Author- Akancha Kailash BBA.LLB 9th Semester, Amity University Ranchi, Jharkhand
Topic : Expanding Legal Aid Services to Arbitration Proceedings.
Abstract:
Arbitration has become an increasingly popular method for resolving disputes, offering parties flexibility, confidentiality, and efficiency. However, concerns have been raised about equitable access to justice, particularly for individuals and entities with limited financial resources. This paper explores the necessity and potential benefits of expanding legal aid services to arbitration proceedings. It examines existing frameworks for legal aid in various jurisdictions and identifies the challenges and opportunities in extending these services to arbitration. Furthermore, it considers the ethical and practical implications of such expansion, including the role of pro bono initiatives and the potential impact on the arbitral process. Ultimately, the paper argues that enhancing access to legal aid in arbitration is crucial for promoting fairness, equality, and the legitimacy of the dispute resolution system.
Introduction:
Access to justice is a cornerstone of democratic societies, ensuring that all individuals can seek and obtain a fair resolution to their legal disputes. However, traditional litigation processes often prove costly and time-consuming, placing them beyond the reach of many individuals, particularly those with limited financial means. As an alternative, arbitration has gained popularity as a flexible and efficient method for resolving disputes outside the formal court system. Despite its advantages, arbitration still presents challenges to equitable access, particularly concerning legal representation.
Arbitration proceedings involve intricate legal issues that demand specialized knowledge and expertise, yet many individuals face barriers to obtaining legal representation due to financial constraints. Expanding legal aid services to encompass arbitration proceedings could address this gap, ensuring that disadvantaged individuals have access to the legal assistance necessary to participate effectively in the arbitration process. This research paper aims to explore the rationale and feasibility of extending legal aid services to arbitration proceedings, examining existing legal aid frameworks, potential benefits, challenges, and best practices. By doing so, it seeks to contribute to the broader discourse on access to justice and promote fair and inclusive dispute resolution mechanisms for all individuals, regardless of their socioeconomic status.
Expanding Legal Aid Services to Arbitration Proceedings
It cannot be said that arbitration has seen a rapid growth in India. This is a positive development from the larger perspective, given that arbitration reduces the burden on national courts. On a closer look, however, arbitration is a niche and expensive mechanism. Not all signatories to arbitration can obtain and afford effective legal representation to commence or defend arbitration. Indian laws provide for legal aid to indigent persons. The right to legal aid is a means to protect the right of a litigant to seek justice, when the party fails to meet the litigation expenses. Presently, Indian laws do not provide for a legal aid mechanism for indigent persons who have agreed to resolve their disputes by arbitration. In fact, lawyer Rishabh Dheer has recently filed a public interest litigation (the PIL) before the Delhi High Court seeking appropriate directions to ensure that the benefits of legal aid services are made available to indigent parties in arbitration proceedings.
In fact, free legal assistance is arguably a facet of the fundamental right to life under Article 21. In Kishor Chand v. State of H.P., the Supreme Court held that assigning an experienced defence counsel to an indigent accused is a facet for fair procedure and an inbuilt right to liberty and life envisaged under Article 21 of the Constitution of India.
Legal representation to the indigent parties in arbitration proceedings.
The National Legal Services Authority (NALSA) and District Legal Services Authority (DLSA) have been constituted to provide free Legal Services to the weaker sections of the society. According to Section 2(c) of the LSA Act, “Legal Services” includes any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter. Legal Services include providing Free Legal Aid to those weaker sections of the society who fall within the purview of Section 12 of the LSA Act.
Provision of free legal aid includes the following:
a) Representation by an Advocate in legal proceedings;
b) Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases
c) Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;
d) Drafting of legal documents, special leave petition etc.
e) Supply of certified copies of judgments, orders, notes of evidence
and other documents in legal proceedings
According to Section 13 (1) of the LSA Act, any individual who satisfies any criteria enumerated under Section 12 of the LSA Act is entitled to receive legal services, provided that the concerned Legal Services Authority is satisfied that such person has a genuine case to prosecute or defend the matter. Financial assistance provided by NALSA and DLSA can be effective and possible mediums to provide legal assistance to indigent parties in arbitration matters
Legal aid lawyers
Legal aid lawyers in Ranchi and Palamau were interviewed, including one woman lawyer. They said panel lawyers are selected based on experience and behaviour in the court. There is no formal procedure for selection. Cases are assigned based on the lawyers’ experience and ability. Their experience in practice ranges from 1 to 5 years. For each case they receive Rs 500/-24. Most of the lawyers felt demotivated as they considered the amount they receive as fees as very insufficient. Further, to get this money they must follow a very lengthy process. Some also said the LSA does not provide good learning environment as they are not getting adequate training from either the Judicial Academy or SLSA. Suggestion from the lawyers included training of lawyers, increase in fees, and that the DLSA Secretary should be made full time. The LSA Secretaries of Ranchi and Palamu said that lawyers are chosen based on their experience and must have a minimum of three years of practice.
Community Women
36 women from a randomly selected community in Khandwa were interviewed to assess their awareness on LSAs. The selection criterion was women from lower income groups. Most of the respondents were SC/ST/OBC. 13% were from the general category, and 2 were Muslims.
Their education qualifications ranged from illiterate to those had passed their Class 12 examinations. None of them were aware about the LSAs. They all wanted to know about rights related to women. More than half wanted to know about the law on domestic violence. Similar was the case with 24 women (all SC/ST) interviewed in Jabalpur: none of them had heard about the LSAs.
Implementing legal aid in Arbitration
In 2018, Former Law Commission Chairman Justice A.P. Shah, in the Commonwealth Human Rights Initiative (CHRI) report, titled Hope Behind Bars?, on legal aid for persons in custody, revealed that about 15% of the total funds allocated to state legal service authorities remain unutilized.
Raja Bagga, author of the report, pointed out that the per capita expenditure on legal aid in India is just ₹ 0.75. The total fund allocated to State legal service authorities was ₹ 257 crore, of which National Legal Services Authority (NALSA) allocated 31% (₹79 crore), State governments allocated 61% (₹156 crore), and miscellaneous funds accounted for 8%. Thus, as per the report, ₹37 crore (15%) of the entire amount remained unutilized.
Once it is settled that legal aid should indeed be extended to arbitration, India may require legislative or judicial clarification on the manner and extent of legal aid to be provided in arbitration. Among other things, these unutilized funds can be used in paying the fees of the arbitral institution, arbitrators, and attorneys.
Awareness of Legal Aid: still a challenge
One of the causes of a weak institutional system is a lack of awareness of the presence of such legal help. The accused individual is frequently unaware of their entitlement to legal representation. Another key problem is the perception that such a free service is of poor quality. The legal service authorities do not have enough attorneys, and even if some are appointed, they cannot afford to provide effective assistance. Alternative Dispute Resolution System and Legal Aid A way to Speedy Disposal On 28th July, 2018 the Chief Justice of India Hon’ble Sri. Depak Misra said that “The issues of pendency and delays in the justice delivery system need to be tackled with judges taking up the burden of judicial leadership and managerial skills.” While delivering the valedictory address at the National conference on initiative to reduce pendency and delays in judicial system. He further said “The court congestion and delays do require a modern and progressive approach where every judge takes the burden of judicial leadership and managerial skills of his court and the cases before him.
He further noted that the discussions witnessed an emphasis on technological aspects and introduction of best practices in the ADR system and elaborated on the deliberations.” The above valedictory remarks of the Hon’ble Chief Justice of India show the importance of speedy trial and disposal against the pendency of the cases. To have speedy disposal of the cases we have at least two mechanisms to adopt. One is Alternative Dispute Resolution System for procedural aspect and providing legal aid for rendering of justice for the needy.
Conclusion: –
It is therefore, essential that the people at large and particularly those, who deserve to avail alternate dispute Resolution System and legal aid made aware of the benefit, which are available to them under various enactments and organizing Lok Adalat’s to settle cases is a very important function and the main sprit behind Lok Adalat and ADR has been to provide speedy and inexpensive justice to the people.
It can be safely stated that in view of the provisions of various enactments, discussed above, every judge is duty bound to at least to guide the weaker section of the society that the aim of the enactments at state expenses. This would be in itself “YEOMAN SERVICE to the goal of equal and fair justice to all.
In conclusion, expanding legal aid services to arbitration proceedings presents a critical step towards enhancing access to justice and fairness in dispute resolution. Through this endeavour, marginalized individuals and disadvantaged groups can overcome financial barriers and participate effectively in arbitration processes. By providing legal aid, the imbalance of power inherent in arbitration, often favouring well-resourced parties, can be mitigated, ensuring that all parties have equal opportunities to present their case and secure a fair outcome.
Moreover, extending legal aid to arbitration aligns with the broader principles of legal empowerment and the promotion of human rights. It fosters inclusivity, diversity, and representation within the arbitration community, enriching the quality and legitimacy of the decisions rendered.
