Limited Access to Justice vs Expanding Legal Aid in India.

Author
Mr. Gaurav Bhartia
Assistant Professor & Coordinator
Faculty of Law, FS University, Shikohabad, U.P.

Abstract:

Access to justice is a foundational principle of constitutional democracy. In India, legal aid is critical for ensuring that justice is not denied due to poverty, illiteracy or vulnerability. Although Constitutional provisions, judicial pronouncements and statutory mechanisms guarantee free legal assistance, millions still lack meaningful access to justice. This research examines the evolution of legal aid in India, the emergence of the Legal Services Authorities Act, the role of judiciary and the shift from CrPC 1973 to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Using doctrinal methodology, this paper analyses the strengths, challenges and future possibilities of India’s legal aid system. Findings indicate that despite major reforms, awareness and quality of legal service remain significant barriers.

Keywords:

Access to Justice, Legal Aid, Article 39A, NALSA, BNSS 2023, Lok Adalat, Judiciary,
Human Rights.

Introduction:

Justice must be accessible, affordable, fair and transparent. Access to justice ensures that every individual can enforce their rights irrespective of economic or social status. Legal aid plays a central role in eliminating structural barriers that restrict poor and marginalized groups from approaching courts.

The Supreme Court in Hussainara Khatoon v. State of Bihar declared free legal aid as part of Article 21, marking a milestone in India’s legal aid jurisprudence.

Review of Literature:

1. Law Commission (14th Report, 1958) – emphasised legal aid as a State
   responsibility.
2. Krishna Iyer Committee (1973) – recommended legal aid clinics and legal literacy.
3. Bhagwati Committee (1977) – proposed legal aid camps and suggested
   constitutional incorporation.
4. UN Human Rights Instruments (1948, 1966) – recognised legal aid as a human
   right.
5. Academic Scholars – observed that the poor remain unable to access courts due to
   systemic discrimination.

Research Gap:

Existing studies focus on history and development of legal aid but do not adequately
explore the gap between expanding legal aid institutions and the still-limited practical access to justice.
The impact of BNSS 2023 on legal aid is also under-researched.

Research Objectives:

1. To analyse constitutional and statutory foundations of legal aid.
2. To examine judicial contribution in expanding access to justice.
3. To assess the impact of BNSS 2023 on legal aid.
4. To identify causes of limited access to justice.
5. To provide policy recommendations.

Research Questions:

1. How does legal aid strengthen access to justice?
2. What role do judicial pronouncements play in expanding legal aid?
3. How does BNSS 2023 improve or modify the legal aid framework?
4. Why does limited access still persist?

Research Methodology:

This paper uses doctrinal research methodology, relying on:
a) Constitutional provisions.
b) Legal Services Authorities Act, 1987.
c) BNSS 2023.
d) Case laws.
e) Committee reports.
f) Articles and secondary sources.
g) NALSA publications.

Origin and Development of Legal Aid Movement.

(Your earlier content retained exactly as is — Magna Carta, UDHR, ICCPR, Law
Commission Reports, Krishna Iyer & Bhagwati Committees, CILAS, etc.)

Constitutional Provisions on Legal Aid:

Explaining Articles 14, 21, 22(1), 39A —
Ensuring equality, fair procedure and equal access to courts.
Article 39A establishes legal aid as a constitutional directive.

Statutory Provisions (Updated)

Section 342 — Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

This is the new legal aid provision that replaces Section 304 of CrPC 1973.

You can write it as:

“Section 342 of the BNSS, 2023 provides that where the accused is not represented by a pleader, and lacks sufficient means to engage one, the Court shall assign a pleader for his defence at the expense of the State.”

BNSS 2023 strengthens the obligation of the State to provide legal counsel at the early stages of criminal proceedings.

Order XXXIII, CPC 1908

Still valid—enables indigent persons to file suits without court fees.

Judicial Approach:

(All important cases retained from your content)

a) MH Hoskot v Maharashtra
b) Hussainara Khatoon v Bihar
c) Khatri v Bihar
d) Sheela Barse v Maharashtra
e) Suk Das v Arunachal Pradesh
f) Baliram Madhukar Dalvi Case

These cases expanded legal aid as a fundamental right.

Legal Services Authorities Act, 1987

Includes:

a) NALSA
b) State Authorities
c) District Authorities
d) Taluk Committees
e) Legal Aid Clinics
f) Para Legal Volunteers
g) Lok Adalats (Sections 19–22)

Findings:

1. Law guarantees legal aid, but ground implementation remains weak.
2. Awareness among rural, tribal and vulnerable communities is extremely low.
3. Lack of trained legal aid lawyers reduces the quality of service.
4. BNSS 2023 improves procedural strength but awareness remains limited.
5. Lok Adalats reduce pendency but sometimes compromise on quality of justice.
6. Legal literacy remains inadequate.

Suggestions:

1. Improve funding and infrastructure for legal aid centres.
2. Create village-level legal literacy campaigns.
3. Strengthen legal aid clinics in universities.
4. Increase remuneration and training for legal aid lawyers.
5. Mandate early legal representation under Section 342 BNSS.
6. Promote technology-driven legal aid: apps, helplines, WhatsApp assistance.
7. Annual audits of NALSA and DLSA performance.
8. Strengthen ADR and mediation mechanisms.

Conclusion:

Legal aid is the backbone of access to justice. India has developed a comprehensive
framework through constitutional mandates, judicial activism and the creation of NALSA. The shift from CrPC 1973 to BNSS 2023 reflects a modernised and citizen-friendly approach. However, limited awareness, poor quality legal aid and social inequality still prevent meaningful access. Strong implementation, funding, legal literacy and trained professionals are required to bridge the gap and truly fulfil Article 39A’s promise of equal justice for all.

References:

1. Constitution of India
2. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
3. Legal Services Authorities Act, 1987
4. Law Commission Reports (14th, 41st)
5. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
6. Khatri v. State of Bihar (1981)
7. MH Hoskot v. State of Maharashtra (1978)
8. Suk Das v. UT of Arunachal Pradesh (1986)
9. NALSA Reports
10. Books on Access to Justice and Legal Aid