Three Possible Solutions for India’s Failing Legal Aid System

Srishti John


The National Legal Services Authority (NALSA) was established in 1995 a few years after the Law Commission Report on legal aid was published called ‘Processual Justice to the people.(1) The primary focus of the report was to suggest measures that would ensure that there would be no person who would suffer injustice due to lack of means or poverty. It is the duty of the government to safeguard the rights of these people and to form systems that can give them equal access to justice. The report highlighted how the system would work and the need to make it accessible to all without any discrimination. It found its backing in the Indian Constitution through Articles 14 which promotes Equality before Law & Equal Protection of Law , Article 21 which protects the Right to Life & Personal Liberty. Article 39A was added to the Indian Constitution by the Forty Second Amendment and it states


The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”(2)


In the decades since the formation of the NALSA and State Legal Services, research has shown that it has been a very arduous journey for legal aid in India. Commonwealth Human Rights Initiative in their report Hope Behind Bars (3) highlighted that the per capita spending on legal aid in India is just Rs. 0.75. Justice Muralidhar in his book Law, Poverty, and Legal Aid (4) mentioned that there is a pressing need to incentivize lawyers and that would in turn improve the quality of legal representation. The regulatory system of monitoring committees has recorded that only 16% of the committees have staff and 23% maintain registers. CHRI’s report shows that there is a deficit in legal aid lawyers and yet it has been reported that there are 1.8 million legal aid lawyers in India.(5)


The problem seems transparent, the solutions hard to implement. Some solutions have been to incentivize lawyers, create financial systems that would aid the accused, and even having online portals. These portals could be a solution to have an effective legal aid system in our highly digitalized world. There are three solutions I would like to highlight in the course of this article.


Accountability

There is a lot of resistance towards accountability in India.There is a pressing need to fill this gap and receive accurate information regarding the performance that is guaranteed by legal service organisations. For example, most legal service websites where reports are supposed to be regularly published are not up to date.Lack of accountability in India has led to a system that has pushed back on RTI applications and wishes to abolish transparency. Taxpayers in our nation should demand legal services to supply accurate data on performance and be willing to have independent audits. Having independent auditors could lead to more transparency and a system that is willing to adjust and advance. The responsibility for providing legal services to the poor according to our constitution belongs to the state and local officers.A parallel can be drawn between the US and Indian system of what happens when accountability is absent. In 1986 the US Congress created a program for the provision of legal services to the poor and other minorities, not before long this became extremely controversial. The attorneys that the Legal Service Corporation funded acted more as political advocates favoring their personal causes rather than the goals of the creators; failing to provide access to justice to those who cannot afford it. Moreover, the budget shot from $1million in 1965 to $385 million in 2018.(6) It has been so politicised that the system itself should be scrapped due to lacking accountability or willingness to have independent audits.(7)


Pro-Bono Method (Public-Private Partnership Schemes)

A case can be made that when the government partners with private institutions, dividing its responsibilities, better outcomes have been created. Public-private partnerships such as the Metro Rail projects that are functioning all over in India and have made travel especially in metro cities relatively smoother and comfortable. When it comes to the plight of the indigent we see many NGOs taking up causes that are the responsibilities of the government and doing a much more efficient job. Complete privatization of legal aid is not possible as legal firms will be forced to compete for cases in a bid tendering process where large firms are likely to dominate. A lawyer will be forced on you, legal aid will be even harder to get, and the chances of avoiding jail will get slimmer. Policies and laws in India are modelled after a socialist system of government, promoting big government and welfare systems. For public-private partnerships to work there would be a need to first tackle these worldview differences of profit and taxes.. The Companies Act, 2013 has provisions for enforcing Corporate Social Responsibility on Companies; this has benefited many NGOs and Section 8 companies. These NGOs are able to do the work and companies are able to find compensations with taxes. If such a system can be applied to legal aid it could be extremely effective. History does not disappoint us in proving that the government has repeatedly failed its people in implementation of its policies. The colossal gap between the legislature and executive has been a debate for decades. Public Private partnerships can build a bridge for implementation of legal aid. For example: the NitiAayog has started an Online Dispute Resolution system. They have been open to teaming with think tanks and coming up with sustainable solutions that would work practically.(8) With appropriate collaborations and research, such an ODR system for legal aid could prove to be very successful. There is a pressing need to eradicate the many loopholes in the Indian criminal justice system and to reform it; it could take years for such provisions that would make legal aid more effective to come into play.(9)


Legal Aid Clinics in Law Schools

The government has now made it mandatory for Law Schools across the country to have legal aid cells and clinics. There are colleges across the country that have taken this very seriously. Students benefit by increasing their practical knowledge as they have a chance to apply the law. There are awareness sessions that colleges conduct around the city, however, the effectiveness of these have not been adequately measured.(10) Some colleges do not even have functioning legal aid cells. Accountability to the legal service associations is a necessity for this to really work. One probable solution would be to incentivise it for the student and the facility. Students are already bogged down with regularized tests and assignments under the new university system. If there are incentives in the way of credits or marks, there will be a greater participation in clinic work. Faculty members who spend their Sundays’ doing these awareness campaigns should also be given a day off or extra pay for their efforts. The lack of incentives has led to things being done without interest which in turn leads to bigger problems. Addressing this issue and providing adequate compensation for the work done is the need of the hour.


In conclusion, our legal aid system finds its foundation in rich principles- acknowledging the need to help the poor and providing access to justice for all in society. It has not always been able to achieve this goal and there is a pressing need for changes to be adopted. If the obstacles that are currently faced are not addressed, if accountability is not followed through and independent audits not accepted, the prevailing legal aid system in India could decline further. Facing the problem promptly and sincerely implementing our policies, could lead India to be a model for failing legal aid systems around the world.



References

  1. Legal Aid: Justice & Prison Reforms https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/GSLA_-_Country_Profiles.pdf

  2. Virginia Thomas& Ryan Rogers, Time For Congress to Hold the Legal Service Corporation Accountable, Heritage Foundation, July 22 1999, https://www.heritage.org/crime-and-justice/report/time-congress-hold-the-legal-services-corporation-accountable

  3. Koppell, G. (1969). Abstract of the Indian Lawyer as Social Innovator Legal Aid in India. Law & Society Review, 3(2), 299-300.

  4. Higgins, A. (2014). Legal Aid and Access to Justice in England and India. National Law School of India Review, 26(1), 13-30.


(1) Justice Krishna Iyer, 1973, Processual Justice to the People, Law Commission Report


(2)https://www.constitutionofindia.net/constitution_of_india/directive_principles_of_state_policy/articles/Article%2039A


(3)Hope Behind Bars? Status Report on legal aid for persons in custody, Commonwealth Human Rights Initiative 2018.


(4)Law, Poverty, and Legal Aid: Access to Criminal Justice, S Murlidhar, LexisNexis Buttersworth, 2004


(5)https://economictimes.indiatimes.com/news/politics-and-nation/per-capita-spending-on-legal-aid-in-india-is-rs-0-75/articleshow/65744769.cms?from=mdr


(6)https://www.lsc.gov/media-center/publications/fiscal-year-2018-budget-request


(7)Peter Flaherty and Kenneth Boehm, Why the legal service Corporation must be abolished, Heritage Foundation, 19th October 1995

https://www.heritage.org/crime-and-justice/report/why-the-legal-services-corporation-must-be-abolished


(8)https://www.civis.vote/consultations/143/read


(9)https://www.theguardian.com/commentisfree/2013/may/11/privatised-justice-legal-aid


(10)Study on Law School Based Legal Aid Clinics https://doj.gov.in/page/study-law-school-based-legal-aid-clinics