A case for pro bono lawyering in India

Right to justice is a fundamental right, and the cornerstone of any democratic society that believes in the rule of law. Not only is it essential that there exists rule of law; accessibility to legal recourse is also important.

Internationally, Goal 16 of the Sustainable Development Goals is to ensure peace, justice and strong institutions. The Indian Constitution enshrines this in its framework. Additionally, the Code for Criminal Procedure provides for legal representation by the State. The Code of Civil Procedure also has provisions for ‘paupers’ - those not able to afford legal services can nonetheless approach the courts for justice with the State incurring the cost. Thus, the importance of pro bono legal services is unequivocally paramount.

However, some important considerations. First, it comes as no surprise that the demand for pro bono legal advice outstrips the supply by a huge margin. With more than 3 crore cases pending before various forums, this is to be expected. It is practically impossible to ascertain the number of those who require free legal aid as there is no way to find out exactly how many individuals or indeed organisations are even unable to approach courts for lack of expertise. Despite excellent efforts from National Legal Services Authority (NALSA) and State legal services bodies, the supply is still short. This is not even taking into account the burdensome task of applying for legal aid.

The second point to be noted is that there is generally a lack of an organised structure. India has a vibrant mix of big, medium and small law firms as well as chambers and independent practitioners. This has made an organised legal pro bono structure very difficult to organise. The Department of Justice’s scheme, Nyaya Bandhu has initiated the mammoth task of linking those in need of legal advice with lawyers willing to provide it. Not only does the website allow for lawyers to be connected with individuals, it also has a form of internship called the ‘pro bono club.’ The website reads,

"Pro Bono Club (PB club) Scheme, has been conceptualized to strengthen the existing pro bono programme, by integrating law schools and students within its fold. The primary objective of this scheme is to improve the efficiency and quality of pro bono legal services by providing assistance to pro bono advocates through competent law students. Here, selected law students (known as ‘Pro Bono Associates’ or PBA) are part of Pro Bono clubs attached to law schools and helmed by a dedicated faculty in-charge."

Notwithstanding, there needs to be a bigger push to link lawyers. The role of some organisations providing ‘clearing house’ services with their legal partners is immensely important and much needed to bridge this gap.

Third, pro bono legal service, as widely understood, is seen as an individual need. It needs to be always appreciated that pro bono legal advice is not only needed in case of litigation. A number of NGOs and development organisations for instance are actively engaged in providing essential services and help - not just to work in the arena of justice - but for a number of other social causes. The legal process of funding, registering, etc. often do require legal assistance. Pro bono culture thus must also keep in mind this requirement of developmental organisations, not in a litigation capacity, but rather as an advisory role.

The Bar Council of India also acknowledges the importance of pro bono legal service. Law schools are highly encouraged to set up and run legal aid clinics to provide legal support to. Additionally, the Standards of Professional Conduct and Etiquette, Rule 46 mentions:

"Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it,…………. free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

The Supreme Court in its landmark judgment in India Jaising v. Supreme Court of India clearly emphasises the need for advocates to contribute pro bono. This is to be a major consideration when assessing applications for designation as Senior Advocates.

Law is historically a profession that is honourable and very collegial. A lawyer is expected to be an officer of the court and uphold the values of the systems and the institution. A huge part of that is to ensure access to justice, keeping in mind the national and international aspirations. As lawyers as well as those involved in the field, it is imperative that we work towards creating a culture of pro bono lawyering. There is certainly a very strong case for it.

The author is a Barrister-at-Law (The Hon’ble Society of the Inner Temple) and a Door Tenant (Lamb Building, Temple, London).