By Ajay Verma
“The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away.”
Attorney General Robert Kennedy, Law Day Speech, May 1, 1964
What can we, in contemporary Indian society, do to assure the poor that they do not need to be afraid of the law? If the poor lack faith in the legal system, access to free legal aid in criminal cases, a fundamental right under the Indian Constitution, means nothing. In that context, I suggest that India may implement a more effective and efficient legal aid system by employing best practices from the United States and France.
Article 39A of the Indian Constitution requires the state to “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 disability.” Moreover, Section 304 of the Criminal Procedure Code guarantees that where “the accused is not represented by a pleader, and where it appears to the court that accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the state.” The main question this article poses is how can India deliver on its constitutional promise for free legal aid? This article first provides a brief history of the development of legal aid in India, and then discusses the inadequacies of the system. It then compares the legal aid systems in India with the systems in United States and France. Finally, it suggests how the Indian system could be improved.
THE DEVELOPMENT OF FREE LEGAL AID IN INDIA
Two cases are crucial to understanding the development of free legal aid in India. In Hussainara Khatoon vs. State of Bihar: (1980) 1 SCC 98, a writ of habeas corpus petition was brought on behalf of the shockingly large number of men, women, and children, who were detained in jail in the State of Bihar for years awaiting trial for minor offences, which, even if proven, would not have warranted punishment for more than a few months, or perhaps for a year or two. Despite this, they were deprived of their freedom for periods ranging from three to ten years without even as much as a trial date. The Supreme Court issued a clarion call to the government:
We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service program with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the law. They have always come across law for the poor rather than law of the poor. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.
In Khatri(II) v. State of Bihar: (1981) 1 SCC 623, two prisoners lost their eyesight as a result of police torture while in custody. The Court directed the Registrar of the Supreme Court to conduct an enquiry with respect to the torture. He determined that legal representation was not provided to the prisoners because neither requested counsel when they were brought before the magistrate initially or on remand. The Court directed that unless the accused is not willing to take advantage of free legal services provided by the state, he must be provided legal representation at the cost of state. Justice P.N. Bhagwati, referring to Supreme Court’s mandate in Khatoon, wrote:
It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence, and whatever is necessary for this purpose has to be done by the State.
Beginning in 1952, the Indian government started addressing the question of legal aid for the poor in various conferences of law ministers and law commissions. In 1960, guidelines were drawn by the government for legal aid schemes. Legal aid programs were initiated in different states through various legal aid boards and societies, and law departments. In 1980, a national committee was constituted to oversee and supervise legal aid programs throughout the country under the chairmanship of Mr. Justice P.N. Bhagwati, then a judge of the Supreme Court of India. This committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and began to monitor legal aid activities throughout the country.
The real first step towards free legal aid was taken in 1987, when the Indian Parliament enacted the Legal Services Authorities Act (“LSAA”), giving an expansive meaning to “legal services.” The purpose of the act was to constitute legal services authorities to provide free and competent legal services to weaker sections of society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability, and to organise lok adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The introduction of lok adalats, or public courts, added a new chapter to the justice dispensation system in India and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes.
The following categories of persons are entitled to legal services under section 12 of the LSAA:
a. a member of a scheduled caste or scheduled tribe;
b. a victim of trafficking in human beings or beggar;
c. a woman or child;
d. a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995, which means persons suffering from blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation or mental illness;
e. a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
f. an industrial workman;
g. persons in custody, including in a protective home, juvenile home, or psychiatric hospital or nursing home; and
h. a person whose annual income “from all sources” does not exceed Rs.50,000/-. (as per notification no. F.27/3/2003- Judicial./CD/07/2260 dated 12th April 2007)
LSAA established the National Legal Services Authority to provide a network of legal aid at the village, district, and state levels. The two mains objectives of the National Legal Services Authority are the delivery of free legal aid and the organization of lok adalats. Under the LSAA, legal aid is provided to people of “weaker” sections of the society through the appointment of counsel. The National Legal Services Authority, after examining the eligibility criteria of an applicant, provides the applicant with counsel at the State’s expense, pays the required court fees, and bears all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a legal services authority. Under the LSAA, every citizen whose annual income does not exceed Rs 25,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the Supreme Court, the limit is Rs 50,000. The state governments are empowered to increase this limit. The income limitations do not apply to, among others, persons belonging to the scheduled castes, scheduled tribes, women, children, and disabled persons.
A lok adalat is intended to be a mechanism to encourage consensual resolution of a dispute in order to avoid unforeseeable delays, prohibitive costs and uncertain results of litigation in the courts. A lok adalat has jurisdiction to determine a compromise or settlement between the parties to a dispute in any pending case. In addition, it has jurisdiction over any matter not pending before the court for which the lok adalat is organized, but for which the court has jurisdiction. The lok adalat does not have jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. The court may refer a case to the lok adalat where the parties agree, or where one party makes an application to refer the case to the lok adalat for settlement. If the court is satisfied that there is a possibility of settlement and an appropriate matter for cognizance by the lok adalat, then the court shall refer the case to the lok adalat.
INADEQUACIES OF THE CURRENT SYSTEM
The legal aid system in India has largely proven ineffective. There are four main reasons why the National Legal Services Authorities has not been able to deliver real legal aid: (1) there is a general lack of awareness of the availability of legal aid; (2) there is a perception that free service is incompatible with quality service; (3) there are not enough lawyers delivered by the legal services authorities, and; (4) lawyers generally are uninterested in providing competent legal assistance because of financial constraints. So, in spite of the fact that free legal aid has been held to be a necessary adjunct of the rule of law, the legal aid movement has not achieved its goal.
Moreover, too often lawyers assigned to provide legal aid and paid with public funds do not faithfully represent their clients, casting serious doubt on the credibility of the scheme of legal aid provided to weaker sections of society. Some lawyers engaged by legal aid committees hold their clients’ cases for ransom by employing delay tactics. These lawyers compel their clients, many innocent, to pay additional amounts of money to them, even though they are supposed to obtain their fee from the legal aid committee. One factor that may be contributing to this is that the remuneration paid to lawyers by the legal aid committee is very low and sometimes does not even meet the lawyer’s incidental expenses.
Another major obstacle to the legal aid movement in India is that the delivery system for legal aid is far too inefficient. More lawyers must be encouraged to delivery free legal aid and a campaign should be launched to inform people about the existence of free legal aid. The legal aid movement cannot achieve its goal so long as people are not aware of their basic rights. When the poor are not aware of their legal rights, they are subject to exploitation and ultimately deprived of the rights and benefits provided to them under law. Thus, the key to a successful free legal aid system is increased awareness among the populace and more efficient delivery processes.
THE AMERICAN AND FRENCH LEGAL AID SYSTEMS
The legal aid systems in the United States and France are ideal models for the legal aid movement. In France, the earliest form of legal aid was provided in 1851 when legislation was passed providing for legal assistance to the poor. In the United States, free legal aid in criminal cases was introduced with the landmark decision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963). A public defender is a lawyer, employed by the government, to represent those who are charged with a crime and cannot afford to pay an attorney. Public defenders work in an office of the public defender. This office is an agency of the government and its employees work for the state or the county. The Office of the Federal Public Defender operates under the authority of the Criminal Justice Act of 1964, 18 U.S.C. §3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person’s eligibility for defender services is determined by the federal court. Public defender agencies are supported by public funding but are independent. Thus, they do not take direction from the government regarding representation of clients or hiring of staff attorneys. Federal public defender offices are well-funded. By law, lawyers employed by federal public defender offices have salaries that match those of lawyers in the federal prosecutor’s offices. The combination of salary, benefits, and support teams tends to attract, and more importantly, retain highly qualified attorneys.
The French legal system is based on civil law. Thus, laws are written into a collection and codified, not determined by judges as in common law jurisdictions. France has developed its own system of legal aid services. Legal aid in France is offered through the “avocat commis d office,” or court appointed lawyers. This advocate is the equivalent of the public defender in the United States, but is not affiliated with an agency. The function of “avocat commis d office” is different from other advocates because of his nomination rules, his role in the proceedings, and the clients he will defend. His role consists of representing every person who requests services without regard to the person’s ability to pay for his services. If an individual is unable to pay the advocate, the advocate will assist the client in seeking free legal aid or reduced fee legal aid proportional to the client’s salary. In that case, the advocate may be paid by the state. The current legal aid scheme (which replaced the older one dating from legislation of 1972) is governed by the Legal Aid Act (No 91-647 of 10 July 1991) and Decree No 91-1266 of 18 December 1991. Legal aid entitles the recipient to free assistance from an advocate or other legal practitioner (bailiff, avoué, notary, auctioneer, etc.) and exemption from payment of court costs. A useful first port of call for anyone wanting legal aid is the “Maison de Justice,” usually attached to the local Tribunal d’Instance. When free legal aid is obtained, advocates are paid by their Tribunal d’ Instance, which is funded directly by the State.
Any person tried criminally may obtain the counsel of an advocate at any time during the proceedings irrespective of his/her income. Article 6 of the Human Rights European Convention says that “every accused has the right to defend himself or to be helped by the advocate he chose and, if he cannot pay this advocate, he can obtain a free assistance.” As a result, in most criminal cases, an advocate is automatically provided to the accused, while in India, the number of lawyers provided by legal aid authorities is not enough to satisfy the large number of detainees awaiting trial.
LESSONS LEARNED FOR THE INDIAN LEGAL AID SYSTEM
Instead of changing the entire structure of the Indian legal aid system, India should incorporate parts of the French and American systems. The French easy access to counsel and the American concept of a well-paid advocate are key ingredients to a successful legal aid system in India. Furthermore, the National Legal Services Authority should become more selective in choosing advocates to deliver free legal aid. Recently, the Delhi High Court ordered a new trial in a case based on circumstantial evidence where the defendant’s lawyers failed to cross examine material witnesses, finding that the defendant’s trial was not conducted fairly and that his basic rights were violated. Justice S. Muralidhar, a judge on the Delhi High Court, in his article, “The Expectations and Challenges of Judicial Enforcement of Social Rights,” wrote that it was a “constitutional requirement to ensure a fair trial in accordance with the procedure established by law that every accused facing trial for a grave offence is represented by the competent legal aid counsel.”
Successful legal aid delivery in India requires the government to embark on a campaign to inform and educate the public of its right to free legal aid. Further, the government must employ more efficient processes to improve legal aid delivery, including but not limited to increased compensation for legal aid lawyers. Absent that, the constitutional right to free legal aid rings hollow.
Ajay Verma is a practicing advocate in New Delhi. He is a Fellow of International Bridges to Justice and a Vice Chair of ABA International’s India Committee. He may be contacted by email at firstname.lastname@example.org.