India's Legal System: Legal aid for the poor or poor legal aid?

There are several reasons for the poor state of legal aid in India.

A fair trial is the cornerstone of the rule of law and a just legal system. To ensure a fair trial, the accused must have proper legal representation. Various articles of the Indian Constitution, such as Article 39A and Articles 14 and 22(1), guarantee free legal aid and oblige the State to ensure equality before the law.

However, the high cost of legal representation makes it difficult for the poor to defend their cases effectively. With this in mind, The Legal Services Authorities Act was enacted by Parliament in 1987 to establish a “nationwide uniform network for providing free and competent legal services to the weaker sections of society.” The National Legal Services Authority (NALSA) was constituted under the Act to monitor and evaluate the implementation of legal aid programmes and to lay down policies and principles for making legal services available under the Act.

Despite these efforts, legal aid in India has been far from satisfactory. This has been confirmed by various surveys, acknowledged in court judgments, and accepted by judges and lawyers on multiple occasions.

Underfunded and Overlooked

On October 1, while speaking at a public event, Justice Dipankar Dutta of the Supreme Court said, “Ten years down the line, when I attend NALSA conferences, I find, ‘Oh my God, where does the money come from?’ Five or six judges from the High Courts are invited, and we are accommodated in five-star hotels. Is this the purpose for which the Legal Services Authority Act was enacted?”

This is not the first time an apex court judge has expressed dissatisfaction with the functioning of legal aid authorities. In October 2021, the then-executive chairman of NALSA, Justice Uday U Lalit, highlighted a disturbing fact: the “overwhelming majority of the general public is not utilising free legal aid services due to various reasons, including lack of awareness and the poor quality of the aid offered.”

He emphasised that legal aid to the poor does not mean poor legal aid. He also pointed out that only 1 percent of the total criminal cases heard in courts across the country receive legal aid from legal services authorities.

Quality of Legal Aid Concerning

The poor quality of legal aid can be gauged from what the Supreme Court said in a judgement where it acquitted a man who had been sentenced to death for the alleged murder of his wife and four children. In Ramanand @ Nandlal Bharti versus the State of Uttar Pradesh, the apex court noted, "What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake. It has to be the provision of a counsel who defends the accused diligently to the best of his abilities."

Highlighting the poor defence provided by the counsel, the court said, “We have noticed that the cross-examination of each and every witness is below average. Questions that the defence counsel was not supposed to put to the prosecution witnesses were put without realising or understanding the legal implications of the answers to such questions, more particularly when they were not necessary. The defence counsel remained oblivious to the position of law that suggestions made to the witnesses are binding on the accused.”

Free Legal Aid Remains Limited

According to Access to Justice 2016, 90 percent of litigants earn less than ₹3 lakhs per annum. Considering that only 1 percent of accused persons avail themselves of the legal aid provided by the government, it means that even those earning less than ₹3 lakhs annually do not prefer or receive free legal aid.

In this context, Justice Lalit raised an important question that all stakeholders should take note of. He said, “Is it that the remaining 99 percent of the general public does not want legal aid? There could be two reasons why people do not receive legal aid. First, many people are not aware that it is their constitutional right to be provided free legal aid. Second, they may lack confidence in the legal aid system, which is more dangerous. If they do not have confidence in the setup or in the machinery of legal aid, then we need to do self-introspection. Good quality aid must be ensured. Legal aid to the poor does not mean poor legal aid. There has to be better standards, better quality, and better levels of legal aid offered through legal services authorities.”

According to the India Justice Report 2019, almost 80 percent of India’s population is eligible for free legal aid. Yet since 1995, barely 15 million people have taken legal aid. The Department-Related Parliamentary Standing Committee (DPRSC) on Personal, Public Grievances, Law, and Justice, in its 116th report, highlighted the same problem.

There are several reasons for the poor state of legal aid in India. One of the key reasons is poor funding. According to the India Justice Report 2022, the national per capita spending on legal aid, including the expenditures of NALSA and state/UT governments, is a "meagre ₹4.57 per annum." Excluding NALSA, this figure drops to ₹3.84, and if only NALSA's budget for 2021–22 is considered, the per capita spending is just ₹0.73.

The Need for Reform

According to an IndiaSpend report, low pay is one of the biggest reasons behind the lack of good resources. The legal aid lawyers IndiaSpend spoke to said that there is little incentive to be part of the legal aid system as “pay is not commensurate with the work or the effort it took them to become a lawyer, payments from the legal aid services authority are often delayed, legal aid counsel are not respected as much as private lawyers in court, and they do not receive any social security benefits as they are not employees.”

As per a paper by NALSA on the Legal Aid Defence Counsel Scheme 2022, the assigned counsel system of dispensing legal aid is currently being followed in India. Under this system, cases are assigned to panel lawyers by legal services institutions. These panel lawyers also have private practices, and hence, they do not exclusively devote their time to legal aid matters. Often, their accessibility and availability remain issues for timely client consultation and updating the legal aid seekers about the progress of their cases. There have been instances where lawyers were found harassing beneficiaries or demanding fees from them.

To improve the quality of legal aid services, adopting a ‘Legal Aid Defence Counsel System’ could yield positive results. Under this system, the legal aid lawyers would exclusively handle legal-aided cases.

The inadequacies of the legal aid system in India have pushed millions of litigants—the majority of whom belong to the economically weaker sections—to hire ‘expensive’ courtroom lawyers, making justice inaccessible for many. This underscores the need for reforms in the legal aid system. In a country with a vast population living below the poverty line, free legal aid cannot be optional but must be an obligation on the part of the government.