Access to Equal Justice and Free Legal Aid

Session Report
Abhivyakti Mishra

LPPYF Law and Public Policy Youth Fellowship is an Online National Summer School Program, a Two-Month Online Immersive Legal Awareness & Action Research Certificate Training Course and Internship Program, from June-August 2023 by IMPRI Impact and Policy Research Institute. An informative and interactive panel discussion on “Access to Equal Justice and Free Legal Aid” was held by Adv. Dr. Shalu Nigam, an Advocate, Author, Researcher under the themes of  Gender and Human Rights and visiting senior fellow at IMPRI.

Inaugurating the session Nikita, a researcher at IMPRI, welcomed the speakers and participants to the program with an introduction to the eminent panelists. 

Why Legal Aid is Important?

Dr Nigam started the session by telling the International Provisions relating to Access to Justice and the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice System 2013, recognise the legal aid as an essential element of fair, humane and efficient system based on the rule of law and includes right to fair trial. 

Similarly, access to justice is acknowledged and recognised as a Sustainable Development Goal 16 which is peace, justice and constitution and the commitment to build effective, accountable and inclusive institutions at all levels by the year 2030. Reginald Heber Smith, pioneer of legal aid movement in USA wrote in his book Justice and The Poor that “Without equal access to the law, the system not only robs the poor of their only protection, but it place in the hands of their oppressors the most powerful and ruthless weapon ever invented.”

Article 39A

Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. It is a vital function to the welfare state which include Pro Bono lawyers, NGOs and paralegals state funded aid centers and legal aid clinics. Article 39A equal justice and free legal aid inserted by 42 amendment act in 1976. 

The speaker further emphasised that free legal aid is a constitutional provision, the rights of citizens to have free access to the process, without any discrimination on account of class, sex, race and creed. It means that these services should be made available to the weaker section of the society. Further it also enacts that full opportunity be given to women, children, elderly and persons with disabilities. The provision is aimed at ensuring access to justice for all. It recognises that the cost of these proceedings can be a major barrier to justice and seeks to remove this obstacle by providing free legal aid.  

The speaker also pondered upon the question, why the special provision? As a welfare state, absence of this article was strongly felt by the constitution came into force. In order to realize the goal of providing legal aid to all. 

Article 39A must be seen as a part of the process rather than end itself. The objective is to afford justice and equal opportunity before the law to all without any discrimination on grounds of religion, race, caste or sex. Access to justice is a prerequisite for a meaningful redress of grievances, when any affected person is denied the right to receive legal aid his/her complaint will remain unheeded and efforts made to provide justice will be futile. 

Hussainara Khatoon V/S. State of Bihar

In 1973 Supreme Court of India delivered a landmark judgment in the case of Hussainara Khatoon V/S. State of Bihar, in which it held that the right to free legal aid is an integral part of the right to life and personal liberty under Article 21 of the constitution. The judgment emphasised the need for aid to be provided to all persons who are unable to afford it and called for the establishment of a legal aid committee at district and taluka levels.

Current Statistics 

As of March, 2022 India had 50,394 free legal service providers, India has one lawyer per 18,609 population or five lawyers per 1,00,000 population. Maharashtra has the highest  number of legal aid lawyers and Mizoram has the least. The India Justice Report (IJR) 2022 The national per capita spending on police increased from Rs. 912 in 2017-18 to Rs 1151 in 2020-21. The budget for their clinics was reduced by 44% between 2019 to 2021 except for two union territories, Delhi and Chandigarh; no state spends more than 1% of its total annual expenditure on the judiciary. 

Concluding Remarks 

The various suggestions made by the speaker included that the  Indian Justice Report suggested enhancing the infrastructure in courts, police stations, in rural areas and to increase the legal aid clinics to reduce the disparity in accessing justice and the disparity in accessing justice. The speaker also emphasized on prioritizing the availability of trained lawyers as paralegals across poorly served areas. The allocation and spending of the budget is another area that needs to be critically examined. Innovative ideas to strengthen the existing services as well as thinking about legal awareness, legal empowerment, capacity building, empowerment, judicial advocacy, speedy and quality justice.

Abhivyakti is a Research Intern at IMPRI.

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