Legal aid and access to justice

The first principle

Equality before the law means little if a person cannot afford a lawyer, cannot read the notice that summons him, or does not know that he has a right at all. Justice is a service that costs money, time and knowledge, and the poor have the least of all three, so without public help the courts become a forum mainly for those who can pay. Legal aid is the State's answer: it treats access to a lawyer not as charity but as part of the right to a fair procedure, and it tries to take the law to people who would never come to it on their own.

The core

The constitutional basis

• Article 39A. Added by the Forty second Amendment (1976), it directs the State to ensure that the legal system promotes justice on the basis of equal opportunity, and to provide free legal aid so that no citizen is denied justice because of economic or other disabilities.
• Articles 14 and 22(1). Equality before the law requires that the poor are not at a disadvantage in court, and Article 22(1) gives an arrested person the right to consult and be defended by a lawyer of his choice.
• Article 21. The Supreme Court made legal aid part of the right to life and personal liberty through three cases. In M. H. Hoskot v State of Maharashtra (1978) it held that a prisoner has a right to free legal services and to a copy of the judgement in time to appeal. In Hussainara Khatoon v Home Secretary, Bihar (1979) it found thousands of undertrials held in Bihar's jails for longer than their likely sentences, and held that speedy trial and free legal aid are part of a fair and reasonable procedure. In Khatri v State of Bihar (1981), arising from the Bhagalpur blindings, it held that the duty to provide legal aid begins when the accused is first produced before a magistrate, who must tell him of this right.
• Suk Das v Union Territory of Arunachal Pradesh (1986). A conviction was set aside because the accused had not been told of his right to free legal aid, which made the right enforceable in practice.

The Legal Services Authorities Act, 1987

• Origins. The Bhagwati Committee in Gujarat (1971) and the Krishna Iyer Committee (1973) laid the groundwork, and the Committee for Implementing Legal Aid Schemes (CILAS, 1980), chaired by Justice P. N. Bhagwati, ran legal aid until the Act was brought into force on 9 November 1995, now marked as National Legal Services Day.
• National Legal Services Authority (NALSA). It frames policies and schemes, allocates funds to state authorities and monitors them. The Chief Justice of India (CJI) is its Patron in Chief, and a Supreme Court judge, in practice the senior most after the CJI, is its Executive Chairman.
• The tiers below. State Legal Services Authorities are headed by the Chief Justice of the High Court as Patron in Chief, with a serving or retired High Court judge as Executive Chairman. District Legal Services Authorities (DLSAs) are chaired by the District Judge, with a full time judicial officer as Secretary, and Taluk Legal Services Committees are headed by a senior civil judge. The Supreme Court and each High Court have their own Legal Services Committees.

Who is entitled to free legal aid

• Section 12 categories. A person is entitled if he or she is a member of a Scheduled Caste or Scheduled Tribe; a victim of trafficking in human beings or begar; a woman or a child; a person with disability; a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; an industrial workman; a person in custody, including a protective home, juvenile home or psychiatric hospital; or a person whose annual income is below the limit notified by the Central government for Supreme Court cases and by the state government for other courts.
• No means test for most. Except for the last category, entitlement does not depend on income, so a woman or a person in custody gets aid regardless of wealth. Under Section 13, an affidavit of income is ordinarily enough to prove eligibility.
• What aid covers. It covers a lawyer's fees, court fees, the cost of documents and copies, drafting, and legal advice, at every level from the taluk court to the Supreme Court.

Dimensions

• Constitutional. Legal aid links Article 39A, a Directive Principle, with Article 21, a Fundamental Right, which is why courts can enforce it.
• Social. Most of those entitled are also those least likely to know their rights: Dalit and tribal families in land disputes, women facing violence at home, migrant workers denied wages.
• Criminal justice. For a poor accused, the lack of a lawyer at the first remand hearing often decides whether he gets bail at all, so legal aid is as much about liberty as about litigation.
• Economic. Delay and cost push the poor towards unfair settlements or no remedy at all, so cheap and quick forums matter as much as free lawyers.
• Governance. The legal services authorities are run by judges, which gives them authority and independence but also means legal aid is shaped around courts rather than around community needs.

In practice

What NALSA does

• Lok Adalats. Legal services authorities organise Lok Adalats, whose settlements are final and have the force of a civil court decree, and National Lok Adalats held on one day across the country settle large numbers of pending and pre litigation cases (see the note on tribunals and alternative dispute redressal).
• Legal Aid Defence Counsel System (2022). Modelled on public defender offices, it places full time defence lawyers in districts to handle criminal cases of legal aid beneficiaries from arrest to appeal, in place of relying only on panel lawyers paid per case.
• Para legal volunteers and clinics. Trained volunteers from the community, including teachers, students and long term prisoners of good conduct, run legal aid clinics in villages, jails, colleges and courts and act as the first point of contact.
• Legal literacy. Camps and campaigns explain rights under laws on domestic violence, labour, land and welfare schemes, often with the district administration.
• Victim compensation. Section 357A of the Code of Criminal Procedure (CrPC), added in 2009 and now Section 396 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), requires every state to run a victim compensation scheme, and the DLSA or state authority decides the amount. NALSA's scheme for women survivors of sexual assault and other crimes (2018) followed directions of the Supreme Court in Nipun Saxena v Union of India (2018).
• Tele Law (2017). Run by the Department of Justice, it connects people at Common Service Centres with panel lawyers by video for pre litigation advice, and now forms part of the DISHA scheme (Designing Innovative Solutions for Holistic Access to Justice).

Undertrials, the test case

• The scale. The National Crime Records Bureau's Prison Statistics India 2022 shows that about three in four prisoners (75.8 per cent) were undertrials, most of them poor and many unable to arrange bail or sureties.
• The legal response. Section 436A of the CrPC, now Section 479 of the BNSS, requires release of an undertrial who has served half the maximum sentence, and one third for a first time offender under the new law. In Satender Kumar Antil v Central Bureau of Investigation (2022) the Supreme Court issued guidelines on bail and asked the government to consider a separate bail law, echoing the Law Commission's 268th Report (2017).

Source: National Crime Records Bureau, Prison Statistics India 2022.

Issues and way forward

• Quality of panel lawyers. Low and late fees attract junior or uncommitted lawyers, and beneficiaries often feel that legal aid means a weaker defence. The Monitoring and Mentoring Committees required by the NALSA (Free and Competent Legal Services) Regulations, 2010 should actually review case outcomes, and fees should be raised and paid on time.
• Low awareness. Many entitled people do not know legal aid exists, especially women and those in remote areas. Para legal volunteers, Tele Law and police station display boards should carry the message to where people first meet the system.
• Presence at the right time. The Khatri principle is often honoured only on paper at the first remand hearing. Legal aid lawyers in every police station and remand court, and expansion of the Legal Aid Defence Counsel System, would protect liberty at the moment it is decided.
• Funding and staff. Legal aid budgets are small in relation to need, and DLSAs depend on judicial officers who also carry heavy court work. Dedicated staff and predictable grants would help.
• Coordination with prisons. Undertrial Review Committees in each district should meet regularly to identify those eligible for release under Section 479 of the BNSS.
• Use of law schools. Legal aid clinics in law schools can supply trained, supervised help at low cost if they are linked to DLSAs.

Common confusions

• Article 39A and Article 21. Article 39A is a Directive Principle that directs the State to provide legal aid; Article 21, as read in Hussainara Khatoon and Khatri, makes legal aid in criminal cases an enforceable right.
• NALSA and the Supreme Court Legal Services Committee. NALSA is the apex policy and funding body for the whole country; the Committee provides legal aid in cases before the Supreme Court itself.
• Lok Adalat and Permanent Lok Adalat. A Lok Adalat only records a compromise; a Permanent Lok Adalat for public utility services can decide the dispute on merits if conciliation fails.
• Means test and category test. Income limits apply only to the general category of poor persons; women, children, SC and ST members, persons in custody and the other Section 12 groups qualify by category alone.

For the exam

• Keyword bank: Article 39A, Forty second Amendment, Article 22(1), Hussainara Khatoon, M. H. Hoskot, Khatri, Legal Services Authorities Act, NALSA, Section 12, Lok Adalat, Legal Aid Defence Counsel System, para legal volunteers, victim compensation, Tele Law, undertrial prisoners.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "About three in four prisoners in India are undertrials (Prison Statistics India 2022), most of them poor, which shows that the right to free legal aid under Article 39A is still unevenly delivered."
  • Introduction with a judgement: "In Hussainara Khatoon (1979) the Supreme Court held that a procedure which keeps a poor accused in jail without a lawyer and without trial cannot be reasonable, fair or just under Article 21."
  • Conclusion: "Legal aid must move from a free lawyer at the end of the process to competent help at its start, in the police station, the remand court and the village."
  • Conclusion: "The promise of Article 39A, that no citizen is denied justice for want of means, will be met when the quality of free legal aid matches the quality of paid legal help."