Legal Aid - A Myth or Reality

Seven hundred years old clarion call of Magna Carta- To no one will we sell, to no one will we refuse or delay the right to justice very pertinently embodies the principle of legal aid. But it was only when the colonial hangover of the Indian legal system was pointed by the Committee for Legal Aid [1] and was stated that the shadow of law created by the British to suit their convenience, has resulted in an insensitive system especially towards the socio-economic problems of the masses it set out to govern and regulate, that the Indian legislature incorporated the concept of legal aid in the form of Article 39A into our constitutional framework. Hence, legal aid is not a charity or bounty, but is a constitutional obligation of the state and right of the citizens.

The problems of human law and justice, guided by the constitutional goals to the solution of disparities, agonies, despairs, and handicaps of the weaker, yet larger brackets of Bharat's humanity[2] is the prime object of the dogma of equal justice for all. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society.[3]. Justice Krishna Iyer regards it as a catalyst which would enable the aggrieved masses to re-assert state responsibility, whereas Justice P.N. Bhagwati simply calls it equal justice in action. But, again the constitution not being a mystic parchment but a Pragmatic package of mandates, we have to decode its articles in the context of Indian life's tearful realities[4] and it is here when the judiciary has to take center stage. The judicature, which by its creative interpretations has given an encyclopedic meaning to the concept of legal aid.

Time and again it has been reiterated by our courts that legal aid may be treated as a part of right created under Article 21 and also under Article 14 and Article 22(1)[5]. The apex court has held access to justice as a human right.[6]thus, imparting life and meaning to law.

Present Day Position:
The notion of legal aid conceived wisely by the pioneers of legal world certainly needed vigorous execution by meticulous planning. The word of caution being very clear that the traditional legal service programme, which is essentially court or litigation, oriented cannot meet the specific needs and the peculiar problems of the poor[7] demanded a unique approach to this socio- economic philosophy. As observed by the Supreme Court [8] We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and secure them their constitutional and statutory rights unless there is a nation- wide legal service programme to provide free legal services to them. Under such influence The Legal Service Authority Act, 1987 was enacted to accomplish the vision of providing legal aid to the exploited masses of this country, whose need till now was echoed either in the golden words of UDHR or The International Covenant on Civil and Political Rights or discussed in the board rooms of Law commission or deliberated by socio-legally concerned groups only. The data provided is a reflection of the realities of the legal aid scheme on which much of paper and ink has been used. [9]

Stabilizing the Scales for Poor - Suggestive Measures:

As contemplated by Justice Iyer and Bhagwati that the vast millions of Indians, steeped in ancient injustice and modern misery have little to hope for from the law, they have much to shoot against it. In such state of affairs it is imperative for state to take steps to keep the confidence of masses in the justice system breathing. Though the execution of the legal aid programme has been yielding favorable results but much more needs to be reformed.

Our compilations of the suggestive measures in this area are:
Exploring ADRs: Using the various forms of ADRs like Arbitration, Conciliation, Negotiation and Mediation in the settling of disputes especially those involving matrimonial problems can prove to be an effective legal aid tool providing quick and inexpensive justice to the masses Focus on Lok Adalats in its true spirit: Lok Adalats, a permanent feature of the functioning of legal services authorities is largely being used as a tool of case management to help the over burdened judiciary and not so much as a instrument of the justice delivery to the litigant. If the `success' of the lok adalat stems from negative reasons attributable to the failures of the formal legal system, the utility of this mechanism may also be short-lived[10]

Adequate Financial Support: A master plan for juridicare cannot succeed without sufficient financial resource. An annual amount of Rs. 6 crore is being allocated to NALSA for the execution of its policies. The Committee is of the opinion that this amount is inadequate for such an important scheme and strongly recommends that substantial allocation should be made at Revised Estimate stage to make the functioning of NALSA more effective.[11]

No compromise on Quality: Free legal aid must not be read to imply poor or inferior legal services. The lawyers in the panel should be experienced. The law ministry should ensure the senior lawyers do at least ten cases a year free of charge in the courts.

Inform people: Lack of awareness is the main impendent in effective 'legal aid'. Efforts should be made to inform the public of the existence of these services by using electronic media and aggressive campaigns.

Sensitization of the judiciary: Awareness of schemes and programmes to be able to guide the poor litigants in this regard.

Performance appraisal by all legal aid authorities: where each district legal aid service authority should be evaluated and compared with other district legal service authority inter as well as intra states to encourage legal aid.

Law schools: Are the blossoming gardens of fresh, young talent. We suggest not only the inclusion of law students but also insertion of the legal academicians, who with their deepened knowledge and experience can be an active part in the implementation of the legal aid programme.

A reverse osmosis approach needs to be followed where rather than to wait for the poor to come and approach for legal aid a system with the help of Ngos to identify people in need of such services shall be developed, more so because people are ignorant both of their rights and also the availability of legal aid. The culture of donations by the privileged sections of the society should be encouraged.

Thus, the legal aid programme, if implemented will go a long way towards wiping the tears from the eyes of the teeming millions of our countrymen, by advancing social justice and providing them equal access to the law and justice institutions of the country. The question that whether it is a myth or reality, can be interpreted that the vision of the pioneers of the legal world is certainly turning into reality the myth is only of its implementation which will also take a real shape once certain minor reforms executed.

Endnotes
[1] Committee for Legal Aid, 1973, Government of India
[2] Report on National Juridicare: equal justice – social justice,1977, Government of India
[3] Chopra R C, Legal Aid Movement in India-Its Development and Present Status, http://causelists.nic.in/nalsa/
[4] Report on National Juridicare: equal justice – social justice,1977, Government of India
[5] See: Hussainara v. Home Secretary, State of Bihar, AIR 1979 SC 1377. Also Khatri v. State of Bihar, AIR 1981 SC 928, Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 99, Kishore v. State of Himanchal Pradesh, AIR 1990 SC 2140
[6] Tashi Delek Gaming Solutions v. State of Karnatka, (2006) 1 SCC 442
[7] Report on National Juridicare: equal justice – social justice,1977, Government of India
[8] Hussainara v. Home Secretary, State of Bihar, AIR 1979 SC 1377
[9] Total number of cases resolved by all state legal service authorities as on 31.03.07 at Pre-litigation stage-763548 and at Post-litigation stage -3787921.
Literacy camps held: 231641. Up to 31.12.99 Supreme Court Legal Services Committee has provided legal aid and assistance to 10,125 applicants. 72,038 Lok Adalats have been organised throughout the country up to 30.6.2000 in which about 1.2 crore cases have been amicably settled. Out of these over 5 Lac cases pertain to Motor Accident Compensation Claims in which compensation amounting to over Rs.2,469 crores has been awarded. In the year 1999 itself 15,198 Lok Adaats were organised throughout the country in which over 9,67,000 cases were amicably settled.
[10] Murlidhar S. at International Conference on ADR, Conciliation, Mediation and Case Management Organized By the Law Commission of India, 2003
[11] 61st Report on the Demand for Grants(2000-2001) of the Ministry of Law, Justice & Company Affairs. But the irony is that there is gross underutilization of the financial resources allocated to the body. During the financial year 1997-98 an amount of Rs.5 crore was allocated however, only an amount of Rs.95.46 lakhs was actually spent during that year. Further during the financial year 1998-99 the NALSA was able to spend Rs.3 crore out of the budgetary grant of Rs. 4 crore.[11] Needless to say that such inaction is intolerable in a country where the masses low expectations from the judicial functioning.

Also Read:
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An introduction to the Legal Services Authorities Act, 1987:  Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid Committee formed in 1971

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What Is Legal Aid: Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a

Free Legal Aid: Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose

Working of Statute of Legal Aid in India: Article Focuses on working of legal aid through different broad headings including 42nd amendment and supreme court guidelines

Concept Of Social Justice And The Poor: The term social justice was first used in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio, and given prominence

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