Need for demarcating the scope of Legal Aid in India: Reflections from Law School and the Courts

By Gurfateh Singh Khosa

Volunteering for student run legal aid clinics has consistently remained a popular choice for students entering law schools. While working with the Legal Services Clinic at my college for nearly five years, I observed that (before the charm of litigation and the sophistication of the corporate world takes over), a common response from students to the “why study law?” question is the desire to use law as a medium to contribute to various causes, support marginalized groups and the society at large. Adding to this is the belief that engaging in social work through the law complements one’s future applications and is looked at favorably by recruiters and assessors abroad. Legal aid clinics, acting as platforms for such socio-legal work, therefore, become preferred choices for many students across institutions.

However, reflecting back on the association with the Legal Services Clinic at my college and also interactions with members of other clinics (before and after my college days), I observed that, other than a group of well-intentioned individuals trying to provide support through limited knowledge and experience, there is no clear aim or objective that governs what kinds of work a university-run legal aid clinic undertakes. Ironically, their senior counterparts, i.e., the legal aid authorities/organizations, often suffer from the same problem - any and every activity is conducted under the larger umbrella of legal aid and awareness. 

Wide variation in scope of activities undertaken, including activities unconnected with legal aid

As a student member of the clinic, I enthusiastically opted for projects such as compiling information booklets on specific topics, conducting research for NGOs/private organizations, preparing case briefs for judges, connecting clients to a panel of pro bono lawyers, conducting street plays in and around Bangalore, etc. Much of this work was because of the personal initiatives taken by members of our clinic and is likely to have been discontinued over time with a change in organization and priorities. Similarly, as a practicing lawyer interested in the legal aid system, I have seen legal aid organizations conduct activities ranging from organizing blood donation camps, arranging scholarships, conducting moot court competitions on topics having no relevance to legal aid, filing PILs on matters of significant importance, and on some occasions, providing quality representation to marginalized groups. It is therefore evident that there exists no clear framework governing the activities of such legal aid groups across universities and organizations. In fact, a recent report titled ‘Legal Aid through Law Schools’ published by the Centre for Research and Planning, Supreme Court of India underscores this issue and notes that a majority of the legal aid cells in Law Schools limited their functioning to conducting legal awareness camps and only a few dealt with subject-specific issues concerning legal aid. More importantly, as per the report, there exists little to no review of the work conducted by such clinics highlighting the need for supervision and examining the objectives of a legal aid clinic.

A selective approach to legal aid

My observations on the blurred boundaries of the legal aid system were furthered when I switched from practicing before the Courts of Delhi to the High Court of Punjab & Haryana at Chandigarh. On contacting eminent organizations based in Delhi, which championed certain causes dealing with issues that were rather prominent in states like Punjab and Haryana, I found out that even legal aid ecosystems had a preference and bias towards the metropolitan. Admittedly, Delhi offers the geographical and administrative advantage to lawyers and organizations for providing end-to-end support while also cultivating research on issues relating to legal aid and disadvantaged groups. However, it is the rural areas, and underdeveloped regions - plagued with prejudice and lack of quality legal assistance, that require urgent support and research from organizations as well as university run legal aid clinics. To my surprise, despite recognizing the need, none of the organizations were interested in operating in such regions for reasons such as lack of infrastructure, quality of lawyers, distance, amongst others. The hesitance of private organizations to provide for legal aid facilities in rural areas is reflective of the State’s coverage as well. As per the India Justice Report 2022, the national average for legal aid clinics in villages suggested that there was only one legal aid clinic available for 127 villages in India.

Missing records on legal aid activities

Further, the quality and administration of legal aid systems in non-metropolitan cities and underdeveloped regions is significantly different from that of cities like Delhi and Bangalore. While assisting a group of researchers on understanding the economics of legal aid in India, we observed (through filing RTIs) that, other than a few jurisdictions such as Delhi and Kerala, legal aid organizations did not have adequate accounts of expenditure for legal aid activities conducted by them over years. The data made available was also limited to number of beneficiaries and amount of money received in some cases. In fact, other studies have found that majority of these funds are utilized for salaries of staff and maintenance of the legal aid establishments instead of providing legal aid services.

Need for better incentives to ensure quality and long-term assistance

Beyond mere availability of legal aid, it is the quality of legal aid and its long-term administration that requires attention. Providing for elaborate legal aid panels with minimal monetary or professional incentive has resulted in more harm than good. Organizations and university-run clinics fail to understand that cases, particularly in India, often span for several years and deserve quality assistance and attention on a long-term basis. The current system has resulted in provisions for short-term deliverables, often conducted in a substandard manner without any qualitative assessment. In many legal aid clinics based in universities, legal opinions and advisory work is conducted by students relying upon internet sources, without any supervision from faculty/practitioners to either verify the validity of such opinions or to ensure timely completion of work. In my conversations with individuals who approached university run clinics, I was informed that this is a calculated risk taken by them with the hope that students would provide accurate information without being governed by monetary incentives or societal pressure. The situation is not very different in Courts, rather has severe long-term consequences. 

Recent Court interventions

Recently, the Punjab & Haryana High Court while acquitting a convict in appeal, observed that the accused’s appeal against conviction in the High Court had been filed in 2010 through a legal aid counsel, however, owing to the High Court Legal Services Committee’s failure to take appropriate steps to secure a hearing for the release of the accused person, the matter was listed in 2024 after a lapse of 14 years while the convict continued to be in jail and had in fact, completed his sentence during this time. 

Unfortunately, the above case is not a rarity. In another case, where the accused had been in custody for a period of over four years while the maximum sentence for the alleged offence was five years, Justice H.S. Brar of the Punjab & Haryana High Court observed “the District Legal Services Authority has made no efforts to assist the petitioner in securing his release. Nothing available on the record indicates whether the DLSA even had the knowledge qua the circumstances of the petitioner, to say nothing of preparation of the socio-economic report with a subsequent request to relax the conditions imposed. The petitioner has been condemned unheard, languishing in custody for over four years without even framing of charges. This is a stark negation of his fundamental right to a fair trial...”. 

In my personal experience appearing as an amicus curiae or court appointed legal aid counsel in pending matters, I have observed criminal appeals being filed by legal aid counsels in a pre-set format without even discussing the factual and legal grounds emerging from the lower court record. In fact, in most such legal aid briefs, the lower court record does not form part of the appeal and is called for by the Court at a subsequent date. Very often, it is observed that legal aid counsels fail to appear after the initial dates in the matter, compelling the Courts to appoint fresh counsels while also resulting in inadvertent delays.

Need for better oversight and qualitative assessment of legal aid work

Such circumstances call for better supervision and oversight on part of the legal services authorities. Even otherwise, in my limited experience dealing with legal aid (in university as well as a lawyer), one aspect that is often lost sight of is the agency and decision-making power that is lost by the beneficiary while availing legal aid. The above narrated cases highlight the system’s role in pushing away the individual-beneficiary from the system, rather than making them a part of it. Beyond the system, it is often observed that beneficiaries have little or no say in determining the strategy or approach of their own cases. While litigants in general may not be aware about legal procedures and the requirement of a lawyer representing them is imperative, it is interesting to see the role that regular litigants play in terms of directing their lawyer to plead/approach the matter in a certain way vis-à-vis legal aid beneficiaries who often sink or swim based on the legal aid counsel made available to them. It is common sight for litigants to opt against a legal aid counsel being appointed particularly in matters where there is scope for settlement (to avoid being coerced into entering a settlement under the garb of case disposal).

Way forward

The list of observations on the functioning of legal aid continues to grow with every passing day. With the advancement of technology in the legal system, much is expected to change. However, overlooking material issues and promoting legal aid activities without an end goal or clear boundaries may lead to the underlying issues increasing further. A thorough qualitative assessment, conducted across regions is necessary to ensure that the problems discussed herein are examined and appropriately addressed. In the words of Justice U.U. Lalit, legal aid to the poor cannot and should not mean poor legal aid.  Interacting with students and lawyers volunteering for legal aid work reveals great potential for bridging the gap between access to justice and the poor. Rebuilding the system into one which narrows down specific legal aid activities which are important and then providing sustainable platforms which are subject to qualitative assessment must be prioritized over covering a diverse range of issues under the umbrella of legal aid and awareness. 

Better management of records by Legal Services Authorities as observed from states like Delhi and Kerala can go a long way in understanding and addressing material issues that require urgent intervention. Similarly, proactive measures taken by Courts as well as regional institutions can help identify and provide long-term solutions to local, subject-specific problems. In this light, it is believed that such measures collectively taken by courts, legal aid authorities/organizations, and universities can result in providing a robust pro bono system ensuring that quality assistance is provided to those in need, who currently remain excluded from the process to a large extent.

(Gurfateh Singh Khosa is a graduate from the National Law School of India University, Bangalore. He is now practising before the High Court of Punjab & Haryana at Chandigarh and have previously worked before the Supreme Court, High Court and the trial courts of Delhi. He has a keen interest in issues related to criminal law and legal aid.

Views expressed by the author in this blog are his own and do not represent the views of Justice Adda.)