By Enakshi Sarkar
Published on: April 7, 2022 at 10:19 IST
‘Laws should be made to serve the people.’ – Huey Newton.
Introduction
Justice stands for the rule of law, absence of arbitrariness and a system of equal rights in a society. The Indian Constitution guarantees social, economic, and political justice to all citizens. In order to ensure that the constitution empowers the government to make certain provisions such that all citizens are assured ethical, economical, and speedy resolution of grievances. These provisions are collectively known as ‘legal aid’.
There are innumerable people who cannot afford to burden themselves with the astronomically high litigation expenses, legal aid is for such poor people. They are provided free legal services in criminal and civil matters in any court, tribunal or authority and this set up makes justice available to the doorstep of every people, residing in the society, irrespective of any class or discriminations.
History
Legal aid in India traces its roots to the medieval era of India, under the reign of Shah Jahan and Aurangzeb when the state lawyers and advocates were then known as Vakil-e-Sarkar or Vakil-e-Sharai who were appointed to assist and advise poor litigants in the legal matters for free.
But the introduction of the systematic legal aid dates back to 1851, when this process was initiated by the French government to extend the legal help to the needy. In India, legal aid was introduced in 1952 and in 1995, the Legal Services Act came into force, establishing a nationwide uniform network for providing free and competent legal services to weaker of the society on the basis of equal opportunity.
National Legal Services Authority of India was created under this statute, to provide free legal services to enhance speedy resolution of the cases.
Legal aid is fundamental to giving everybody in this country access to justice’ – Jeremy Corbyn.
Article 39 A of the constitution declares that the state shall in particular provide free legal aid, by suitable legislation or schemes to ensure that opportunities for securing justice is not denied to any citizens. In every state, a state legal services authority and in every High Court, a High Court Legal Services Committee have been constituted. District legal Services, Taluk Services Committee have been constituted in the districts to provide free legal services to the people and conduct Lok Adalats in states.
In ‘M. H. Hoskot v. State of Maharashtra’ [ (1978) 3 SCC 544] it was observed by the court that free legal services at the trial court and appellate levels, where deprivation of life or personal liberty is at stake are a necessary component of procedural justice.
In ‘Sheela Barse v. State of Maharashtra’ [(1983) 2 SCC 96] here the court issued directions Maharashtra prisons to send a list of all under trial prisoners to the Legal Aid Committee to facilitate the communication of the lawyers and all those who want to avail legal assistance.
In ‘Hussainara Khatoon v. Home Secretary, State of Bihar’ [(1980) 1 SCC 98] it was held that legal services are an essential ingredient of just, fair and reasonable procedure under Article 21. This was the first landmark case which impressed upon the government the need to establish a comprehensive legal service programme.
The main objective of the Legal aid is to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker section of the society.
Eligibility of getting the pro-bono aid
The Act prescribes stipulated criteria-
1. member of scheduled caste or tribe
2. a victim of trafficking in human beings or beggar as referred to in Article 21 of Constitution of India.
3. a woman or a child
4. person mentally leave or dis-abled person.
5. an industrial workman and other relevant criteria.
Present Scenario
In India, where the population is consistently teeming up over the years, the statistical need of the lawyers, is also on a rise. In the present scenario, various vacancies due to the non-fulfilment of the requirements and important criteria, the privilege of the legal aid often gets disturbed. According to a report stated by the Commonwealth Human Rights Initiative there is one lawyer for every 736 people. Many has to hunt for the lawyers for several months.
Dysfunctions attached to the system such as demanding incentives from the beneficiaries who opt for the legal aid, general disinterest of the lawyers to pursue such unproductive cases counts to the distress of the poor. Nevertheless, the adversities attached within the legal aid system soon overtakes the altruistic motivation to serve the poor. Also, it is an undeniable fact that the attorneys furnishing pro-bono aid cannot be compelled to go ahead with the law suit and it’s up to their individual choice whether they will continue with the case or not.
Thus, low quantum of honorarium and nature of empanelment encourages the lawyers to invest more labours on private cases rather than picking up the non-profitable legal aid cases. A study conducted by The Hindu demonstrated that most beneficiaries (75%) chose the free legal aid services due to dearth of resources to hire a private lawyer.
This study also revealed that 60% of women have no confidence over the quality of services offered under the legal aid system. Therefore, if the problem of the legal aid system has to be deciphered then one has to look into its operating management and resources.
As per the statistical report of 2019-20 (Economic Times) several states – Jharkhand, Assam, Manipur allocated no funds for the legal aid service. Other problems such as less number of female paralegals, inadequate performance of lawyers, absence of mechanism to gauge customer satisfaction riddled the system with several disadvantages.
Lok Adalats which serves as one of the means by which the legal aid system is executed are voluntary in nature. They are presided by the retired judges and often proves to be ineffective, because in India many of the cases wholly gets disposed by them, some remains in the pre litigation stage as such among the highest number of cases disposed at the pre litigation stage is in West Bengal.
Also, in the present time when the world is racked by the outspread of covid 19 pandemic, to provide the legal aid to the needy has proved to be a tough row to hoe. The cases of domestic violence, and sexual harassment witnessed a rapid upsurge but no essential legal assistance could be dispersed to the sufferers.
The issues and messy complications in the system can be effectively checked for which we need to streamline the government machinery. A timely and coherent manner is utmost vital for the sound working of the justice system and also enable the built-in trust of the people.
Several aspects such as distribution of the incentives, recruitment of more female paralegals should be checked wisely. Legal aid panel should focus on spreading awareness between the layman and the underprivileged section who seek legal guidance.
Conclusion
Section 304 of The Code of Criminal Procedure, imposes an obligation on the courts to provide legal aid at the expense of the state to an accused, who cannot afford a pleader. Some improvements can be made to fill the lacunas in the process, which in the long run help establish a welfare state-
1. The government should embark on a campaign to inform and educate the public of their rights available to them.
2. Legal aid panel should focus on spreading awareness between the layman and the under-privileged persons who seek legal guidance.
3. A proper monitoring committee should be established which would spread awareness at a mass level to encourage them to opt for free legal aid services.
4. Recently, Tele Law Scheme has been launched, whose objective is to facilitate delivery of legal advice virtually to the general public through the panel lawyer stationed at the State Legal Service Authority using network of common service centre through a video conferencing or telephone, thus this scheme aims to provide service hassle free using technology.
A reformatory structural step towards it will evidently help in sound working of the Justice system, because Reginald Herber, rightly observed in ‘Justice and the Poor’, that “without equal access to the law, the system not only robs the poor of their only protection, but it places in the hands of their oppressors, the most powerful and ruthless weapon ever invented”.
Author- Enakshi Sarkar, a law student studying in Department of Law, University of Calcutta (2021-26). The author is currently in her first year and is exploring the field of law. She nurtures interest in content writing and blogging.