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NALSA was supposed to be India’s beacon for legal aid. But it’s stuck in a systemic rut

More than 80% of India’s 1.3 billion people are eligible for legal aid. But only 15 million have benefitted from it since NALSA was established in 1995.

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Late last year, Justice U.U. Lalit, the chairperson of the National Legal Services Authority, NALSA, said: “Out of all the cases which are pending in courts, only 1 per cent are under the belt of legal services,” shedding light on India’s dire state of legal aid services. While he cited a lack of awareness and “complete ignorance about the apparatus” as the root cause of this, the rot actually runs much deeper.

Access to justice for all, particularly the poor, marginalised and disadvantaged, is essential for maintaining the rule of law in a democratic society. Article 14 of the Constitution obliges the State to guarantee all its citizens equality before the law and a legal framework that ensures justice on the basis of equal opportunity for all. It is against this background that the Indian Parliament enshrined free legal aid as a directive principle under Article 39A of the Constitution in 1976.

With the enactment of the Legal Services Authorities Act in 1987 and the subsequent establishment of NALSA in 1995, this concept was given a statutory foundation. It has since been regarded as a beacon of hope for the underprivileged. In reality, however, it is riddled with significant complexities that hinder it from reaching its full potential, and the underprivileged from being denied access to quality justice.

Also Read: Indian judges are overburdened, looking after legal aid shouldn’t be on their plate too

Legal aid system so far

With more than 80 per cent of India’s 1.3 billion people eligible for legal aid, the country has the world’s highest legal aid coverage. However, since 1995, only 15 million people have benefited from it, according to India Justice Report 2019. Furthermore, the expenditure on legal aid has been dismal, with only Rs 0.75 per capita spent in 2018 and Rs 1.05 in 2019-20 – the lowest figures globally. In contrast, according to a 2018 report by the Commonwealth Human Rights Initiative (CHRI), the per capita spending on legal aid in Australia was approximately $23 and in Argentina, it was $17.

Legal service institutions receive funding from both NALSA and state budgets. According to Tata Trusts’ India Justice Report 2020, NALSA’s budget was slashed by nearly Rs 50 crore (i.e. 33.3 per cent) from 2018-2019 to 2020-21. Over the last two years, however, state contributions increased, indicating a growing consciousness around legal aid. For instance, Jharkhand increased its share from 0 to 59 per cent between 2017 and 2020.

While this trend indicates a positive shift, it is not enough. A study by Odisha High Court Chief Justice S. Muralidhar (when he was a Delhi High Court judge) shows that the majority of the funds are utilised for administrative services, rather than legal aid itself. Panel lawyers are not adequately compensated, which results in a subpar quality of service to clients. In many cases, lawyers have been found harassing beneficiaries or demanding ‘fees’ from them, which defeats the whole purpose of free legal aid.

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Infrastructure and capacity of NALSA

The NALSA (Legal Services Clinics) Regulations 2011 require the establishment of one legal aid clinic per village or a reasonable cluster of villages to ensure that legal assistance is available in the most remote parts of India. As of 2020, there were only 14,159 clinics for approximately 6,00,000 Indian villages. On average, this equates to one clinic in every 42 villages. Only three states had met NALSA’s mandate in March 2020.

Besides this, there is a clear lack of workforce in legal service clinics. Out of 629 posts for full-time secretaries approved for India’s 669 District Legal Services Authorities (DLSA), only 573 are currently occupied. The primary reason for this is the lack of judicial officers for smaller jurisdictions. Additionally, 25 states have reduced their use of paralegal volunteers by 26 per cent from 2019 to 2020. This is worrisome because these volunteers bridge the gap between the community and legal machinery by educating, counselling and assisting with documentation.

Legal aid machinery also suffers from a lack of accountability and efficiency in processing applications. Appointing lawyers after receiving an application can take several weeks, if not months. The average number of days between application and assignment, according to the 2018 CHRI report, is 11 days — contrary to NALSA regulations, which require any decision to be made within 7 days of receipt of the application. The lack of data on representation, case verdicts, and client feedback also makes monitoring the efficacy of services offered by legal aid centres difficult, thus rendering the entire system directionless, unproductive and ineffective.

Also Read: Important to reach people of all sections, says CJI Ramana at NALSA awareness programme

The way forward

First, it is imperative that per capita spending along with the budget allocated to NALSA be increased. Additionally, provision could be made for companies to spend their corporate social responsibility (CSR) funds for legal aid and towards increasing the compensation for panel lawyers to enhance the quality of service.

Second, it is critical that lawyers, legislators, and the judiciary recognise their roles in upholding the vision of Article 39A. As part of their professional responsibilities, both experienced counsel and newcomers to the bar must volunteer to represent the poor. The legislature and judiciary must collectively require every advocate to take on a minimum number of pro bono cases during their tenure, and create a strict framework to incentivise them, including giving weightage to legal aid experience in the appointment of senior advocates/judges.

Third, we must increase the involvement of law schools in the justice delivery process. Since its inception in the 1970s, legal aid has yet to be fully incorporated into India’s clinical legal education. According to the United Nations Development Programme (UNDP), legal aid centres in law schools play a critical role in increasing legal literacy among the masses and providing related assistance. This is a well-established practice in many countries. In the United Kingdom, for instance, a study revealed that university-run legal clinics handle an average of 104 cases per year.

It is long overdue for the government, legal fraternity and civil society in India to work together to correct the system’s flaws.

Dr Amar Patnaik is a Member of Parliament, Rajya Sabha from Odisha; a former CAG bureaucrat and currently an advocate. He tweets @Amar4Odisha. Views are personal.

(Edited by Srinjoy Dey)

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