Updated: Aug 26, 2020
The most formidable role in the realisation of the right to legal remedies is played by the legal aid services. The term legal aid means representing people in a legal system who would otherwise be unable to either afford legal representation or unable to access the system. The term, as Professor Simon Rice describes, is not limited to just legal representation. It includes providing access to the law that is both preventive and protective; a system that brings change and hope, that relieves poverty and promotes prosperity. Legal aid can be thought of as providing public access to legal information, legal advice, and legal education and knowledge. The article analyses the position of legal aid as a fundamental right and tests the viability of using CSR as a means to fulfil this indispensable human right.
Legal Aid- An Indispensable Right of the People.
As a Human right, the position of legal aid is still subject to much debate. The Universal Declaration of human rights under Articles 6 – 11 provides several basic rights such as the right to judicial remedies, equality before the law, right against arbitrary arrests and the right to fair and impartial hearing. While Article 6 provides that “Everyone has the right to recognition everywhere as a person before the law” the right to legal aid as a basic human right is not spelt out clearly in the UDHR. In order to achieve further clarity on the status of legal aid as a basic human right, we need to analyse conventions such as the International Convention on Civil and Political Rights (ICCPR) and the European Convention on Human Rights.
Article 14(3)(d) of the ICCPR entitles a person to the following minimum guarantee- “To be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to be informed if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. In the European Convention on Human Rights too, Article 6 (3) (c) echoes the same sentiment. It reads that a person has the right to “defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. It can be inferred from a reading of the above that access to legal representation/assistance is considered a human right. The right becomes essential as it acts as a catalyst through which other allied human rights linked to the overall fairness and credibility of a trial can be enforced.
Legal Aid in India: the Dichotomy Between Rights and Reality
There are many people in a county like India who cannot afford legal assistance. In such situations, legal aid becomes very important to assist people. Legal aid improves access to justice, which has been rightly recognised by the Supreme Court of India as one of the facets of the right to life under Article 21 of the Constitution of India. At the same time, it also ensures equality before the law and defends the dignity of a human being. Hence, the importance of legal aid cannot be undermined.
The Constitution of India under Article 39A casts a duty on the state to provide free legal aid either through legislation or other schemes in order to ensure that justice is not denied to any citizen by reason of economic or other disabilities. Legal aid programs in India were formalised and given a statutory basis in the year 1987 when the Legal Services Authorities Act was enacted. The Act provides for the creation of the legal service authorities upon whom lies the responsibility to make available the free and competent service of legal practitioners, to the disadvantaged strata of the society. Section 12 of the Act provides for a criterion on the basis of which the legal service will be provided. It provides that a person belonging to Scheduled Caste or Scheduled Tribe, women, children, a disabled person, a victim of a mass disaster or ethnic violence, and an industrial worker will be entitled to the legal service under the Act. Additionally, pecuniary limits have been framed by the Supreme Court and various High Courts in the country. Such a person, entitled to the service should make an application in a prescribed format and submit it to the designated authority.
However, there exist some inherent issues with this system which have been noted here, namely, lack of awareness about legal aid, the perception that the service would not be a quality service, lack of availability of the lawyers, and reluctance amongst the lawyers to deal with such matters. This can be supplemented with a study conducted by Prof. Jeet Singh Mann of National Law University, Delhi. The statistical analysis clearly shows that the lawyers under legal aid provide services merely for their personal motive and sometimes even demand money from the person. Their quality as an advocate has also been shown as doubtful and the analysis shows that they lack the required commitment. Additionally, there is a lack of adequate supervision over them. This deteriorates the quality of legal aid services to a major extent and creates a huge gap between legal aid counsels and private practitioners.
Role of Corporates-How can CSR Bridge the Gap?
Upon analysis of the above problems, we find that the main issue is the lack of legal funding in the legal aid sector. This lack of funding results in a lack of motivation in legal aid counsels to deliver quality legal care. A possible cure to the growing inaccessibility to legal aid can be through the involvement of companies as partners in the enforcement of this constitutional and human right. As per Section 135 of the Companies Act, 2013 companies have to perform certain activities in pursuance of their Corporate Social Responsibilities. The activities that are permissible are enumerated in Schedule VII of the Act and range from the eradication of hunger and poverty to participating in rural and slum development. The philosophy behind CSR lies in giving back to society. The law now views companies not just as profit-making enterprises but as integral constituents of society that must become instruments of social change. Companies take resources in the form of raw materials; human resources etc. from society and by performing CSR activities, the companies give something back to society.
Companies may be made partners in the pursuit to secure legal aid through the addition of legal aid and awareness as a CSR activity under Schedule VII of the Companies Act. The funds from CSR activities could go towards organizations that help assist vulnerable sections of the population to access legal aid. As suggested by Advocate Maja Daruwala, these funds can help bolster the commitment towards legal aid by ensuring that lawyers who attend to the cases of these vulnerable sections provide quality legal counsel. The funds could also go towards organisations dedicated to ensuring legal assistance. These could then play a pivotal role in providing the much-needed supervision to cases where a lack of commitment is seen.
The funds may also be of considerable help in furthering the cause of justice. Legal aid centres could be established in tribal communities and supported through CSR funding. These could help act as first responders in issues involving legal technicalities and could bolster the community’s trust in the legal framework of this country. Furthermore, legal awareness drives could be conducted on issues of socio-legal and cultural importance to a community.
The role that corporates play in society cannot be marginalised and by making companies partners in the enforcement of this constitutional and human right to legal aid, a strong foundation for future development can be created. The presence of strong legal awareness at the grassroots of a country ensures a sense of confidence amongst the masses who may then become even greater contributors to building a better world.
Title Image Source: The image was taken from multiple sources including Sharda, Sacetplus, and re-created using Adobe Photoshop.
The article has been written by Aniket Charan and Dushyant Thakur who are law graduates from GNLU, Gandhinagar. Both the authors are "Associate" (to-be) at Trilegal.