ACCESS TO LEGAL

AID AND JUSTICE FOR

1
Magna Carta, 1215.

1
Table of Contents
I. Introduction to problem of access to legal aid.......................................................................3
II. The Right to Legal Aid: A Constitution Commitment..........................................................4
III. The Legal Aid systems in America and France.................................................................10
IV. Genesis of legal aid across various jurisdictions...............................................................12
V. Pro bono practice across various jurisdictions..................................................................17
VI. The road ahead: Solutions to provide effective legal aid...................................................24

2
I. INTRODUCTION TO PROBLEM OF ACCESS TO LEGAL AID

A political philosopher, Charles de Montesquieu said that; "In the state of nature...all men are
born equal, but they cannot continue in this equality. Society makes them lose it, and they
recover it only by the protection of the law."2 The protection of law to poor, weak and illiterate is
important to ensure justice and legal aid ensures that the opportunities to achieve justice is not
denied to any individual by reason of ignorance, poverty or illiteracy. Legal aid means providing
free legal assistance to the disadvantaged sections of the society so that they could exercise the
rights given to them by law.3 It is a means to ensure that no person is deprived of any legal
advice and help for lack of money.

Every individual is entitled to the fundamental human right of access to justice and legal aid.
Rule of law is the basis of a democratic society and the rule of law depends upon all people
having meaningful and effective access to justice. However, in reality, not all people have access
to justice. Indigenous people are historically disadvantaged in their access to legal aid and legal
services. It is common knowledge that thousands of undertrials and accused are hanged to death
and sentence to life imprisonment only because they cannot afford to have adequate legal
representation. Right to be represented through a lawyer is the most basic and essential human
right which is being violated today under the present legal system. In a democracy, where rule of
law is supreme, it is essential to ensure that even the weakest amongst the weak, poorest among
the poor, in the country does not suffer injustice arising out of any abrasive action on the part of
State or private person.  The problem of access to justice is deep and pervasive in India and has
affected the ability of the legal system and judicial process to respond to injustices.

The adversarial model of dispensation of justice that the colonial era brought in made access to
justice difficult. This model is characterized by highly technical nature of law and the poverty
among the masses makes access to justice highly problematic. The 14 th report of the Law
Commission of India mooted the idea of providing free legal aid to the poor by the state.
However, the legal aid system in India has largely proven to be ineffective and inefficient.

2
Charles De Montesquieu, French Lawyer and Philosopher (1689-1755).
3
Richa Kachhwaha, Access to Legal Aid in India: An Unfulfilled Promise, LIVELAW.IN (March 2018) available at
http://www.livelaw.in/access-legal-aid-india-unfulfilled-promise/ (Last accessed on March 15, 2018).

3
II. THE RIGHT TO LEGAL AID: A CONSTITUTION COMMITMENT

The Constitution of India gives much emphasis on the constitutionalism and rule of law. Rule of
Law is considered to be a part of basic structure of the Constitution and also of natural justice.
The rule of natural justice says that individuals must be given prior notice of the cases against
them, a fair opportunity to answer them, and the opportunity to present their own cases.

The preamble of the Constitution secures to its citizen, social, economic and political justice. 
Article 14 of the Constitution makes it clear that the State shall not deny to any person equality
before law or the equal protection of the laws within the territory of India. 4 The aim of Article 14
is to ensure equal justice. The guarantee of equal justice is meaningless if the poor or illiterate or
weak persons cannot enforce their rights because of their poverty or illiteracy or weakness.  The
assurance of equal justice under law is an essential requisite of true democracy. Such principle
requires that competent legal assistance should be provided to all persons in need and who are
unable to secure it through their own financial resources. If equality before law is not functional,
not readily available and not viable with respect to remedies for a poor man's complaint or
assertion of his right, then it is a fiction even for those who have the privilege to be represented
before the law. Articles 38 of the Constitution of India lay down clear mandate in this regard. 
According to Article 38 (1) the State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice, social, economic or
political, shall inform all the institutions of the national life.5

Based on the recommendations of the Krishna Iyer Committee in the year 1973, the provision of
Article 39A was incorporated in part IV under Directive Principles of State Policy in the
constitution by the 42nd Constitution Amendment Act 1976. The Constitution of India under
Article 39-A mandates the state to provide free legal aid to the poor and disadvantaged sections
of the society in order to ensure that justice is not denied to anyone by reason of economic or
other disability.6 The wording of Article 39A reiterates the kind of equality that provides access
to justice for all by creating equal opportunities for assessing the courts. 7 However, this right
available under article 39A is not enforceable in the court of law.

4
Article 14, Constitution of India 1950.
5
Article 38, Constitution of India 1950.
6
Article 39A, Constitution of India 1950.
7
M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol.2 (5th ed. 2003) p. 1616.

4
The Government of India also appointed a National Committee in 1980 under the chairmanship
of Justice P.N. Bhagwati to effectively implement and supervise the legal aid programs across
the country. This Committee came to be known as CILAS (Committee for Implementing Legal
Aid Schemes) and started monitoring legal aid activities throughout the country. There was
introduction of lok adalats in the country that provided an alternative forum to the litigants for
dispensation of justice. The year 1987, proved to be a significant year in the history of legal aid
as the Legal Services Authorities Act was enacted that gave statutory recognition to the legal aid
programs across the country. This act was enacted to effectuate the constitutional mandates
enshrined under Articles 14 and 39-A of the Constitution of India. The motto of the act is to
secure justice for the weaker sections of the society.

Right to legal aid under Article 21

Article 21 is a fundamental right of life and personal liberty under part III of the Constitution of
India.8 Right to legal aid is explicitly provided under Article 39A which is a Directive Principle
of State Policy and therefore is unjustifiable. However, the Apex Court of the country has given
a wide interpretation to Article 21 of the Constitution and has read right to legal aid as one of the
fundamental rights under Article 21.

In Hussainara Khatoon v. State of Bihar, the Court was of the view that Right to Personal
Liberty as envisaged in Article 21 is the cardinal principle of the Constitution of India and cannot
be taken away except by procedure established by law. The procedure must fulfill the
requirements of natural justice principles. Thus, right to counsel and free legal services are
essential elements for securing a reasonable and just procedure.9

In Khatri and Others v. State of Bihar, the Court said that the state is under a constitutional
mandate to provide free legal aid services to the accused who is unable to afford it himself.10

The plea of paucity of funds pleaded by the State would not be tenable, as paucity of funds
cannot be a reason for discrimination. Right to free legal aid and speedy trial is a mandate under
Article 21 and 39A. The court casts duty on State to give grant-in-aid to recognized private law
colleges, similar to other faculties, which qualify for receipt of grant. It cannot be denied either
8
Article 21, Constitution of India 1950.
9
AIR 1979 SC 1369.
10
AIR 1981 SC 928.

5
by pleading paucity of funds or otherwise. This was laid down by the Court in State of
Maharashtra v. Manubhai Pragaji Vashi and others.11

In Suk Das v. Union Territory of Arunachal Pradesh12 the Court relied on the case of Hussainara
Khatoon and held that free legal aid at State cost is a fundamental right of a person accused of an
offence, which may involve jeopardy to his life or personal liberty, and this fundamental right is
implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.

The Supreme Court as of late in its two judgments maintained that the right to consult a legal
practitioner and be defended by him is a constitutional right available to all accused persons by
virtue of Articles 21 and 22(1) of the Indian Constitution. The Supreme Court, while upholding
the death sentence handed out in the of case of Ajmal Kasab v. State of Maharashtra13, held that
it is the duty and obligation of the magistrate to inform the person accused of a cognizable
offence about his right to consult and be defended by a legal practitioner and, in case he has no
means to engage a lawyer of his choice, he would be provided legal aid at the expense of the
State.

The Supreme Court, again, in Rajoo @ Ramakant v. State Of M.P14decided that free legal aid
must be given to all the poor accused and at each stage of the Justice delivery system. The
Constitution and the Legal Services Authorities Act does not make any distinction between a
trial and an appeal for the purposes of providing free legal aid to an accused or a person in
custody.

Thus, the right to free legal aid or free legal service is an essential fundamental right guaranteed
by the Constitution and secured by the Judiciary time and again.

Legal Aid under other Statutes:

The Code of Criminal Procedure and the Code of Civil Procedure also contain provisions in
relation to the free legal aid.

11
AIR 1996 SC 1.
12
Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991.
13
[2012] 9 SCC 1.
14
[2012] 8 SCC 553

6
Section 304 of the Criminal Procedure Code provides that where the accused is not
represented by a lawyer in a trial before the Court of Session and where it appears to the Court
that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for
his defence at the expense of the State. Section 304 makes it clear that the State is under an
obligation to provide legal assistance to a person charged with offence triable before the Court of
Session.15  Order 33 of the Civil Procedure Code provides in respect of the suit by indigent
person.  When the application to sue as an indigent person is accepted by the court, then the
plaintiff shall not be liable to pay court fee and in case he is not represented by a pleader, the
Court may assign a pleader to him if the circumstances so require. 16 This benefit has now been
extended to the dependant also. International Covenant on Civil and Political Rights also
under Article14 (3)(d) guarantees to everyone: “Right 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”.17

LEGAL SERVICES AUTHORITIES ACT, 1987

This Act was enacted in the year 1987 to constitute legal services authorities to provide free and
competent legal services to the weaker sections of the society and to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities and to
organize Lok Adalats in the court premises to serve as an alternative dispute resolution system to
secure that the operation of the legal system promotes quick justice at less expense. The
Committee for the implementation of Legal Aid Schemes (CILAS) was constituted in 1980 and
it was a major step in institutionalizing legal aid. The Legal Services Authorities Act led to the
constitution of the National Legal Services Authority (NALSA) at the Centre and a State Legal
Services Authority in the States to give effect to its directions. It also made provisions in relation
to Lok Adalat.  The Legal Services Amendment Act of 2002 set up legal services committees at

15
Section 304, Code of Criminal Procedure 1973.
16
Order 33, Code of Civil Procedure 1908.
17
Article 14(3)(d), International Covenant on Civil and Political Rights 1966.

7
the Supreme Courts and the High Courts. 18 Some studies indicate that Legal Services Authorities
have been successful in providing legal aid to the disadvantaged sections of the society.19

Lok Adalats: They are judicial bodies set up for the purpose of facilitating resolution of disputes
between the parties and providing a supplementary forums to the litigants for settlement of
disputes. Either one of the parties to the case can make an application to the court to transfer the
case to Lok Adalat. If no compromise or settlement is reached in the Lok Adalat, then the case is
again transferred to the court and the court deals with the case form the stage the Lok Adalat had
reached. They have proved to be an effective mechanism for dispute resolution.

The National Legal Services Authority (NALSA): The National Legal Services Authority was
constituted under the Legal Services Authorities Act to set down policies and principles for
making legal services accessible under the Act’s provisions and to outline most effective and
economical schemes for legal services. The National Legal Services Authority provides the
applicant with the counsel at the state’s expenses and bears all expenses in connection with the
case if the applicant satisfies the eligibility criteria. 20 As of June 2017, about 1, 58, 88, 621
people have benefitted through legal services and advice held by State Legal Services
Authorities under Legal Services Authorities Act, 1987.21

The Supreme Court Legal Services Committee has been enacted under the Legal Services
Authorities Act, 1987 for the rendering of justice in the Supreme Court. A person belonging to
the poor section of the society having an annual income of less than 18,000/- or if he belongs to
Scheduled Caste or Scheduled Tribe, or is a victim of natural calamity, is a woman or a child or a
mentally ill or otherwise disabled person or an industrial workman, or is in custody including
custody in protective home, he/she is entitled to get free legal aid from the Supreme Court Legal
Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter
18
Richa Kachhwaha, Access to Legal Aid in India: An Unfulfilled Promise?, LIVELAW.IN (March 2018) available at
http://www.livelaw.in/access-legal-aid-india-unfulfilled-promise/ (Last accessed on March 15, 2018).
19
MARG, Needs Assessment Study of Selected Legal Services Authorities, 2012 available at
http://www.in.undp.org/content/dam/india/docs/DG/Marg_Needs-Assessment-Study.pdf (Last accessed on March
16, 2018).
20
S. Murlidhar, Law, POVERTY AND LEGAL AID, 2004, p. 450.
21
National Legal Services Authorities, available at https://nalsa.gov.in/sites/default/files/document/STATEMENT
%20SHOWING%20THE%20NUMBER%20OF%20PERSONS%20BENEFITTED%20THROUGH%20LEGAL
%20SERVICES%20AND%20ADVICE%20HELD%20BY%20STATE%20LEGAL%20SERVICES
%20AUTHORITIES%20UNDER%20LEGAL%20SERVICES%20AUTHORITIES%20ACT,%201987,%20SINCE
%20INCEPTION%20(AS%20ON%2030.06.2017)..pdf (Last accessed on March 16, 2018).

8
and all applications connected therewith, in addition to providing an Advocate for preparing and
arguing the case. Any person desirous of availing legal service through the Committee has to
make an application to the Secretary and hand over all necessary documents concerning his case
to it. The Committee after ascertaining the eligibility of the person provides necessary legal aid
to him/her.22

The legal aid system in India has largely proven ineffective. The main reasons as to why the
National Legal Services Authorities has not been able to deliver real legal aid include a general
lack of awareness of the availability of legal aid along with perception that free service is
incompatible with quality service. Also, there are not enough lawyers delivered by the legal
services authorities and the available lawyers generally are uninterested in providing competent
legal assistance because of financial constraints.

22
Supreme Court Legal Services Committee, available at http://sclsc.nic.in/ (Last accessed on March 13, 2018).

9
III. THE LEGAL AID SYSTEMS IN AMERICA AND FRANCE

In France, the earliest form of legal aid was provided when the legislation was passed providing
for legal assistance to the poor in 1851. In the United States, the landmark decision of the United
States Supreme Court in Gideon v. Wainwright23 led to the introduction of free legal aid in
criminal cases. There is a system of public defender in U.S. He is a lawyer appointed by the
government to represent criminal cases of people who cannot afford to pay an attorney. Public
defender agencies are supported by public funding but they do not take direction from the
government regarding representation of clients or hiring of staff attorneys and therefore
independent. By law, lawyers employed by federal public defender offices have salaries that
match those of lawyers in the federal prosecutor’s offices. The combination of salary, benefits,
and support teams tends to attract, and more importantly, retain highly qualified attorneys and
encourage legal aid to the destitute.

The French legal system is based on civil law. France has developed its own system of legal aid
services and it is offered through the court appointed lawyers. This advocate is the equivalent of
the public defender in the United States, but is not connected with an agency. The role of the
court appointed lawyer consists of representing every person who requests services without
regard to the person’s ability to pay for his services. In that case, the advocate may be paid by the
state. The current legal aid scheme is governed by the Legal Aid Act (No 91-647 of 10 July
1991) and Decree No 91-1266 of 18 December 1991. A useful first port of call for anyone
wanting legal aid is the “Maison de Justice,” usually attached to the local Tribunal d’Instance.
When free legal aid is obtained, advocates are paid by their Tribunal d’ Instance, which is funded
directly by the State.

Any person tried criminally may obtain the counsel of an advocate at any time during the
proceedings irrespective of his/her income. As a result, in most criminal cases, an advocate is
automatically provided to the accused, while in India, the number of lawyers provided by legal
aid authorities is not enough to satisfy the large number of detainees awaiting trial.

23
372 U.S. 335 (1963)

10
India should incorporate parts of the French and American systems into the Indian Legal Aid
System. The easy access to counsel aspect and the American concept of a well-paid advocate are
key ingredients to a successful legal aid system in India. Furthermore, the National Legal
Services Authority should become more selective in choosing advocates to deliver free legal aid.

11
IV. GENESIS OF LEGAL AID ACROSS VARIOUS JURISDICTIONS

The practice of legal aid has been adopted by many countries in the world where legal assistance
and aid is provided to the underprivileged sections of the society who are not in a position to
safeguard their own rights by reasons of financial problems or otherwise. It provides access to
justice for all by ensuring equality before the law in the true sense. To understand the evolving
concept of legal aid, it is very important to understand the genesis of this concept across various
jurisdictions.

India

In India, in the olden days, rendering of justice was very cheap without any court fee or stamp
duty. However, British brought with them an expensive system of administering justice which
made it almost impossible for the poor to have access to justice. The Bombay legal aid Society
was formed in 1924 to give legal aid in pre- independence period. 24 After the enactment of the
constitution, in order to give effect to the mandate of right to life and personal liberty enshrined
in the constitution, particularly for the poor and the needy, several discussions started in the
conferences for law ministers and law commissions regarding providing of free legal aid to the
people who could not afford it. The 14th law commission report dealt with the issue of legal aid
and recognized that unless there are provisions for helping the poor in bearing the court,
litigation and incidental charges, there is denial of access to justice to all. 25 The Commission was
of the view that it is the state’s commitment to provide legal aid to the poor and it also prescribed
that budgetary provisions must be made in this regard. It also suggested for setting up of legal aid
committees in every state.26

Beginning in 1952, the Indian Government started discussing the issue of legal aid for the poor
in various conferences of law ministers and law commissions. The government also formulated
some guidelines in 1960 for legal aid schemes. The constitution of the Committee under the
chairmanship of Justice P.N. Bhagwati was another significant step towards providing free legal
aid.27 The Committee was of the view that there can be no rule of law unless an individual has

24
14th Report of the Law Commission of India, Reforms in the Administration of Justice (1958,Appendix iv) p. 621
25
Ibid.
26
Ibid.
27
Justice Bhagwati, Committee on Free Legal Aid 1971.

12
the capacity to affirm the rights given to him by law regardless of his social status in the society.
There must be effective legal aid program so that the imbalance between the rich and the poor in
the administration of justice can be uprooted. It viewed legal aid as an obligation upon the state
and the constitutional right of the individual enshrined in Article 14 and 22(1). 28 Another very
important committee was constituted under the chairmanship of Justice V.R. Krishna Iyer. The
Committee report stressed the requirement of a widespread legal aid system that empowers law
to reach the people and not vice versa. It also focused upon the democratic obligation upon the
state to secure ends of social justice for all.29

In view of the recommendations of the expert committee on legal aid in 1973 under Justice V.R.
Krishna Iyer, Article 39A was incorporated in the Constitution through the 42 nd Amendment act
1976.30 The committee came out with the most systematic and elaborate statement regarding
establishment of legal aid committees in each district, at state level and at the Centre. It was also
suggested that an autonomous corporation be set up, law clinics be established in Universities
and lawyers be urged to help. Subsequently, after the recommendations of various other
committees, it was felt desirable to constitute a statutory legal services authority at National,
State and District level to monitor the legal aid programs. This led to the enactment of the Legal
Services Authority Act 1987.

The United States

During the post civil war era, thousands of poor immigrants from Germany moved to New York.
There was thus growing resentment and hostility among the residents which led to the need for
basic legal services to sort out various disputes relating to housing, jobs and property rights. The
immigrants did not have the money or the knowledge to access the justice system and this was a
major problem. A Prussian born Lawyer and former governor of Wisconsin, Edward Salmon
funded a German Legal aid Society which was often cited as the first legal aid program in the
U.S. This successful program demonstrated the need for expansion the country. Then in 1890,
Arthur Von Briesen took over the program and made a more inclusive program under the name

28
P.M. Bakshi, THE CONSTITUTION OF INDIA (9th ed., 2009) p. 87.
29
V.R. Krishna Iyer, Expert Committee on Legal Aid on ‘Procedural Justice to the People’, 1973 available at
http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20expert%20committee%20in
%20legal%20aid,%201973.pdf
30
Ibid.

13
‘The Legal Aid Society’. The program gradually became financially independent and took a
great number of cases every year.31

France

The genesis of legal aid in France can be traced back to the 8 th century, to the Moravian and
Carolingian Kings, who had instructed the judges to decide the cases of the poor for free. For
centuries, legal aid remained a charitable and a moral activity. During the reign of Louis XIV,
nine advocates of the Paris bar provided free legal services to the poor until the bar abolished in
1790. A new Institution was created in 1791 that provided for public defenders. 32 There was
availability of free legal aid services but it was voluntary in nature and that was inadequate. This
approach provided ‘poor justice’ to the people. A new law was introduced in 1851 on
l’assistance Judicaire or legal assistance and the present French legal aid practice traces its
origin to this law. In 1972, it was replaced by l’aide judicaire or legal aid and this was now
financed by public funds and provided for remuneration for advocates. The French legal aid
system prior to 1991 focused on judicial assistance but then access to legal information was
included as part of the legal aid. At present, legal aid is provided in all civil, criminal and
administrative courts.33

China

In China, the legal institutions and the number of disputes being managed by a formal legal
system have grown in the past few decades. This has increased the need for professional legal
services. By the end of 1996, 75% of the litigated or arbitrated cases did not have professional or
licensed legal counsel or participation. It was partially due to lack of legal professional and
partially due to inability of the majority of the parties to pay for the legal services and the court
fees. In the mid 1990s, this increasing trend of people seeking legal remedy but unable to afford
it became an issue of legal development in China. China underwent an intense period of two
years of preparation for a National Legal Aid Scheme. The statutory and policy guidelines for the
program were adopted.34 The development of legal aid in China can be understood as a result of

31
Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in
the United States (December 2013).
32
George A. Pellitier, Legal Aid in France, 627 Vol. 42 (1966-67).
33
Raman Mittal & K.V. Sreemithun, Legal Aid: Catalyst for Social Change, Satyam Law International, p.89.
34
Allen C. Choate, Legal Aid in China, THE ASIA FOUNDATION WORKING PAPER (April 2000).

14
legal reform efforts in China in 1980s and the broader trends of global liberalization that
accelerated in 1990s. The legal aid services started to emerge in the early 20 th century. When the
new republic of China was formed in 1912, there was a surge in the legal activity majorly due to
the western influence.35

The United Kingdom

Although access to the courts was recognized as a constitutional right, there was no
constitutional right to the provision of legal assistance to the people who could not afford a
lawyer. Legal Aid before 1900 was in the form of donations and charity which were
unpredictable and inconsistent which rendered many people without a legal defense. 36 However,
it was during and post World War II that the there was a thought of a fair society in which all
have access to justice and fair trial. The Coalition Government in 1944 set up the Rushcliffe
Committee, chaired by Lord Rushcliffe and the committee gave its report in 1945 which was
accepted by the post-war labour government. It said that legislation would be introduced to
provide legal advice to those with slender means to afford legal services to defend their claims. 37
The modern unified system of legal aid was first established under the Legal Advice and
Assistance Act of 1949. This new system acknowledged that access to justice was fundamental
to a just society.38 Legal aid developed significantly in the decades to come. The next big reform
was the passing of the Access to Justice Act in 1999. The Act redrew the whole system of
funding and regulating the legal aid by the creation of legal services commission to reshape the
legal services. The Act laid down the eligibility criteria for providing the legal aid and excluded
certain people.39 The change in access to justice in the United Kingdom since 1949 is undeniable.
Another act was passed in 2012 which saw further cuts in the legal aid. The act has completely
eliminated funding for certain areas in civil law including private and family and personal injury.

Canada

35
Ibid.
36
FCG Gurney Chapman, JUSTICE AND THE POOR IN ENGLAND (1926) p. 21
37
Henry Brook, The history of legal aid 1945-1997 (June 2016) available at
https://sirhenrybrooke.me/2016/06/16/the-history-of-legal-aid-1945-to-1997/#_ftn3 (Last accessed on March 16,
2018).
38
Legal Advice and Assistance Act, 1949.
39
Access to Justice Act, 1999.

15
There was a rapid growth of legal aid services during the 1970s in Canada. This could be
attributed to the increasing consciousness of the need of the poor for greater accesses to the
services of the legal profession. During the late 1960s, Canadian law schools and its students
established legal aid clinics and provided help to the poor groups which led to the social ferment
of the period. There was tremendous pressure on the government form the low income
communities and the legal profession for funding the legal aid and community clinics. There was
recognition of the need of an effective legal aid system but which model to be used was still not
decided. There was confusion between the British Judicare model and the American community
legal services model. By 1970, the ferment of legal aid had permeated to law societies and the
provincial governments in Canada. There was a growing controversy among different provinces
in Canada about the model of legal aid to be used. After much debate and discussion, each of the
Canadian provinces started providing legal aid in distinct and unique ways. Most of the
provinces have developed schemes using both staff lawyers and private practioners with a mix of
civil and criminal caseloads.40

It is interesting to observe that development of legal services in most countries bear remarkable
similarities in the sense that inequality with respect to access to justice is an outgrowth of the
availability of legal services.

40
Frederick H. Zemans, Legal Aid and Legal Advice in Canada: An Overview of the last decade in Quebec,
Saskatchewan and Ontario, OSGOODE HALL LAW JOURNAL Vol. 16 (November 1978).

16
V. PRO BONO PRACTICE ACROSS VARIOUS JURISDICTIONS

It is a thriving culture among the legal fraternities of many nations, where lawyers, law students
and law firms go out of their way to provide legal assistance to people and organizations who are
in need of but cannot afford to pay for their services. Such practices are known as pro bono
services. The term Pro Bono is derived from the Latin Expression pro bono public meaning ‘for
the public good’. This particular chapter deals with the pro bono services across various
jurisdictions.

The pro bono practice in India is largely carried out on an ad hoc basis and lacks any
institutional framework.41 The Expert Committee on legal aid observed that representation of the
under privileged by a lawyer must be a professional mandate otherwise access to the courts
would be illusory. It also recommended that failure to carry out the assigned legal duties must be
treated as a professional misconduct.42However, this suggestion of the committee was not
accepted and the only obligation an advocate to provide legal aid is moral. The Bar Council of
India rules do not prescribe a mandatory requirement for lawyers to spend any amount of time on
offering pro bono services, thereby these services are still an ideal to aspire to in India.

In Canada, there has been an increased support for the active coordination of pro bono
opportunities in the recent years and, particularly as a result of the efforts of professional bodies
such as the Canadian Bar Association, various initiatives have been undertaken to promote,
simplify and encourage pro bono participation across Canada. While pro bono legal services and
legal aid are generally available across Canada, there are several factors which affect the
availability of these services including underfunding, insurance requirements, uneven coverage,
fragmented approaches, discretionary eligibility criteria and a lack of information to potential
applicants. Notwithstanding these factors, lawyers and law students across Canada increasingly
continue to provide pro bono services.43

41
About Pro Bono, Department of Justice, available at http://doj.gov.in/page/about-pro-bono (Last accessed on
March 12, 2018).
42
Procedural Justice to the People, Report of the Expert Committee on the Legal Aid, 1973.
43
Latham & Watkins LLP, Pro Bono Practices and Opportunities in Canada available at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-canada.pdf

17
There is a very momentous organization known as Pro Bono Students Canada (PBSC) that has
played a pivotal role to remedifiy the challenges that the legal aid is facing. 44 It is a national
network of law schools and community organizations that matches law students who want to
perform pro bono work with public interest and non-governmental organizations, governmental
agencies and legal clinics during the academic year and the University break. As part of the
PBSC program, a lawyer is required to supervise the participating students. The students in this
program conduct research, engage in legal drafting and advocate on behalf of the communities.
Students also help organizations in providing legal information and assistance to their clients. It
is to be noted that Canada borrowed the basic precepts of this model form the United States. The
American model operates through the database called ‘PSLawNet’, the public service law
network worldwide. There is a network of almost 130 member law schools across the country
and nearly 12,000 law-related public interest organizations around the world.45

In the United States, there is a strong, evolved system and tradition of pro bono within the U.S.
legal community, where a majority of practitioners provide some level of pro bono support each
year. There is no mandatory requirement imposed on any attorney to provide pro bono services.
However, in rule 6.1 of the American Bar Association Model, there is a professional
responsibility on every lawyer to provide free legal services to those who are unable to pay. The
rule also calls on lawyers to contribute financially to support organizations that provide legal
services to the needy. But, these rules are not binding. 46 Despite the significant gap between
supply and demand, a recent study by the ABA indicated that U.S. attorneys provide pro bono
legal work at a rate almost three times the rate of volunteer work in the general population: 73%
of attorneys do pro bono work whereas about 26% of the general population does volunteer
work.47 On average, the number of hours devoted to pro bono work per year per attorney was
56.5 hours in 2011.48 One reason for this extensive engagement in the pro bono work could be
44
Pro Bono Students Canada, available at http://www.probonostudents.ca/ (Last accessed on March 13,2018).
45
Ibid.
46
Rule 6.1, American Bar Association Model available at
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct
/rule_6_1_voluntary_pro_bono_publico_service.html (Last accessed on March 13, 2018).
47
Press Release, Nearly Three-Fourths of America’s Lawyers Do Pro Bono Work, According to a New ABA Study,
American Bar Association (Feb. 18, 2009) available at
http://apps.americanbar.org/abanet/media/release/news_release_list.cfm (Last accessed on march 14, 2018).
48
Press Release, New ABA Report Reveals Legal Pro Bono Service Trends, American Bar Association (Mar. 21,
2011),available at http://www.americanbar.org/news/abanews/aba-news-
archives/2013/08/new_aba_report_revea.html (Last accessed on March 14, 2018).

18
the lowest government funding for civil legal services in the developed world. Thereby, private
attorneys and law firms have to step in to help.

US has a strong pro bono infrastructure in place such as clearinghouses, legal service providers,
bar associations, law firm programs and more that makes it easier for lawyers to engage in pro
bono work. The advancement in technology is bringing pro bono to rural citizens and
Corporations are now encouraging pro bono work and are partnering with their law firms to do
it. The Pro bono work is widely available to all types of practitioners, whether as part of bar
associations, public or private legal aid programs, or independent non-profit organizations.
Further, the law students may also engage in pro bono work under certain conditions. Because
virtually all civil legal aid is provided pro bono, the United States’ decentralized system for pro
bono referrals is the most evolved and robust in the world.49

In France, there is a long standing tradition of providing legal aid to the indigent clients.
Participation in pro bono activities is done on a voluntary basis and is not a mandatory
requirement for attorneys. The Paris Bar promotes individual involvement in pro bono activities.
It launched the lawyer solidarity leave initiative that allows the attorneys to implement social,
educational or legal projects for the poor people in France during their annual leave. To provide
legal services to the most destitute, the Paris Bar has developed partnerships with public interest
aid groups. In addition, the Paris Bar officially launched the Solidarity Endowment Fund of the
Paris Bar (Fonds de dotation Barreau de Paris Solidarité) in 2012. 50 The purpose of the fund is to
strengthen and improve the structure of existing initiatives and to encourage members of the
Paris Bar and NGOs to participate in financial, legal and logistical operations of humanitarian
works, and to ensure the promotion of these activities. 51 Student pro bono initiatives are another
opportunity for pro bono in France. More and more students from the French Bar Admission
have been getting involved in pro bono activities. Two French Bar Admission students won the
Trophée Pro Bono 2014 for the creation of the association “Printemps International des Droits de

49
Latham & Watkins LLP, Pro Bono Practices and Opportunities in the United States of America available at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-the-united-states-
of-america.pdf (Last accessed on March 14, 2018).
50
Latham & Watkins LLP, Pro Bono Practices and Opportunities in France available at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-france.pdf (Last
accessed on March 15, 2018).
51
Ibid.

19
l’Homme” aiming at rising awareness among students of the defense of human rights, which
illustrates students’ increasing involvement in pro bono activities.52

The legal and political system of Australia is a combination of that of US and Britain. Pro bono
legal services remain an increasingly important focus for lawyers and law firms throughout
Australia. The practice of Pro Bono is not as widespread as in United States, but still theer is a
great access to those in need of legal services in Australia. In 1992, the first formal pro bono
referral scheme was established in Australia. 53 Since then, additional pro bono “clearing-houses”
and legal assistance referral schemes have developed in response to concerns about access to
justice. There are no specific pro bono requirements, such as a minimum number of hours, that
solicitors and barristers are required to satisfy so as to maintain their practising qualifications;
however, a range of pro bono programs have been established by law firms and other
organizations in an attempt to promote pro bono work and facilitate involvement by legal
practitioners and law students.54

Pro bono legal services are of increasing importance for attorneys and law firms within England
and Wales. There has been a growing commitment by the legal profession to the importance of
pro bono legal services, and various organizations and institutions within England and Wales
continue to work to foster and develop pro bono legal activity. There is again, however, no
mandate that solicitors or barristers to provide pro bono services.55

52
Raman Mittal & K.V. Sreemithun, LEGAL AID: CATALYST FOR SOCIAL CHANGE, Satyam Law International, p.87.
53
National Pro Bono Resource Centre, “Law Students Want More Social Justice Opportunities”, May 13, 2011,
available at http://www.probonocentre.org.au/australian-pro-bono-news/ (Last accessed on March 15, 2018).
54
Latham & Watkins LLP, Pro Bono Practices and Opportunities in Australia available at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-australia.pdf (Last
accessed on March 14, 2018).
55
Latham & Watkins LLP, Pro Bono Practices and Opportunities in England and Wales available at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-England-and-
wales.pdf (Last accessed on March 16, 2018).

20
Pro Bono Culture in Law Firms in India and across Jurisdictions

The Corporate Legal Sector in India is growing at a spectacular pace in terms of its reach, area of
expertise and the revenues generated. This particular section deals with the kind of engagement
of the Indian and foreign Law Firms in pro bono activities.

Owing to a wide range of rationales, pro bono work, especially in the U.S. and U.K. has become
an important part of the overall corporate law firm culture. It has become institutionalized in
these countries.56 The Top Tier Corporate Law Firms in India collaborate with many
International Law firms and thus could not be expected to remain ignorant of the predominant
ideologies of its foreign counterparts. The Indian Law Firms do not have an institutionalized pro
bono culture unlike western law firms. The pro bono work done by the law firms constitute the
smallest constituent of litigation-based pro bono work. The rationale behind litigation based
activities forming a very small part of the pro bono activities undertaken by the law firms is, as
asserted by many, that it is the constitutional obligation of the state to provide legal aid to the
needy.57 Most law firms do some kind of pro bono work but is mainly the top eight ranked firms
and mid tiered firms that undertook pro bono work on a large scale and on a regular basis. Most
of these firms are full service firms that specialize in multiple areas of commercial law. Most of
the firms do not have a separate department to manage the pro bono affairs of the firm. There is
barely any fixed budget allocation for pro bono activities in any firm.58

Unlike the U.S. and many European countries, the term pro bono is not defined officially in any
statute, rule or code of conduct in India. Thereby, its meaning has a high degree of variability.
USA has a structured pro bono model where a number of firms enjoy a reputation for pro bono
work. In France, pro bono programs carried out by law firms are either in the form of financial
aid through donations or endowment funds, or direct assistance provided by attorneys to
associations, which generally consists of legal advice.59

Most of the pro bono initiatives in France come from international law firms or networks. There
are still few domestic law firms promoting pro bono initiatives. Some domestic law firms chose

56
Scott L. Cummings, “The Politics of Pro Bono,” University of California Law Review 52 (2004) p.1-149.
57
Arpita Gupta, Pro Bono and Corporate Legal Sector in India (October 2013) available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344257 (Last accessed on March 15, 2018).
58
Ibid.
59
Raman Mittal & K.V. Sreemithun, Legal Aid: A Catalyst for Social Change, Satyam Law International, p.15.

21
not to centralize their pro bono activities contrary to most international law firms whose pro
bono programs are often monitored by a dedicated team. By contrast, some medium-sized law
firms in France rely on their attorneys to initiate pro bono activities, allowing them to work on
issues of personal interest.60 In Australia, the law firms mostly provide legal advice and
transactional matters are a significant portion of pro bono work. The large firms have limited
expertise in matters involving family and criminal law and thereby the rejection of pro bono
assistance in such cases is the highest.61In Canada in recent years, various law firms have
reviewed their policies of pro bono work and designed a structure to facilitate pro bono work by
committing additional resources. Some larger law firms also second junior associates or articling
students to legal aid offices or other projects. Some law firms, such as McCarthy Tétrault LLP,
encourage pro bono initiatives by treating hours spent on pro bono matters as the equivalent of
billable hours, up to a threshold, for the purposes of internal measurement and recognition.62

Indian Society today is characterized by massive inequalities and injustice and the law firms
cannot live in ignorance of this reality. The legal profession has been extraordinary profitable for
the lawfirms and thereby they have a special responsibility and commitment towards addressing
the problem of access to justice. If the rich and powerful lawfirms contributed even quarter of
what they earn, it would make a world of difference to the poor who need legal representation. 63
Most of the law firms do not have mandatory pro bono programs for their associates. To add to
this, foreign qualified lawyers cannot engage in pro bono work in India.64

It must be noted that the understanding of the term ‘pro bono’ is vague and overlaps with the
socially driven initiatives like Corporate Social Responsibility. Pro bono is not only essential for
the need of legal aid in our country but it is also beneficial for the corporate legal sector. The pro
bono work provides young lawyers with an opportunity of hands on training and puts them in
real life situation which a law firm often does not provide. This can be an efficient and cheap
way for the firm to develop the skills of the lawyers. The pro bono work also impacts the firm’s
reputation and the brand value within the legal community and the public eye. This can help the
60
Supra Note 38.
61
Ibid.
62
Supra Note 31.
63
“This Elitism must be condemned”, LiveLaw.in (December 2017) available at http://www.livelaw.in/elitism-must-
condemned-justice-chandrachud-discrimination-law-firms-graduates-ordinary-law-colleges-read-full-text-speech/
(Last accessed on March 16, 2018).
64
Ibid.

22
firms get more clients. This can be seen as part of the Corporate Social responsibility of the firm.
The law firm associates have a career fatigue and engaging in pro bono work can help them gain
inner satisfaction and connectedness which is often missing in corporate jobs. There is need for a
move from the ad hoc practice of law firms to engage in pro bono work to an institutionalized
culture.65 Law firms sometimes integrate their pro bono work programs with their CSR
programs. There are plenty of policies through which law firms can address issues in order to
promote CSR. One of the policy could be engagement of the firm in pro bono work. It increases
the morale of the firm and promotes business development in the long run and also retains
productive lawyers. Thus, pro bono must be considered with utter seriousness by the firms if it is
to remain competitive in the global market.66

65
David B. Wilkins, Vikramaditya Khanna & David M. Trubek, The Indian Legal Profession in the age of
Globalisation: the rise of the Corpoarte Legal Sector and its impact on Lawyers and Society, Cambridge University
Press 2017
66
Robert A. Katzman, THE LAW FIRM AND THE PUBLIC GOOD, Brookings Institution Press, Washington D.C., 1995,
page 72.

23
VI. THE ROAD AHEAD: SOLUTIONS TO PROVIDE EFFECTIVE LEGAL AID AND ITS EFFECTIVE
IMPLEMENTATION

In a country steeped in caste, class and economic inequality, it is paramount to have change in
the attitudes of the people within the legal profession to ensure a consistent system of legal aid
and justice for all.67 Law schools, lawyers and NGOs have an important and a dynamic role to
play in securing the rights of the marginalized strata of the society. The current framework of the
National Legal Services Authority and the subordinate legal services authorities must be
enhanced and the regular legal aid clinics must be conducted by law schools in remote areas of
the country, only then can the legal aid movement in India be realized in its true sense. The role
of law schools in promoting legal aid should also be emphasised, more legal aid centres should
be set up and clinical education and pro bono work by students and also by law firms should be
encouraged. The efficient delivery of these legal services is low because of the lack of alternative
incentives and lower compensation given to the lawyers. There must be a fair incentive on the
lawyers that must precede before any obligation can be imposed on the lawyers to take up pro
bono legal work.68

As a part of development, the Union Ministry of Law, in April 2017, launched ‘Pro Bono Legal
service’, a web based platform, through which lawyers can register themselves on the website
and volunteer to provide for free legal services to the underprivileged litigants. As a way
forward there is need to ensure capacity building for legal aid movement. This requires
strengthening the skills of stakeholders of legal aid that includes law teachers, lawyers, law
students and volunteers. In State of Maharashtra v. Manubhai Pragaji Pragaji Vashi 69, the
Supreme Court has highlighted the necessity for capacity building and held that in order to
provide the "free legal aid" it is necessary to have well-trained lawyers in the country. This is
only possible if there are adequate number of law colleges with necessary infrastructure, good
teachers and staff.

67
Persis Sidhwa, Legal Aid in India: The Need for Strong Laws and High Minds, 2012 available at
http://ohrh.law.ox.ac.uk/legal-aid-in-india-the-need-for-strong-laws-and-high-minds/ (Last accessed on March 14,
2018).
68
Chandra & Solanki, Legal Aid in India: Returning Philosophical Chords, BRICS LAW JOURNAL Vol. 2 (2015).
69
AIR 1996 SC 1.

24
Legal Awareness: The major drawback of legal aid movement in India is the lack of legal
awareness. People are not aware of rights and protection available under the law. The promotion
of awareness regarding legal aid is not the exclusive duty of the Legal fraternity and it needs to
be realized that it is equally the concern and responsibility of the society at large. Society has to
come forward to ensure that constitutional commitment for legal aid is met for its vulnerable
population. Subsequently it is the need of great importance that the poor uneducated individuals
ought to be bestowed with legal knowledge and ought to be educated on their fundamental rights
which should be done from the grass root level of the nation. It is the need of the hour that
people should be imparted with legal knowledge. For that judiciary needs the support from state
administration to conduct legal literacy programme. In providing Legal Aid, the Legal Aid
institutions at all level should use proper ADR methods so as to speed up the process of
compromise between parties to the case and with that matter will be settled without further
appeal. Free Legal Services Authorities must be provided with sufficient funds by the State
because no one should be deprived of professional advice and advice due to lack of funds.

The government cannot merely anticipate that the advocates shall be duty bound by their morals
and therefore keep taking up legal aid cases. An interesting strategy which could be adopted is
the awarding of bar credits to the lawyers who represents the indigent parties in the legal aid
cases. This shall ensure that an incentive in the form of bar credits is given to the advocates in
return of the service they provide along with a nominal fee. These credits could be later used to
get promotion at bar like from advocate to senior advocate or to enter into judiciary along with
the written examination which takes place.

It is true that the task of providing legal aid to all the people who cannot afford legal
representation for themselves is a very difficult and onerous obligation lying on the state. It is
also agreed that while carrying out this duty, there could remain certain loopholes in the process
due to which complete obligation of the state is not discharged. But, the problem is that the
Indian Government has by and large not been able to provide legal aid on a consistent basis to
the needy citizens.

25
26