As it is, the country’s judicial system is beset with a multitude of issues and perhaps one of the most critical challenges is ensuring equal access to justice for persons belonging to the socially disadvantaged and economically deprived sections of society. Even though the country boasts of a robust law and system in place to facilitate legal aid to deserving persons, it has not been as effective as one would have expected. The recent observations of a Supreme Court bench highlight how, sometimes, legal aid becomes perfunctory and is reduced to a ritual or a token formality.
At the heart of the problem is general apathy and an abject lack of commitment to the idea of equal access to justice for all. The government and the judicial system tend to consider it a box that needs to be ticked, rather than focusing on its effectiveness being critical for a fair trial. Without effective legal aid, poor people who cannot afford legal services will be vulnerable to the deprivation of rights. When the legal system wittingly or unwittingly treats it as a formality, then the chances of ineffective representation are quite high. This is evident when legal aid lawyers are not given adequate time to consult their clients and come up with a strong defence. Comprehension and assessment of facts and identifying procedural issues that would help the case require not only time but also commitment to ensure justice for the client. Rarely would a legal aid counsel be motivated to go the extra mile to conduct independent investigations to unearth hidden facts. The bench has rightly emphasised the need to make legal aid “a substantive and meaningful exercise that ensures effective assistance of counsel”.
The governments at the Centre and states have not been generous in funding the legal aid system. Legal experts have been expressing concern over the decline in funds allocated to the legal services authority on the one hand and the underutilisation of funds on the other. Due to the low honorarium paid to lawyers, the legal aid system has not been able to attract quality legal talent. The government, therefore, should loosen the purse strings to allocate more funds and, at the same time, undertake an upward revision of compensation to lawyers to rope in reasonably competent lawyers who can win cases. One radical recommendation was to link the payments to lawyers to the outcome of cases. This will not only be an incentive to perform better but also hold them accountable.
Even though about 80% of the country’s population qualifies for free legal aid, its reach is severely restricted. There is a huge gap between eligibility and the actual reach, which needs to be addressed immediately. The gaps in legal aid, among other things, are a major cause for the increasing number of undertrial prisoners rotting in overcrowded prisons. Not surprisingly, most of the undertrial prisoners languishing in prisons hail from poor and lower caste families. Even when bail orders are secured through the legal aid system, or otherwise, many poor among them continue to be incarcerated as they are unable to mobilise bail bonds or produce local sureties. The need of the hour is a two-pronged strategy involving overhauling the legal aid system and making the bail system suitable for the poor and underprivileged.