“Injustice anywhere is a threat to justice everywhere”, said by Martin Luther King. The ‘Nyaya and ‘Justice’ has been a point of contention in every rule and dynasty. With the evolution of human society as well as politics the definition of justice has evolved. The major question now is, where do we get justice from? The obvious answer would be the Courts but when we venture through the judicial proceedings the reality is different. Is the judiciary upholding the beacon of Justice or has it rather failed to deliver what 30 billion citizens have been striving for?
There are several courts in India at different levels and with different jurisdictions. At the apex is the Supreme Court, then the High Courts followed by the District Courts and the Civil Courts in a descending order of power and authority. The Supreme Court is the highest court of appeal but the basic work starts from the lower levels of courts where everyday thousand people try to get justice. But the ground reality is seen in the lower courts. There are multiple reasons why people cannot access justice which makes it imperative to take the issue in serious concern.
First, India is a large country with a vast population and the judicial system here is complex. The courts are always overburdened and the fact that “justice delayed is justice denied” is not even realised.
Secondly, illiteracy, cultural barriers etc. are the major impediments. Not being educated and aware about one’s own rights and the possible schemes and measures that can be taken are the biggest reasons that take people aloof from seeking justice and righteousness. Culture is an intrinsic factor influencing every society. The Indian culture is staunchly imbedded which creates a cleavage in what is legally and logically right and what is morally right.
Third, the legal recourse is way too expensive. “In order to learn more about the demographics of those using the Indian court system, a national survey on access to justice was carried out between November 2015 and February 2016 in 30 locations across 24 states. The results showed that more than 80% of the population is out of the reach”[1]. The ambit of justice is beyond the reach of the maximum population. The very obvious reason is the exorbitant demands of the legal system. Going through the course is a lengthy process which keeps one dragging through courts.
Justice in its literal sense refers to fairness and equality. As has been stated by thinkers like “Plato said that justice is the quality of the soul”. John Rawls in the theory of Justice has said that justice is the fairness regarding equal rights, opportunities and position. According to the social contract theory the society submitted its rights in the hands of the legitimate sovereign who would protect them. This sovereign gets its power from the law. Thus, law is the tool which acts as a control mechanism in the society and it is the instrument which gives access to justice. In a just society everyone has equal rights and opportunities. One of the fundamental rights of a human is the right to get justice and in today’s world justice can be achieved through the legal system. Ultimately, the right to get legal remedy is the basic right everyone must have. This legal recourse concerns the legal and judicial system.
People do not look at the judicial system as their protector, rather it is looked upon as a money and time sucker. The law degree is one of the most expensive degrees and like any other profession the major motive of the practitioners is to earn money. Lawyers charge high for the cases they appear which is not bearable for the major section of the society. But this should not bar anyone from accessing legal aid. Every person has the right to legal aid. The preamble talks of justice and equality. To achieve this justice be it social, economic or political, to secure equality in all terms one takes the support of the judiciary. The constitution provides it through articles 14, 21 and 39.
The origin of right to legal aid
The Constitutional Provisions
The right to free legal aid comes from the Constitutional Rights conferred upon the individuals. The significance of the Right to Legal Aid is inherent in Articles 14 and 21 of the Indian Constitution”[2]. According to “Article 39A of the Indian Constitution, the state must ensure that the administration of the legal system promotes justice on the basis of equal opportunity and must, in particular, provide free legal aid, through appropriate legislation or schemes or in any other way, to ensure that no citizen is denied the opportunity to secure justice because of their financial situation or other disabilities”[3]. “Despite not being enforceable, the Directive Principles of State policy, enacted in 1976, emphasise the importance of equal access to justice”[4]. In the perspective of the state and the law, no person shall be denied equal rights. On Indian soil, everyone’s rights are equally safeguarded. Therefore, everyone should be treated equally and must be given a fair chance to seek legal redress. “In accordance with Article 21, no one’s right to life and personal liberty should be violated contrary to the legal procedures”[5]. Free legal aid must be ensured in order to guarantee substantive equality which makes it essential to provide free legal services to the less fortunate sections of the society, who cannot afford to employ an attorney to represent them in courts or in additional legal proceedings before a tribunal or other judicial bodies. The precedents that the judiciary has established via rulings provide an additional backing for the Right to Legal Aid.
Precedents and Reccomendations
In “Hussainara Khatoon v. Home Secretary[6]”, the trial and the conviction was set aside on the ground that the accused was not offered free legal aid where he was unable to engage a lawyer. It is held in this case that the procedure, which does not make available legal services for the accused, cannot possibly be regarded as reasonable, fair and just.
In the case “Madhav Hayawadanrao Hoskot v. State of Maharashtra”[7], the Supreme Court explored the idea of a free legal aid and declared it to be a significant part of the Indian Constitution. “Article 21 was also discussed, which stipulates that no one may be deprived of their life or personal liberty without procedure established by law[8]”. “Article 142, which gives the Court the authority to assign a lawyer to the prisoner in order to ensure that they receive complete justice if they are unable to exercise their statutory or constitutional right to appeal is a befitting example to substantiate the Right to Free Legal Aid.”[9]
Similarly, in “Sukh Das v. Union Territory of Arunachal Pradesh[10]”, it was held that the appellant was never made aware of his right to free legal representation. Without being provided any legal representative he was declared guilty. The court said that the conviction and imprisonment of the appellant must be overturned because a constitutional flaw tainted the trial.
In “Khatri v. State of Bihar[11]”, the trial without offering legal aid to an indigent accused at State cost was held to be vitiated and conviction was set-aside. The court’s decision in this was in accordance with the article 14(1) of the Indian Constitution case is a clear expression its disappointment that the majority of the states in the nation have not followed its directives or made an effort in that regard. The state’s claim that its finances were insufficient to provide the accused with legal representation cannot be used as a defence to escape accountability.
“The history of legal aid can also be traced back to 1949, when the Bombay government established a commission under the leadership of Justice N M Bhagwati to examine the state of poverty and determine how to offer the citizens the benefits of free legal aid”[12]. It recommended that both the parties should receive legal assistance because it is the state’s duty to do so. “The Bengal committee was established by the West Bengal administration once more in 1950 to concentrate on different legal aid service implementation strategies”.[13] “Then, in 1958, the Justice MC Setalvad established the 14th law commission report on Reform of Judicial Administration”.[14] Justice should be accessible to everyone, according to the report, which stated that it is not only the responsibility of the State but also the legal community’s duty. “The International Commission by Jurists Committee on Judicial and Legal Profession under Rule of Law state emphasised upon the requirment to offer free legal assistance to a certain group of people, such as children, women, and the destitute, in 1959”.[15] The matter went under scrutiny to the central government in 1960. “PN Bhagwati served as the Gujarat committee report’s chairman in 1970. Through all the discourses it was established that the State must provide legal services, as stated by the constitution’s Article 14 and Article 22(1)”[16]. The committee supported providing free legal representation in tribunals in addition to civil or criminal courts. A legal aid system should then be made available at all levels—state, district, and taluk—after establishing a legal fund. The word “Legal Aid” refers to the provision of sufficient legal representation, preventive services, and proactive measures.
An expert committee established in 1973 and led by Justice Krishna Iyer held that the legal assistance is an essential tenet. As a result, Article 39A of the 1976 Directive Principle of State Policy was implemented. In 1980, a committee headed by Justice PN Bhagwati drafted a law on legal aid. It was given the name Legal Services Authorities Act, 1987, in official documents. The legal services authority act of 1987 is a codified law that specifies the details of the establishment of various legal services authorities to assist the weak and the destitute in accessing justice. It provides the appointment of judicial officers, the procedure and functioning of various bodies which make up the legal system.
As can be inferred from its Hussainara Khatoon (III) v. Home Secy., State of Bihar[17], title the motive of this act is to provide free and competent legal aid to the poor, weak or the disabled sections of the society. Everyone has an equal right to access justice and get legal aid. The economic vulnerability, their gender, race, caste or any other disability should not become an impediment in the way of accessing justice. The act applies to the whole part of India including all the courts, lok adalats, authorities, union territories etc. It enacts the setting up of National Legal Service Authority as the central authority with the Chief Justice of India as its patron in chief. It also sets up the supreme court legal service authority. The function of the central authority is to make plans and policies in regards to providing legal aid. It comes up with schemes of grants and fundings to provide legal aid to the vulnerable. “The act in chapter iv section 12 lists the conditions necessary to be fulfilled by the people entitled to free legal aid services”[18]. Every person who belongs to the scheduled caste or tribes, is a women, child, victim of human trafficking, beggar as per article 23 of the constitution, PWD as per PWD act 1995, a victim of disaster, ethnic violence, caste atrocities, flood, drought, earthquake or industrial disaster or in custody even under a protective home, or with annual income less than Rs. 9000 in case of state government, less than Rs. 12000 in case before supreme court are entitled to receive free legal aid services. “The section 13 says that fulfilling all the above criteria the person is sufficiently entitled to free legal services[19]”. “The section 15 (b) of the act talks of establishing a national legal aid fund to provide monetary assistance for the ; legal aid services”[20]. Similarly , state and district legal aid funds are also set up. It also states the establishment of lok adalats which works on the mechanism of alternative dispute resolution. They also work to promote legal awareness in the society.
The Indian legal system
One of the biggest problems with the Indian judicial system is the duration of cases resolution. The main factors contributing to pendency are the rising number of new cases and the slow rate at which they are resolved. As of May 2022 around 4.7 crore cases were outstanding in courts at various levels of the legal system. Around 1,82,000 cases have been undertrial for longer than 30 years[21]. The number of court cases that were pending climbed by 27% between December 2019 and April 2022, according to data from the National Judicial Data Grid.
Also, one of the major issues is the costly litigation available. The lawyers charge a great sum of money for every hearing they appear. The lengthy judicial proceedings and expensive litigation all together makes it very difficult for a common person to knock on the doors of the courts. It is the widespread notion in India, “try never indulging with a lawyer or a doctor, they will suck all the money out of you”. Now we take into consideration why these lawyers charge so exorbitantly. The first and foremost reason can be the level of stress they have in the profession. Lawyers handle a very stressful life, they have to appear in the court with all mannerism and keep exercising their brain as they have to deal with a vivid range of issue which demands a lot of skill and tiring research. Also lawyers spend a huge sum of money in taking their degree as law is a very expensive degree. Also, the initial days of the lawyers are not so good. They have a bare minimum source of income and earn when they get some experience. So it is quite obvious that they charge for their service.
But this destroys the whole purpose of the judiciary, if the needy is not able to avail justice , if the court is not a help but dooms people then what use is the degree. There needs to be resolution to both make the law course somewhat economic and the lawyers maintaining the dignity and moral of their profession. The pro bono legal service is a way forward.
Pro bono legal service
Pro Bono comes from the Latin expression “pro bono publico” meaning “for the public good[22]“. This is a practice adopted by the litigants where they provide free legal aid and advice to the clients who cannot afford the fees. Although this practice has not been acknowledged or recognized, it’s still a very positive initiative to reach out to the masses. In order to advance justice based on equal opportunity, “Article 39A of the Indian Constitution commands the State to offer free legal assistance to the underprivileged and weaker groups of society[23]”. Furthermore, “Articles 14 and 22 (2) of the Constitution [24]guarantee equality before the law[25]”. Furthermore, Goal 16 of the Sustainable Development Goals of the United Nations emphasises the responsibility of states to “provide equal access to justice for everyone.” “The Department of Justice (DOJ) intends to create a database of attorneys prepared to offer their services to litigants recognised under Section 12 of The Legal Services Authority Act of 1987 in conformity with these requirements and to promote pro bono legal services”.[26] The pro bono service is mandatory but not compulsory. It is totally upon the litigants if they want to give aid to the poor. Also, the pro bono work in India is completely ad hoc , there is no systemization. Pro bono work can help in several ways. If the lawyers are instilled with a feeling of duty towards the society , if they value justice and provide service to the people, a great many problems and disputes in the society would be solved. If this practice becomes recognized and systemized it will not only help the clients but also the young litigators who can gain experience in their career. Now, several institutions have taken this positive step of starting legal aid clinics to provide free legal aid and spread legal awareness in the society. It is indeed a very positive step which would ultimately build up a good framework for pro bono and also instil sensibility in the hearts of litigators to help anybody to access justice who comes to them. There are many successful lawyers who take up pro bono work. They earn crores but still spend a huge chunk of their time doing pro bono service. These are the people who have empathy, who understand the situations of their client and who have the morale to help them access justice.
Thus, it is important that lawyers take initiatives to connect to society with a feeling of brotherhood. They must know the value of justice and try to help whoever is in need. Also, the pro bono service will not be a success without the support of the government. They need to take care of the pay scale of lawyers so that they do not suffer without earnings. The education of lawyers is exorbitant and elite. It should be made affordable so that it comes to the access of the weaker sections of the society. And there has to be a feeling of service and principle to provide aid in the hearts of the lawyers. Then only will this pro bono service become a success and would start catering to the needs of the people.
Current status of the Right to Legal Aid
Currently, “in the financial year of 21-22 a total of 145 crores was incurred upon the NALSA for the purpose of providing legal aid services”.[27] “The TATA trust works for the social development and wellbeing of every citizen. It has brought together Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, Tata Institute of Social Sciences – Prayas and Vidhi Centre for Legal Policy to develop a report called India justice report since the year 2019”.[28] In order to identify areas that are amenable to quick fixes, “it compares the structural capacity of state-based instruments of the justice system to its own stated mandates. The rating is based on numerical evaluations of the budgets, human resources, infrastructure, workload, diversity in the police, judiciary, prisons, and legal assistance in 18 major and medium-sized states with a population of more than 1 crore, as well as 7 small states”[29]. The judicial system has serious lacuna that hinders justice. The trials and proceedings linger over years and still not get disposed of. There are several social barriers which are impediment to people opting for legal remedies. Women still are not empowered to raise their voices against all sorts of injustices they experience both inside and outside of their homes. Divorce is still considered a taboo, they are advised to compromise and make adjustments with the situation. Though the condition is improving in the metropolitan cities, the smaller cities are really vulnerable. There is an urgent need of change in the entire judicial system, starting from the appointment of judges, the collegium, the law education, the lawyer’s fees, their working, probably a really important change in the very core of the legal system.
Conclusion
Every individual has the right to be treated equally and to get access to legal aid. The scenario in this case is not at all satisfactory. There is a lot to be done to provide every individual awareness regarding their rights and how to get access to them. The right to legal aid has gained significance over a period of long time, after gradual evolution through cases and precedents. The Constitution provides articles to support this but there is a need for the citizens and specially the legal fraternity to pull their bootstraps in order to bring justice to everyone’s reach. Thus every section of this country should be brought to an equal parameter, for which effort should be made to the grassroot level by working with schools and villages. Bringing awareness to the most downtrodden section of the society would ensure a step forwarded in the way of accessing the justice.
Also, a lot needs to be done for making the legal system efficient and time effective. Rather than bringing vacancies according to the number of seats available for the appointment of judges, there can be a procedure to appoint judges proportionate to the estimated population similar to countries like England. This would help in fast disposal of cases. Hence, justice for all has to be essentially ensured to every citizen of India and for this a lot needs to be done. Equality of opportunity and capability to access legal recourse is essence of justice and for this a change has to be brought to the functionality of the system.
[1]OECDdLibrary,https://www.oecdilibrary.org/sites/cab05cffen/index.html?itemId=/content/component/cab05cff-en , ( last visited. May 20th 2023).
[2] Ministry of Law and Justice, https://legislative.gov.in/constitution-of-india/ , (Last visited, May 20th 2023).
[3] Supranote2
[4] Know India: National Portal of India” https://knowindia.india.gov.in/profile/directive-principles-of-state-policy.php#:~:text=Directive%20Principle%20of%20State%20Policy&text=These%20lay%20down%20that%20the,all%20institutions%20of%20national%20life. ( Last visited, May 20th, 2023).
[5] Supranote2
[6] Hussainara Khatoon (VII) v. Home Secy., (1995) 5 SCC 326
[7] M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
[8] Supranote2
[9] Supranote1
[10] Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401
[11] Khatri (2) v. State of Bihar, (1981) 1 SCC 627
[12]VIA Mediation Centre, https://viamediationcentre.org/readnews/NDQw/Genesis-of-Legal-Aid-in-India, (last visited May 20th 2023).
[13] Supranote10
[14] Supranote10
[15] Legal Service India, https://www.legalservicesindia.com/article/1176/Right-to-Free-Legal-Aid.html#:~:text=economic%20and%20political.-,His%20Lordship%20Justice%20P.N.%20Bhagwati%20aptly%20stated%20that%20legal%20aid,given%20to%20them%20by%20law. (Last visited, May 21st 2023).
[16] Supranote13
[17] Hussainara Khatoon (VII) v. Home Secy., (1995) 5 SCC 326
[18] The Legal Services Authorities Act, 1987. Section 12. No. 39, Acts of Parliament, 1987 (India)
[19] The Legal Services Authorities Act, 1987. Section 13. No. 39, Acts of Parliament, 1987 (India)
[20] The Legal Services Authorities Act, 1987. Section 15(b) . No. 39, Acts of Parliament, 1987 (India)
[21] Sumeda, The clogged state of the Indian judiciary, The Hindu, (May 10th 2022, 11:30 AM) https://www.thehindu.com/news/national/indian-judiciary-pendency-data-courts-statistics-explain-judges-ramana-chief-justiceundertrials/article65378182.ece
[22] Merriam Webster, https://www.merriam-webster.com/dictionary/pro%20bono , (Last visited May 23rd 2023).
[23] INDIA CONST. art. 39, cl. A
[24] INDIA CONST. art. 22, cl. 2
[25] INDIA CONST. art. 14
[26] Supranote 18
[27] National Legal Service Authority, https://nalsa.gov.in/faqs , (Last visited May 24th 2023).
[28]Tata Trusts, https://www.tatatrusts.org/insights/survey-reports/india-justice-report, (Last visited 21st May 2023).
[29] Supranote28
Author: Payal Singh
Juris Centre 