Right to Free Legal Aid: Challenges In Times Of COVID-19

This Blog is inscribed by Shaivya Singh

      “Money plays no role in seeking justice.”

– Justice Blackmun, Jackson v. Bish

Introduction

India, on the bright side, is a developing nation with a vastly diverse population on the grounds of culture, religion, language but at the same time it has a vastly stratified population on the grounds of caste, sex, race, and wealth. After more than seventy years of independence, a long-hauled struggle remains for emancipation for equality in practice. In the preamble itself, the goal for our state is defined as to strive for social, economic, and political justice. Social justice means the abolition of inequalities from the society.

The colonial-era saw the growth of the legal profession in India which due to the hefty sums of fees led to denial of justice to the natives. To relax the overburdened judiciary, often the policy of imposition of fees had been used which becomes an obstruction in the path of justice for poor and other disadvantaged sections of society. But a lion’s share of the population lives in poverty.[1] Hence, free legal aid is the torchbearer provision to enable such poor and marginalized communities to approach the courts and seek justice.

With the help of constitutional provisions and other statutes and government policies, the Indian government has laid a framework for providing the indigent and other certain persons with free legal aid. The Covid 19 pandemic has had adverse effects on the world at large but has severely affected the poor. India, being a social welfare state and where rule of law prevails ensures its citizens that justice shall not be denied due to socio-economic and other disadvantages and handicaps. Hence, it is crucial to analyze and understand the role of State in protecting its citizens’ interests in the era of such perpetual medical crisis. This paper attempts to define the meaning of legal aid, the jurisprudence of Legal Aid in India, the evolution of legal aid concept, judicial decisions and the pandemic’s effect on the functioning and implementation of free legal aid.

Legal Aid Jurisprudence

The welfare state as envisaged by the preamble of our country was a necessity because of the underdeveloped conditions of our country. Poverty was at a large scale and even post-independence despite numerous government schemes and policies, poverty is far from being completely eradicated. Some speeches in the Constituent Assembly debates highlighted the need to “end poverty, ignorance, disease, and inequality of opportunity.”[2]

Dr. Rajendra Prasad, in his speech, remarked that independent India will be assessed on the terms of her capability to meet the basic needs of food, clothes, shelter and social services of  the common people.[3] It is of extreme importance that as a welfare state our country provides its citizens an equal opportunity to seek justice irrespective of their social status.

The constitution of India has guaranteed us certain inalienable fundamental rights implying that our Constitution is curated for the common man.[4] Articles 14, 15, 19, 21, and 22 of the constitution of India are the backbone when it comes to the basis for the right of free legal aid. The judiciary has time and again emphasized that due to widespread poverty and illiteracy in rural areas the people are unaware of their rights guaranteed to them.[5]

The International Covenant on Civil and Political Rights 1966 through Article 14 guarantees right to legal aid as a civil safeguard and a means to emancipate a decent living standard. The Constitution of India through its preamble guarantees equality and justice, hence for its enforceability, the right to legal aid is a part of fundamental right enshrined under Art 22(1) which states that under all circumstances no person is to be denied the right to consult and be represented by a legal practitioner of his choice.

Next, is Article 39(A) of Chapter IV of Constitution, which is a DPSP, provides that the State must make suitable legislations or schemes to provide free legal aid and ensure promotion of justice based on equal opportunity without leaving behind any person due to economic or other disability. Even, the Code of Criminal Procedure, 1973 confers the right to avail free legal services for session trials which are provided by the state to the economically weak or indigent accused.[6] In Civil Cases, the aid is provided by deduction in the fees payable by poor appellants.[7] 

Human rights jurisprudence is concerned with poverty and law is regarded as the most important instrument to eliminate poverty.[8] The roots of legal aid have been envisaged through these provisions, but the judiciary was very vocal about the importance of free legal aid services in our country in the 1980s and hence the policy framework for the manifestation of the rights as available in Art 39(A) was through the Legal Services Authorities Act, 1987. The legislation aimed “to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or any other disabilities.”[9]

The National Legal Service Authority (NALSA) was created under Section 3 of the Legal Services Authorities Act, 1987. Section 12 of the Act determines the class of individuals who are qualified to be benefitted with the legal aid services provisions. NALSA likewise disburses funds to the various NGOs so that the fruits of legal aid schemes and programs are realized and implemented.[10] Besides NALSA, the Supreme Court of India has also established the Committee (SCLSC) for ensuring free legal aid in the Supreme Court.[11] Our country today has an effectively functioning body of NALSA to assist the indigent persons with legal aid services.

The Evolution of Legal Services Authorities Act

Indian inspiration for provisions for legal aid as a constitutional right can be traced from the efforts of Justice NH Bhagwati in 1949 who chaired the “The Committee on Legal Aid and Legal Advice in Bombay” to assess the grants of legal aid to the indigent class of beneficiaries. Another committee under chairmanship of Sir Arthur T. Harries was constituted to deal with the question of legal aid to poor litigants.[12] The Law Commission of India’s report on the Reform of Judicial Administration, 1958 heavily emphasized for “the need for legal aid to poor litigants.”

The approach of judiciary in this period of time was restrictive in nature as was reflected in the cases of Janardhan Reddy v. State of Hyderabad[13] and Tara Singh v State of Punjab[14], where the court opined that a right to lawyer is a privilege of the accused and it is not on the state to provide him with the lawyer but it is his own duty to demand a lawyer if he wishes to appoint one and the Magistrate is duty bound to afford him the necessary opportunity to do so.[15] It was then in 1972, Honorable Justice Krishna Iyer chaired a committee which recommended for the facility of legal advice to be considered as constitutional and legal right and to make access to justice easily available to all sections of the society.

Under the chairmanship of Honorable Justice P.N. Bhagwati the ‘Implementing Legal Aid Schemes’ was constituted which majorly focused on the complete realization of Art 39(A) of constitution and recommended “for formulating the syntax of legal aid” to provide free legal services and create legal awareness. It was the sincere efforts of this Committee that helped in the promulgation of the Legal Services Authorities Act in 1987.

Judicial activism for socio-economic aspects of justice administration was observed in Khatri v State of Bihar[16] and Suk Das v UT of Arunachal Pradesh[17] which are deemed to have laid down the thematic edifice to establish the Legal Services Authority.[18] The National Legal Services Authority is the key instrument for implementation of the aforesaid act, and it was constituted on December 5,1995 and has served the nation for over two decades now.

The ambit of legal aid has been expanded by the Section 2(1)(c) of the Act which makes ‘legal service’ inclusive of any rendering pertaining to the conduct of any case or any legal proceeding before court of law or tribunal and the advice pertaining to legal matter. NALSA conducts various Lok Adalat’s, legal aid clinics, schemes, social action litigations and legal awareness and literacy campaigns besides providing free legal aid to recognized class of beneficiaries.[19]

Judicial Interpretation Of Right To Legal Aid: A Journey From Privilege Of The Accused To A Fundamental Right Of Every Citizen

In the case of S.P. Gupta vs President Of India And Ors[20], Justice Krishna Iyer’s remarks that, “we need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives”[21] are worth noting which express how crucial is the role of judiciary in the upliftment of the socio-economic and other marginalized sections of the society. By the way of Public Interest Litigation and judicial activism, judiciary has played a key role in dispensing justice to poor free of cost.

In the landmark case of Hussainara Khatoon & Ors v Home Secretary, State of Bihar[22], it was observed that Art 39-A focusses on free legal services an “inalienable element of reasonable, fair and just procedure” devoid of which a person burdened by economic disabilities cannot secure justice for himself. Hence, free legal aid is a constitutional right of every accused person who due to his circumstances cannot engage lawyer.

Then, the case of Khatri v State of Bihar[23], the right of free legal aid was talked at length. The court held that the State is constitutionally bound to assist free legal services to a poor accused not only at the stage of trial but also when he is first produced before the magistrate and when he is remanded from time to time.

In Suk Das v. Union Territory of Arunachal Pradesh[24], Justice P.N. Bhagwati, laid emphasis on the importance of legal awareness to the indigent as generally deprived of education they are unaware of their rights. When the literate population of the country is mostly unaware of their several entitlements, let alone the backward and poor class of people. Hence, legal awareness should also be a primary goal for the legal aid movement in our country.

In MH Hoskot v State of Maharashtra[25], the honorable Supreme Court held that the free legal services to an indigent prisoner or otherwise disabled from availing legal services, must be provided with the necessary legal assistance to uphold the constitutional aims.[26]

In Rajoo v State of Madhya Pradesh[27] the ratio of the court was that it is obligatory for the High Court to satisfy and enquire from the accused whether he requires legal assistance and if he does, such a demand is to be fulfilled at State expense.

In the case of In Re: Inhuman Conditions in 1382 Prisons[28], the Supreme Court held that the Member Secretary of the State Legal Services Authority of every State is duty bound to coordinate with the Secretary of the District Legal Services Committee in every district, to assure that adequate number of eligible lawyers are there to assist the poor and indigent undertrial prisoners and convicts. The court expressed a vital notion that the poor state if legal aid is not what legal aid for poor implies and hence the quality legal aid should be ensured in the country.

The Pandemic and Legal Aid in India

Justice shall not be denied, but the lockdown made the courts retreat and function in online mode. Justice administration in such times is only affordable and accessible to those who are at least literate. The poor and marginalized communities were witnessed being deprived of basic human rights. Various fundamental rights were being violated but to challenge them the intervention of lawyers and courts is necessary which was not included in essentials for the functioning of state activities in the beginning of the pandemic.[29] The pandemic has severely affected the poor and marginalized and hence the ordeal for justice for them is also at stake. It has caused more poverty and a new class of poor have emerged.[30]

NALSA has an enormous task to assist those people for whom access to justice is tough due to social status and financial strains. Thus, NALSA allocates tasks to the State Legal Services Authority and District Legal Services Authority which execute the task of providing free legal services and arrange other legal awareness campaigns.

The legal aid services have been in a compromised state especially recently as the resources provided were limited and justice administration was generalized without special provisions for the weaker sections of the society. The budget allocation for the law and justice ministry and especially for the NALSA is witnessing a downward trend. In 2018, the grants allocated to NALSA were 150 crores to discharge its functions, and in the subsequent year of 2019 it fell to 140 crores and in the year of 2020-2021 to only 100 crores[31]. The population is on a rise and so is the poverty, but the fund allocation to one of the most important functionaries of state which ensures justice to the poor and needy is shrinking. The NALSA also conducts Lok Adalat at district levels[32] and it is firmly believed that reducing the funds for inexpensive resolution of disputes is no less good than denial of justice.

NALSA has done a commendable job in assisting people with legal aid even in the lockdown. Be it for an appointment for a remand lawyer or simple legal advice or domestic violence case, NALSA ensured the right to free legal aid to the beneficiaries throughout the lockdown. Especially for the protection of females against domestic violence, maintenance, cruelty and harassment, NALSA kept the door of free legal aid open.[33] At the district levels, Protection Officers and Duty Magistrate were present to assist the victims to enforce their rights.[34]

In the statistics given by NALSA in April 2020, more than eleven thousand under trial prisoners across more than 200 districts were released to prevent overcrowding of jails amid the lock down.[35] NALSA along with District Legal Services Authorities also composed a workforce of panel lawyers and paralegal volunteers to make food, masks and other basic amenities accessible to the poor migrant laborer. The domestic violence was on a rise in the lockdown, but one must be aware that in our country especially the poor women hardly report for the domestic abuse.[36]

NALSA has seriously investigated the rising domestic violence cases by making the One Stop Centre’s[37] and SLSA’s coordinate for protecting rights of women. NALSA through the services of Lok Adalat as an ADR mechanism has remarkably and inexpensively disposed of pre-litigation and pending cases even during the pandemic by facilitating the service via virtual platform in the form of e-Lok Adalat. The statistics show that about 33 e-Lok Adalat have been organized in 17 States where about 5.41 lakh cases were taken up and 3.00 lakh cases disposed of resulting in settlement of Rs2918.00 cr.[38] All of this shows that even amid lock down, the legal aid was not denied to the citizens, but one might wonder that not all the statics show the true picture.

Hence, it was the privileged people were the ones able to engage influential lawyers to represent their cases through the modern video conferencing system, but the indigent section of the society had to wait for the courts to function physically.[39] There still lies a great need to spread legal awareness among citizens as the evils of ignorance and poverty exist.

Conclusion

India is a poverty-stricken developing country. Due to poverty, several human rights remain compromised. Free legal aid is a savior for those who cannot afford legal representation and services due to their socio-economic factors. With time, there has been a transformation judicial approach from recognizing legal aid as a privilege of the accused to a fundamental right of every citizen. The Indian judiciary and Parliament have recognized the right to legal aid and gave it necessary statutory backing.

Justice Bhagwati has rightly remarked that because one’s ignorance and poverty, the right to justice should not be denied. Free legal aid and services by the State is no charity or an act out of pity or a privilege for the accused but is an instrument that removes the social and economic handicap in seeking justice. NALSA provides legal services through its functionaries like Lok Adalat, Taluk Legal Services, Legal awareness campaigns and drives, public interest litigation, legal mobilizations, and related services.

With the lockdown came several hardships and even arranging for one square meal was a luxury. With such turbulence and the nonrecognition of legal services as an essential activity, justice became a privilege. While many would have been benefitted from the legal aid programs, many remained unaided. Most of this condenses to the fact that our country’s illiteracy level is high and unless people are made aware of all these subsidiary legal services, they will not be able to benefit themselves. There are many helpline numbers engaged by NALSA to protect the interests of the citizens, but the bigger question lies in the lack of awareness by a massive section of the society about such provisions.

For the grass-root level of effective functioning, legal awareness must be spread in local dialects for higher legibility. The role of law students is important as they must be sensitized towards society so that they also contribute to betterment at their ends. Recognition of law students in ‘student advocacy mechanism’ has been followed in the American legal education for a long time which has been a milestone and the same could by adequate reforms benefit Indian legal system in two ways, it would give the senior students clinical experience and the efficiency of implementation of free legal services to poor and marginalized persons would also increase. Paralegal volunteers must be encouraged to reach out to people to ensure legal services are a reality in India. The legal aid lawyers should be economically secured so that they discharge their duties effectively.

The State should invest meticulously in legal education and awareness through the agencies of NALSA. The law colleges must organize legal awareness campaigns and sensitive their students to the socio-economic reality of India. The noble profession of lawyers is defeated when the sole purpose is to monetize it without helping society. Legal professionals should come forward to help these citizens protect and enforce their rights not merely as a charity but their duty towards society. In all, NALSA has striven to uphold the constitutional motives, yet better implementation of its services at the grass-root levels is a matter of concern.

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).


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

[2] Poverty eradication – Why do we always fail?, available at: https://www.downtoearth.org.in/news/governance/poverty-eradication-why-do-we-always-fail-56927

[3]Eminent Parliamentarians Series, available at: https://eparlib.nic.in/bitstream/123456789/58684/1/Eminent_Parliamentarians_Series_Rajendra_Prasad.pdf

[4] Nani Palkhivala- Constitution and the Common Man, available at https://www.livemint.com/Sundayapp/VFNFWrnJPAaYpXZZfiLD1M/Nani-Palkhivala–Constitution-and-the-common-man.html

[5] AIR 1981 SC 928.

[6] The Code of Criminal Procedure, 1973, s.304.

[7] The Civil Procedure Code, 1908, Order XLIV.

[8] Genugted Willem Van and Perez-Bustillo Camilo (eds.), The Poverty Rights-Human Rights and the Eradication of Poverty 184 (Zed Books, New York, 2001).

[9] Supriyo Routh, “Providing Legal Aid: Some Untried Means” 50 Journal of the Indian Law Institute 382 (2008).

10. Legal Aid in India Amid the COVID-19 Lockdown, available at: https://www.jurist.org/commentary/2020/05/agrawal-mishra-india-legalaid

[11] Andrew Higgins, “Legal Aid and Access to Justice in England And India” 26 Student Advocate Committee 21 (2014).

[12] A Brief History of Legal Aid, available at: http://www.legalserviceindia.com/articles/laid.htm

[13] AIR 1951 SC 217.

[14] AIR 1951 SC 411.

[15] http://www.legalserviceindia.com/article/l340-Legal-Aid-In-India.html

[16]AIR 1981 SC 262.

[17]AIR 1986 SC 991.

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

[19] Social Action Litigation, available at: https://nalsa.gov.in/services/social-action-litigation

[20] Civil Writ Petition No. 865 of 1993.

[21] Ibid.

[22] (1980) 1 SCC 98.

[23] AIR 1981 SC 262.

[24] AIR 1986 SC 991.

[25] (1978) 3 SCC 544.

[26] Supra note 9.

[27] (2012) 8 SCC 553.

[28] (2016) 3 SCC 700.

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

[30] 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/

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

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

[33] Legal Aid in India Amid the COVID-19 Lockdown, available at: https://www.jurist.org/commentary/2020/05/agrawal-mishra-india-legalaid/

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

[35]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

[36] 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

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

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

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

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