Assessing the Quality of Legal Aid: Need for A Uniform Legal Framework

-By Harsh Panwar

Legal Aid In India


Access to legal aid is considered a pertinent issue by the stakeholders in the criminal justice system. However, much of the conversation on legal aid mechanisms have only been centred around access to legal aid to an accused. At the same time, there exists hardly any conversation around guaranteeing the ‘effectiveness’ of the same. This reflects within the existing legal framework too, since there exists an abundance of legal provisions guaranteeing the existence of legal aid, such as the Constitution, the Criminal Procedure Code and the Legal Service Authority Act, there are no such provisions which assure that legal aid granted to an accused should be effective.

Merely granting the right to counsel is not sufficient. Even if a lawyer is provided to an accused, it may be an instance that he or she performs with such gross laxity that may end up violating an accused’s right to fair representation, which forms a facet of Article 21. Having uniform standards of effective legal aid can help the courts properly assess claims where such rights of the accused are being violated.

In light of this, it is submitted that the Indian criminal jurisprudence must now shift its focus towards ensuring the effectiveness of legal aid. The article does so by first examining the current standards employed by Indian courts to adjudicate ineffective assistance claims. Second, it depicts how the reliance on American jurisprudence to fill gaps in the Indian legal framework can do more harm than good. Lastly, the article concludes and provides suggestions for reforms.

Current standards to adjudicate ineffective legal aid claims

This issue of the effectiveness of legal aid came into the limelight during the hearing of Mohd Afzal Guru for the infamous Parliament attack in 2001. The Supreme Court was presented with a case of deprivation of a fair trial for Guru because the legal aid lawyers provided to him were not only incompetent, but also openly hostile. Despite clear evidence for this, the Court held that there was no violation of any Fundamental Rights, since as per Justice PV Reddi’s judgment, the elements of the Strickland Test have been satisfied, and therefore, the trial could not be vitiated.

The Strickland test is based on a U.S. Supreme Court precedent inStrickland v. Washington, which laid down a two-pronged test to determine the ineffectiveness of a legal aid claim. As per the test, a defendant is required to establish that (i) that counsel’s performance was deficient and it fell below an objective standard of reasonableness, and (ii) that this deficiency caused prejudice, i.e., a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

However, in the judgement, the test was applied erroneously. Considering the first prong, the Court failed at laying down an ‘objective standard of reasonableness’ through which any defendant could establish an ineffective legal assistance claim. With regards to the second prong, the Court recounted the facts of the case with a view to check the prejudice but chose to decide that the counsel’s prejudice is being influenced by a ‘hindsight’ bias and held that the Strickland test cannot be satisfied and subsequently refused to re-merit the trial of Afzal Guru.

In 2012, a similar situation came to the Apex Court in the case of Mohd Hussein v. State (NCT of Delhi), which dealt with charges of terrorist activity consisting causing a bomb blast in a public bus. It was argued that the Appellant’s counsel appeared off and on, erratically and failed to cross-examine an important eye-witness. Employing the due process doctrine, the Court held that the trial could not be considered just, fair, and reasonable because the legal assistance cannot be said to be ‘effective and substantial’. Hence, it caused prejudice by depriving the accused of the right to a fair trial.

Hence, the test employed by Mohd Hussein took an entirely different direction from the two-pronged test provided in Strickland, because the Court here focused on prejudice and the remedies after establishing a serious error. They failed to conduct an inquiry into whether the prejudice is severe enough to differ the result of a criminal proceeding, which was the requirement stated under the Strickland doctrine.

In 2014, the Apex Court in Ashok Debarrama v. The State of Tripura again employed the Strickland test, albeit in the context of commuting the death sentence of the accused to life imprisonment. This is inconsistent with the earlier application of the test, which was to evaluate the invalidation of the trial. However, the Supreme Court again changed its interpretive approach in 2019 in the case of Anokhilal v. State of M.P by employing the prejudice test of Mohd Hussein and held that the amicus curiae in this case was not given sufficient time to prepare, which was a denial of the right to legal aid, since it could not be said to be ‘real and meaningful’.

This led to the creation of two separate tests for adjudicating effective legal aid, the former being applied inconsistently, with the courts only applying one of the prongs of the test; requiring the defendant to establish grievous error to claim relief, while the latter leaves to the court to decide the prejudice caused to an accused on a highly subjective basis, allowing them to decide what accounts as ‘substantial’, ‘effective’, ‘meaningful’ or ‘real’ with regards to the quality of legal assistance.

This ultimately led to an uneven jurisprudence surrounding effective legal aid claims. The High courts (see Rakesh v. State of Uttar Pradesh, Rafique v. State (Govt of NCT of Delhi) and M. Kannan v. State) on the other hand, favoured the application of the prejudice test laid down in Mohd. Hussein likely because the Strickland doctrine was not only incorporated half-heartedly into the Indian jurisprudence but also applied inconsistently.

Issues with the Strickland test

Nonetheless, even if courts do apply Strickland in its truest sense, it will still be far from ideal because the test itself has some major shortcomings. Firstly, it operates on a hindsight bias and deems all errors as harmless until they have not prejudicially affected the outcome of a trial. Secondly, the peculiarity of Indian Criminal Proceedings makes it substantially harder to implement the Strickland test. In the United States, all that is said in a courtroom makes a part of the transcript, including arguments, objections and examination of witnesses, which forms a basis of what a counsel did or did not do during the proceedings. When an ineffective assistance claim gets posed at the appellate level, the appellate Court sends this trial transcript along with additional evidence back to the trial court to decide whether the claim has merit.

On the other hand, in India, Section 362 of Criminal Procedure Code forbids trial courts from reviewing their own orders. Even if a claim of ineffective aid arises in the appellate Court and they choose to simulate this process under Section 391, which gives them the power of collecting additional evidence, the trial courts would not have a transcript system akin to the USA, as the records in India only contain judicially dictated versions of the proceedings, evidence and written pleadings by the parties. The fact that the quality of record too suffers in areas with a lack of resources also cannot be ignored.

Conclusion and Suggestions for Reform

The right to legal aid forms part and parcel of one of the most basic human rights, and a decently sized body of law exists on this subject. Despite this, there is a lack of guidance and uncertainty about how the law materialises in the courts. It is also established that importing American law into Indian jurisprudence may do more harm than good.

Therefore, it is preferable that Indian courts create their own set of guidelines, containing as many objective elements as possible. Without clear guidelines, litigating claims of effective legal aid will always remain vague and uncertain. The U.N. Guidelines on Ensuring Quality of Legal Aid Services in Criminal Justice Processes outlines that legal aid systems must endeavour to collect data to measure the quality of legal aid provided in this country. This would naturally help rectify the information gap among lawyers and clients and help spread the coverage of trial court records.

[The author is a second year student at the National Law University, Delhi]


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