Legal Services Authorities Act at 25: Reconceiving the contours in the new normal
Free and competent legal aid and services, as we know them today, owe their origins to the days of the French Revolution. Though the French Bar was at the forefront of espousal of the causes of the poor and indigent, it was abolished in 1790 and replaced with the public defender – an institution to established as part of the mandate of the ‘Declaration of the Rights of Man and of the Citizen’.
In the initial years, this institution delivered free legal services, but lost its credibility over next two decades. This compelled Napoleon to re-establish the Bar in 1810, with reluctance. After about four decades (1851) came assistance judiciaire, the law on legal aid, which, even to this day, forms the basis for legal aid system of France and most other jurisdictions across the world.
Of late, there is a justified criticism that assistance judiciaire excludes many deserving beneficiaries from its ambit by increasing the economic threshold for eligibility. But then, it remains one of the shining samples of institutionalising administration of free and competent legal service.
Our own freedom struggle is replete with leading legal luminaries dedicating themselves to the cause of legal assistance to the farmers and workmen. Thus, the Constitution of India came with a preambular resolve of securing justice. In the early days of India’s independence, some thought was invested to frame guidelines at the Central level for legal aid schemes. This was followed by a few states setting up Legal Aid Boards.
Two important judicial pronouncements - Khatri v. State of Bihar and Suk Das v. Union Territory of Arunachal Pradesh - laid the thematic edifice for the establishment of the Legal Services Authority, which ultimately culminated in the enactment of the Legal Services Authorities Act, 1987, enforced on November 9, 1995. The National Legal Services Authority (NALSA) - the prime instrument for translating the mandate of the Act - was constituted on December 5, 1995.
As the Act completes its eventful voyage of two and a half decades, NALSA and the other legal services authorities under its aegis at various levels, with all their limitations, have been passionate participants in securing justice for the hapless. Through Lok Adalats, legal aid schemes, clinics, camps, and public interest litigation, the authorities have been vigorously striving in the service of victims. Not just the judicial officers at the helm of these authorities, the penal lawyers, and especially the paralegal volunteers (PLVs) drawn from various walks of life, have been the spirited vanguards of the legal services movement.
Myriad challenges confront the legal services authorities during the COVID-19 pandemic and the resultant socio-economic realities.
First off, the fund crunch is bound to severely impact the scheme implementations and enrolment of PLVs. Even amidst these odds, the Legal Services Authorities of various states have generously contributed to the COVID-19 relief efforts of the governments and local bodies. However, sustaining this effort is bound to be a herculean task.
A research project sponsored by Indian Council of Social Science Research (ICSSR) in 2017-19, spanning across 18 states and 36 districts of India, has shown that Legal Services Counsels (LACs) are performing under low honorarium with no recognition accorded. Often, there are disincentives and challenges for the judicial officers posted at the secretariats of the authorities. Augmenting the resources of the authorities - both human and material - merits an urgent and inventive intervention.
The initiative of the Karnataka authority in placing the former judges of the High Court at the helm of implementation of NALSA schemes at the state level can be emulated across the states. Besides this, the State has engaged with law universities in strengthening the Legal Service Clinics at every college as part of the NALSA (Legal Services Clinics) Regulations, 2011. This is also sine qua non for the recognition accorded for the colleges by the Bar Council India to be strictly implemented by all colleges. Blending the legal services arena with infusion of fresh resources at the field level alongside former judges at helm of schemes gives a unique functional advantage to the authorities.
The PLVs and lawyers working with the legal service authorities for imparting legal literacy have to be first given formal academic grounding. There is a yawning gap in the realm of teaching and training of legal services, since it is not formally part of the academic curriculum of all law schools today. Thus, there is hardly a formal academic scholarship evolving in this domain in the geographies in which it is needed most, particularly in India.
As a response, to begin with, the universities can consider an elementary certification course with study material. Equipping the PLVs with digital paraphernalia to augment their reach and resources is imperative in today’s scenario.
The stark reality of our times is that while the unionised workforce at least has trade unions, the unorganised workforce is left in the lurch. Leave alone the enforcement of their rights, the existence of the unorganised workforce is not even documented on paper. The legal services have a huge task in this area.
The Delhi High Court’s directions passed in July 2020, in the case of Sunil Aledia, in approving the appointment of Delhi State Legal Services Authority (DSLSA) empanelled advocates as Authorised Officers under the Building and Other Construction Workers Welfare Cess Act, 1996 for the limited purpose of carrying out certain responsibilities, can be replicated across various High Courts. Pending or independent of this, the legal services authorities can work with trade unions and Bar Associations in chalking out work in the realm of unorganised workers.
In June 2020, NALSA has done well by publishing a Handbook of Formats, which has brought about standardisation in documentation and reporting by legal services institutions. This must be followed by a bring out broad uniformity in the income levels of the beneficiaries. Presently, under Section 12 of the Act, different state governments have prescribed different income levels. This needs a serious revisit, given their unrealistic levels.
In view of the prevailing pandemic situation, there is a need to redefine these levels either by different state governments, or in the alternative, by NALSA, in coordination with the Union. Aligning the income levels with ones defined under the 103rd Constitutional Amendment on Economically Weaker Sections (EWS) is also worth consideration.
The author is an advocate practicing at the Karnataka High Court.