According to Article 22 (1) and Article 14 of the Constitution of India, legal aid is a right and Article 39-A advocates the provision of free legal aid to citizens in need. Free legal services are provided under the Legal Services Authorities Act 1987 and are run by the National Legal Services Authority. Section 304 CrPC guarantees free legal services in case of court proceedings. Both the 14th Law Commission Report and the 48th Law Commission Report talk about the concept of free legal aid. Section 12 of the Legal Services Authorities Act, 1987 lays down the criteria for entitlement to free legal services, if required by needy persons.

Problems Plaguing Delivery of Free Legal Aid

The advocates deputed to provide free legal aid to the poor and indigent prisoners incarcerated in jails seldom visit the prisoners lodged in jails and rarely discuss the development of the case with them. Some prisoners don’t even know which advocate has been deputed to fight their case in the courts. These advocates deputed by the District Legal Aid Authorities or the Sub-divisional Legal Aid Services Authorities take least interest in getting the poor prisoners released.

Mostly inexperienced and less efficient advocates are engaged by the District and Subdivisional Legal Aid Services Authorities as it is difficult to hire a good advocate at the honorarium given to these advocates so engaged. Further, the honorarium given to the advocates engaged is also not given regularly thereby resulting in lack of interest in the advocates in providing relief to the prisoners by fighting their case in courts with sincerity and vigour.

There is no supervision over the work of these advocates engaged by the DLSA or SDLSA leading to poor quality of service provided to the prisoners. Judges reportedly don’t give enough respect to the advocates engaged in providing free legal aid as compared to that given to regular or private advocates. The endless cycle of delayed reimbursement, lack of infrastructure for free legal aid, and little respect from seniors in the court, make many advocates engaged in providing free legal aid quit their job.

According to a research study in 2020, about 20% of legal aid counsels identified a lack of infrastructure, such as designated chambers for interacting with clients, 23% blamed the low honorarium and 34% complained about the delay in processing payments, as some of the frustrations with the system.

Some lawyers allegedly have to pay for printing or photocopying for the litigants’ documents and drafting expenses from their own pocket.

A 2004 study by Odisha High Court Chief Justice S. Muralidhar (when he was a judge of the Delhi High Court) shows that most of the funds are used for administrative services rather than legal aid itself.

As per the 2018 CHRI study including 29 states and seven Union territories, per capita spending on legal aid in India is Rs 0.75, one of the lowest in the world. In 2019-20, as per Tata Trusts’ India Justice Report 2020, per capita spending on legal aid in India was Rs 1.05.

It has also been seen that inexperienced and incompetent advocates are appointed as the free legal advocate thereby defeating the whole purpose of the legal aid. It has also been noticed that legal aid advocate appointed on behalf of the accused remained absent during the trial and all the testimonies were recorded in his absence.

In one case a poor and innocent person was named as the accused & was convicted by court based on unreliable eye witness and improper cross examination by the legal aid advocate and thereafter though the accused was enlarged on bail but due to lack of money for the bail bond he remained in the prison.

In yet another case the legal aid advocate remained absent during the trial by seeking the adjournments and later on he filed and withdrew the application for pleading as the advocate and court decided and convicted the accused without hearing the other side violating the principle of natural justice. In a similar case an advocate who did not have any experience was appointed as the legal aid advocate. In a different case the right to appeal was denied to the accused based on the reason that the accused was in the prison.

Many people especially in rural areas of India are unaware of their right to free legal aid and this lack of awareness prevents them from seeking assistance when needed.

Due to insufficient government funding for legal aid services, there is perennial shortage of resources, including lawyers, support staff, and infrastructure.

There is shortage of trained and qualified lawyers and paralegals willing to work in legal aid clinics and this affects the quality and quantity of legal aid services available.

Due to bureaucratic red tape, the process of accessing legal aid becomes cumbersome, making it difficult for individuals to access timely assistance.

Leaving rural and remote communities underserved, legal aid services are often concentrated in urban areas and this geographical disparity makes it challenging for marginalized populations to access legal aid.

Among various stakeholders involved in legal aid services, including government agencies, non-governmental organizations, and legal professionals, there is often a lack of coordination leading to inefficiencies in the delivery of the services.

Legal aid services primarily focus on criminal cases and civil cases which also have a significant impact on individuals’ lives receive little attention.

In most of the cases, due to lack of resources and training, the quality of legal representation provided by legal aid lawyers is subpar and poor.

Many individuals lack basic legal literacy making them understand their rights and legal system challenging, even with legal aid services available.

Limited adoption of technology in legal aid services hinders its efficiency and accessibility especially in remote areas.

The effectiveness of legal aid services is affected by lengthy delays in the resolution of legal matters as Indian legal system is known for its backlog of cases.

Some individuals are reluctant to seek legal aid due to social stigma or cultural barriers, particular in cases related to sensitive issues such as domestic violence or discrimination.

There are high caseloads on advocates providing free legal aid due to large number of people seeking assistance leading to burnout and a lack of adequate time to prepare cases thoroughly.

Many lawyers engaged in free legal aid do not receive adequate remuneration for their work, which can discourage experienced lawyers from participating in such programmes.

In September 2022, NALSA came up with Advocate Vacancies under the Legal Aid Legal Aid Scheme where applications were invited to hire permanent, pro bono Legal Aid Lawyers in the Criminal Section. Fixed salaries ranging from Rs 20,000 to Rs 1 lakh per month, depending on the population of the states where they will be deployed, will be given to these lawyers. They will also have holiday pay, although maternity leave is not currently listed as a benefit. You can well imagine what will be the quality of a lawyer hired with a monthly salary of Rs 20,000 to Rs 1 lakh.

In the case of Hussainara Khatoon v. State of Bihar, the Supreme Court held that if any accused cannot afford legal services, he is entitled to free legal aid at the expense of the State. It is the duty of the state to ensure that the legal system promotes justice based on equal opportunities for all its citizens.

The Supreme Court delivered a landmark judgment in the Sheela Bars case in 1986. The court ruled that the right to legal aid is a fundamental right under Article 21 of the Constitution of India.

In Khatri v. State of Bihar (AIR 1981 SC 262), the Supreme Court held that the State is constitutionally bound to provide legal aid not only at the trial stage but also when they are first produced before a Magistrate or at any time taken into custody.

Conclusion
Since the fate of release of many prisoners lodged in different jails across the country in addition to other free legal aid seekers depend on the availability of free, quality and timely legal aid, it is high time the affairs of free legal aid are reviewed at the national level and the different loopholes plaguing the free delivery of legal aid are plugged as early as possible by increasing awareness about free legal aid, by increasing the budget allocated for free legal aid.

By creating a separate legal aid services, by empanelling quality advocates for providing legal aid, by establishing free legal aid facilities in the rural and far flung areas, by improving the remuneration of paralegal and advocates engaged, by increasing the quantity and quality of the advocates and paralegal deputed in proportionate to the number of free legal aid seekers both in and outside jails, by introducing a supervision mechanism over the people engaged in providing free legal aid and by better coordination between the various stakeholders engaged in this noble service.

References:

1. https://law.dypvp.edu.in/blogs/legal-aid-how-can-it-be-availed
2. https://idronline.org/article/livelihoods/why-is-the-quality-of-indias-free-legal-aid-so-poor/
3. https://www.legalbites.in/free-legal-aid-in-india/
4. https://scroll.in/article/1040169/why-quality-of-free-legal-aid-remains-poor-in-india
5. https://indianlawportal.co.in/free-legal-aid-challenges-solutions/
6. Bal Bahadur v. Customs Air Customs Officer CRL.A. no. 12 (2009)
7. Sudhakar Tiwari v. State ILR (2012) III (DEL) 34
8. Asmaniya Bai v. State of M.P 2000 (3) MPLJ 272
9. Ramchandra Nivrutti Mulak v. State of Maharashtra LQ 2008 HC 2119
10. Sunil s/o Khanderao Gaikwad & Anr. v. The State of Maharashtra & Others LQ 2013 HC 18529
11. Rajinder Singh @ Bijoy singh v. State Of West Bengal (2004) CriLJ 4023
12. M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565