Contours of Legal Aid: Past, Present and Future
| Published date | 01 July 2024 |
| DOI | http://doi.org/10.1177/23220058241253394 |
| Author | Ragini P. Khubalkar |
| Date | 01 July 2024 |
Contours of Legal Aid: Past,
Present and Future
Ragini P. Khubalkar1
Abstract
The origins of legal aid are deeply rooted in Indian history and can be recited from old scriptures.
From the extensive journey of the legal system from the Vedic era to the present, a codified legal
framework of legal aid has grown to the myriad importance in India. Access to justice has been
identified as a human right at the international level through Articles 8 and 10 of the United Nations
Declaration on Human Rights. The General Assembly in 2012 adopted the ‘UN Principles and
Guidelines on Access to Legal Aid in Criminal Justice System’, which is considered to be the first
legal instrument for providing legal aid rights. At the national level, India is much ahead and considers
legal aid as a basic right that flows from access to justice. The Constitution of India, through Articles
21 and 14, has identified fundamental rights through the active participation of judiciary.2 Article 39A
specifically states the state’s duty towards providing legal aid.3 On the same line, there are provisions
in civil4 and criminal law5 for providing free legal aid, so that access to justice can be achieved. In
addition, the Legal Services Authorities Act, 1987, also works towards this goal by providing National
Legal services Authorities (NLSA), District Legal Services Authorities (DLSA) and establishing Lok
Adalats. The Bar Council of India made it compulsory for all law colleges and universities to establish
legal aid cell to spread awareness about basic laws and free legal aid through various programmes.
The Ministry of Law and Justice has also come up with the scheme of Designing Innovative Solutions
for Holistic Access to Justice (DISHA) to achieve this constitutional mandate through the pro bono
culture. In this article, Introduction gives a brief introduction to legal aid and its changing importance.
In Development of the Concept of Legal Aid, historical development is traced to understand the
need for legal aid in the early period. Analysis of Present Precise Legal Safeguard to Legal Aid focuses
on the development of legal aid after the introduction of the Legal Aid Act and the efforts taken by
1 Maharashtra National Law University, Nagpur, Borkhedi, Maharashtra, India.
2 Hussainara Khatoon v. Home Secretary State of Bihar; M. H. Hoskot v. State of Maharashtra; Sheela Barse v. State of
Maharashtra etc.
3 ‘The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.’
The article was inserted by the Constitution (Forty-Second Amendment) Act, 1976.
4 Order 33 rule 18 of the Code of Civil Procedure, 1908.
5 Section 303 of the Code of Criminal Procedure, 1972.
Article
Asian Journal of Legal Education
11(2) 121–140, 2024
© 2024 The West Bengal National
University of Juridical Sciences
Article reuse guidelines:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/23220058241253394
journals.sagepub.com/home/ale
Corresponding author:
Ragini P. Khubalkar, Associate Professor of Law, Maharashtra National Law University, Nagpur, Village Waranga,
Borkhedi, Nagpur, Maharashtra 441108, India.
E-mail: raginikhubalkar@gmail.com
122 Asian Journal of Legal Education 11(2)
the government and other educational institutions or contributing to promote to access to justice in
the present era. In Legal Aid at an International Regime, some international efforts have been made
to find legal aid in some developed countries. Way Forward provides the way forward for legal aid
and discusses available best practices followed in this area with certain suggestions.
Introduction
The Indian Constitution is known for its unique features and extensive writing of each provision which
highlights people’s values in life to be practised while discharging social and national obligations. The
aspiration for it can be read out from the preamble of the Constitution, which spells out the duties of the
people to secure to all the citizens of India justice, liberty, equality and fraternity. The fundamental rights
provided in the Constitution under Part III have an in-built obligation which is to be protected while
making state policies under Part IV of the Constitution. The separation of powers makes the judiciary
work independently.
In January 2023, the then Law Minister Shri Kiren Rijiju informed in writing in Lok Sabha that in the
Supreme Court of India, as per the information received from the Integrated Case Management Formation
System, the number of cases pending for more than 20 years as on 27 January 2023 is 208, and in toto,
69,000 cases are pending. He further mentioned that out of the pendency of cases, 294,547 cases and
671,543 cases in High Courts and district and subordinate courts, respectively, are undecided for
20 years or more, as per data available on the National Judicial Data Grid on 1 February 2023.6 In
May 2022, it was informed that over 4.7 crore cases are yet to be decided in various courts at various
levels in the different courts. Of these cases, 182,000 cases have been pending for over 30 years. In
September, the data uploaded on NJDG show that in toto 80,453 cases are pending before the Supreme
Court and 60,77,987 cases are pending before various High Courts in the country.7 The reason for an
increase in the number of cases was that as more people are coming to the courts, there is a shortage of
infrastructure in courts, leading to a massive backlog of cases.8 This information confirms that more than
5 crore cases are pending in Indian courts. This data helps us to understand that amongst the various
reasons, legal aid is desirable to solve these legal disputes.
Article 39A9 of the Constitution states that each state, while taking any policy decision with respect to
any legal system, has to ensure the promotion of justice on the basis of equal chances and legal aid by
suitable legislation. To fulfil this objective, the government constituted a committee on 26th September
1980, known as the Committee for ‘Implementing Legal Aid Schemes’. Since the award cannot be carried
out independently, it was sought to constitute statutory legal aid authorities at the national, state and district
levels to actively implement legal aid programme and to give effect to the awards of the legal aid agency
independently. The objects and reasons of the Legal Aid Services Authorities Act, 1987, state that
it was enacted to constitute legal services authorities to provide free and competent legal services to the weaker
section of the society to ensure that opportunity for securing justice are not denied to any citizen by reason of
6 Available at https://economictimes.indiatimes.com/news/india/nearly-6-72l-cases-pending-in-district-subordinate-courts-for-
over-20-years-kiren-rijiju/articleshow/97583641.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
7 Information available on National Judicial Data Grid on 7 September, 2023. .
8 The Hindu: Explained | Over 47 million cases pending in courts: Clogged state of Indian judiciary . The Hindu Updated May 13,
2022, 02:13 pm.
9 Article 39A of the Constitution of India provides for equal justice and free legal aid.
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