If access to justice is a constitutional right, why is providing it supposed to be an act of charity?

If the principle of free legal aid envisioned by Article 39A of the Constitution of India is to be fully realized, then the legal aid machinery in our country needs significant reform. Till that happens, justice will remain accessible only to those who can afford good lawyers and on the benevolence of good lawyers who opt to take up legal aid cases, writes AJAY KUMAR.

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THE state of the legal aid machinery in this country always baffled me. I grew up reading the Rumpole of the Bailey books by British barrister John Moriter, in which the barrister Horace Rumpole’s house would run purely on the legal aid briefs he kept getting from court.

In my naivety, I grew up thinking that something similar was possible in India; that a young lawyer could make a practice by helping out clients who needed legal aid. Of course, that is seldom the case. The legal aid machinery in India is abysmal, and advocates are called to participate in this machinery as an act of charity rather than as a regular part and parcel of life.

Which brings me to what I think is a glaring hole in our justice delivery system: legal aid and its partner-in-crime, a regime for costs.

In non-commercial matters in India, the costs recovered by the successful party are abysmal. In some cases, they won’t even cover the fees charged per hearing by a lawyer of good standing. This is perhaps why the legal aid system is so underfunded. One cannot have a legal aid system, unless the system is able to recover costs when it succeeds.

Also read: Government to provide legal aid to needy people left out of Assam NRC

Right to free legal aid is constitutionally and statutorily guaranteed

In India’s system of constitutional government, access to justice or the right to approach a court of law to resolve one’s dispute is a fundamental policy of Indian law. Article 39A of the Indian Constitution directs the State to “provide free legal aid … to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

To implement this provision, the Parliament passed the Legal Services Authorities Act, 1987. This Act provides the statutory framework for providing free legal aid to those who need it throughout the country.

In non-commercial matters in India, the costs recovered by the successful party are abysmal. In some cases, they won’t even cover the fees charged per hearing by a lawyer of good standing. One cannot have a legal aid system, unless the system is able to recover costs when it succeeds.

The Act forms a National Legal Services Authority, as well as legal service authorities at the state and district levels, and legal service committees for the Supreme Court, all high courts and for each taluk or mandal, or group of taluks or mandals.

The primary responsibility of these authorities and committees is to variously govern the provision of free legal aid to eligible persons, spread legal literacy and legal awareness amongst the public, and run Lok Adalats, which are an alternative dispute resolution mechanism.

The cost of legal services rendered by the authorities to eligible persons are to be covered by legal aid funds established by them.

Reality of legal aid lawyering in India

The ability to nip suits in the bud is the exception and not the rule, and almost every person is given their chance to fully present their case. In practice, however, the right to free legal aid is guarded by gatekeepers of the law. Like the gatekeeper in Czech novelist Franz Kafka’s The Trial, lawyers act as gatekeepers for this system.

While in theory, a party in person may litigate all the way to the Supreme Court, in practice, an untrained mind would see the average court hall as a labyrinth and the judge, perhaps as the Minotaur who resides within. Without lawyers, litigants cannot access courts, and as a consequence are denied access to justice.

In this system, lawyers are not merely private professionals who are out there to churn out a living, but essential features of the right to access justice. This is recognized in Indian law (both in statute and via case law), where legal representation is a right in criminal trials, and legal aid is, in theory, available for most civil suits.

But the legal aid system is a poor paymaster. Under the National
Legal Services Authority (Free and Competent Legal Services) Regulations, 2010
, legal service authorities and committees are allowed to select interested legal practitioners as panel lawyers, and assign legal aid cases to them. Some of these lawyers are also designated as Retainer lawyers.

Each state has its own set rules with regard to how much empanelled lawyers are to be paid. However, the rates prescribed everywhere are rather modest. (For instance, see the fee schedules available on the websites of the DelhiTamil NaduOdisha and Haryana, Punjab and Chandigarh legal service authorities.)

These are guided by the National Legal Service Authority’s Recommendations on minimum fee for panel lawyers payable by the state legal service authorities. According to them, drafting of substantive pleadings before High Courts should merit a fee of at least Rs. 1,500, and before subordinate courts and tribunals should merit at least Rs. 1,200. Drafting of miscellaneous applications should fetch legal aid lawyers, as per these recommendations, Rs. 500 if made before a High Court (subject to a ceiling of Rs. 1,000 for all applications), and Rs. 400 if made before a subordinate court (subject to a ceiling of Rs. 8000 for all applications).

Appearance fee is recommended to be at least Rs. 1,000 for ‘effective hearings’ and Rs. 750 for ‘non-effective hearings’ before high courts, subject to a maximum of Rs. 10,000 per case. The respective amounts for ‘effective’ and ‘non-effective’ hearings before subordinate courts are Rs. 750 and Rs. 500, subject to a maximum of Rs. 7,500 per case.

Additionally, a 2018 study in West Bengal by the Commonwealth Human Rights Initiative revealed that most of the legal aid lawyers surveyed complained of low rates of payment that had not been revised for years, inordinate delays in payment, and tedious reporting and documentation practices in place in order to claim payment for legal aid cases.

No wonder, good lawyers can only afford to take those briefs up as “charity cases”, and sometimes not give them the attention that they require.

What can be done to improve the system?

A question at this juncture must be raised. If the cost of judges, court staff, prosecution lawyers and court infrastructure is rightfully factored in while determining the cost of justice, why not proper standard fees for lawyers who, by the justice system’s own admission, are absolutely indispensable to our system of justice? If legal aid has to be a meaningful right, then a party must not only have access to a lawyer, but access to lawyers who will find it worth their time to devote full time and attention to a legal aid matter.

A 2018 study in West Bengal revealed that most of the legal aid lawyers surveyed complained of low rates of payment that had not been revised for years, inordinate delays in payment, and tedious reporting and documentation practices in place in order to claim payment for legal aid cases.

This is not to say that those who currently do the work are not doing it well; they perform yeoman’s service, but they do so for a pittance. In other words, why is the assistance in the enforcement of a constitutional right by an officer of the court, that is, an Advocate, something that a lawyer must do out of charity and the goodness of their heart, rather than reasonable monetary incentives?

Should legal aid not be an obligation that is structured so that each advocate is required to take up a certain number of legal-aid briefs a year? And like all forms of conscription, ought not these conscripts be paid a decent fee for their work, ideally at par with public prosecutors?

The per capita spending on legal aid in India was merely Rs. 0.75, as of 2018. The funding for this problem will only come if we resolve our Court Fee system and also resolve our system of levying costs. Costs must follow the cause and the scale of costs must be reasonable.

Court fees must also take into account the fact that rich litigants who can afford to instruct expensive senior counsel, should not benefit from the cross subsidy of certain legal quirks. For example, in the High Court at Bombay, the maximum court fee for a suit is capped at Rs. 3,00,000. The fee for matters under Sections 911 and 34 under the Arbitration and Conciliation Act is a minute fraction of that amount.

A regular litigant ends up cross-subsidising the rich who can afford arbitration. The same is perhaps the case with writ petitions filed by corporate persons.

The regime for court fees needs to be rationalised to bring it to a place where access to courts is affordable for all while also ensuring that the costs are a barrier to nip frivolous litigation.

Maybe it is in these sectors that we can promote cheaper and more cost-effective means of dispute resolution, such as mediation, conciliation, and arbitration. Means testing the court fee based on the nature of the litigant and rationalising the pauper suit system may be a good clear first step. Requiring plaintiffs and defendants to furnish security for costs where their claim/defence is prima facie something that is tenable under law may also be a means of ensuring this.

In the UK, for instance, to aid with access to justice, some claims can be taken up by lawyers on a success fee basis. This may be a Godsend for compensation claims in India, as lawyers will finally have an incentive to ensure these compensation claims are prosecuted to their fullest extent, and may also, as a consequence, wake up the dead corpse that is tort jurisprudence in India.

Should legal aid not be an obligation that is structured so that each advocate is required to take up a certain number of legal-aid briefs a year? And like all forms of conscription, ought not these conscripts be paid a decent fee for their work, ideally at par with public prosecutors? 

Frivolous suits need to not just be dismissed, but they must be punished. This will lower judicial pendency and allow for more meaningful cases to reach courts. If we can offer all kinds of new methods for doing this for commercial matters, why not regular civil matters as well?

If we have to keep legal aid a meaningful right, the way it is administered in India will have to undergo some drastic changes. The above is illustrative; the Law Commission of India, the higher judiciary and the government need to engage with the legal service authorities at different levels, and augment the provision of legal aid throughout the country.

Our Constitution cannot tolerate a system where the right to justice becomes meaningful only to those who can cough up fees to instruct in demand counsel.

(Ajay Kumar is an advocate practicing before the High Court at Bombay. The views expressed are personal.)

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