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By Aman Chain | Member of our Writing Team
Keywords: Legal Aid, Equal Justice, Article 39A, NALSA, Legal Representation, Social Welfare, Marginalised Communities
I. Introduction
The term development is inherently abstract and can be interpreted in various ways. What it means for a nation, state, or community hinges on numerous factors. The conditions under which a society is deemed democratically developed and equal also involve several underlying elements that are often ignored or overlooked. A crucial aspect of a healthy democracy is ensuring equal access to justice and fundamental legal aid.
Legal aid is essential to ensure equal justice for all, particularly for the marginalised, so that no one is denied their legal rights or access to the courts due to poverty, illiteracy, or other incapacities. In many societies, numerous individuals struggle to attain fair access to the courts and equal opportunities before the law because of these barriers. Illiteracy and poverty are primary factors that create a significant divide between the disadvantaged and the judicial system. Within the current administrative framework, millions are deprived of equal justice due to high court fees, expensive legal representation, and complicated procedures. Due to their lack of education and awareness, many are ignorant of the rights and privileges granted by laws and the Constitution, leading to a continuous denial of these rights. Furthermore, their economic hardships prevent them from defending these rights against more powerful individuals and systems.
II. Highlighting the Need
The necessity for enhancing the “social and economic” conditions of citizens by improving the efficiency of state welfare activities is unquestionable. Philosopher John Locke viewed the state “instrumentally,” concluding that it is the only institution capable of reliably “judging injustice” and “enforcing justice.” Rawls, on the other hand, regarded justice as an “intrinsic function” of the state, which it fulfils by being part of a system of “cooperation.”[1]
The National Legal Services Authority (NALSA) defines legal aid on its website as encompassing both pre-litigation and post-litigation services. According to it, free legal services involve offering free legal assistance in both “civil and criminal” cases for those impoverished and marginalized
individuals who cannot “afford” a lawyer’s services for handling a case or legal proceeding in any “court, tribunal, or before any authority.”[2] Additionally, free legal services include providing aid and advice to eligible individuals to help them access benefits under welfare laws and schemes formulated by the Central or State Government, thereby ensuring access to justice in various ways.
Several reasons have been cited to advocate for legal aid in India, highlighting the prevalence of unequal access to legal processes.[3] On one end of the spectrum are individuals who have no access to the courts, those who are deprived of “justice” and therefore require aid to address access issues. On the opposite end are citizens who, despite approaching the courts, lack the necessary resources to see their cases through due to financial constraints. Additionally, there are individuals who fall somewhere in between these extremes. This varying need for aid is what can be referred to as “pre- and post-litigation” requirements.[4]
III. The Right to Legal Aid and Equal Justice
The Indian Constitution serves as an exemplary model globally, demonstrating that the rule of law is unattainable without access to legal assistance. Consequently, it is the state’s duty to provide legal help to those who cannot afford it. The Preamble of the Indian Constitution secures all its citizens social, economic, and political justice.[5] Further, Article 38(1) mandates that the state shall promote the welfare of the people by securing and protecting a social order that includes justice. Furthermore, Article 39-A specifies that the state shall provide “free legal aid” through appropriate legislation or schemes to ensure that no citizen is denied opportunities for securing justice.[6]
A. Constitutional Mandate
Article 39A of the Indian Constitution aims to guarantee that all citizens, regardless of their “socio-economic” status, have access to justice. It underscores the importance of offering legal aid and assistance to those unable to “afford” it, ensuring that financial constraints do not prevent anyone from obtaining justice. This provision highlights the significance of “equal opportunities” in securing justice, irrespective of economic differences, advocating for the concept of “equal justice” under the law, and ensuring that every individual is treated fairly and impartially by the legal system.[7] Additionally, Article 39A emphasizes the need for the justice system to be “accessible, efficient, and responsive” to the needs of the people.
This Directive Principle, established in 1976 during the Emergency Rule,[8] made minimal progress in delivering justice to those in need until the Supreme Court of India’s decision in Hussainara Khatoon v. State of Bihar.[9] The Court asserted that the protection guaranteed under Article 21, ensuring a “reasonable, fair, and just” process when an individual’s liberty or life is at risk, includes the right to legal assistance.
B. Statutory Mandate
The Legal Services Authorities Act, which came into effect in 1995, extended free legal services to individuals who are “socially and economically” disadvantaged across India.[10] One of the legislation’s key provisions, aimed at ensuring equal access to justice for all, requires “pro bono” attorneys and advocates to offer their services at no cost to those who are not able to afford legal representation. However, in practice, this mandate faces significant challenges, denying the poor access to high-quality justice.
The Act specifies the structure and functions of legal services authorities, which are responsible for establishing “legal aid clinics,” providing legal counsel, and coordinating representation in courts and other judicial forums. It mandates the formation of “legal aid cells” in each district to ensure accessibility of legal assistance at the local level. The Act also sets forth the criteria for legal aid eligibility, aiming to support those who truly require it. It underscores the significance of legal literacy programs and outreach activities to increase awareness of legal rights and entitlements. Moreover, the Act authorizes legal services authorities to employ alternative dispute resolution methods, like mediation and conciliation, to achieve the “quick and cost-effective” settlement of disputes outside the formal judicial system.[11]
Despite the legislative framework and organizational structure designed to provide legal aid, in practice, “very little legal aid is provided by either the bar or the state” in India, particularly in the lower courts. Furthermore, the legal aid that is offered by lawyers on legal aid panels is often inadequately compensated, with attorneys receiving only small sums for each case.[12] There are also arguments that the government has not been able to provide adequate facilities and incentives to work on the quality and skills of these advocates, resulting in an imbalance in legal representation between the contesting parties.
IV. A Look at the Data
The role of the state in ensuring that the underprivileged receive basic legal aid and equal access to justice is crucial. In a country like India, where there is significant variation in literacy rates across different states, the funding provided by the state for the civil and criminal justice systems has been relatively “inadequate.” Approximately 60% of India’s nearly 1.3 billion population lives on less than $3.10 a day,[13] the World Bank’s median poverty line, and 21%, or over 250 million people, survive on less than $2 a day.[14]
As of 2018, the per capita expenditure on legal aid in India was a mere ₹0.75. The total fund allocated to State Legal Services Authorities amounted to ₹257 crore, with the National Legal Services Authority allocating 31% (₹79 crore), state governments contributing 61% (₹156 crore), and miscellaneous funds accounting for 8%.[15] Notably, ₹37 crore (15%) of the total funds remained “unutilized.” The issue lies in the state’s failure to fully utilize the allocated funds. A report launched by former Law Commission Chairman Justice A.P. Shah highlighted that about 15% of the total funds allocated to state legal service authorities were “left unused”.[16]
V. Conclusion
Despite constitutional guarantees and legislative frameworks designed to offer free legal aid, the practical implementation remains fraught with inadequacies. Given the persistent issue of restricted access to justice, it’s important to remember that ensuring access to justice involves courts delivering decisions that are reasonably reliable, timely, and cost-effective. Lawmakers, lawyers, and judges today face the task of achieving accurate, prompt, and “affordable” results with reduced public funding.[17] The weaker sections of society often struggle with issues such as lack of education, poverty, and limited access to resources and remedies. To address these challenges, it is essential that states establish more educational institutions at the district level. These institutions should be staffed with ethical and dedicated individuals who are committed to promoting legal awareness and providing assistance with complete honesty. These efforts should be complemented by adequate funding and effective utilization of resources to ensure that legal aid reaches those most in need. Only through a concerted effort to bridge the gap between the disadvantaged and the judicial system can India hope to uphold the principles of fairness and justice for all its citizens.
References
[1] Christiano T, ‘Secession, Democracy and Distributive Justice’ (HeinOnline, 8 March 2021) <https://heinonline.org/HOL/LandingPage?handle=hein.journals%2Farz37&div=18&id=&page=> accessed 14 July 2024 .
[2] ‘Legal Services’ (National Legal Services Authority, 14 November 2019) <https://nalsa.gov.in/services/legal-aid/legal-services> accessed 14 July 2024.
[3] Verma K, ‘Analyzing HC-NJDG Data to Understand the Pendency in High Courts in India’ (OSF) <https://osf.io/preprints/lawarxiv/xryj7/download; https://www.prsindia.org/policy/vital-stats/pendency-cases-judiciary> accessed 05 July 2024.
[4] ‘Legal Aid Defense Counsel System’ (Legal Aid Defense Counsel System - National Legal Services Authority!, 15 November 2019) <https://nalsa.gov.in/acts-rules/guidelines/legal-aid-defense-counsel-system-2> accessed 14 July 2024.
[5] ‘Preamble, the Soul of the Constitution’ (Ministry of Culture, Government of India) <https://indiaculture.gov.in/sites/default/files/events/Preamble_the_Soul_of_the_Constitution_26.11.2020.pdf> accessed 14 July 2024.
[6] ‘Part IV Directive Principles of State Policy’ (Ministry of External Affairs ) <https://www.mea.gov.in/Images/pdf1/Part4.pdf> accessed 05 July 2024.
[7] Basu DD, ‘Introduction to the Constitution of India (27th Edition)’ (Lexis Nexis, 2021) <https://store.lexisnexis.in/introduction-to-the-constitution-of-india> accessed 05 July 2024.
[8] Koppell GO, ‘The Indian Lawyer as Social Innovator - Legal Aid in India’ (Heinonline.org, 1969).
[9] Hussainara Khatoon v. State of Bihar, 1979 SCR (3) 532.
[10] (Department of Justice | India) <https://doj.gov.in/access-to-justice-for-the-marginalized> accessed 12 July 2024.
[11] (Department of Justice | India) <https://doj.gov.in/access-to-justice-for-the-marginalized> accessed 12 July 2024.
[12] Sidhva P, ‘Legal Aid in India: The Need for Strong Laws and High Minds’ (OHRH, 18 November 2012) <https://ohrh.law.ox.ac.uk/legal-aid-in-india-the-need-for-strong-laws-and-high-minds/> accessed 13 July 2024.
[13] Basu M, ‘This Is What It Means to Be Poor in India Today’ (CNN) <https://edition.cnn.com/interactive/2017/10/world/i-on-india-income-gap/> accessed 13 July 2024.
[14] ‘Poverty and Inequality Platform ’ (The World Bank) <https://pip.worldbank.org/home> accessed 13 July 2024.
[15] ROBINSON N, ‘A Court Adrift’ (Frontline, 23 April 2018) <https://frontline.thehindu.com/cover-story/a-court-adrift/article4613892.ece> accessed 13 July 2024.
[16] Singh SR, ‘“15% of Funds Allocated to State Legal Services Stay Unused”’ (The Hindu, 9 September 2018) <https://www.thehindu.com/news/cities/Delhi/15-of-funds-allocated-to-state-legal-services-stay-unused/article24911399.ece> accessed 14 July 2024.
[17] Vijay V, ‘JUSTICE - A DISTANT DREAM FOR MANY’ (ILI Law Review , Summer 2021) <https://ili.ac.in/pdf/7A.pdf> accessed 15 July 2024.
Aman Chain is a first-year LL.B. student at Jindal Global Law School. His areas of interest are Constitutional law, queer studies and intersection of religion and law.
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