Plight of Legal Aid Counsels at the District Courts of India

The advent of Legal Aid in India traces its roots to the medieval era of India, under the reign of Shah Jahan and Aurangzeb. The state lawyers/advocates, then known as Vakil-e-Sarkar or Vakil-e-Sharai, were appointed to assist and advise poor litigants in the legal matters for free (Ministry of Law, Justice and Company Affairs 1973). Since then, legal aid in India has advanced from its medieval form into a modern one. The Legal Services Authorities Act, 1987, which came into force on 9 November 1995, embodies this modern framework of free legal aid in India. It aims to provide free legal services to the weaker stratum of the society, including children, women, and victims of natural or human-made disasters.

The Government of India (GoI) and the state governments have been allocating a large sum of expenditure on the legal aid services in India (National Legislative Services Authority 2018). Nonetheless, as per our research, the ground realities showcase that there still exist several constraints under which the Legal Aid System (LAS) in India has to operate. It is evident from our collected data that people, including potential beneficiaries, fail to trust on the low quality of services offered under LAS from Legal Aid Counsels (LACs). Further, they choose to opt for legal aid services as a last resort, preferring private services. However, this hesitancy with regards to the LAS has been due to various contributing systemic factors, acknowledged by the apex court of India in a catena of cases, such as lack of infrastructure for the justice delivery system under LAS. This empirical research is, thus, an attempt to probe into the efficiency of LACs in India.

The author carried out a pan-India study, “An Empirical Study to Examine the Impact of Legal Aid Services Provided by the Legal Aid Counsels on the Quality of the Legal Aid System in India,” funded by the Indian Council of Social Science Research (ICSSR), Ministry of Human Resource Development, to investigate how a lack of competence and commitment of the LACs affects the main purpose of legal aid services in India. For the purpose of the study, 18 states were selected and clustered in six geographical zones across India, namely North, East, West, South Central, and North East zones. Representative samples (attained through stratified sampling method) from LACs, legal aid beneficiaries, regulators, judicial officers, aware, and unaware women were collected between June 2017 to October 2018. A total of 3,029 legal aid beneficiaries, 609 judicial officers, 1,007 empanelled legal aid advocates, 33 regulators/secretaries, 3,120 women respondents who were aware but did not opt for legal aid, and 8,537 women respondents who were unaware of legal aid services. Thus, this research uses inputs received from 16,337 respondents to analyse the level of commitment and competence among the LACs. The trends and perceptions of various stakeholders were analysed by using tools like descriptive analysis, frequencies, and cross-tabulation in IBM SPSS Statistics 21.0.

The assertion for empirical research is based on the fact that LACs are comparatively less committed to the mandate of free legal aid and are relatively incompetent in comparison to private practitioners. This study probes into these questions regarding the efficiency of empanelled LACs in India, and has been funded by the Indian Council of Social Science Research (ICSSR) Research Project (Sponsored) 2017-19.

The primary objective of the research is to take cognisance of the hindrances in the LAS provided by the LACs and submit a viable solution to promote quality legal aid services in India. To attain the objective of the research, competency and commitment of the LACs have been taken as two independent variables to analyse their efficiency.  

Research Method for Primary Data Collection

The research was designed to collect primary data through personally administered structured, open-ended and close-ended questionnaires from the major stakeholders of the legal aid programme in the universe, that is, in total 18 states and 36 districts (at least two states were taken each from North, South, East, West, Central and North East zones; one rural and one urban district in each state was selected; refer to Table 1). 

North Zone: Uttar Pradesh, Himachal Pradesh, Punjab, and Haryana.      

East Zone: Orissa and West Bengal.

West Zone: Gujarat, Rajasthan, and Maharashtra.

South Zone: Karnataka, Tamil Nadu, Andhra Pradesh, and Kerala.

Central Zone: Madhya Pradesh and Chhattisgarh.

North East Zone: Assam and Meghalaya. 

The primary data for the research was collected from all the stakeholders such as LACs, beneficiaries, regulators of legal aid services, judicial officers/judges, and women beneficiaries who were eligible but did not opt for legal aid services, as per the questionnaires from the specified Universe (refer to Table 2). This research also includes the respondents who were contacted at the District Legal Services Authorities (DLSA), the State Legal Services Authority (SLSA) for the evaluation of legal aid services provided by LACs and difficulties faced by the beneficiaries and LACs while dealing with the legal aid system. 

Research Methodology

As per the mandate of the research problems, hypotheses, and the objectives sought to be achieved, this research project adheres to both, the doctrinal and non-doctrinal methods of research methodology for conducting the said empirical research in the universe. 

Doctrinal research method: It is pertinent to note that quality empirical research cannot be conducted unless a researcher has an in-depth understanding of the existing literature on the subject of research. The researchers have, thus, critically examined the nature and scope of the relevant existing statutory instruments including relevant provisions of the constitutional law, the Legal Services Authorities Act, 1987, the Order XXXIII of the Code of Civil Procedure, 1908, Section 304 of the Criminal Procedure Code, 1973, the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, and National Legal Services Authority (Legal Aid Clinics) Regulations, 2011.  State regulations and rules of the states and specified high courts legal services committees regulating free legal aid services in the universe. The research also examined other secondary data in the form of articles, decisions of the apex judiciary, reports of committees/commission and empirical research conducted by agencies/offices in India and other nations on the topic.

Non-doctrinal research method: To evaluate the effective functioning of the legal aid programme in the universe, the empirical research method has been adopted to collect primary data from all the stakeholders involved in the legal aid services. In order to collect quality and representative data from the stakeholders in the universe, the stratified sampling method has been adopted for the collection of primary data.

This research is designed to explain and explore how far the beneficiaries of the legal aid services are satisfied with the services provided by the LACs and the hindrances faced by the LACs in providing services under the existing system of legal aid in the universe. To evaluate the competency and commitments of LACs, five open- and close-ended questionnaires for different categories of respondents such as LACs, beneficiaries, regulators of legal aid services at the district in the identified states, judicial officers/judges and women beneficiaries who were eligible but did not opt for the legal aid services in the universe (36 districts and18 states), two districts from each selected state (one rural and one urban district from each state) have been framed for collection of primary data. 

Sample Design for the Primary Data Collection: Stratified Sampling Method

In order to collect authentic, representative, and accurate primary data, the stratified sampling method was adopted. Representative samples from the major stakeholders such as LACs, beneficiaries, regulators, judicial officers/judges and women beneficiaries who were eligible but did not opt for the legal aid services, for collection of primary data in the universe was collected through personally administered questionnaires and online questionnaires for the research study. Five questionnaires containing open- and closed-ended questions related to the scrutiny of legal services provided by the LACs for primary data collection in the universe were also formulated.

Findings and Conclusion

One of the findings of the study suggests that the onus of degradation of the legal system should rest upon the very structure of the legal aid system in India under which LACs in subordinate courts are bound to practice. 

The plight under which LACs provide their legal services to a potential beneficiary in a subordinate court must be taken into consideration. LACs in subordinate courts join the services for the altruistic cause of serving the poor. As per the study, 81% of LACs marked service to the poor as the sole motive to join legal aid services. Nevertheless, the adversities attached within the legal aid system soon overtakes the altruistic motivation to serve the poor.  Low quantum of honorarium and nature of empanelment are two of the many reasons that compel LACs to facilitate their survival by focusing more on private cases rather than legal aid cases. Therefore, it becomes necessary to highlight the state of affairs under which LACs provide their services to legal aid beneficiaries in subordinate courts of India.

First, the quantum of honorarium offered to LACs by their respective DLSA is among the major concerns faced by LACs which are practising in the subordinate courts of India. According to our study, 23% of LACs raised their concern about the low quantum of honorarium attached to the legal aid services as one of the major difficulties faced by them. To add on the misery, the honorarium for the legal services is often delayed by respective DLSAs. Around 34% of the LACs complained about unreasonable delays in the payment of  honorarium by the DLSAs too. The DLSAs, as per field observations, blame the non-availability of funds as the principal cause of delay in releasing the honorarium of LACs within a stipulated time frame. It is pertinent to note that LACs bore the cost of expenditure incurred during the period of legal aid cases by their funds. In many interactions, the delay or backlog was more than six months after the conclusion of a legal aid case. This inordinate delay demotivates LACs to venture and invest their time on legal aid cases. Further, the unreasonable delay compels them to engage in private practice for subsistence and livelihood.

Second, during the field visits, the author and his research team discovered that the process of empanelment of the LACs, in practice, is structured to empanel LACs based on their years in practice rather than their competency and commitment. The above analysis is a reflection of the practices followed by the District Legal Services Authorities (DLSAs) in appointing /empaneling the Legal Aid Counsels (LACs) under the National Legislative Service Authority (Free and Competent Legal Services) Regulations 2010, for rendering legal aid services at District Courts. The empirical research also reveals that the Legal Aid Counsels (LACs), after inviting applications from the eligible legal practitioners,  are empaneled solely on the basis of length of practice/experience (Date of Registration with the State Bar Councils) at the District Courts. It is also pertinent that there is no mechanism available to evaluate the competence of the LACs at the time of empanelment.

In the majority of districts, DLSAs often request a list of legal practitioners from their respective district bar associations. Moreover, the selection is made by a DLSA through an informal interview process. The regulators, in particular, and DLSAs, in general, prefer the experience of a candidate over commitment and competency as the preferred qualification for selection. As our study also shows that 81.80% of regulators consider experience as the principal criteria for selection. It becomes important to say that only a general list of LACs is prepared without any specific area of interests and type of cases. Further, many LACs even criticised the process of allocation of legal aid cases as being non-transparent. Many LACs informally indicated/reported about the practice of the arbitrary allotment of legal aid cases by their respective DLSAs.  

Third, the LACs are compelled to interact with their respective legal aid beneficiaries in the court complex. According to our study, almost every stakeholder, 48% of LACs, 49% of beneficiaries, and 63% of regulators were of the opinion that LACs interact with beneficiaries in the court complex. Around 76% (677/882) also accepted to have met the beneficiaries at DLSA offices and courts. Since a majority of junior legal practitioners get empanelled as LACs, they do not have their independent chambers. These LACs work with temporary work stations. This non-availability of infrastructure obliges LACs to interact with their respective legal aid beneficiaries in the court complex. It results in a lack of communication and interactions among LACs and their clients/beneficiaries because the LACs are unable to sit in a court complex beyond court working hours. Moreover, the interactions in public places give an impression of disbelief to beneficiaries that their LAC is not at all competent as they do not even own a room/chamber in the court complex.

The fourth aspect points out towards the infrastructural impediments through which LACs go through in their daily course of assisting legal aid beneficiaries. As per our study, 19.7% of LACs identified lack of infrastructure as one of the difficulties they face while interacting with legal aid beneficiaries. As stated above, often, the interaction between an LAC and a beneficiary happens at public space. LACs find it difficult to concentrate and have effective communication with beneficiaries. To add, LACs are not supported by any form of library or e-database for referencing or researching on a legal aid case. Many of them are dependent on the DLSA office for either printing or access to any legal aid case-related document.

Fifth, the impediment that hinders LACs to provide legal aid services to the best of their abilities is the nature of their empanelment. In our study, we examined LACs on the prospects of making empanelment as a full-time tenured commitment. Surprisingly, 42.5% of the LACs recommended such prospects, while 24.4% highly recommended a full-time tenured empanelment. Presently, LACs are expected to perform under low honorarium, which compels them to either devote their time to private practice or demand money from the legal aid beneficiaries. The prospect of empanelling LACs on a full-time tenure basis will not only increase the level of overall commitment and dedication. It will also make them accountable for the legal aid cases they undertake during their tenure, and give them a sense of recognition.

Lastly, LACs suffer from non-recognition of their legal services. They feel stigmatised, as judicial officers and peer legal practitioners often mistreat them under the garb of daily court proceedings. The legal aid system in the subordinate courts of India is such that efforts put in by LACs are not widely recognised by the system, as there is no system of incentivising their efforts. As the honorarium, they are entitled to receive after the conclusion of a legal aid case is not dependent on the duration and outcome of the case. Hence, it can be said that these factors discourage LACs from putting their heart and soul in providing legal services to their respective legal aid beneficiaries.

To sum up, legal aid services in India have been often understood from the perspective of legal aid beneficiaries and authorities. However, it is equally important to analyse the impediments and hardships under which LACs deliver the legal services to legal aid beneficiaries, and examine any window of reform in their professional circumstances.