Legal aid in India – more needs to be done

Citizens are entitled to justice when their acts or businesses violate the law or the rights of others. They seek justice through administrative and judicial authorities. Article 14 of the Indian Constitution states, “The State shall not deny to any person equality before the law and the equal protection of the laws within India.”

Article 39A of the Indian Constitution requires the state to ensure that the legal system promotes justice on a basis of equal opportunity and to provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that no citizen is denied justice due to economic or other disability. National Legal Aid Service Authority (NALSA), formed under Legal Services Authority Act, 1987, works at the national and subnational levels to make justice affordable and accessible to the underprivileged.

More to be done

However, experts who published the India Justice Report, 2022 could not hide the unpleasant reality of legal aid in the country. Undertrials’ grim condition (60 per cent of inmates) cannot be overemphasised.

Despite greatest efforts, legal aid institutions only contact a minuscule percentage of their clients. Apart from the nearly five crore (50 million) pending cases, the ever-increasing resolution time is a big issue.

The report also emphasises the shortage of judges in courts. Only the High Court of Sikkim and Chandigarh district courts have no vacancies. Kerala was the only major and mid-sized state with 100 per cent case clearance rates (incoming cases as a percentage of outgoing cases over a specific time period). States/UTs could not meet SC/ST/OBC quotas at the district court level. No SC/ST/OBC judge data is available for High Courts.

The legal aid situation is dire. The number of legal aid clinics in the country decreased from 14,159 in 2020 to 4,742 in 2022. Overall, 24 States and union territories provided education to less than 5 per cent of inmates during 2022. Five States have not provided any vocational training to the inmates.

Police’s role

The report further documents that the police are a part of criminal justice delivery system in India. Every State has statutorily mandated quotas in employment for SC, ST and OBC. In the police, only Karnataka has been able to fulfil these reservations. Not a single state/UT meets own reserved quotas for women in police. There are total number of 33,312 pending cases across all 25 State Human Rights Commissions in

March 2021. Across 25 State human rights commissions, there is an average 44 per cent shortfall in staff strength.

The amendments to the Commercial Courts Act now mandates pre-institutional Mediation. India passed the Mediation Act, 2023 to improve mediation institutions and reduce judicial workload.

The Ministry of Law, Government of India, has been promoting pro-bono legal aid and encouraging law colleges and legal service providers to form pro-bono clubs.

Other issues facing the legal aid system include rising criminal cases and police station bail restrictions. Even though Section 320(1) of the Code of Criminal Procedure allows compounding (conversion into penalties) without court permission, our police officers are taught to register cases that do not fit under this provision, avoiding station-level compounding. Even the recently passed Mediation Act, 2023 ignores this. It could have permitted mediated settlement in cases falling under Section 320(1) of CrPC. According to the National Judicial Data Grid, nearly 75 per cent of the 4,45,02,075 cases outstanding from one year to 30 years in various courts are criminal matters. Legal help may not have reached these detainees in various courts on time.

NALSA initiative

NALSA is training, and rostering mediators, besides engaging in other legal aid-related activities. It has held over five lakh awareness camps nationwide since its founding, according to data. National, State, and district legal services administrations provide free services to women, disabled, reserved castes, tribes, and the poor.

However, NALSA should focus on increasing the number of legal aid clinics, taking legal aid to the village level and strengthening the gram Nyayalayas, besides raising awareness among all, including police personnel, advocates, citizens, magistrates and judges. Developing a core team of dedicated advocates to work in legal aid centres on a monthly salary basis, strengthening institutional arbitration and mediation with quotas for pro bono services will strengthen legal aid in the country.

The writer is former Senior Advisor, UNDP

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