Legal Services Day: Awareness about free legal aid need of the hour, say experts

Although a provision exists for free legal aid to the socio-economically backward sections when a case is initiated against them, or before a trial, and during remand, very few actually receive it driven by a lack of awareness, caste bias and a lack of faith, among other reasons.

To bring attention to the provision - meant to give equal opportunities to a fair trial and access to justice - as stated in the Article 39 A of the Constitution of India, November 9 every year is observed as the National Legal Services in India. Under article 14 and 22(1), the Constitution further makes it obligatory for the state to ensure equality before law and to establish a legal system which promotes justice on the basis of equal opportunities to all.

In the spirit of these constitutional rights, the Legal Services Authorities Act (LSA) was enacted by the Parliament of India in 1987, which came into force on November 9, 1995 to provide "free and competent" legal services to people from socio-economically backward sections of the society across the country. The National Legal Services Authority (NALSA) was constituted to regulate and evaluate the implementation of legal aid provisions under the LSA.

Persons who are eligible for such legal aid are women and children, SC, ST community members, victims of mass disaster, industrial workmen, disabled persons, persons in custody, persons whose annual income does not exceed Rs 1,00,000 (for Supreme Court services the limit is Rs 5,00,000) and victims of trafficking in human beings or beggar.

The Legal Services Authority is constituted at the state, district and taluka levels with a High Court Legal Committee set up in every HC. In addition to these, the Supreme Court Legal Services also exists to provide legal aid provided the case needs SC intervention.

Experts Pratibha Shakya, advocate and founder of Karwaan - an online platform for providing legal literacy, and Payal Gaikwad, Supreme Court advocate and one of the founders of the National Council for Women leaders, have been voluntarily providing free legal aid to those who need it since three and seven years respectively share their insights on the implementation aspects of the LSA and NALSA.

What are the challenges that people from socio-economically backward communities face when it comes to accessing legal services?

Gaikwad: Most of the people who reach out to us are from marginalised communities who cannot afford to pay hefty fees of lawyers to fight their case. Second is a lack of awareness about the District Legal Services Authority. Moreover, at the initiation of a case, majorly in matters of criminal nature such as those of rape and murder, there are chances that the papers and investigation can be tampered with, with malicious intent. Ineffective legal provisions, counter-productive regulatory framework and rampant malpractice and immense corruption at various levels make it difficult for people to access legal services.

Shakya: There are several levels in the pre-trial stage where people need legal aid and advice. While dealing with cases under the Prevention of Atrocities (Scheduled Castes and Scheduled Tribes) Act, most of the times it has come to notice that the cases are not taken up by the police, because of several factors, some of which include caste bias and upper caste networks. People require a lawyer's intervention first for filing the First Information Report (FIR) and then if there's inaction by the authorities, we even contact the local police station to get the formalities done and speed up the process, which can be easily neglected if a person from a disadvantaged community is not represented by a lawyer.

There are instances of police negligence in the way they file the charge sheet, delay in following the procedure and sometimes conscious inaction, which ultimately has an impact on a fair trial. Additionally, after completion of the trial, there are delays in disbursal of compensation, for example, those meant for the victims of the atrocities case. Here too, lawyers have to help people complete documentation and ensure that their compensation is released.

In most of these cases, people from the marginalised communities, who cannot afford to hire lawyers, are generally fooled by the system itself. When the police machinery is not cooperative towards citizens, lawyers have to act as interveners and ensure that rule of the law is followed.

Are more people aware of the district legal services authority after over two decades of its existence?

Shakya: Lack of awareness is a major hindrance to the implementation of the Legal Services Act. People need to be told about their rights by every police officer, advocate or judge who caters to a case involving people from marginalised backgrounds. In the absence of these discussions about legal rights, communication via campaigns, awareness programmes, posters in every police station and offices of legal authorities becomes of utmost importance. While awareness programmes are conducted under NALSA, it needs to be robust. There is no system to make people aware about legal aid and that is where lawyers like us, who are not in the LSA and yet provide free of cost services, come into the picture.

How often do lawyers volunteer for providing legal aid and how are they compensated for their services?

Gaikwad: Those who are willing to take up such cases are generally practitioners who are working on humanitarian causes and voluntarily towards the cause. They help clients in all ways possible.

Shakya: The panel lawyers or those volunteering for providing legal aid under NALSA are mostly young and inexperienced. Most of them get in to legal aid to gain experience and sometimes to maintain their networks inside courtrooms. An experienced lawyer who earns a regular income would never volunteer for legal aid, unless they are motivated by social service objectives. This is because lawyers are paid on a case to case basis and the remuneration is mostly insufficient and irregular. The honorarium paid to the panel lawyers depends on the State rules and differ at all levels and according to the services rendered.

While most of the panel lawyers carry out their duties responsibly, we have also dealt with cases where lawyers have charged their clients for their services; this is in complete violation of the LSA.

Data from NALSA shows that more under-trials receive legal aid than others. In 2019, a total of 6,323 suspects were provided assistance in the pre-arrest stage at police station, 11,356 in the pre-trial stage and 72,915 were catered to during the remand stage. Can you share your thoughts on why this is the case?

Shakya: The state has to ensure that under-trial prisoners are presented by lawyers. After a period, these prisoners are treated as a burden on the jail authorities, who are under pressure to reduce the number of under-trial prisoners. This compels the authorities to bring in legal services lawyers and fast track the proceedings of the case. The same sense of responsibility is not seen at the time when a case is initiated.

There is also a fear among people that they won't be provided with competent services if they approach a legal aid lawyer working for free. Such concerns discourage people from approaching district legal services authority.

What can be the scope of action for effective implementation?

Gaikwad: Accountability and democracy are close companions; a free legal service project affecting vast numbers of underprivileged Indians must be accountable to the people. I wonder why there is no provision for the central or state authorities to present reports to the Parliament and the legislature for annual discussions at the highest levels. When it comes to state legal authorities, if the judges are to be kept away from screening particular cases for eligibility of legal aid, there must be statutory indication to that effect.

Rampant corruption, malpractices within legal aid system, ineffective incentive structure to the lawyers are amongst the major loopholes of the legal aid system in India. Severe delays and bureaucratic hurdles also lead to the denial of the right to free legal aid.

Shakya: Lok Adalats formed under the LSA have been effective in the speedy disposal of cases, especially civil ones and those involving petty crimes. Law is well minded, but it should be first effectively implemented as it is. Improvements are secondary if people are unaware and are not able to exercise the existing rights.

(Lok Adalat is an alternative dispute resolution mechanism under the LSA. The forum caters to cases disputes, cases which are pending in the courts or are at the pre-litigation stage, which can be settled amicably through mediation. In 2020, Lok Adalats disposed 25 percent of the cases taken up, including pending cases.)

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