Legal aid in India: Retuning Philosophical Chords

• Author: S. Chandra - N. Y. Solanki
• Position: Jindal Global Law School (Sonipat, India) - Jindal Global Law School (Sonipat, India)
• Pages: 68-85

COMMENTS

LEGAL AI D IN INDIA:

RETUNING PHILOSOPHICAL CHORDS

SUSHANT CHANDRA,

Jindal Global Law School (Sonipat, India),

NITYASH SOLANKI,

Jindal Global Law School (Sonipat, India)

Legal aid in India has evolved over the last few decades since 42nd Amendment to the Indian

Constitution. This paper attempts to provide philosophical underpinnings suggesting how

legal aid model has evolved over the years and excogitate a newer trajectory for its future

evolution. It delves into weighing Kant’s imperfect duty justifying a charity based regime

and marks a transition to utilitarian model suggesting requirement of institutional need

to address issues of basic libert y of ‘access to justice.’ It also spells out Rawls’ principles of

justice and attempts to explore their applicability in the Indian context, to chart out a road

map for future. While contrasting dierent models on legal aids, it makes a nding that,

India doesn’t accord priority to liberty of access to justice. The Indian Supreme Court has

emerged as a bastion of liberty but the ner details of the enactment has been messed

up by the Indian lawmakers. The lower compensation to lawyers and lack of alternative

incentives in attracting established litigators, testies this. There is a convergence in Kantian

duty of benevolence and Rawls’ liberty principle but in the world of moral relativism, a fair

compensation must precede before imposing any obligation on lawyers to take up pro

bono matters, as doing so, is likely to compromise their ‘true needs.’

Keywords: legal aid; Immanuel Kant; John Rawls; Indian Supreme Court; principle of fair

equality of opportunity; liberty of access to justice.

Recommended citation: Sushant Chandra & Nityash Solanki, Legal Aid in India:

Retuning Philosophical Chords, 2(2) BRICS LJ (2015).

SUSHANT C HANDRA, NIT YASH SOLANKI 69

Nothing rankles more in the human heart than a brooding sense of

injustice. Illness we can put up with. But injustice makes us want to pull

things down. When only the rich can enjoy the law, as a doubtful luxury,

and the poor, who need it most, cannot have it because its expense

puts it beyond their reach, the threat to the continued existence of free

democracy is not imaginary but very real, because democrac y’s very

life depends upon making the machinery of justice so eective that

every citizen shall believe in a benet by its impartiality and fairness.

Justice Brennan

1. Introduction

Until 1945 in United Kingdom, legal aid was seen as part of charity. United States

saw its rst independent institution deali ng with legal aid in 1964. Article 39A of

the Indian Constitution provides free legal aid as a directive principle of state policy

but not as part of individual’s liberty. This was clearly in view of conceiving access

to justice as a week liberty and avoiding scal burden on the newly formed state.

It was only through the untiring eorts of the Indian Supreme Court that free legal

aid could be brought within the larger sweep of liberty clause under Art. 21 of the

Constitution.1

The journ ey of legal aid philo sophical ly could be viewed as a traj ectory

manifesting a movement from Kant’s deontology to Rawlsian welfare principl es

through the pha se of utilitarianism. K ant’s imperfect duty of benecence creates

a moral obligation to help others. This may be viewed in a narrow or a broader

sense. A narrow view might oer greater latitu de to a lawyer in extending help

to a cl ient and not g etting into queries like ‘when’ to help or ‘how many’ to help.

However, a broader view necessitates understanding ‘true need’ of the client and

extending help until ‘true need’ of the client conicts with that of a lawyer. Given the

systemic need of the people to have ‘access to justice’ characterized with absence of

any legal obligation on lawyers to provide the same, led to a dent in fair equality of

opportunity in ‘access to justice.’ This led states to resort to utilitarian model which

espoused the view that the st ate’s duty to provide legal assistan ce exists to the

extent that legal aid maximizes the general welfare. This institutional structure led

to creation of legal obligation on lawyers as opposed to moral obligation, but failed

to account for individual liberty of ‘access to justice.’ This article takes a view that

liberty of ‘access to justice’ must not be constrai ned by utilitari an principles and

should be guaranteed under principles of equality and dierence as propounded

by John Rawls.

1 See Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1369; see also Khatri &

Ors. v. State of Bihar & Ors., (1981) 1 S.C.C. 627.