A majority of the people who are entitled to the free legal aid system see the service as an option only when they cannot afford a private lawyer.
First-of-its-kind pan-India research by Prof. Jeet Singh Mann of National Law University, Delhi (NLUD) has found that people don’t have faith over the services of legal aid counsel (LAC) under the free legal aid services due to a variety of factors.
“The services offered by LAC are absolutely free. But a majority of potential beneficiaries are disinclined towards the option of availing these services,” remarked the research report titled ‘Quality of Legal Representation: An Empirical Analysis of Free Legal Aid Services in India’.
Background
In 1987, the Legal Services Authorities (LSA) Act was enacted to give free and competent legal services to the poor. The Act paved the way for the constitution of National Legal Service Authority (NALSA) and other legal service institutions at the State, district and taluka level.
Last year, Commonwealth Human Rights Initiative (CHRI) had come out with a report stating that India’s per capita lawyer ratio is better than most countries in the world. There are about 1.8 million lawyers in India which mean there is one lawyer for every 736 people.
The same report also stated there are 61,593 panel lawyers in the country, which translates to just one legal aid lawyer per 18,609 population or five legal aid lawyers per 1,00,000 population.
Free legal services under LSA Act are available to a person belonging to Schedule Tribe and Schedule Caste, woman, child, victim of human trafficking, differently abled person, industrial workman, and person in custody in a protective home and the poor.
According to the statistics provided by NALSA, about 8.22 lakh people across India benefited through legal aid services from April 2017 to June 2018.
Genesis of the research
Prof. Mann, also the director at Centre for Transparency and Accountability in Governance, NLUD, said his research project has focused on the functioning of LACs as they play a pivotal role in the dissemination of legal aid services.
His research project was funded by Indian Council of Social Science Research (ICSSR), Ministry of Human Resource Development.
He said the data was collected from 18 States and 36 districts. The primary data was collected from 3,029 legal aid beneficiaries, 609 judicial officers, 1,007 empanelled legal aid advocates, 33 regulators/secretaries, and 3120 women.
Why private lawyers?
The study demonstrated that beneficiaries opt for free legal aid service due to the dearth of resources to engage a private lawyer. About 75% of beneficiaries responded that they opted for free legal aid because they had no means and resources to hire a paid private practitioner.
“They would never have approached for the legal aid services if they had resources to engage private legal practitioners,” the study found. Also, 22.6% of the beneficiaries responded that they won’t opt for free legal aid services for the second time.
The study also found that 60% of women, who were aware of the free legal aid services, chose to opt for private legal practitioner because they could have better control over their lawyer.
These women have no faith and confidence over the quality of services offered under the legal aid system, the study said.
The survey found that 56% of LAC spends an average of 1 to 10 hours per week on legal aid cases. On the contrary, around 58% LAC spend on an average of 20 hours and above per week on private cases.
Although the services offer by LAC are absolutely free, the ground reality is that around 16.30% of beneficiaries claimed their LAC often demand money before or after every court hearing.
Also, around 33% of the judicial officers said complaints were received against LACs for demanding money from beneficiaries.
Private lawyers Vs LAC
Majority of judicial officers (52% ) rated the overall skill set of a private legal practitioner as of fairly good quality and that of LAC as of moderately low quality, the report said.
Full-time empanelment
Currently, the engagement of LAC is usually on an ad-hoc basis. Around 45% of the regulators opined that making them full time will definitely improve the level of commitment among the LAC.
LAC can withdraw from an aided case by submitting a reason to member-secretary. In this scenario, a beneficiary has to go through the painstaking task of retelling their case history to newly allotted LAC.
This problem can be tackled by increasing the honorarium given to LAC. The study recommended that making honorarium for a legal aided case at par with private cases, will compel LAC to not withdraw or desert aided cases in middle.
Panel lawyers speak
Advocate Priya Singh, empanelled as a LAC for juvenile courts in Delhi, said remuneration towards the empanelled lawyers should be increased every year. This is important for those who are serving in juvenile courts as they are not allowed to have their own private practice, she added. “We only do this job. There should be yearly increased in remuneration,” she said. As for making the LAC a permanent post, Ms. Singh said it will impact on the efficiency of the lawyers as there is no impetus to work hard. “Currently, lawyers handling juvenile justice cases are empanelled for three years, once the time is up, they are retained or removed based on their performance,” she added.
Advocate Umang Mittal, who is at the end of his first stint as a panel lawyer in Delhi, said the problem with most of the beneficiaries is that they are illiterate and don’t have the procedural knowledge of the functioning of courts. “Hence they end up getting irked after three or four dates. Thereafter, they don’t want to come to court,” Mr. Mittal said.
Quoting from personal experience, he said trust deficit among the beneficiaries towards the panel lawyers was hard to eradicate. “The panel lawyers have not come from a family or acquaintance’s reference or recommendation. They are a stranger to the beneficiaries,” he explained. Mr. Mittal, who also has his private practice in Delhi, favoured the recommendation to increase the remuneration of panel lawyers. “The work we put in for private client or legal service is the same, hence the remuneration should be proportionate,” he said.
NALSA’s view
NALSA director Sunil Chauhan said the quality of legal aid is one of the prime focus areas of NALSA in 2019. He said a series of steps have been taken in the recent past to enhance the quality of court-based legal aid services.
Mr. Chauhan said NALSA was improving the selection process of panel lawyers to ensure selection and empanelment of committed lawyers. After periodic assessments, lawyers can be delisted from the panel, he added. Mr. Chauhan said the Structure and Framework of Monitoring Committees have been changed, and now these committees also do the work of mentoring of panel lawyers in legal aided cases.
“Front offices at the district level are being upgraded to make them one-stop centres for legal aid seekers. They also update the record of legal aided cases. This way, the legal aid seekers are kept updated about the progress of their cases and better monitoring of cases takes place,” Mr. Chauhan said. Lakhs of persons are getting legal advice and other forms of legal services such as drafting of applications etc., the director said, adding that through outreach programmes many are being made aware of the services. “Door-to-door campaigns were successful in this regard,” he said.
Thoughts on report
On the research report, he said, “The report needs to be studied before commenting on it.”
“It is important to see as to what indicators were taken by the researcher to examine the quality of legal aid in court matters. This is important as the outcome of a case cannot be the basis for coming to a conclusion about the quality of service rendered,” Mr. Chauhan said.
“Moreover, has the researcher examined the case files to analyse as to whether the approach of a panel lawyer was correct or not in circumstances and the law,” he said, adding, “Feedback from clients cannot be the sole methodology to assess the quality as clients are generally ignorant about the legal intricacies and their opinion is governed by perception about their cases.”
