Accessing Justice In India: Needs Of Marginalised Communities

Historical Context Of Legal Aid

Historically, many Indian scriptures, including those by Manu, discouraged women's independence, insisting they remain under their father's control in childhood, their husband's after marriage, and their son's if widowed. The concept of supporting women's independence did not exist back then. Sir Henry Maine described women as being under perpetual tutelage. The struggle for justice and equality has been long, from the denial of Dr. B.R. Ambedkar's access to a common tap in his school to Savitribai Phule enduring regular stone pelting and filth for advocating girls' right to education. This historical context of subjugation has long-lasting effects. The trend of oppression towards marginalised sections continues to persist even today, as seen by recent trends in NCRB data, which reveal an increase in crimes against women, Scheduled Castes (SC), Scheduled Tribes (ST), and children in 2022. Therefore, protecting the rights of those already in deprived positions should be a top priority for the state and citizens, with the Legal Aid system being one means to ensure social justice.

The concept of Legal Aid dates back to 1495 when English King Henry VII ordered judges to assign lawyers if there was no legal representative for the poor. This early recognition of the need for legal assistance for the less fortunate laid the groundwork for the modern legal aid system. Legal aid ensures that legal assistance is provided for free, ensuring that the right to access justice is not limited to a select few. By providing free legal representation, legal aid serves as a cornerstone of democracy, promoting equal access to justice for all members of society. Justice PN Bhagwati emphasised that the poor and illiterate should be able to approach the courts, and their ignorance and poverty should not obstruct their Right to Access Justice.

India did not always have a legal aid system, but the enactment of the Code of Criminal Procedure in 1973 marked a significant step forward by promoting the concept through Section 304. This section provides for the appointment of a pleader by the court at the state's cost if the accused lacks legal representation. The concept gained further traction with the insertion of Article 39A in the Constitution through The Constitution (Forty-Second) Amendment Act, 1976, which imposed a duty on the state to ensure access to justice for the poor by establishing free legal aid services. The idea received statutory backing with the enactment of the Legal Services Authorities Act, 1987. Subsequently, judicial interpretation in the case of Hussainara Khatoon v. State of Bihar, 1979 AIR 1369, elevated the right to free legal services to the status of 'Right to Life & Liberty' under Article 21.

Barriers To Accessing Legal Aid

Section 12 of the Legal Services Authorities Act specifies the eligibility for free legal services, including members of Scheduled Castes or Scheduled Tribes, victims of trafficking, women, children, persons with disabilities, and those affected by disasters, among others. Despite this broad eligibility, many do not access free legal services due to poor quality and lack of awareness. Research titled “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,” conducted in 18 states, found that 8,539 women were unaware of free legal services, and 2,797 women were aware but did not avail themselves of these services due to their low quality. This highlights a critical gap in the legal aid system, where eligible individuals are either uninformed or disillusioned by the substandard assistance they receive. Addressing these issues is important to ensure that legal aid fulfils its purpose of providing equitable access to justice for all. Legal field is often seen as a noble profession, dedicated to helping those in need. Despite this, many legal aid counsels face many challenges, including low and delayed honorarium payments, which can undermine their motivation. Helping the deprived and ensuring justice for all demonstrates their commitment to ethical practice. However,in many cases, lawyers bear the costs incurred during legal aid cases themselves. Delays of over six months after the conclusion of a legal aid case are common, demotivating lawyers from investing their time in such cases and compelling them to engage in private practice for subsistence.

Another study by 'The Task Force On Justice For All' found that women and children face the greatest barriers to accessing justice, often feeling voiceless and ignored. Over one billion children worldwide are victims of violence, suffering in silence, and half of the women believe it is pointless to report sexual harassment due to a lack of faith in the justice system. This sense of helplessness is pervasive and heartbreaking. Furthermore, two-thirds of the world's population lack meaningful access to justice, leaving millions without hope for a fair resolution to their grievances. In India, crimes against vulnerable sections have alarmingly risen, reflecting a dire need for change. For example, NCRB data on Prison Statistics India 2022 reveals that the total number of undertrial prisoners from SC and ST communities is 1,31,172, illustrating the systemic bias and delays they face. Additionally, 22,702 females were confined in various Indian jails at the end of 2022, many waiting endlessly for their day in court. These statistics are not just numbers; they represent real people enduring prolonged injustice. Urgent measures are needed to ensure that the vulnerable do not have to wait decades for representation in court. Addressing these issues with compassion and urgency is crucial to restoring faith in the justice system and providing a glimmer of hope to those who have been marginalised for far too long.

Various Initiatives Taken To Address The Gap

The government has shown its commitment to improving the legal aid system by allocating Rs. 200 crores in the 2023-24 Budget to NALSA. This significant budget can be utilised to ensure that advocates are not discouraged from taking legal aid cases due to untimely and low pay, thus strengthening the overall legal aid framework. To streamline the process, the Department of Justice has introduced DISHA (Designing Innovative Solutions for Holistic Access to Justice), which aims to create a more efficient legal aid system. Through this initiative, pro bono lawyers can connect with eligible beneficiaries using the Nyay Bandhu mobile application, bridging the gap between those in need and those willing to help. However, challenges remain, such as beneficiaries' unfamiliarity with mobile applications. To overcome this, Panchayats and local representatives can be involved to facilitate easier and faster connections, ensuring that no one is left behind.

As per the report released by the Ministry of Justice there were around 5,954 pro bono advocates actively participating through the Nyay Bandhu application, and 69 law schools have established Pro Bono Clubs to instil a culture of volunteerism and social responsibility among law students. This engagement of law schools in pro bono activities has significantly contributed to addressing the legal needs of underprivileged communities, highlighting the impact of collective efforts in promoting justice. Further, The Committee for Legal Aid to Poor, founded in 1982, is the oldest public interest law organisation in India. Its mission to promote legal literacy, awareness, aid, and Public Interest Litigation among the underprivileged underscores the importance of grassroots efforts in fostering justice.

In a significant development, twenty-one Chief Justices and judges from fifteen countries of the Global South convened in New Delhi in November 2023 for the Chief Justices' Roundtable on Equal Access to Justice for All. This historic gathering was aimed at strengthening south-south cooperation and sharing best practices to ensure equal access to justice. Principle 5 of the conference emphasises the judiciary's crucial role in reducing inequalities in accessing legal assistance, particularly in civil cases. Judges are called upon to ensure that no individual is denied access to the courts due to a lack of resources or fear of lengthy processes. Principle 6 reinforces the right to legal aid as a fundamental human right, urging the judiciary to advocate for adequate funding and resources for legal aid programs, ensuring that legal representation is accessible to all, regardless of their financial means.

These concerted efforts by the central government and judiciary reflect a profound commitment to upholding the principles of justice and equity. By addressing systemic barriers and enhancing legal aid services, India is taking significant strides towards creating a more inclusive and fair legal system, where every individual, irrespective of their socio-economic status, can access justice.

Recommendations And Way Forward

Strong measures are needed to achieve Sustainable Development Goal Number 16, which refers to peace, justice, and strong institutions. A critical aspect of this goal is to provide justice which can be possible by improving the lawyer-to-population ratio. According to the Commonwealth Human Rights Initiative's report from 2018, India has about 1.8 million lawyers, equating to one lawyer per 736 people. However, there is a stark contrast in the availability of legal aid, with only one legal aid lawyer per 18,609 people or five per 100,000 people, which is woefully insufficient for a populous country like India. In comparison, the American Bar Association's Profile of the Legal Profession states there are four lawyers for every 1,000 residents in the U.S., with New York boasting 9.6 lawyers per 1,000 residents.

Legal aid should not place the burden on beneficiaries to discover provisions themselves; it should be the state's duty to ensure awareness and accessibility. An exemplary model of this proactive approach is seen in Kollam district in Kerala, which ran a seven-month campaign to become the first constitution literate district in India, educating citizens about their laws and rights. Such initiatives empower individuals and communities, fostering a culture of legal literacy and awareness that is essential for a robust justice system. Moreover, advocates should proactively reach out to beneficiaries and maintain regular contact, rather than waiting for the beneficiaries to approach them. This proactive engagement is crucial in building trust and ensuring timely legal assistance. Lawyers should also provide support before the trial process, such as in filing an FIR or a bail application, which can make a significant difference in the lives of the vulnerable.

Addressing the challenges of accessing justice in India, particularly for marginalised sections, requires a multifaceted approach. Implementing strong measures, improving the lawyer-to-population ratio, and ensuring state responsibility in raising awareness about legal aid programs are foundational steps. Additionally, fostering a culture where advocates are actively involved in the community and providing pre-trial support are vital. By adopting these strategies, the justice system can become more accessible and equitable for all, ensuring that no individual is left without the means to seek justice. A justice system that reaches out to its most vulnerable citizens not only upholds the rule of law but also strengthens the fabric of society, promoting peace and resilience. With concerted efforts and a commitment to justice, India can make significant strides toward a fairer and more just society for all its citizens.

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