INTRODUCTION
The supreme legislation which has the power to govern the whole country, THE CONSTITUTION OF INDIA, protects the citizens and provides them with the right to free legal aid and equal justice through Article 39A[1], which says, “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.”
Though this article was not a part of the constitution before, it was inserted by, The Constitution (Forty-Second Amendment) Act, 1976. This article ensures equal justice and equal opportunity of law to every citizen without any discrimination on the basis or grounds of sex, religion, caste, etc. as it imposes an obligation on the state to provide free legal aid and ensure justice to all the citizens of the country.
In Kishore Chand vs State of Himachal Pradesh[2], the Supreme Court held that “Though Article 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance the sense of confidence of the public in the investigating agency.”
As a result of this obligation on the state, an act was implemented that aims to provide free legal aid to the poor and marginalized people of the country, The Legal Services Authority Act, 1987. This act establishes legal services authority on the district, State, and National levels to ensure competent legal services to people. NALSA plays a significant role in implementing schemes and providing, managing, and advising state and district legal services authorities.
Advocates play a key role in legal aid mechanisms through legal services authority, pro bono services, legal advice and counselling, legal aid awareness, Court Representation, Collaboration with legal aid organizations, promoting alternative dispute resolution, etc. So, let us discuss each in detail.
LEGAL SERVICES INSTITUTIONS
These institutions are set up under the Legal Services Authority Act, of 1987. National Legal Services Authority (NALSA) frames and lays down policies to ease legal aid services. Section 12[3] of this act defines people who are eligible for the free legal aid services provided by Legal Services Institutions (LSIs) as a woman, a child, a member of SC/ST, an industrial workman, disabled persons, etc. As defined under Section 2(eb)[4] “Panel Lawyer” means a legal practitioner empaneled as a Panel lawyer under Regulation 8[5] of THE NATIONAL LEGAL SERVICES AUTHORITY (FREE AND COMPETENT LEGAL SERVICES) REGULATIONS, 2010. Regulation 8 of this act explains the procedure of selecting legal practitioners as Panel Lawyers. Regulation 8(3)[6] says that ‘no legal practitioner having less than three years’ experience at the Bar shall ordinarily be empanelled’.
When a case is assigned to a panel lawyer, they are expected to be highly responsive and active in handling these cases and communicating with the Legal aid beneficiaries (LABs) within 24 hours. If it’s not possible they are required to communicate over the phone with them and schedule a meeting with the client. They are expected to hold a meeting within 7 days for a comprehensive case briefing and in any case if they are not available and can’t take up the case, they are required to inform the LAB or the authorities at the earliest, so that they can take remedial action for the same.
During the first briefing, the lawyer is expected to gather all the important and necessary information and if it lacks sufficient information, he is required to inform the LAB and make efforts to interview the family members or others to gather the information. The lawyer is also required to take instructions before each hearing and inform them about all the legal documents.
The panel lawyer is entrusted to apply the correct law to the facts provided, to prepare for the hearings and pleadings in their best interests, and to avoid any illegalities. The lawyers are expected to tell every detail and update LABs like the facts included and omitted in the pleadings, if there are any unavoidable delays etc. The lawyers are expected to be fully prepared and sincere during court proceedings, including arguments, cross-examinations, and miscellaneous applications. Punctuality is expected by the lawyers, and they are advised to seek adjournments, if necessary, to maintain the integrity of the legal process.
The panel lawyer must conduct utmost professionalism and be respectful and courteous towards the court. Like all other advocates, they also had to adhere to the Bar Council’s code of conduct and Advocates Act[7] and if there was any mishap or contempt, they could also be charged or punished under the Contempt of Court Act, 1971[8]. He is required to update case details on the NALSA portal. He should follow all his duties as an advocate towards both client and court like transparency, courteousness, confidentiality, respect, no biases, professional ethics, and efficient legal representation.[9]
PRO BONO SERVICES
In the Lamps of advocacy, it has been mentioned that charging for his services is a right to an advocate. He must charge a fee because for him this profession is his livelihood. However, these advocates can provide free legal services to clients if they feel they(clients) need legal assistance but are not financially fit to pay their fees. As mentioned in Section VI – Duty to Render Legal Aid of “Standards of Professional Conduct and Etiquette”[10], it says, ‘Every advocate shall in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.’
These services are different from the legal aid services provided by the Legal Service Authority or institutions under the Legal Services Authority Act, 1987. In LSIs, the legal aid services are provided for free by the state as these panel lawyers are paid for each case, they took up but in Pro bono services, it’s in the hand of the advocate, they can either provide free services to the needful or they can charge less for their services. But here it’s the sole decision of an advocate. If the client feels that an advocate is charging high, he has the right to reject his services and can be represented or get legal assistance from any other lawyer.
Pro bono services are active in countries like the UK, Australia, Europe, etc. where lawyers provide this service to economically weaker sections of the society or who lack legal awareness and financial assistance. They are serving the larger good of the communities who are often denied justice due to the same reason. Even in American universities and some other countries, pro bono legal work has been an integral part of their law school journey.
But when we look at India, people are not much used to the norm of Pro Bono services. Some lawyers are ready to provide legal aid services but through the Legal services authority. Though some legal practitioners are providing these services, it didn’t gain much momentum and recognition, which leads us to the point that India needs awareness on a larger level because there are areas where people aren’t aware of their rights and legal education.
In a pro bono service, it is solely the lawyers’ decision, and the client is also aware of the same, hence, mutual respect, and cohesion are there. The lawyers do not discriminate these cases from other highly paid cases and maintain their duties towards the client by providing them legal assistance like representing them in courts, counselling, pleading for them, and maintaining transparency and confidentiality.
LEGAL AID AWARENESS
One of the major reasons that legal aid didn’t gain much recognition is awareness. People from remote regions lack awareness of such types of legal assistance. Moreover, in India, people who are aware, have this kind of negative perception that these services are of poor quality and would not provide effective legal assistance because these are free and you never get good things for free or less expensive.
So, the first step ahead should be educating people about their legal rights & remedies and the free legal aid assistance. NALSA implements schemes and policies for marginalized people and also organizes awareness camps in remote areas to educate people about the same. There are law colleges and universities that set up legal aid clinics, where students give legal assistance under faculty guidance and organize camps and visits to remote areas and nearby areas to spread legal knowledge.
Advocates also play a key role in Legal aid awareness. They mostly collaborate with the Legal Aid Organizations and provide free legal assistance, take up pro bono cases go to camps, and pay short visits to people and make aware them of the legal field, the rights they have, the free legal assistance they can get, etc. Like free medical camps, if more and more advocates start to organize camps and make aware people of the free legal aid, the Indian judicial system would become more efficient and justice would be provided to more people even if they are from marginalized and poor backgrounds.
CONCLUSION
The Constitution of India, through Article 39A and subsequent legislations like The Legal Services Authority Act of 1987, The Advocates Act of 1961, and Regulations by the Bar Council of India, emphasizes the principle of free legal aid to ensure justice to all the citizens of the country, irrespective of their financial affordability. Advocates play a significant role because they as, legal practitioners, can provide legal assistance, represent them in courts, and educate people about their rights and legal needs.
Legal aid institutions like NALSA, panel lawyers, and advocates offering pro bono services ensure justice by providing competent legal services to marginalized and financially disadvantaged people. Even after this, there isn’t sufficient recognition of these services, which shows there’s a significant need for legal awareness especially in remote and underserved regions. If there were more initiatives by legal organizations, educational institutions, and legal practitioners, the goal of equitable justice for all the citizens of the country would be easier to reach.
Author(s) Name: Malayika (Institute of Law, Nirma University)
References:
[1] The Constitution of India 1950, s 39A
[2] Kishore Chand vs State of Himachal Pradesh, 1990 AIR 2140
[3] The Legal Services Authority Act 1987, s 12
[4] The National Legal Services Authority (Free and Competent Legal Services) Regulation 2010, s 2(eb)
[5] The National Legal Services Authority (Free and Competent Legal Services) Regulation 2010. Regulation 8
[6] The National Legal Services Authority (Free and Competent Legal Services) Regulation 2010. Regulation 8(3)
[7] The Advocates Act 1961
[8] Contempt of Court 1971
[9] NALSA, Handbook of Formats: Ensuring Effective Legal Services <https://patnahighcourt.gov.in/bslsa/pdf/ActsRules/106.pdf > accessed 2020
[10] Standards of Professional Conduct and Etiquette, s VI
