Revamping Legal Aid Services System in India
Revamping Legal Aid Services System in India
- Dr. Kalpeshkumar L Gupta, Founder
November 9 is celebrated as National Legal Services Day in India to create awareness about the legal aid services provided under the Legal Services Authorities Act, 1987. This act came into force in 1995. Even after twenty five years of enactment, many are not aware about this very important legislation. I have been receiving calls, messages, mails regarding legal assistance for a decade from across India. I try to give advise from my side, connect with known lawyers, connect with National/State/District Legal Services Authorities. I do not forget to ask about their knowledge of this legislation. I am shocked to know that around 99% of the caller were not aware about the this act. This shows government machinery’s work towards dissemination of this act and services provided under the same. It is pertinent to note that for last few years National Legal Services Authority (NALSA) and other State Legal Services Authorities (SLSA) trying their best in making people aware about the act and services provided through audio visual mediums including wide use of social media platforms in last few years.
Followings are some issues what I feel which hinders the working of legal services mechanism.
1. Ineffectiveness of Government Machinery in dissemination of this act and services provided under the same.
2. Budget constraints in carrying out legal services activities
Legal Services System is not flourishing in India because of low budget provided for it. I have come across many news clippings regarding low budget, budget cut for legal aid system in foreign countries esp. western country. This shows serious effort for achieving the goal of access to justice. Panel Lawyers in India are getting very low amount that too after long time which discourages lawyers from putting serious effort in the case assigned.
3. Scope of providing legal services is narrow
Presently legal services provided as per criteria given under Section 12 of the Act. This criteria needs to be expanded as per prevailing situations.
Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-
Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is –
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court."
According to section 2(1) (a) of the Act, legal aid can be provided to a person for a \'case\' which includes a suit or any proceeding before a court.
Section 2(1) (aaa) defines the \'court\' as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions.
As per section 2(1)(c) \'legal service\' includes the rendering of 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 Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear 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.
Let’s take the recent example of situation occurred in lockdown. Tenant faced issued from landlord side. They looked for free legal assistance. Some NGOs, volunteers, probono lawyers assisted them. In last few years, many founders and co-founders of startups approached me for legal assistance in setting up their startups. In western countries, legal assistance is also provided for startups/new ventures. In some of the foreign countries legal assistance is provided to refugees and veterans also. These are some of the examples pointed, there are many.
4. Panel Lawyers
As per my knowledge and experience, most of the panel lawyers are not much interested in legal aid cases. One of the reasons we discussed above, remuneration for taking up cases assigned by Legal Services Authorities. Most of the lawyers associate with LSAs to gain the experience in various cases rather than assisting the needy.
Possible Solutions
Looking at above issues, I suggest followings for improvement in providing legal services in India.
1. Budget
Adequate budgetary provision is required at state level. Though it is central level legislation but it is states’ responsibility of develop appropriate mechanism and system.
2. Legal Services & Corporate Social Responsibility (CSR)
There is serious issue of budget for carrying out legal service activities. Legal Aid and Services activities should be covered towards CSR activities under Section 135 of Companies Act, 2013 so that more and more entities will come forward and contribute.
3. Expand scope of Section 12
There is urgent need of expanding scope of Section 12 so that more and more areas can be covered under the Act and assistance can be rendered. State Government should come up with appropriate amendment in law and provide legal services in effective and efficient manner. For example few years back founder of one of the startup approached me and asked for legal assistance in setting up of a company. He was also ready to pay some amount. He also asked for Low Bono assistance which means services to be provided at lower rate compared to prevailing market rate. Government should come up with some mechanism for Pro Bono and Low Bono work.
4. Legal Aid Cadre having proper structure
Presently legal services taken care by penal lawyers appointed by Legal Services Authorities for specified terms. Appointing young lawyers having three years of experience have not become fruitful in past years. There should be dedicated cadre for this. For example recently NALSA launched Legal Aid Defence Counsel System for providing legal aid in criminal matters. Read Full details here
There is a provision for appointment of Chief Legal Aid Defence Counsel, Deputy Legal Aid Defence Counsel, Assistant Legal Aid Defence Council
Primarily, the following legal services shall be provided through the Legal Aid Defense Counsel Office to accused/convicts:
o Legal Advice and Assistance
o Conducting trial and appeals in Sessions Courts.
o Handling Bail applications in Sessions Courts
o Any other legal aided work related to Sessions Courts
Engagement with law schools
Law schools often send their students to legal Services Institutions for internship. Moreover, Clinics of Law Colleges also collaborate with Legal Services Institutions. Law students can be engaged with the Legal Aid Defense Counsel office as to give them meaningful exposure to practical aspects of criminal law including preparing a defense strategy and doing legal research in various factual scenarios.
The law students may be so engaged in the following areas in Legal aid defense counsel office:
• Legal research in criminal cases
• Visiting scenes of crimes
• Interviewing accused and their family members and other relevant persons
• Assist in sifting through all of the evidence collected by the prosecution and providing effective input for preparing defense strategy.
The law students so engaged may also be paid stipend by the Legal Services Authorities. Stipend amount may be determined by the Executive Chairman of SLSA.
5. Panel Lawyers
Training
There are number of cases where panel lawyers found to be inefficient and incapable of handling cases. As I stated earlier they attach themselves with legal services authorities so that they can get experience rather than any feeling of service for mankind.
Future scope for panel lawyers
As we discussed above, penal lawyers do not see any sound future while carrying out legal services activities. They should be given decent remuneration with proper designation (structured one). In addition to this they should be given proper training at district or state level facilitated by High Court and Judicial Academy. They should be given extra weightage in selection for Public Prosecutor and Judge.
6. Legal Aid Index
Competitiveness in any field yield very good results. In Legal Aid domain area, it also requires competition between states. States should be awarded ranking on the basis of work done in their respective states. Looking at this in October 2017, I proposed Legal Aid Index with suggestive criteria on the basis of which states should be given ranking. This index idea can be deliberated upon and enhanced further.
7. Certificate Course on Legal Aid and Allied Laws
Recently we at ProBono India in association with Legal Services Committee, Gujarat National Law University, Gandhinagar conducted 25 Hrs Certificate Course on Legal Aid and Allied Laws which received overwhelming responses across the country. We received 900+ applications out of which 400+ attended the course and 350+ took the exam. Participants from not from law but from various fields having age between 17 to 60+. This feedback really motivated all the participants and encouraged to do some legal aid activities for the society wherever they are. This kind of course can be started in different states and region collaborating with Universities and Legal Services Authorities.
8.Compulsory internship/lawyering with DLSA
One month compulsory internship should be there for law students which can be done in any of their year of study. By doing this Legal Services Authorities will be able to get sufficient number of manpower for carrying out legal services activities. Same way after passing law degree, graduates should spend at least six months to 1 years handling matters assigned by District Legal Services Authority. This period to be completed within 3 years from date of giving provisional enrollment no.
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References :-
1) https://nalsa.gov.in/about-us#:~:text=Justice%20A.S.%20Anand%2C%20the%20Chief,as%20%22Legal%20Services%20Day%22.
2) https://nalsa.gov.in/uploads//pdf/2019/09/03/03_09_2019_116298097.pdf
3) http://probono-india.in/Indian-Society/Paper/81_Legal%20Aid%20Index%20by%20Dr%20Kalpesh,%20GNLU.pdf
4) https://nalsa.gov.in/services/legal-aid/eligibility
