Legal aid as a remedy against Socio-Economic inequality

Background

Within a year of adopting the Constitution, the Supreme Court had expressed significant concerns over lack of legal representation to a person, stating that the courts of appeal are not powerless to interfere if it is found that the accused had been so handicapped for want of legal aid that the proceedings against him would not amount to fair trial. Moreover, the landmark judgment of Hussainara Khatoon Vs Home Secretary, State of Bihar, was alsolaid down by the Apex court, envisaging that legal aid is a fundamental right of an individual under Article 21 of the Constitution of the India, and State possesses no such authority to deny an individual of his or her Constitutional right. It is pertinent to note that the 42^nd amendment laid down article 39A, which prescribed free legal aid. Nevertheless, the article being a part of DPSP, remains unenforceable in any court of law within India.

Introduction

Free legal aid refers to the idea of furnishing free of cost legal support or representation to a person or a class of persons, who are socio-economically disabled from having access to legal assistance on their own. Such beneficiaries have been listed under Section 12 of the legal Service Authority Act. The section covers a diverse range of persons, as a matter of fact; it renders more than 80% of Indian population eligible as a beneficiary.

Laws prescribing free legal assistance:

·      Advocates act, 1961, under Section 6(1)(eee), provides the function of State Bar Council to organize free legal aid for poor and marginalized section of society.

·      Legal Service Authority act, 1987, the act lists down the beneficiary’s eligibility under section 12.

·      The Model Prison Manual 2016, which was circulated to all the States & UTs, also enunciates chapters on legal aid and under-trial prisoners. It contains guidelines to facilitate under-trial prisoners with facilities such as interview with attorneys, applications made before court on the expense of state, etc.

Understanding the issues:

Although several laws and legislations in India incorporate provision in relation to free legal aid, there remains a number of persisting challenges which poses a question to the implementation and effectiveness of such laws. One of such issue is, whether the Constitutional mandate for reach of legal aid to grassroots level has been fulfilled or not? Another factor that needs to be examined is the funding of legal aid institution vis a vis their budget utilization. Additionally, the importance of adequate staff in courts and legal aid institutions also needs to be analyzed. .

Identifying gaps in justice delivery mechanism:

The India justice report of 2025 raises significant concerns in respect of delivery and access to justice, with only INR 6 to 10 per capita spend on legal aid across the country, even when 80% is its population is eligible for free legal aid by the state. In some states the benchmark is even lower than the national average, with State of West Bengal spending INR 1.9 per capita on legal aid.

Analyzing the funding of legal aid institutions:

The National Legal Service Authority oversees the assistance of free legal aid at the central level, whilst State legal service authorities are established at state level with decentralization at local levels also.

But, for such an entity to function well, it requires adequate financial help. There exists a decreasing trend of budget allocation to NALSA, with INR 400 crores in the year 2023-24, whilst revised allocation stands at INR 200 crore for the year 2024-25, and for FY 2025-26 the numbers stood at INR 200 crore consecutively.

Utilization of funds by competent authorities:

In order to boast the reach of legal aid at every level, NALSA has vested certain powers to State and District legal service authorities in terms of distribution of finances, audits, expenditure, etc, so that people from all sections of society will be benefitted from their outreach programs. But when local level institutions fails to utilize their budget, irrespective of the extent of financial help being more or less, there will always be a gap prevailing between the legal service authority and the beneficiaries of legal aid. The onus lies on the local authorities to bridge this gap. The State legal service authority of Uttar Pradesh, employed only 18.7% of the total grant of 16.50 crore, between the year 2022-23, is a prominent example of problematic budget utilization.

Role played by human resource in legal aid institutions:

When an institution is tasked with certain statutory responsibilities, apart from the finances, it requires adequate number of technical and non-technical staff to fulfill the aspirations of citizens. That’s why legal service authorities at all three levels, have certain Para-legal volunteers and District legal service authority (DLSAs) Secretaries to assist the agency along-with judicial officers, and panel lawyers.

However, India Justice report has reported a significant decline in the number of Para-legal volunteer (PLV), by a drop of 38% post 2019; means, a national average of three PLVs exists per one lakh of population of our country. The performance of states is no exception, the state of Odisha, currently possesses five PLVs per one lakh of its population, notwithstanding Uttar Pradesh and West Bengal, each having only one PLV per one lakh of its population.

The same situation persists in terms of vacancy of DLSA Secretaries, with the State of Odisha having an average of 13.3% vacancy of such secretaries out of total thirty sanctioned seats, nonetheless, the State of Sikkim having 100 percent vacancy for two of sanctioned seats.

Rationally, it is very important for a nation to have optimum judicial officers for speedy disposal of cases and streamlining settlements amongst the parties. As of Feb, 2024, there exists 21 judges per 1,000,000 people in India; meanwhile the law commission’s 120^th report directs a judge to population ratio of 50 per 1,000,000, and the same has been endorsed by the Supreme  Court of India, in the case of Imtiyaz Ahmad vs. State of Uttar Pradesh and Others.

The vicious cycle of socio-economic inequality:

Consider a nation having world’s largest population, but has a socio-economic inequality prevailing in society. Where per capita income is 2.88 thousand USD, and the country expected to become $5 Trillion economy by 2027, but spends an average of $0.10 per person towards free legal aid. This is India, still striving eliminate the social divide, even after 75 years of Independence.

Funding of legal aid institutions as well as utilization of their allocated grants remains below the requisite standards, thereby impairing agencies from employing optimum staff due to delay in payment of reimbursements and minimal salaries. This shortage of judicial officers, PLVs, leads to helplessness amongst the beneficiaries, as their last ray of hope, remains absent from the office. When such marginalized communities are deprived of access to social security benefits, their upliftment remains an unfulfilled dream and are stuck as ‘un-equals’ in perpetuity.

As of December 2022, more than 75% prisoners are under-trial, Uttar Pradesh has reported the maximum number of under-trial prisoners (21.7%, 94,131 under-trials) in the country. It is pertinent to note that 11448 prisoners across the nation have spent more than five years in prison as under-trials. Had the legal aid money been properly utilized by States, many of the prisoners awaiting trial would have been out of jail by now. The fact that state legal service authorities, despite having adequate finance, failed to utilize the money towards prison reforms and legal aid, is an example of how poor and under trial prisoners are being subjected to a never ending cycle of injustice. Under utilization of justice budget remains a crucial issue, along-with under-funding.

Way forward

India must abide by its constitutional provisions along with article 8 of UDHR, which recognizes the right to free legal aid. India should also increase its justice budget yearly, in lines of Sweden which plans a 10% year on year increase. This can help India to counter recidivism, which stood at 32% of prison population for the year 2022.

The under-utilized budget shall be re-used to provide incentives to staff and panel lawyers engaged with the legal aid institutions. Moreover, when panel lawyers secure the release of an person under-trial for more than 2 years, additional remunerations shall be provided to them by the state. 

In order to increase accountability and transparency, retired judges and public servants can be appointed to oversee the functioning of DLS and grievance redressal of both the staff and beneficiaries, thereby maintaining cordial relationship between the laymen and the legal aid institutions.

Therefore, “we must not deny the existing socio-economic inequalities, is we continue to deny it; we will do so only by putting our political democracy in peril. We must remove the contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy which the constituent assembly has so laboriously built up”, rightly said Dr. BR Ambedkar.