Author: Naman Saroha, Indian Institute of Management, Rohtak
Abstract
Accessibility to justice remains a challenge for poor and marginalized communities in India, despite constitutional assurances and legislative safeguards. Structural inhibitions of socioeconomic disparity, geographical limitations, and legal ignorance persist in undermining effective legal aid and representation. The Legal Services Authorities Act of 1987 and the establishment of the National Legal Services Authority (NALSA) brought about a shift towards institutionalized legal aid, with an expansion of accessibility from poverty-relief-based to disadvantaged groups. However, implementation gaps and quality shortcomings persist with regard to legal aid services.
Historically, legal aid in India traces its origins to ancient texts and colonial law, evolving post-independence with the addition of Article 39A, mandating free legal aid. Legal aid mechanisms evolved over the years with the inclusion of Lok Adalats, State and District Legal Services Authorities, and alternative dispute resolution mechanisms. Recent initiatives, like the Tele-Law Programme, attempt to bridge the accessibility gaps through digital legal aid services, particularly in rural India.
Legal aid institutions, such as NGOs and pro bono networks, are the key providers of legal services to marginalized communities. However, vulnerabilities such as underfunding, lack of trained professionals, and implementation inefficiencies hinder the effectiveness of these initiatives. Institutionalization of legal aid frameworks, enhancing outreach, and ensuring sustainable funding mechanisms are needed for making justice more accessible. A comprehensive and inclusive legal aid system can be a game-changer for social equity, enhancing faith in the justice system and empowering marginalized sections.
KEYWORDS: Access to justice, Legal aid, Marginalized communities, Vulnerable groups, Legal Services Authorities Act, 1987, National Legal Services Authority (NALSA), Socioeconomic disparities, Legal awareness
Significant barriers still stand in the way of marginalized and vulnerable communities’ access to justice in India, regardless of legal safeguards and legislative provisions to that effect. This discrepancy contributes to a number of social and economic injustices, impeding personal growth, sustaining inequality, and undermining confidence in the justice system. The current problem statement in the legal system is that systematic injustice and inequality are sustained by ongoing obstacles that prevent people from effectively accessing legal aid and representation. The demand for legal services and their actual provision still differ significantly, even after legal aid programs and organizations were established. This gap is made worse by socioeconomic disparities, geographic barriers, and a lack of knowledge about the resources that are available for legal aid. In addition, the breadth and quality of legal aid programs are frequently insufficient to meet the complex requirements of marginalized people and communities, which feeds the vicious cycles of discrimination, poverty, and exclusion from the legal system.
In India, legal aid plays a pivotal role in the quest for justice by guaranteeing that the legal system is not a closed system but rather a welcoming one for all. In a country as diverse as India, where there are socioeconomic divides and a wide range of legal awareness, this idea is extremely important. Legal aid in India has its origins in ancient writings such as the Manusmriti, which emphasize social obligations and moral behaviour.
Article 39A of the Indian Constitution guarantees justice for all and offers free legal assistance to the underprivileged and marginalized groups in society. “The Constitution’s Articles 14 and 22(1) further require the State to provide equality before the law and a legal system that upholds justice by giving everyone equal opportunities..”
Legal aid is essential in the modern world for closing access gaps to justice, especially for underprivileged groups. The tenets that underpin legal aid initiatives show the complex blending of conventional ideas, such as Dharma and justice. Legal aid becomes a dynamic force for social change as India’s legal system develops, embracing the fairness and equality principles. Helping such a large and diverse population while also figuring out how to navigate its complexities is the challenge. Examining the subject of legal aid in India entails figuring out its historical underpinnings, comprehending its present difficulties, and realizing how transformative it can be for both people and communities.
Legal aid services are usually provided by non-profit organizations that provide legal assistance and support to individuals who cannot afford legal representation. These organizations believe that access to the legal system is a basic necessity, similar to food and shelter. They aim to promote equal access to justice and ensure that everyone, regardless of their financial situation, has the opportunity to seek legal help. Legal aid services often focus on serving low-income communities and are dedicated to achieving justice for those who may not have the resources to navigate the legal system on their own.
Evolution of Legal Aid Systems in India:
The idea of legal aid is linked to the Mughal Empire’s criminal justice system, which the East India Company adopted. The transition was difficult, as Indians were unfamiliar with the British legal system, creating a crisis of credibility. Attorneys with government-issued licenses were seen as British instruments used to suppress opposition. Credibility issues arose in key political cases, such as the 1857 trial of Bahadur Shah Zafar, where he was denied counsel and exiled. The inspiration for legal aid is believed to have stemmed from efforts to restore public confidence in the Indian legal system.
The Code of Criminal Procedure of 1898 included a provision allowing state-funded counsel for capital offense trials in session courts, but this protection was discretionary and politically influenced. Due to the inadequacy of legal assistance under such frameworks, groups like the Bombay Legal Aid Society (founded in 1924) emerged to provide free legal aid to the impoverished, advocating for a national legal aid system.
New Era after Independence:
Legal aid, initially court-focused and poverty-oriented, needed a broader scope. After independence, India faced extreme poverty, and early efforts in Bombay and Calcutta (1950) focused on a multi-tiered legal representation system. The 1957 Kerala Legal Assistance Rules extended legal aid to those unable to afford court access. The 1958 Law Commission Report proposed a graded fee system for economically weak individuals but did not suggest law school clinics.
The Bhagwati Committee (1970) recognized that the conventional legal aid model was unsuited for India’s court-centric conditions, linking legal aid with poverty and introducing “preventive legal aid” through negotiated settlements and alternative dispute resolution. The 1976 Juridicare Committee acknowledged law schools’ role in legal aid and advocated for a national legal aid program emphasizing pre-litigation mediation. However, the 42nd Amendment (1976) introduced Article 39-A, mandating State legal aid efforts, which diminished the Committee’s influence. The Emergency administration disregarded its proposals, and the National Legal Services Bill was shelved.
Legal aid resurfaced in 1987 with the enactment of the Legal Services Authorities Act (LSAA), reinforcing the State’s commitment under Article 39-A. The Act expanded legal aid beyond poverty-based assistance to include disadvantaged groups. Establishing Lok Adalats and Permanent Lok Adalats marked a departure from the court-centric approach. The shift from a narrow poverty-based definition of “disadvantage” to a broader scope addressed some concerns. However, under LSAA, clinical legal aid remains largely overlooked.
Legal Aid Provisions in India:
Legal aid organizations in India play a crucial role in ensuring justice access, particularly for disadvantaged and marginalized groups. Various laws and programs have been implemented to support their efforts and guarantee legal assistance for those in need. In a democratic society, justice must be accessible to all to uphold the rule of law, especially for the underprivileged, marginalized, and impoverished. According to Article 14 of the Indian Constitution, the state is responsible for ensuring equitable treatment under the law and access to a judicial system based on equity. In 1976, the Indian Parliament adopted Article 39A, establishing free legal aid as a fundamental right.
“With the passage of the Legal Services Authorities Act in 1987 and the subsequent establishment of NALSA in 1995, this idea received official backing. As a result, for those without hope, it now represents hope.”
Legal Aid Provisions in the Indian Constitution:
Article 38(1) mandates that the “state safeguard and uphold the social order, which includes justice, in order to promote the welfare of the populace.” Article 39A further stipulates that the “state must, among other things, offer free legal aid through suitable laws or programs in order to guarantee that no citizen’s chances to obtain justice are diminished.”
Important Legislations Supporting Legal Aid:
Bar Council of India (BCI): Parliament established the BCI as a statutory organization to oversee and represent the Indian Bar. It regulates professional conduct, maintains disciplinary authority, sets legal education standards, and recognizes universities offering law degrees that qualify individuals for advocacy. The BCI also safeguards advocates’ rights, benefits, and concerns while setting up financial support and welfare programs. The Advocates Act of 1961 created the Bar Council of India.
Bar Council of India Legal Aid Rules, 1983: A significant achievement in expanding legal aid services across India. These rules, formulated by the BCI, aim to ensure justice access for all, particularly the poor and marginalized. Key provisions include the Establishment of Legal Aid Committees, Composition of Legal Aid Committees, and Appointment of Legal Aid Secretaries.
Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010: A comprehensive legislative framework aimed at regulating India’s legal profession. This bill addresses various aspects of legal practice and ethics, ensuring high professional conduct standards, protecting client interests, promoting the rule of law, and establishing regulatory bodies.
Legal Aid Provisions in Bhartiya Nagrik Suraksha Sanhita, 2023:
Right to Defence- As per Sec: 340, it enshrines the right of the accused to be defended by an advocate of their choice. This right is crucial to ensure a fair trial and allows individuals to access expert legal representation to protect their rights.
Legal Aid to Accuse- As per Sec: 341 where the accused cannot afford legal representation in trial/Appeal. In such cases, the court is obligated to assign an advocate for the defense at the expense of the state. This provision guarantees legal assistance to all individuals, regardless of their financial means.
Understanding the provisions outlined in the BNSS is crucial for ensuring fair and impartial trials. The principles of double jeopardy, right to counsel, and proper prosecution conduct are essential safeguards for individuals facing criminal accusations. The provisions related to the tender of pardon and specimen collection provide flexibility in investigation while safeguarding individual rights.
Case Laws
Mohd. Hussain v. State of NCT of Delhi AIR 2012 2 SCC 584 – Legal Assistance provided to the accused should be substantial and meaningful. Not doing so would vitiate the Trial.
Surender Kohli v. State of Uttar Pradesh AIR 2014 16 SCC 718 – Provision of this section preserves the right to Legal Representation of the Accused persons but also preserves the ends of ensuring efficient Trial Proceedings.
Legal aid organizations in India
They play a critical role in ensuring access to justice, especially for marginalized communities facing socio-economic barriers. These organizations, either government-funded or privately operated, provide free or affordable legal assistance, representation, and advocacy to those in need. The National Legal Services Authority (NALSA), established under the Legal Services Authorities Act of 1987, spearheads legal aid initiatives across India. It functions alongside State Legal Services Authorities (SLSAs) and District Legal Services Authorities (DLSAs) to implement legal aid programs, organize legal awareness campaigns, and operate legal aid clinics and people’s courts.
Impact of Legal Aid Programs
According to a NALSA survey, over 1.03 crore individuals received legal assistance between 2017 and 2022, with a significant 60% of cases occurring in 2021-22 alone. In comparison to the previous four years (2017-18 to 2020-21), which saw 41.7 lakh beneficiaries, there was a notable increase of 20.5 lakh beneficiaries in 2021-22. The states that recorded the highest number of legal aid beneficiaries were Assam, Uttar Pradesh, Jharkhand, Madhya Pradesh, and Bihar, collectively accounting for 70.4% of the total beneficiaries over five years and 94% of the 62.2 lakh beneficiaries in 2021-22. Karnataka, however, showed only a slight increase in its legal aid recipients, recording 25,977 beneficiaries in 2021-22, with a total of 3.2 lakh beneficiaries over five years.
Role of NGOs and Other Initiatives
Several NGOs actively contribute to legal aid efforts, such as HRLN (Human Rights Law Network), Lawyers Collective, and Alternative Law Forum, which focus on issues affecting women, children, minorities, and other disadvantaged communities. These organizations engage in litigation, advocacy, and community outreach, often collaborating with paralegals, social activists, and local jurists to ensure that the marginalized can access their legal rights.
Another key legal aid initiative is ProBono India, which works to improve legal literacy and access to justice. ProBono India operates a volunteer lawyers network, offering free legal assistance to those unable to afford legal representation. It has also developed the Nyayabandhu mobile app, which helps users connect with nearby lawyers. Additionally, ProBono India conducts legal awareness campaigns and provides educational materials on its website and social media.
Tele-Law Programme
To further expand access to legal services, the Government of India introduced the Tele-Law Programme in 2017 in collaboration with NALSA and the Ministry of Electronics and Information Technology (MeitY). This initiative uses technology to connect legal service providers with vulnerable populations, particularly those in rural areas where legal services are scarce. Initially launched in 1,800 Common Service Centers (CSCs), the Tele-Law Programme has now expanded to 50,000 Gram Panchayats across India, including all 117 Aspirational Districts. Under this program, individuals eligible for free legal aid under Section 12 of the Legal Services Authorities Act, 1987, receive free consultations, while others can avail of legal advice for Rs. 30 per consultation. The government aims to extend Tele-Law services to 2.5 lakh Gram Panchayats between 2021 and 2026, targeting 90 lakh legal consultations.
Legal Aid Lawyers and Their Compensation:
Legal aid in India relies on panel advocates, who are appointed by legal services authorities. As of March 2023, there are 50,394 panel advocates across the country. A 2018 Commonwealth Human Rights Initiative study estimated that India has one legal aid lawyer for every 18,609 individuals, equating to five legal aid lawyers per million people. These panel lawyers litigate cases, visit jails, and handle administrative tasks.
Legal aid lawyers receive fixed-term appointments and may either be on a monthly retainer or paid per hearing. Their compensation follows the minimum fee schedule set by NALSA:
– Rs. 1,500 for preparing legal documents (e.g., divorce cases, custody matters, writ petitions).
– Up to Rs. 10,000 per case hearing.
In contrast, private legal practitioners charge between Rs. 20,000 and Rs. 1 lakh per case, depending on experience and reputation.
Conclusion
India has made significant strides in expanding legal aid, but challenges persist due to the high demand for services and limited number of legal aid lawyers. Programs like NALSA, ProBono India, and the Tele-Law Programme continue to bridge the gap between marginalized communities and the legal system, ensuring better access to justice. The government’s focus on technology-driven legal aid solutions and the expansion of legal aid services to rural areas reflects India’s commitment to upholding constitutional rights and social justice for all. India can strive to fulfill its constitutional commitment to providing justice for all by giving consideration to the values of equality, justice, and inclusivity. We may work toward a society where access to justice is a fundamental right that is ensured to every citizen, regardless of their socioeconomic condition or background, via persistent efforts and a common commitment to promoting the cause of legal assistance.
References
https://scroll.in/article/1040169/why-quality-of-free-legal-aid-remains-poor-in-india
https://www.barcouncilofindia.org/info/about-bci
http://www.commonlii.org/in/journals/NALSARLawRw/2013/13.pdf
http://www.jstor.org/stable/10.3366/j.ctv1c29sj0.12
Bhartiya Nagrik Suraksha Sanhita, 2023
Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010
Bar Council of India Legal Aid Rules, 1983
FAQS
Q-1 Who is entitled for free legal aid services?
Ans- The sections of the society as enlisted under Section 12 of the Legal Services Authorities Act are entitled for free legal services.
Q-2 Can I apply for Legal Aid when I am abroad?
Ans- Yes, one can approach the Supreme Court Legal Services Committee (SCLSC) portal and apply for legal aid.
Q-3 I am in prison, am I entitled for Legal Aid?
Ans- Yes you may apply through the Jail authorities along with the legal aid formal application and custody certificate.
Q-4 Who should a Person Approach for Legal Services?
If someone needs free legal aid or services, they can reach out to the nearest legal services authority based on their location and the level of their case. They have several options:
Taluk Legal Services Committee – Located within the Taluk Court premises, for matters at the taluk level.
District Legal Services Authority – Situated in the District Court at the district headquarters, handling district-level cases.
State Legal Services Committee – The relevant state authority providing legal aid at the state level.
High Court Legal Services Committee – Available at the concerned High Court for cases being heard there.
Supreme Court Legal Services Committee – Assists with cases before the Hon’ble Supreme Court.
Q-5 What do I do if I need Legal Aid?
Ans- An individual in need of free legal aid or advice can request assistance by submitting an application to the relevant authority or committee. This application can be made in writing via mail or letter, by filling out the prescribed forms provided by the authorities with a brief explanation of
the need for legal aid, or orally, in which case an officer from the legal services authority or a paralegal volunteer can offer assistance. Additionally, legal aid can be sought online through the application process available on the official NALSA website.
Q-6 Is there any other Information that I need to furnish along with my Application?
Ans- Yes, along with your application, you need to submit all necessary documents. This includes a completed application form, identity proof, and relevant certificates or an affidavit proving your eligibility for free legal aid. If applying online, the official website will provide details on the required documents.
