Alternative Dispute Resolution

Evaluate role of legal aid in access to justice

CRE Submission

Submitted By-
Submitted to
Ms. Unanza Gulzar Mohit Lohmod
(20llb020)
 Acknowledgement

I would like to express our special gratitude to Ms. Unanza Gulzar who has
given a golden opportunity to do this thought provoking project to comment
on “Evaluate role of legal aid in access to justice” this motivated me in
understanding a moderate research and further helped me to know about
further and diverse knowledge. I am thankful to her that for providing me
this learning prospect. Secondly, I would also like to thank my parents and
friends who have helped me a lot in completing this project within limited
time frame.
Date-: 14th February, 2024
 ABSTRACT

A fundamental right guaranteed by the Indian Constitution is the ability to access justice. Millions of
the nation's poor and disenfranchised people still face tremendous obstacles in their quest to exercise
this right. To close this gap and help people who cannot afford legal representation, legal aid programs
have been put in place. This study intends to assess how legal assistance programs affect Indian
citizens' ability to access the court system, with a particular emphasis on the programs' efficacy,
difficulties encountered, and possible areas for development. This study aims to clarify the degree to
which legal aid programs have been effective in guaranteeing equitable access to justice for all
citizens, especially during the pandemic, by looking at the socio-legal components of these initiatives
and evaluating their results. The study will entail a thorough assessment of the body of prior research,
statistical analysis, and beneficiary, legal, and policymaker surveys. The results of this study will add
to the current conversation on enhancing India's legal system's accessibility and could influence next
legislative decisions and program execution.
 INTRODUCTION

In addition to having a population that is highly stratified by caste, sex, race, and money, India is a
growing nation with a very diversified population in terms of culture, religion, and language. After
more than 70 years of independence, the fight for true equality and emancipation is still ongoing. Our
state should strive for social, economic, and political justice, according to the preamble itself. Social
justice is the process of removing injustices from society.

During the colonial era, the legal profession in India grew, but the indigenous population was denied
justice due to the exorbitant fees. Fees have been routinely used as a means of offloading the judiciary,
which prevents the impoverished and other marginalized segments of society from accessing the legal
system. However, the vast bulk of the populace lives in poverty.

The most important endeavor to enable these marginalized and impoverished people to access the
judicial system and seek justice is free legal aid. With the support of several laws and government
initiatives, together with requirements from the constitution, the Indian government has set up a
framework for providing free legal help to the underprivileged and other designated groups.

Although the Covid 19 pandemic has harmed people all around the world, the impoverished have been
disproportionately affected. India assures its residents that justice will not be delayed due to
socioeconomic disadvantages or other limits. India is a social welfare state where the rule of law is
enforced. Giving the weak and impoverished access to legal representation is crucial for maintaining
the rule of law, which is necessary for a community to function in an orderly manner. Until and unless
he receives legal assistance, the impoverished and illiterate individual is denied equal access to justice.

In an effort to make justice accessible and affordable, the Lok Adalat system has been proposed as one
means of delivering rapid justice and free legal aid to the impoverished, along with public interest
litigation and judicial activism. In a constitutional democracy like India, where a substantial section of
the population has not yet experienced the constitutional protections of even the most basic rights, the
author of this piece emphasizes the importance of free legal assistance.
 WHAT IS LEGAL AID

Giving free legal assistance to the poor and impoverished who cannot afford an attorney to
represent them in court or in another official capacity is known as legal aid. The method utilized
to ensure that no one is denied access to knowledgeable counsel and assistance because of a lack
of cash is known as legal aid. Thus, the primary objective of guaranteeing equal justice is to
make it available to the weaker, downtrodden, and disadvantaged segments of society. Judge
P.N. Bhagwati made the following observation in this regard.
In order for the poor and illiterate to be able to approach the courts and have their ignorance and
poverty not stand in the way of them receiving justice from the courts, legal aid entails creating a
system in society that makes the missionary of administration of justice easily accessible and not out
of reach of those who must resort to it for enforcement of its given to them by law. For the
impoverished and ignorant who do not have access to courts, legal aid should be provided.

To use legal aid, one does not have to be a litigant. Therefore, legal aid is to be made available to the
underprivileged and needy through the establishment of a system of government assistance for
individuals who cannot pay the cost of litigation. Legal aid strives to ensure that the poor,
marginalized, and weaker parts of society have equal access to justice and that the constitutional
provision is implemented in letter and spirit. The Indian Constitution requires the State to make sure
that the legal system operates in a way that promotes justice based on equal opportunity. In particular,
the State must provide free legal aid through appropriate legislation or schemes or in any other way to
guarantee that opportunities.

In order to ensure that everyone receives justice based on equal access to defense, free legal aid for the
poor is a crucial component of a fair trial procedure.
Free legal aid for the aforementioned two reasons became urgently necessary and was implemented on
a global scale:

• In order to properly defend their lawsuit, a financially sound party hires an experienced and qualified
attorney; on the other hand, even if their case is strong enough to win, a party without the means to
hire one would undoubtedly be at a disadvantage and run the danger of losing.

• A person charged with a crime need legal representation to ensure the trial is held since he is not
familiar with the law, is not knowledgeable about the evidence or procedural procedure, and is not
qualified to contest the charges. Therefore, even if someone has been wrongly accused, they may still
be judged guilty of a crime.
 PROVISIONS REGARDING LEGAL AID

 INTERNATIONAL CONVENTIONS

Legal aid is demonstrated to be a human right by Articles 7 and 8 of the 1948 Universal
Declaration of Human Rights. While Article 8 states that "Everyone has the effective remedy by
the competent national tribunals for acts violating the fundamental rights granted to him by the
constitution or by law," Article 7 declares that "All are equal before the law and are entitled
without any discrimination to equal protection of the law."
Article 6 of the 1953-signed European Convention for the Protection of Human Rights and
Fundamental Freedoms states that a citizen facing criminal charges is entitled to legal aid as part
of the recourse to justice procedure. The right to "defend himself in person or through legal
assistance of his choosing for if he has no sufficient means to pay for legal assistance to be given
it free when the interest of the justice so requires" is guaranteed to anyone facing criminal
charges under Article 6(3) of the European Convention. Thus, it would seem from the outset that
international declarations and accords acknowledge legal assistance as an essential human right.

 CONSTITUTIONAL MANDATE AND LEGISLATIVE FRAMEWORK

"We the people of India" have solemnly resolved, according to the preamble of the Indian
Constitution, "to secure to all citizens justice, social, physical, and political," as well as "equality
of rank and opportunity." The founding fathers thus made social and economic justice the sacred
goal of the constitution and also left plenty of room for legal aid. Legal Aid is therefore implied
rather than explicitly stated in the preamble. The Indian Constitution's Article 14 states, "The
State shall not deny to any person within the territory of India, equality before the law or equal
protection of the laws." The concept of "equal protection of laws" states that all people,
regardless of their financial condition, should have the same legal rights under the law. Legal
assistance for the poor is therefore required to achieve equity of justice since it will serve as a
shield for the poor in the framework of democratic and fundamental rights enshrined in our
Constitution
Everybody's life or personal freedom is safeguarded by Article 21. No one's life or personal freedom
should be taken away, according to this article; such actions may only be taken in compliance with
"provision established by law." When it comes to the processes of the laws, both judicial sentinels and
liberty activists have a great feeling of significance. Natural justice must be applied in order to provide
a fair trial. Justice Bhagwati argues that limiting someone's life or personal freedom needs to be done
in a fair, reasonable, and just manner. This viewpoint came before the right to unfettered access to
legal advice, which is among the most significant advancements in the realm of human rights. The
Supreme Court, which interprets Article 21 implicitly, holds that the right to free assistance is a basic
element of a reasonable, equitable, and just process for someone who has been found guilty of a crime.
In Sukh Das v. Arunachal Pradesh, the SC reminded the state of its constitutional duty to offer free
legal aid. The Supreme Court went on to say that the state has an obligation to offer free legal services
to the vulnerable even if they do not ask for them. The State of Maharashtra v. Manubhai Pragaji
Vashi case has equally proved that Article 21 of the Indian Constitution contemplates the right to free
legal counsel and a timely trial as a commitment to defend individuals' human rights.
The Indian Constitution states in Article 22(1) that no one who has been arrested "shall be denied the
right to consult and be defended by a legal practitioner of his choice or shall be detained without first
being informed of the reason for his detention." Thus, in the event that a person who is marginalized
or disadvantaged chooses not to obtain legal counsel, the state will take action on their behalf; in the
event that the state neglects to do so, Article 22 (1) of the Indian Constitution is void, and a
constitutional violation has taken place. A Satyagraha was organized by certain railway workers in the
Hansraj v. State of Uttar Pradesh case. In accordance with the Railways Act, they were arrested,
charged, and given a punishment. They were not told when the trial would take place or that they were
entitled to consult counsel under Article 22. It was decided that these conditions constituted a violation
of Article 22(1). Despite the fact that the right to free legal assistance is recognized as a fundamental
right under Article 39-A of the Directive Principles of State Policy, the Indian Constitution does not
expressly acknowledge this right for the poor. Article 39-A guarantees equal justice and free legal
assistance. Equal justice for all must be ensured by the state through the operation of the legal system.
It makes reference to justice upholding the law. In a democratic policy based on the rule of law, the
state's top priority should be a good legal foundation.
In accordance with Section 303, "Any person accused of a crime in a Criminal Court, or against whom
charges are instituted under this Code, may of right be defended by a pleader of his choice." In certain
circumstances, persons who have been accused of a crime are entitled to free legal representation
under Section 304. It provides that "where the accused is not served by a pleader in a courtroom
before the Court of Session, and it appears to the Court that the accused lacks adequate means to
engage a pleader, the Court shall assign a pleader for his defence at the expense of the State."
The Legal Service Authority Act of 1987 is the most important statute pertaining to legal aid. In order
to protect justice, guarantee that no citizen is denied the chance to pursue justice because of financial
or other obstacles, and offer free and competent legal services to the most vulnerable members of
society, it establishes legal service authorities to coordinate Lok Adalat. Several clauses in the statute
are aimed at accomplishing this goal. The Legal Services Authorities Act of 1987 was modified by the
Legal Services Amendment Act of 1994, and it became operative on November 9th, 1995. Section 12
of this legislation creates a list of citizens eligible for pro bono legal aid. This Act also seeks to
establish the National Legal Services Authority, State Legal Services Authority, District Legal
Services Authority, and Taluka Legal Services Authority at the national, state, district, and taluka
levels.
 THE SIGNIFICANCE OF FREE LEGAL AID IN ENSURING
ACCESS TO JUSTICE:

Equal protection of rights for all people: Encouraging equal protection of rights for all people is
greatly aided by free legal aid. Individuals who are marginalized and economically disadvantaged
frequently find themselves unable to adequately claim their rights in societies where access to justice
is dependent on financial resources. By offering legal assistance to those who cannot pay it, free legal
aid programs close this gap and guarantee that everyone has access to the justice system. Free legal aid
programs help to create a more inclusive and fair legal system by providing equal access to legal
counsel and representation regardless of one's financial situation.
Addressing power imbalances and promoting social justice:
The potential of free legal assistance to confront power disparities in society is one of its main
accomplishments. Parties having unequal access to resources, information, and influence are
frequently involved in legal issues. Due to the fact that individuals with more wealth are better able to
safeguard and further their interests, this disparity has the potential to continue societal injustices. By
giving marginalized people and groups access to legal representation and support, free legal aid
programs seek to level the playing field and provide them the tools they need to challenge structural
injustices. Free legal assistance ensures that justice is available to everyone and not just the wealthy,
thus advancing social justice and equitable opportunity by giving voice to the voiceless.

Background and importance of access to justice:

Access to justice is a fundamental principle that lies at the heart of any fair and just society. It ensures
that every individual, regardless of their social or economic standing, has the ability to seek legal
remedies, have their rights protected, and participate in legal proceedings. Access to justice
encompasses a wide range of legal services, including legal advice, representation, and assistance in
navigating the complexities of the legal system. It is an essential component of upholding the rule of
law, promoting equality, and safeguarding individual rights. However, for a significant portion of the
global population, access to justice remains an elusive concept. Financial constraints pose formidable
barriers, preventing individuals from obtaining the legal assistance they need. Legal services are often
associated with high costs, including attorney fees, court expenses, and related legal fees. As a result,
many individuals, particularly those from marginalized and economically disadvantaged backgrounds,
find themselves unable to afford or access legal support.

The Challenges Faced in Implementing Free Legal Aid Programs:

➢ Lack of finance and resource allocation: This is one of the main obstacles to the implementation of
free legal assistance programs. Financial resources are needed to support legal specialists,
administrative staff, infrastructure, and other operational costs in order to provide full legal aid.
Unfortunately, a lot of free legal aid programs have tight finances, which leaves them unable to
provide enough resources to handle the rising demand for their services. Limited financial resources
impede the delivery of high-quality legal assistance, jeopardize the ability to manage cases efficiently,
and restrict the extent of engagement with marginalized communities.
➢ Inadequate infrastructure and capacity building: Free legal aid programs require appropriate
infrastructure and the development of legal professionals' capacity to provide effective assistance.
Inadequate infrastructure, such as physical office spaces, technology, and case management systems,
can hinder the smooth operation of legal aid organizations. Moreover, there is a need for ongoing
capacity building initiatives to equip legal professionals with the necessary skills and knowledge to
address diverse legal issues. Without proper infrastructure and continuous professional development,
free legal aid programs may struggle to provide timely and quality legal services, limiting their overall
effectiveness.
Strategies for Improving Access to Justice through Free Legal Aid:
- bolstering legal aid laws and regulations: bolstering legal aid laws and regulations is a crucial tactic
for enhancing access to justice via free legal assistance. This entails passing legislation protecting the
right to unrestricted legal assistance, outlining precise requirements for eligibility, and specifying the
range of services that can be rendered. Sturdy legal frameworks offer a strong base on which to offer
free legal assistance, guaranteeing reliability, stability, and high-quality service delivery.

- Allocating sufficient financial resources is essential to improving access to justice through the
provision of free legal assistance. Funding sources and governments alike need to set aside enough
money and give free legal assistance programs top priority. Sufficient financial resources allow legal
aid groups to broaden their scope, recruit skilled experts, allocate resources towards education and
skill development, and enhance their physical facilities. In order to continue and grow the delivery of
free legal aid services, it is imperative to guarantee a steady and sustainable funding source.

- Improving outreach and public awareness: Improving access requires increasing public knowledge of
the availability and advantages of free legal assistance. Since these underrepresented groups and
vulnerable populations are most likely to benefit from these programs, outreach initiatives should
focus on them. Legal literacy initiatives, neighborhood workshops, and partnerships with nearby
groups are a few examples of public awareness efforts. People will be more inclined to ask for free
legal aid when they need it if the general population is better informed about their rights and the
resources at their disposal.

-Maximizing accessibility using technology: With free legal aid, technology can be a potent
instrument for enhancing access to justice. Through the provision of legal information, self-help tools,
and remote assistance, online platforms, mobile applications, and virtual consultations can improve
accessibility. Technology-enabled solutions have the potential to extend the reach of legal aid services
and bridge geographical gaps, especially in rural and remote locations. Furthermore, legal aid
providers can increase productivity and expedite procedures by using technology for case
administration and document preservation.

- Creating thorough monitoring and evaluation systems: It's critical to set up thorough monitoring and
evaluation systems in order to guarantee the efficacy and caliber of free legal aid programs. Consistent
observation enables the recognition of obstacles, deficiencies, and opportunities for enhancement.
Evaluation supports evidence-based decision-making by assisting in the measurement of the effects
and results of free legal aid services. Policymakers and practitioners can make well-informed
modifications and efficient resource allocations by regularly monitoring and assessing programs,
ensuring that free legal aid programs fulfill the requirements of the communities they serve.
 CONCLUSION

In summary, this essay has shown the importance of legal assistance in India, pointing out both its
benefits and shortcomings and providing insightful suggestions for development. It is impossible
to downplay the accomplishments of legal aid in India since it has been instrumental in
guaranteeing disadvantaged and marginalized groups in society access to the legal system. It has
promoted a more inclusive and equitable legal system by empowering people to exercise their
rights and bridging the justice gap. This work has, however, also pointed up a number of important
shortcomings that require attention. The effectiveness and efficiency of legal aid in India has been
hindered by insufficient financing and resource allocation, restricted outreach and awareness of
legal aid services, bureaucratic obstacles, and a lack of cooperation among players. Due to these
obstacles, there is now a disconnect between the ideal and the actual situation, which keeps many
worthy people from obtaining justice. The Indian government and pertinent agencies must act
quickly to fortify and modernize the legal assistance system in order to get over these obstacles.
The nation should prioritize allocating more funds and resources to guarantee the provision of
high-quality legal aid services. Furthermore, it is imperative to augment the general public's
cognizance regarding legal assistance programs and their advantages by utilizing diverse channels,
including print media, online platforms, and community engagement initiatives.
For a legal aid system to be effective and responsive, it is also essential to streamline administrative processes,
cut down on bureaucratic red tape, and promote improved cooperation between the judiciary, legal aid
providers, and other stakeholders. It is recommended that legal aid practitioners undergo training and capacity-
building programs to augment their abilities and expertise, so guaranteeing a superior caliber of representation
and support.
Moreover, embracing digitization and technology can transform the provision of legal assistance, increasing its
accessibility, effectiveness, and affordability. Geographical obstacles can be minimized by connecting people
with legal aid providers and facilitating remote consultations through mobile applications, internet portals, and
virtual platforms.
In conclusion, even though legal assistance in India has made great strides toward facilitating access to the legal
system, more has to be done. India may make significant progress toward developing a strong and inclusive
legal aid system by addressing the shortcomings and putting the suggestions covered in this paper into practice.
Such a system will protect the core values of justice while also improving the administration of justice as a
whole.
 References

-Statutes/Acts Referred
The Code of Criminal Procedure, 1973 The Civil Procedure Code, 1908
The Constitution of India
Legal Services Authorities Act, 1987
The Legal Services Authorities (Amendment) Act, 2002

Websites
http://www.legalserviceindia.com/legal/article-82-legal-aid-and-awareness-in-india-issues-and-
challenges.html