Guest Post: The Right to Legal Aid and the State of India's Legal Aid Systems

(This is a guest post by Ms. Deekshitha Ganesan, Advocate)

In December 2019, in Anokhilal v. State of Madhya Pradesh, the Supreme Court of India overturned a conviction and death sentence ordered by the trial court. The reason? It found that the accused’s right to legal aid was violated. The short facts are as follows. A lawyer was appointed by the Legal Services Authority for the accused a day before the hearing for framing of charges. On the date of the hearing, the lawyer was not present, and a new lawyer was appointed immediately by the Legal Services Authority. However, on the same day, charges were framed under Sections 302, 363, 366, 376(2)(f) and 377 of the Indian Penal Code, 1860 and Sections 4, 5 and 6 of the POCSO Act, 2012. While remanding the case back to the trial court for fresh consideration, the Supreme Court re-stated some principles on the right to free legal aid. In particular, it held that where a lawyer is appointed as an amicus to represent an undefended accused, reasonable time of at least 7 days should be provided for preparation, and the counsel should be permitted to have meetings and discussions with the accused.

These principles are at the heart of the right to legal aid. Yet, despite 40 years having passed since the inclusion of Article 39A in the Constitution of India, 1950, criminal cases must go all the way to the Supreme Court before they are vitiated due to lack of legal representation. The importance of adequate and effective legal aid in criminal trials cannot be stressed upon enough. A recent study conducted by the Centre for Law and Policy Research on ‘Re-imagining Bail Decision Making: An Analysis of Bail Practice in Karnataka and Recommendations for Reform’ confirms that legal representation leads to positive bail outcomes; no one who was unrepresented by a lawyer secured bail, and lack of legal representation increased chances of being remanded to police custody. Further, the likelihood of getting bail only increased with effective legal representation, for instance, where lawyers filed bail applications prior to the bail hearing.

As the criminal process progresses from preliminary hearings on bail and custody to advanced stages like framing of charges and examination of witnesses, effective legal representation can have positive implications for a trial. However, notwithstanding the Legal Services Authority, 1987 and the establishment of the National, State, and District Legal Services Authorities, it is an admitted fact that India's legal aid system is floundering due to low levels of access, inconsistent quality of legal services, and inadequate monitoring.

In this post, I review the right to legal aid and the state of the legal aid system in India. I address three questions — (i) When is the right triggered? (ii) Whose obligation is it to ensure that an accused has legal representation at all stages of the criminal process? and (iii) What is the consequence of an accused going without representation? The legal services authorities undertake a range of functions from campaigns and awareness camps to framing victim compensation schemes. Therefore, in addition to these three questions, this post will focus only on some of the operational issues with our legal aid system, such as empanelment of lawyers and quality of services to underscore that we need to urgently review our legal aid system in order to preserve the right to a fair trial.

When Does the Right Accrue, and Who Must Ensure Compliance?

The questions on when the right to legal aid accrues and who must secure compliance are interrelated and the Code of Criminal Procedure, 1973 [Cr.P.C.] offers some answers. Section 41D provides that when a person is arrested and interrogated, he is entitled to meet with an advocate of his choice. However, this right will not apply “throughout interrogation”. Besides stating the existence of a right, this provision does not operationalise the right to free legal aid.

Besides Section 41D, Section 304, Cr.P.C. requires the Sessions Court to assign a pleader to an accused person where they are unrepresented in a case before it and where they may not have the means to engage a pleader. The class of trials to which this would apply is to be notified by the State Government. However, it is unclear whether any such notifications exist as they are not publicly available.

After the inclusion of Article 39A as a Directive Principle of State Policy through the Constitution (42nd Amendment) Act, 1976, in Khatri v. State of Bihar the Supreme Court ostensibly solved the issue of when the right to legal aid would kick in. It held that this right to free legal aid would be illusory if the Magistrate or Sessions Judge did not inform the accused of the right i.e. the obligation to inform lies with the judge of the court before whom an accused is produced. However, the implication is that until an accused is produced before court, the right to legal aid does not necessarily take effect — for instance, during police interrogation. Strangely, the court also caveats that in case of economic offences, prostitution, child abuse etc, the State may not be required to provide free legal aid, at once diluting the obligation of the judge.

With the enactment of the Legal Services Authority Act, 1987 and respective State Rules passed under that law, another avenue opened up to clarify how this right could be operationalised and when it would be triggered. However, the Act stops short of laying this out clearly. Section 12 sets out the criteria for accessing free legal aid, but limits itself to identifying classes of persons entitled to legal services, such as women, persons with disabilities, persons in custody and persons whose annual income is below the prescribed limit. A person is entitled to legal services if they have a prima facie case to prosecute or defend.

The amended National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 (NALSA Regulations, 2010) are also silent on precisely when the right to legal aid is triggered, as are individual State Rules. Aside from laying down a detailed, form-heavy procedure to apply for legal aid — involving affidavits, description of the case facts, nature of legal aid required — the Regulations offer no guidance on how an accused should be informed of this right, the implication being that defendants must navigate relevant legal procedures themselves or fall back on paralegal volunteers appointed by legal services authorities.

The Consequences of Breach

On this question, it appears that the Supreme Court has come a long way since its 1950 decision in Janardhan Reddy v. State of Hyderabad, where it held that it is not a rule of law that the trial will stand vitiated in all capital cases where an accused is unrepresented.

Today, criminal legal proceedings, capital or otherwise, will be considered vitiated where an accused person did not have legal representation. In Md. Sukur Ali v. State of Assam, while setting aside a High Court order upholding the conviction of an accused whose counsel was absent, the Supreme Court observed that “…in the absence of counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation, the Court should appoint a counsel who is practising on the criminal side as amicus curiae…”. The matter was remanded back to the High Court for a fresh hearing in the presence of counsel. It also directed that an amicus curiae be appointed in the absence of a counsel appointed by the accused.

Curiously, in Suk Das & Anr. v. Union Territory of Arunachal Pradesh, while setting aside a conviction for an offence of criminal intimidation for lack of counsel, it specifically held that no fresh trial should be conducted and the accused person should be reinstated in his job. The reason for this remains unexplained but for a stray comment that it would "meet the ends of justice". While granting this extraordinary remedy, the Court noted that the majority of the country is illiterate and unaware of their rights and questioned whether the State could deny a fundamental right where the accused did not "apply for legal aid".

This observation directly relates to the procedure-heavy legal aid mechanism set out in the Act and Rules. How far should the court go in ensuring that an accused is represented? Is merely informing an accused of the right sufficient or should the court proactively appoint counsel if the accused is unable to take advantage of the legal aid system? Is re-trial a viable solution where the right to free legal aid is compromised? At the appellate level, remanding criminal cases for reconsideration might not have a devastating effect on the docket. However, trial courts in India are notorious for their backlog of cases and remanding cases back for de novo consideration due to lack of effective counsel is not an efficient or sustainable solution.

The State of India's Legal Aid System

In 2018, the total budget of NALSA was Rs. 87 Crores, with individual State allocations ranging from Rs. 50 Lakhs to Rs. 11 Crores. It appears that the legal aid authorities are well funded, yet we know little about how these funds are put to use. For instance, all we get from the 2018 Annual Report of the National Legal Services Authority is a simple graph on the total number of beneficiaries of legal aid in the given year.

Although websites of State legal services authorities reveal more details, it is not uniform across States and crucial information is missing. For instance, the website of the Tamil Nadu Legal Services Authority provides consolidated month-wise data for the entire State, providing data on applications received and applications disposed of across various fora. While a lot of space is dedicated to the functioning of Lok Adalats, we find out nothing more than this basic data with respect to criminal trials, appeals and bail applications. Some important data points that ought to be made available include the different stages of the trial at which a legal aid lawyer was provided, the nature of cases, and the classes of individuals entitled to free legal aid who claimed it for criminal trials. Similarly, the only statistics available on the website of the Karnataka State Legal Services Authority are of September 2018, and dedicate one column to legal aid provided.

Perhaps the most troubling aspect of the legal aid system is the lack of serious monitoring of empanelled lawyers. There is no information on whether disciplinary action is taken against lawyers who do not adequately represent their client or even simply fail to appear, even though the NALSA Regulations, 2010 provide that the Monitoring and Mentoring Committee must submit bi-monthly reports on the progress of every legal aid case and the performance of the empanelled lawyer. In the absence of monitoring mechanisms, quality of legal services take a beating and studies across India have shown that individuals opt for free legal aid only when they cannot afford a private lawyer, and often have little faith in their legal aid lawyers.

Closely linked to the quality of legal aid is the issue of remuneration for empanelled lawyers. An Amnesty International study on under trial prisoners in India which collected information through RTI requests on the remuneration paid to legal aid lawyers per bail application revealed that lawyers were paid as little as Rs. 100 in Andhra Pradesh to as much as Rs. 1500 in Tripura. In Tamil Nadu, lawyers are paid Rs. 1500 per day subject to a maximum of Rs. 7500 for a sessions trial and Rs. 1000 per day subject to a maximum of Rs. 4000 for other trials. It is no surprise then that we have not been able to develop a robust network of committed lawyers who can devote adequate time to their legal aid clients.

Conclusion

We are a far cry away from actively considering suggestions on the lines of what Marc Galanter had proposed a long time ago, i.e. a legal aid system that focuses not so much on litigations once they are in court, but focuses on situations outside court to avoid litigation altogether. The steps that successive governments have taken since 1987 mean that India's legal aid framework is now committed to a court-based litigation model. This post suggests that this framework is seriously underperforming. The legal aid framework, like any actor-based system, is subject to the whims of individuals – the judge needs to inform the accused of their right, litigants must take steps to approach the legal aid authority, and lawyers must be invested and committed to their legal aid cases. Add to this the absence of transparency, the lack of uniformity in reporting across State legal aid authorities, limited information on use of funds, poor remuneration for lawyers and lack of robust monitoring mechanisms, and we have a recipe for defying justice wholesale. The jury is still out on the impact that the 2018 amendments to the NALSA Regulations have made to this ecosystem. But even so, it looks unlikely that the sordid state of affairs is going to be dramatically altered anytime soon.

Where does that leave us? If anything, it leaves us with an unyielding clarity in defining the critical objectives in any agenda for legal reform — improve legal aid to those who need it most. Legal representation is so fundamental to the entire process of law that the poor quality of legal aid casts a domino effect on the entire system. This must mean that legal aid automatically becomes a component of every conversation about legal reforms, each dialogue necessarily thinking about just how the law is going to be used once it leaves the statute book and enters the real world. Legal aid is the bridge that makes sure that justice is not lost while making that transition. It is imperative that we respect its importance. 

The Long Road Towards Ensuring Effective Legal Assistance - Article Update

This past week, the Delhi High Court partly reversed the verdict of a trial court and convicted Mr. Sajjan Kumar for murder and other offences, sentencing him to life in prison. The judgment has been in the spotlight for many reasons - the political stature of Mr. Kumar, the failures of legal systems to stand up to such political figures, and the revisiting of the horrific events of 1984. However, one thing that caught my eye at the start of the judgment itself was the stellar defence team that Mr. Kumar has had throughout his proceedings. I thought to myself, "man, that must have cost a fortune".

Now, this is very obvious; we all know that good lawyers cost money and so naturally rich people can get better legal services. It should also be obvious that this inequality of financial means can help perpetuate an inequality based on calculated discrimination. Since the State has an interest in having high conviction rates, it is incentivised bring more prosecutions against indigent persons unable to afford lawyers. Even if the perverse incentive is removed, most prison systems around the world do confirm that their criminal law perpetuates inequality of outcomes. Prisons have many more indigent than rich people, not because the rich are saints but because a legal defence costs money.  

If a system is bothered by this then it tries to bridge the gap by providing free legal assistance to those who can't afford lawyers. The Indian legal system falls in this category. After the Supreme Court took the lead to recognise free legal aid as a fundamental right in the late 1970s, the federal government took steps to install a legislative framework which finally got going in the mid 1990s. But while all of this work was happening to ensure access to counsel, very little was asked about the quality of the free legal assistance being rendered. In fact, very little was asked about the quality of legal assistance in general. 

Thus, most people are understandably unaware that Indian law has organically grown to recognise a legally enforceable right to effective assistance of counsel for criminal defendants. Such a right is an invaluable tool in India's systemic commitment towards ensuring that the quality of justice received by both rich and poor persons does not markedly differ. It is a reminder that the mere presence of a lawyer is insufficient, and even counterproductive, for every person deserves a vigorous defence.   

Unaware about it myself, I did some modest research on the issue and the paper can be accessed on SSRN. What I found was rather troubling. It would seem that the lack of attention paid to the issue of quality control in legal aid has meant that rather than being used to harness this transformative potential and move towards a more equal justice, the right to effective legal assistance currently achieves little more than to redress the most glaring of errors. For instance, reversing trial court judgments where the lawyers are asked to finally argue a capital case on the date of appointment. Or lawyers do not appear throughout the trial proceedings. Since such errors could be remedied through other existing rights, it means that the right to effective legal assistance ends up being little more than a fig-leaf.     

Why does this happen? I do not think this is because India has adopted standards from American law in this context, as has been suggested. In fact, a close reading of the cases shows that India has not done so, and the legal doctrine remains quite unclear. But despite all this, what is clear through the law is that defendants bear the burden to prove that their lawyer gave ineffective assistance. How do they prove this? Documents, which ultimately means the trial court papers, which are not focused on what lawyers did during trial but instead on giving a summary of what transpired. The only place where the lawyers appear is in marking their presence and the recording of evidence, which explains why these stages have attracted judicial attention in cases about effective assistance.    

Why is that a problem? Because far too much is excluded from review. Effective legal assistance is about more than just coming to court and examining witnesses. It is about ensuring that the client inputs are heard, that the client is kept informed about the case, that a defence strategy is chalked out, and a consistent and plausible defence is taken at trial. For instance, you cannot deny the prosecution case throughout trial and suddenly change tack and admit the incriminating facts at arguments unless you have good reasons. But those reasons and all these aspects, more generally, remain hidden if we only consult the trial court papers. 

The Indian setting creates other problems. It is widely acknowledged that Indian criminal procedure is very complex and difficult for laypersons to manoeuvre without lawyers. Since lawyers speak for defendants and create an active part in making the trial court record, it is very difficult for them to check if there has been no impropriety and that the record faithfully represents what happened. Not only because of the unfamiliarity with court, but also because when defendants start asking those questions they run a risk of antagonising the lawyer itself.  

Further, since trials take years to conclude in India, effective legal assistance involves questions about what lawyers do during the interim. Was a bail application filed and what grounds were taken? Did the lawyer contest adverse findings in superior courts? If we evaluate effective assistance based on trial performance alone, the whole point of the exercise is potentially rendered redundant. 

This truncation in scope of what comes under the scanner while considering questions about effective legal assistance is bad in itself, but it also carries significant downstream consequences. If the basic premise of the right to effective legal assistance being critical for indigent defendants is sound, then a system where indigent defendants repeatedly fail in their claims except for the worst kinds of error ends up normalising lower standards of legal assistance, and also reducing client expectations.  

What can be done? The answer is not merely a question of better tools or regulating the litigation on effective assistance when it does arise. But instead, the groundwork has to be laid much earlier, by providing everyone clarity on what is meant by effective assistance. Ultimately, all stakeholders — the Government, Judiciary, and Bar Council of India (statutory regulator for the legal profession) — must sit together to help fill the massive gaps one is confronted with when talking about minimum standards of what lawyers are required to do, and what clients can expect. Unless all stakeholders take a long hard look at the status of the right to effective legal assistance in India, that idea will itself end up cementing the very injustice that it was designed to eradicate.