Legal Services Clinic Blog, Uncategorized

Opinion: India needs to standardize legal aid, now!

Siddharth Aatreya & Jyotsna Vilva:

The backbone of the functioning of any justice system is the existence of a system of Legal Aid, that ensures that access to legal advice and representation before courts of law is not restricted by the access to resources commanded by the individual in question. The actualization of the Constitutional Right to Equality, and the obligation of the State to provide for access to justice to every Indian citizen has squarely taken within its fold the obligation of the State to ensure that every citizen gets access to free legal aid. This was explicitly laid down in the judgement of Hussainara Khatoom v. State of Bihar. The provision of free legal aid to economically weak individuals who come before such courts is also contained as a part of the Directive Principles of State Policy in Art. 39A of the Indian Constitution.

Unfortunately, the interpretation of the Constitutional Right in this regard has been limited to the provision of this legal aid, and has not ever engaged with the quality of the aid so provided. This has resulted in the creation of a huge gulf between the normative situation of every citizen getting legal representation before a Court of Law, and the reality of the situation, which is that the abysmal quality of the majority of the lawyers provided through State-run legal aid programs means that many economically weak defendants are left virtually without representation before Courts of Law.

The problem of poorly equipped legal aid lawyers, however, is not as straightforward as it may appear. Within India, significant differences exist between the qualities of legal aid provided in different jurisdictions domestically. The solution to the persistent problem of poor quality of legal aid provided, therefore, is to ensure that the quality and standards of legal aid provided to economically weak individuals across the country ascribes to one common standard prescribed for the same.

The structure of mechanisms created for the purposes of providing this legal aid is worth investigating to begin with. In the year 1987, the Legal Services Authority Act was passed by Parliament. Under this legislation, the central body responsible for the provision of legal aid across the country, i.e. the National Legal Services Authority, was constituted. However, the statute also provided for federal units of the same to be established. Thus, under this very legislation, State Legal Services Authorities and taluk level units of the same have also been constituted.

No explicit standard seems to have been set for the purposes of subjecting advocates who form a part of the pool created by these authorities for the purposes of providing such legal aid. The only standardized requirement, in status quo, is that the individual in question be a member of the relevant bar association, and therefore meet the minimum requirements prescribed for a practicing advocate under the Advocates Act, 1961.

This highlights the scope for differences in the quality of legal aid provided to individuals in different parts of the Country. It also highlights the extent to which the absence of a standard set by the Legal Services Authority Act and the NALSA/State Legal Services Authorities creates an environment that fosters mediocrity among legal aid lawyers in India. Consequently, it is abundantly clear that a set of clear standards need to be laid down and implemented at all levels of the legal aid provision mechanism in India, to ensure a high standard of quality is maintained among legal aid lawyers.

The areas that require standardization can also be clearly culled out of the problems that currently plague the quality of aid provided. In addition to the minimum requirements prescribed under the Advocates Act, it is essential to ensure that a standardized system of training is created for all legal aid lawyers, before they join panels in their respective states. This is essential to ensure that these lawyers have the special skills necessary to engage to provide legal aid, and are well equipped, beyond their mere qualifications, to deal with real life situations they are confronted with. The second aspect that must necessarily be standardized is the pay scale accorded to legal aid lawyers across the country. Huge discrepancies in pay across the country, uncertainty with respect to the pay received and a generally low rate of compensation have acted as huge barriers to quality lawyers opting to work with such institutions. The standardization of such pay, along the lines of the average pay received by similarly placed lawyers would go a long way in ensuring that quality lawyers start to view a career in legal aid as a viable option.

Views expressed are personal. Siddharth Aatreya (III Year) and Jyotsna Vilva (I Year) are law students at the National Law School of India University, Bangalore (NLSIU) and can be contacted at siddharth.aatreya@nls.ac.in | jyotsnav@nls.ac.in

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