By Chanchal Agrawal
“Life presents every person with challenges. In our society, the law matters, and yet for many people justice is elusive. Access to justice is a necessary part of making the rule of law fair for everyone.”[1] “Access to justice is defined as the ability of individuals and businesses to seek and obtain a just resolution of legal problems through a wide range of legal and justice services.”[2]
Often, individuals avoid legal proceedings due to the exorbitant costs associated with them. Many, especially those with limited incomes, lack the means to represent themselves adequately in court, lacking legal information and advice. The rejection of documents due to inaccuracies further compounds the problem. Some adversaries can afford top-tier legal representation, making it challenging for those with financial constraints to navigate arguments effectively. This disparity in resources can unjustly hinder access to justice. Even if someone opts to represent themselves, court delays in proceedings and judgments can be significant, impacting professional life. Engaging a representative may escalate costs, potentially leading to the withdrawal of the case due to financial strain. These all things create a gap in access to justice. “This is where the need for legal aid arises. Legal aid refers to providing free and competent legal services to the weaker sections of society to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.”[3]
Pro-bono Legal Aid
Section 2(a) of the Legal Aid Act, 2000 defines legal aid as providing legal advice, paying lawyers' fees and cost of litigation including providing any other assistance to those who suffer financial insolvency, destitution, helpless or are unable to access justice due to various socio-economic conditions.[4]
Legal aid is of two types, one funded by the government and the other done voluntarily by legal professionals. The latter one is referred to as pro bono legal aid. The term pro bono, short for "pro bono publico", is a Latin term that means "for the public good".[5] Pro bono legal aid is the practice of rendering the legal service involving giving advice or acting as counsel for individuals who cannot afford such legal services by paying or in the absence of government-funded legal aid.
“Free legal assistance at state cost is a fundamental right of a person accused of an offense.”[6] It is an essential ingredient of a “reasonable, fair and just “procedure for an accused which is implicit in the guarantee of article 21.[7] Article 39-A of the constitution of India embodying directive principles of state policy puts an obligation on the state to set up a comprehensive and effective legal aid program to ensure that the operation of the legal system promoting justice.[8]
It would be a denial of equal justice enshrined under article 14 of the Indian constitution if poor or low-income people are denied of access to justice due to insistence on court-fee[9] and high prices of hiring a counsel.
The constitution's preamble outlines three forms of justice: social, economic, and political, with access to the court falling under social justice. Protecting fundamental human rights, including the right to life, privacy, and a clean environment, requires corresponding remedies, guided by the principle of ubi jus ibi remedium. Access to justice, therefore, is considered a fundamental human right. The Legal Services Authorities Act of 1987 facilitates access to justice by providing counsel, covering court fees, and incidental expenses for eligible applicants.
Section 12 of the Legal Services Authorities Act establishes eligibility criteria for government-funded legal aid, but some individuals fail to meet these criteria and cannot afford the expensive justice-seeking process. Additionally, the funds allocated by the state may not sufficiently cover all case expenses. This leads to consequences: discouraging lawyers from providing government-funded legal aid and motivating some lawyers to offer pro bono services at their own cost. Examples include Jasdeep Dhillon and Aman Wadud, who contribute to causes like the farmers' agitation. Pro bono work by new lawyers, introduced through college legal aid centers, enhances their credibility.
Legal Aid Clinics
The Legal Services Authorities Act, of 1987 sets up a body called The National Legal Services Authority (NALSA) to provide free Legal Services to the weaker sections of the society. In every State, the State Legal Services Authority has been constituted to give effect to the policies and directions of the NALSA. In every District, the District Legal Services Authority has been constituted to implement Legal Services Programs in the District. [10]
These organizations strive to ensure that legal aid benefits a broader segment of the population, preventing the marginalized from being denied access to justice despite the existence of pro bono services. Legal Aid Clinics, staffed by Para-legal Volunteers and panel lawyers, are established in all villages. Retainer lawyers are engaged at various levels—Taluk, District, High Court, and Supreme Court—to handle legally aided cases.
Law universities also host legal aid clinics, serving the dual purpose of promoting access to justice and providing practical experience for law students. These clinics, run by students, contribute to a better understanding of the law, identify areas needing adjustment, and facilitate hands-on learning. Law students often excel at reaching marginalized individuals in need of legal advice, acting as a crucial link between lawyers and underserved communities, highlighting potential cases that require legal clarification.
Challenges of Law schools legal aid clinics
The university law clinics face certain limitations while carrying out pro bono legal services. The major one is the practical reason- the clinics do not have the authority to represent their clients in court themselves. Student law clinics in Argentina have been litigating cases for decades. In recent years, these clinics have won several high-profile cases in public health and indigenous rights.[11] Faculties can also become part of these law clinics and if they have taken the advocacy training then they can represent the clients. In this regard, the BCI should relax the prohibition on advocates taking full-time positions at universities; this would enable lawyers to undertake more formal roles in legal clinics, and even lead these programs, without losing eligibility under the Advocates Act, of 1961. [12] In the US, Lawyers are free to move from practice to academia with relative ease. As a result, legal aid clinics at universities can make use of professors' practical expertise.[13] Also the law clinics can collaborate with some external firm who can coordinate and help law clinics in representing cases where law clinics take up the work of giving free legal advice to marginalized people. The UK follows the same model where the law clinics work with external partners on client cases, with legal professionals guiding to improve the range and quality of services offered, thereby connecting student law clinics to professional pro bono practice.[14]
India also tried to implement this external partner model concerning law school legal aid clinics for community welfare with Zenith and Parichay.[15] They gave ways in which law school legal aid clinics can be made more effective in providing access to justice.
Zenith works on empowering the marginalized with the help of law school clinics by identifying, analyzing, and researching the issues and problems of the marginalized and then communicating and campaigning to make them aware of their rights of availability of pro-bono legal aid. [16]
On the other hand, Parichay collaborates with different National Law Schools across the country to provide legal aid. These things also help law students connect with the reputed lawyers engaging in pro bono work and even provide their assistance to such lawyers. In terms of its outreach, Parichay also conducts legal literacy campaigns where it distributes information to inaccessible mediums.[17]
Another limitation of law clinics is case selection criteria, which can restrict the scope of services and hinder access to justice. The criteria typically involve assessing the complexity of the case, prior experience in handling similar cases, familiarity with the relevant area of law, and the educational status of clinic students. Cases with a complex nature, lack of prior experience, or requiring extensive research may be rejected.
Individuals who don't meet the criteria set by the 1987 Act may turn to clinics as a last resort for justice. Instead of setting criteria, clinics could benefit from seeking assistance from "advisors" or para-legal volunteers and panel lawyers when faced with challenging cases. This approach ensures that clinics can connect with competent professionals who can guide them in handling different cases and provide the necessary assistance to clients.
Another limitation that could be seen is sometimes the client form misperceptions regarding the advice and services given by the law clinics also many times the clients have shown concerns about relying on legal advice from law students.[18]
Building trust in law clinics can be achieved through the active involvement of the Department of Justice and other government legal departments. This recognition fosters confidence among clients, particularly those from marginalized sections, in seeking advice and services from law students in university law clinics. Despite the availability of pro-bono legal aid facilities, limited awareness in marginalized communities remains a significant barrier to accessing justice. While some individuals may be aware of lawyers offering pro bono services, approaching them can be challenging. Law clinics play a crucial role in assisting people in such situations. However, a considerable portion of the Indian public remains unaware of university law clinics and their valuable work. The recognition by government departments can help people to know about the existence of such pro-bono- services. Moreover, after the involvement of the government department, it becomes the duty of NALSA. SALSA and DALSA under the the Legal Services Authorities Act, 1987 to emphasize on legal literacy and legal awareness campaigns and tell people about the work and role of university legal aid clinics.[19]
Campaigns should inform individuals about the eligibility for pro-bono services.
Technology and Legal Aid
University law clinics can utilize technology to improve access to justice, providing a cost-effective solution, especially for remote areas. A "Virtual legal service" system could be established, allowing law school clinics or practitioners to connect with people in areas challenging to reach physically. This system could include apps or user-friendly websites, eliminating the need for individuals to travel to seek legal advice.
This approach serves two crucial purposes. Firstly, it enables people in remote areas to access justice conveniently from their locations, eliminating the need to travel to urban centers. Secondly, the virtual platform addresses language barriers by allowing clients to access services in their preferred language. This not only facilitates better understanding of legal procedures but also fosters active client participation in the justice process, strengthening trust in pro-bono legal services.
Conclusion
Article 32 of the Indian Constitution mandates a mechanism for enforcing rights outlined in Part III. Accessing justice often involves approaching the court, but laypeople may struggle due to legal unfamiliarity, necessitating costly legal representation. Pro bono legal aid, sometimes government-funded or undertaken by individual lawyers for public welfare, breaks down the income barrier, enabling access to justice.
Institutional bodies, including law school clinics, play a crucial role in providing pro bono legal aid. These clinics serve a dual purpose: offering practical legal education to students and acting as a bridge between lawyers and those seeking justice, particularly the marginalized. Challenges faced by legal clinics are addressed through collaboration with advisors, para-legal volunteers, and external partners.
Strengthening law school legal aid clinics involves official recognition by the Department of Law, awareness campaigns to inform people of their access to justice rights, and the integration of technology for more efficient legal services. The concept of law school clinics, successful in countries like the UK and the US, has seen a positive response in India, where improvements in pro bono legal aid can enhance access to justice.
The author of this article is Chanchal Agrawal, a BALLB student at Dharmarashashtra National Law University, Jabalpur.
[1] NATIONAL CENTRE FOR ACCESS TO JUSTICE, https://ncaj.org/ (October 27, 2023)
[2] Government of the Netherlands, https://www.government.nl/ , (October 27, 2023)
[3] THE LEGAL SERVICES AUTHORITIES ACT, 1987 Act no. 39 OF 1987, (India)
[4] Legal Aid Services Act, 2000, Act No. 4 of 2000, § 2 (a), (India)
[5] Probono-Doj, https://probono-doj.in/static/about-probono.php , (25th October, 2023)
[6] Edita Gruodyte and Stefan Kirchner, Pro Bono Work vs. Legal Aid: Approaches to Ensuring Access to Justice and the Social Responsibility of the Attorney, RESEARCH GATE, Pg. 2
[7] Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98; Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401
[8] Centre for Legal Research v. State of Kerala, (1986) 2 SCC 706
[9] State of Haryana v. Darshana Devi, (1979) 2 SCC 236
[10] Id. 11
[11] Erika Castro-Buitrago, Nicolás Espejo-Yaksic, Mariela Puga, Marta Villarreal, “Clinical Legal Education in Latin America: Toward Public Interest” in [The Global Clinical Movement: Educating Lawyers for Social Justice Oxford University Press, Inc., p. 72 (2011).
[12] Chapter 3: The Future of Legal Aid in India
[13] W.J. Mlvniec and H.D. Etchison, “Conceptualizing Student Practice for the 21st Century: Educational and Ethical Considerations in Modernising the District of Columbia Student Practice Rules” (2015) 28(2) Geo J Legal Ethics 207, 243.
[14] Orla Drummond and Gráinne McKeever, “Access to Justice through University Law Clinics”, ULSTER UNIVERSITY SCHOOL OF LAW (UUSL) (October 2015)
[15] Chapter 3: The Future of Legal Aid in India
[16] ZENIT, https://zenithsociety.in/ (October 26, 2023)
[17] PARICHAY, https://www.parichay.org.in/, (October 26, 2023)
[18] Orla Drummond and Gráinne McKeever, Access to Justice through University Law Clinics, Ulster University, https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/Access-to-Justice-through-Uni-Law-Clinics-November-2015.pdf
[19] Id. 11
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