Three years ago, Mumtaz filed a case of domestic violence against her husband. A domestic worker living in a Mumbai slum, she earned barely Rs 3,000 a month and had no means of hiring a lawyer. A women’s rights group led her to the Mumbai District Legal Aid Services, which is mandated to provide free legal assistance to people from marginalised communities.
“I was supposed to get a lawyer for free,” said Mumtaz, a young mother whose husband has remarried without divorcing her. “But the lawyer they gave me keeps asking for a little money every time. She scolds me and asks if I expect her to help for free. And she doesn’t even come for all my hearings in court.”
On April 10, a tearful Mumtaz narrated her story to a panel of five women social workers and lawyers at a jan sunvayi, or public hearing, in Mumbai. It was organised by Majlis, a non-profit feminist legal service, to highlight the hurdles and harassment that women face when they approach the police, courts and other state services while seeking justice in sexual or domestic violence cases.
Mumtaz was joined at the five-hour hearing by nearly 50 other women. From their testimonies it emerged that problems with legal aid services and lawyers were the biggest hurdles to securing justice that complainants of domestic violence faced, alongside harassment at police stations and problems with protection officers.
Free legal aid for socially and economically vulnerable people was introduced across India in 1995, when the Legal Services Authorities Act came into force. The law is aimed at ensuring justice for all on the basis of equal opportunity, and one its key provisions mandates offering free services of lawyers who volunteer their time for pro bono cases to those who cannot afford to pay.
Twenty eight years on, however, the Legal Services Authorities Act has become yet another example of a social justice law that is well-intentioned on paper but riddled with problems on the ground. From daunting procedures that deter lawyers from taking up free cases to corruption, lawyers and social workers pointed out, legal aid is far from being ideally implemented.
“Legal aid work is almost completely neglected on the ground,” said Manisha Tulpule, a lawyer in Mumbai who takes up pro bono cases privately, through NGOs. “From what I have seen, there is simply no judicial and political will to implement the Act.”
What is legal aid?
In India, legal aid programmes are run through the National Legal Services Authority and the State Legal Services Authorities. In addition to laying down policies for legal aid, these agencies are tasked by the law to raise legal literacy by conducting awareness camps. They are also mandated to organise Lok Adalat, or people’s tribunal, in the districts to encourage the settlement of disputes through arbitration, conciliation and out-of-court negotiations.
To run these programmes, the Centre gives funds to the National Legal Services Authority, which annually disburses the money to the state authorities under it and their various agencies. The national authority’s disbursement rose from Rs 17 crore in 2009-’10 to Rs 110 crore in 2016-’17.
Locally, legal aid is provided by District and Taluka Legal Services Authorities. Lawyers with at least three years of experience can approach the local legal aid authority and volunteer for at least two years. Since they are not allowed to charge the clients assigned by the legal aid services, they are paid a nominal honorarium from the national authority’s Legal Aid Fund. Currently, the honorarium for lawyers at the Bombay High Court is Rs 7,500 per case (it is assumed a case would conclude in about 10 hearings); for lawyers at lower courts and in small towns, the amount can vary from Rs 1,500 to Rs 5,000.
Free legal aid can be granted to members of Scheduled Castes and Scheduled Tribes, women, children, victims of human trafficking, mentally ill or disabled persons, industrial workers, undertrials, victims of natural disasters and ethnic violence as well people with an annual income less than Rs 50,000.
But it is undertrials who tend to get access to legal aid the most, lawyers said, particularly in towns and cities other than the metros. “Legal aid is mainly used in criminal cases for getting parole or furlough for undertrial prisoners,” said Sandeep Nandeshwar, a lawyer at the Nagpur bench of the Bombay High Court. In Nagpur, Nandeshwar said, there aren’t many lawyers offering legal aid services.
Typically, in both civil and criminal matters, the court directs the appointment of a legal aid lawyer if the prosecutor or the defence lawyer does not show up for hearings. The police is also required, by law, to inform complainants about legal aid. “But the police does not take the initiative to connect people to legal aid, and if a woman or a Dalit shows up, they are even more unlikely to get guidance,” said Nandeshwar.
Complainants of domestic violence are among the most common seekers of legal aid, but the majority of legal aid lawyers are not experienced in handling such cases, said Audrey D’Mello, a lawyer with Majlis. “Legal aid is a huge problem for women, both in terms of getting lawyers and fighting the case after they get a lawyer,” said D’Mello, who claimed women have to sometimes go through six or seven lawyers before they finally get one who is willing and able to fairly represent their case.
Hunt for a lawyer
At the Mumbai District Legal Aid Office in Bandra, Shanta Mehra agreed. Four years ago, the 68-year-old filed a civil case against her husband, a retired government employee who allegedly abused her, physically and emotionally, through most of their 50 years of marriage. “For years I stayed quiet because of the children,” Mehra said, sitting in the crowded waiting room of the office in March, “but now that they are all married why should I continue to bear this abuse?”
In Mehra’s case, the police proactively directed her towards legal aid. “The first lawyer I was given did not really do anything for my case,” said Mehra. “In my first few hearings, either the judge would get transferred or the lawyer would not come and when he did, he would not say much.”
Several months into the hearing on her case, a judge granted her a nominal maintenance from her husband. “The amount was not in proportion to my husband’s income and was too little for me to live on,” she said. “I know the law entitles me to more maintenance, but my lawyer did nothing to fight for my rights.”
Upset with the proceedings, Mehra applied for another lawyer at the legal aid office. It took a few weeks. “But after only one hearing, this lawyer said he only takes up criminal cases,” she said. “So I applied for a third lawyer, and this one said he only takes up cases in Kurla area, which is not where I live.” She is now waiting for a fourth lawyer, but her patience is wearing thin. “Making all these trips to the legal aid office is expensive for me,” she complained. “But I want to fight for my maintenance and I don’t want to settle my case out of court. These husbands stop following the terms of the settlement the moment you step out of the court.”
Plenty of problems
While Mehra is determined to pursue her case in court, officials at the Mumbai District Legal Aid said they prefer settling civil matters through mediation and counselling, particularly those related to domestic violence and family disputes. “Most cases are settled in this initial stage,” said Yatin Game, secretary of the Mumbai City Legal Aid Services, who often mediates himself. “In domestic cases, if we find that the mediation did not work and the victim comes to us again, then we provide a lawyer.”
Mehra, who has some education, has never been asked for money by any of her lawyers but complainants with little or no education are often pushed to pay.
Mohammed Hasmat, for instance, spent two months running between the Mumbai District Legal Aid office and the State Legal Aid Authority at the High Court before he was given a defence lawyer for a domestic violence case his wife has filed. “After all the running the lawyer directly told me that he does not take these cases for free and I should either pay him or go to a private lawyer,” said Hasmat, who sells fake-leather purses on the streets outside his slum in Mumbai’s Govandi suburb. “How can I pay a sum as big as Rs 30,000 to a lawyer?”
At the public hearing organised by Majlis, social workers accompanying complainants of domestic and sexual violence listed several problems that women face when they approach legal aid services. Demanding money from clients without the knowledge of the legal aid office was one. Others included taking months to get a lawyer, having to wait for long hours at the court because lawyers do not show up, lawyers’ lack of knowledge about the procedures and nuances of the law against domestic violence and general disinterest on the part of lawyers, who often do not bother to familiarise themselves with the details of the case they have taken up.
“These lawyers are not public prosecutors and they are basically working for a very small honorarium, so they can give up a case if they want to,” said D’Mello. “We have written a lot of letters to the authorities about these problems, to no effect.”
‘Can’t compel lawyers’
At the Mumbai District Legal Aid Services, officials claimed the problem was one of capacity. Between the city and suburban sections of their office, they have over 110 lawyers who are approached to take up free cases by rotation. They gets 40-50 cases a day, mostly related to domestic violence, and another 20-30 matters for mediation. But the lawyers are able to take only a limited number of cases. “I mostly take up criminal cases like rape, murder or blue collar crime, and last year I fought six or seven cases under legal aid,” said Abbas Mookhtiar, a lawyer at the Bombay High Court.
While Mookhtiar takes legal aid cases completely free of cost, choosing not to accept the Rs 7,500 honorarium, Asim Sarode said the honorarium is too little. “Often lawyers don’t sign up for providing legal aid because the honorarium is not sufficient,” said Sarode, who practises at the Bombay High Court.
Sarode is not directly affiliated to the government legal aid services, but through his private legal services organisation, the Sahyog Trust, he has collaborated with the National Legal Services Authority to train lawyers to provide legal aid to undertrials. “In this country, legal aid does not come easily to poor undertrials and victims of child sexual abuse, rape or domestic violence,” he said. “The government needs to allocate more funds towards it.”
In addition to paying legal aid lawyers better compensation, Tulpule pointed out the need for making the system and its procedures less tedious for them. “If a lawyer takes up a criminal case for free, they will get Rs 1,000 for making a jail visit,” she said. “But they also have to get signatures from jail authorities, and then go to the legal aid office and submit a report each time. There is a lot more bureaucratic work involved in a legal aid case, which lawyers are not always ready to cooperate with.”
Of the thousands of lawyers practising in Mumbai, Tulpule said, only a small number offer free legal aid through the state authorities. “Some probably sign up because they hope to get the post of a public prosecutor after providing legal aid services,” she said.
Game of the Mumbai City Legal Aid Services underlined the need to recruit more lawyers for the programme. “The strength of our lawyers is not enough for such a large city and we do send out appeals to the Bar associations and conduct meetings with them to get more lawyers,” he said. “But, at the end of the day, lawyers are volunteering with us so we cannot compel them to have feelings of reciprocating to society.”
Some names have been changed to protect identity.