[As part of our New Scholarship section, we have been inviting discussants to respond to the public law-themed articles featured in Volume 5 the Indian Law Review. You can access all the posts in this discussion here. In this post, Prof. Jeet Singh Mann and Pooja Tiwari respond to Dr. Farzana Akter’s paper titled ‘The Standard of Assistance From Legal Aid Lawyers: An Indian Perspective”. A small summary of the Paper can be accessed here.]
In India, legal aid plays a pivotal role in securing access to justice to the citizens, as it ensures equality before the law, the right to counsel, and the right to a fair trial. At the axis of the Indian legal aid, the system stands the Legal Aid Counsels (LACs) as a cardinal stakeholder. Therefore, the level of commitment and competence of the LACs directly corresponds to the quality of legal aid provided to the beneficiaries. To a great extent, the legal aid system is bound to fail if the LACs are not performing well. In this context, the article titled “The Standard of Assistance from Legal Aid Lawyers: An Indian Perspective” tries to examine the legal assistance provided by LACs in India in light of the international human rights normative framework.
Through its descriptive analysis, the article premises upon barriers posed due to the LACs that hinder adequate access to justice to persons unable to afford legal representation or access to the court system. Whereas, to do so, the author has repeatedly enlisted the existing International human rights standards and jurisprudence, including the various United Nations documents involving the The International Covenant on Civil and Political Rights (ICCPR) and other soft laws that highlight the duties, responsibilities, and liabilities of the LACs in the interest of justice. The author also suggests an extension of the scope of States’ liability for the mere appointment of LACs to the concept of securing effective legal assistance. Arguably, as the article tries to compare the International approach undertaken with the Indian legal aid system, it has failed to interpret or analyse the standard and practice followed globally in comparison to that in India, and instead has just indicated the laws concerning Legal aid.
Further, the author highlights the evolution of India’s legal aid justice system. The author, yet again mostly, conscribes the role played by the different law commissions, Judiciary, and State authorities in ascertaining a comprehensive legal aid system. The Indian constitution, under its various provisions, pledges to promote justice for all and further dictates that the Indian judiciary to safeguard the rights of people irrespective of their financial status. In this segment, the author has nowhere critically analysed the issues with the “reasonable, fair and just” Indian statutory procedures.
The legal aid services in India are substandard. The poor in accessing legal aid in India face various systematic and procedural barriers, including the insufficiency of resources, lack of legal awareness, discrimination, and particularly lack of commitment and devotion of the LACs. As per an empirical study conducted in Delhi (2014), about 60.2% of beneficiaries (30.6% highly unsatisfactory and 29.6% unsatisfactory) were not at all satisfied with the quality of services rendered by the LACs.[1]. A similar study conducted in 2019 reflects this trend across India, where about 45% of beneficiaries were not satisfied with the commitment and devotion of the LACs[2]. The author, while discussing the concerns of the legal aid beneficiaries and the standard of the legal services by LACs, argues that the legal aid provisions are put on paper only and do not have an institutional shape or established practices in the legal aid sector. To justify the underlying theme, the author has merely compiled the existing literature available highlighting the factors that individually or collectively influence the service delivery of legal aid in India. One of the findings of the study suggests that the onus of degradation of the legal system rests upon the very structure of the legal aid system in India, which has an informal selection process for the LACs, arbitrarily allocates cases, and fails to provide proper training/orientation to the LACs.
Low quantum of honorarium, lack of lawyer’s experience, and non-availability of necessary infrastructure are other reasons responsible for the lack of spirit and motivation required in LACs to serve the poor clients simultaneously. It undermines the quality of the legal aid system. Therefore, it becomes necessary to highlight the state of affairs under which LACs provide their services to legal aid beneficiaries. On the same lines, the author highlighting numerous studies, argues that there is a nexus between lawyers’ payment scale and their quality of service, with their preparedness and level of commitment mainly depending on the payment offered to them. It is also argued that due to unjustified delay by the Legal Services Authorities in disbursing the honorarium, the problem has been further exacerbated. As per a study, around 34% of the LACs complained about unreasonable delays in the honorarium payment, and 19.80% of LACs responded that speedy payment and enhancement of quantum of honorarium would make services better. Financial uncertainties demoralize the LACs in concentrating on the legal aid cases with care and dedication, further compelling them to devote their time to private cases. In this regard, the author suggests the government to offer different kinds of incentives, including tax exemption, fellowships, subsistence allowance, or other benefits, to encourage lawyers to perform legal aid work diligently.
The standard of legal aid obligates States to ensure the effectiveness of lawyers’ service by establishing a strong institution that functions to assess, regulate and monitor their activities. According to the NALSA regulations (2010) monitoring committees should be constituted to monitor the progress of litigation by ensuring case-status reports from the panel lawyers. However, according to a study by the Commonwealth Human Rights Initiative, of the 293 districts in India, only about 60% (179 districts) had constituted a monitoring committee. Analysing the study, the author concludes that the legal aid system lacks effective oversight of the lawyers to evaluate their activities in order to ensure transparency and accountability. The author has rightly narrated the status of the monitoring process of legal aid in India. Still, an in-depth analysis of the issue relating to the reasons for the failure of the monitoring committees due to the LACs (unaware, casual conduct, illiteracy, etc) could have more strongly justified the argument raised. Regardless, while concluding, the author recommends some measures (including the appointment of competent and committed LACs, salaried full-time tenured basis empanelment, adequate infrastructural and logistical support, etc) to redress the shortcomings of the Indian legal aid system to bring it into conformity with the international human rights standards and, eventually to guarantee effective assistance from legal aid lawyers.
The Indian legal aid system focuses on distributive justice, effective implementation of welfare benefits, and eliminating social and structural discrimination against the poor. A closer analysis of the NALSA Annual report (2019) is recommended to foresee the legal services authorities’ actions so far to make the legal aid system transparent, stakeholder-oriented, and accessible. The applications of the legal practitioners shall be scrutinised, and selection of the panel lawyers shall be made by the Executive Chairman or Chairman of the Legal Services Institution in consultation with the Attorney Generals belonging to respective court levels and the Monitoring and Mentoring Committee. The 2019 Regulation by NALSA stated that the size of panel should be optimised so that each lawyer can be allotted sufficient cases. Additionally, it directed that the number of Retainer lawyers in each Legal Services Institution panel should not exceed the minimum requirement as determined by the Executive Chairman of the Chairman.
Addressing the concern of low payment of honorarium, the 2019 Regulation also directs the State Legal Services Authority to decide to make the payment of honorarium to the Retainer Lawyers on the basis of several days they man served by them. Further, it directs that the “honorarium so payable shall not be less than Rs. 1500 per day of sitting at the district and taluka court level and Rs. 2500 at the High Court level”. The 2019 NALSA regulations reflect a forward approach towards are public awareness, equal opportunity, and deliverable justice. Yet, in current times, the plight of a LAC is such that due to complex, technical, and prolonged process, the honorarium of LACs are delayed affecting their commitment towards the legal aid services they offer to the beneficiaries.
The Indian legal aid services are more aligned towards the concerns of the legal aid beneficiaries and authorities. However, it is time to analyse the impediments and hardships under which LACs deliver the legal services to legal aid beneficiaries and examine any window of reform in their professional circumstances. A comparative assessment is indeed required to highlight the ambiguities cited and prompted by every stakeholder playing a role in securing free legal aid services.
Dr. Jeet Singh Mann is an Associate Professor at National Law University, Delhi and heads the Centre for Transparency and Accountability in Governance at National Law University, Delhi. Pooja Tiwari is a Research Fellow at the Forum of Indian Regulators (FOIR) Centre, School of Competition Law and Market Regulations, Indian Institute of Corporate Affairs under the Ministry of Corporate Affairs, Government of India.
[1] Jeet Singh Mann, The UGC Research Award in Law 2014:Empirical Research on Legal Aid in Delhi
[2] An Empirical Study to Examine the Impact of Legal Aid Services Provided by the Legal Aid Counsels on the Quality of the Legal Aid System in India’, funded by Indian Council of Social Science Research (ICSSR), 2019
