Free Legal Aid: Critical Analysis of Article 39A of the Constitution of India

Article 39A of the Indian Constitution guarantees free legal aid to the citizens of India. Free? Are the people unaware of the privilege, or are there loopholes in the framework? A detailed study might help here.

Legal aid is the system of help or assistance to citizens who are not able to represent themselves in the court of law. It is, no doubt an irony that in a nation where people prefer cheap and sustainable resources, no one ever takes a lawyer for free until it is very crucial. A majority of citizens who are eligible for this service apply for it only when they cannot pay a private lawyer. This information hails from the National Legal Service Authority (NALSA), the premier for regulating free legal aid to the needy citizens. According to the Commonwealth Human Rights Initiative, India has a better per capita ratio than other Commonwealth countries. On the contrary, the same report talked about the lack of lawyers working for free legal aid, only 50 per a population of 1 million, sticking to the figures. 

To further understand the law, we need to understand the basic functions of the Legal Services Authority (LAC) Act, 1987. The law guarantees free legal aid to the people belonging to Scheduled Caste /Scheduled Tribe (SC/ST) Category, Women, Children, Victims of Human Trafficking, Workers in the Industrial Sectors, People in Custody and People below the Poverty Line (BPL). Apart from this, the body is supervised by the Chief Justice of India, as the Patron-in-Chief.

Studies suggest that people who opt for free legal aid service is due to lack of resources, or in simple words, funds. 75% of people who have opted for free legal aid in the year 2018-2019 have revealed that dearth of resources to hire a paid practitioner was the primary reason. The same report states that 22.6% of the beneficiaries would never again opt for the service. The survey also informs that while 58% of the workforce of LAC works 20 hours a day for paid cases, 56% of LAC work for free aid, only for 10 hours a day. Analysis reports also point out that 16.30% of free legal aid cases actually require some monetary involvement. These facts can conclude that free legal aid exists only for namesake. Private lawyers are preferred over free ones, citing their better performance over the lawyers working for free.

The next big problem that has emerged over the years is the increasing number of legal cases, while free aid is given only on an ad-hoc basis. In simple words, there are no permanent lawyers for free aid; they always need to be accessed from the local authorities. This increase in application time period often leads people to realize that they need a paid practitioner for the smooth working of their legal matter. Furthermore, any lawyer appointed to work free, can withdraw his support by writing to the concerned secretary. The client then needs to take up the pain, and only after complicated paperwork can they get a new lawyer. 

The counterparts, especially NALSA, have given many statements quoting “quality” of legal aid is the prime concern of the authority. The administration is much interested in revealing the number of people helped, over the percentage of the number of people helped. Ultimately this option helps them to show a large number, which is 0.82 million people per year. This also includes people who are accused of various crimes. This is where debates arise that: is rape, murder or terror accused individual allowed to hold his right to free legal aid? The author believes that India’s democratic beauty lies in providing the fundamental rights to a person, even if they do not deserve it. For example, the cases of Yakub Memon, Ajmal Kasab, Afzal Guru or the four rapists of the Nirbhaya Case. Their penalty would have been criticized on an international level if there was no free and unconditional legal aid granted to them. 

There have been problems continuously since the implementation of this act, and the manner in which this topic not being openly discussed should be frowned upon. It is a matter of regret that the mainstream media and newspapers have not been able to convey this information of free legal aid to the needy. There have been significant blunders by the government as well, where neither NALSA nor LSA was capable enough to conduct a feasible and impactful awareness campaign. An executable model is missing even after 40 years of the law's implementation.

The need of the hour calls for an ad-hoc parliamentary committee, which should look into the matter, analyze it, and formulate its effective framework. This parliamentary committee should include people from all significant political parties. Further, the adopted framework must be looked after by a standing committee of Lok Sabha, which shall report to the Speaker every year.

With this, I would take rest by quoting Henry David Thoreau that;

“The law will never make men free; it is men that have to make the law free.”

- Suyash Shukla