The judiciary needs to be sensitized about the predicaments of the indigent people, who are least aware of their rights and redressal mechanisms, with the view to promote the judicial officers to act considerably while dealing with such cases. Law students should be nurtured in an environment of inclusion, wherein, they can be made socially aware of the qualms of the indigent people and their contribution to solve the same could be taken into account.
There needs to be a change in the approach in which we expect the legal aid services to reach the indigent masses. Rather than expecting the indigent masses to come to the system seeking help, the system should approach the masses and tell them about their rights and the redressal mechanisms.
Free legal aid should not become an excuse for providing poor or inferior quality services to the indigent person. The lawyers in the panel should be experienced. The judiciary must look into the pro bono work done by the lawyers while elevating her to the position of senior advocate or judge. There should also be a performance appraisal for all those who are engaged in legal aid services, in order to encourage it further.
Sufficient financial resources are a pre-condition to the effective functioning of such a complex and structured process of legal aid services mechanism. The current budgetary allocation towards the legal aid services is far from being sufficient. The policy makers need to understand the prime importance of such services and dedicate funds accordingly.
Various forms of ADRs like arbitration, conciliation, negotiation and mediation can be used to provide effective legal aid to the people, which would be quick and inexpensive. Hence, there arises a need to further the awareness programs about the ADRs. Lok Adalats should be used in its true spirit, as the court of the people and not just an instrument of the judiciary to deal with the burden of pendency of cases.
Technology can provide a major impetus to deal with the issue of large shortage of legal aid services available. The initiatives taken by the Government, like ‘Tele Law’, which bring the lawyers closer to the indigent people through video conferencing, without physically being present at the places which are normally considered inaccessible, have a long way to go but, are in the right direction. The use of technology to address the issue is also an economic option. Hence, there is a need to further explore options on this front.
We need to have an all-encompassing approach to solve the issue of inaccessibility of the law for the indigent people. Law is for all and hence, justice should be for all.
Edited by Vedanta Yadav
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