This article was written by Vanishka Keserwani, Symbiosis Law School, Pune. This article discusses the lack of confidence in legal aid mechanisms and the underutilisation of pro bono potential, which shows improper application.
This gap necessitates a critical re-examination of how pro bono work is structured, incentivised, and integrated within the justice delivery system.
Introduction
Pro bono, meaning “for the public good,” commonly refers
To legal services provided by lawyers to individuals
who are unable to afford professional legal assistance for free or at lower prices.
It is aimed at ensuring legal support for economically disadvantaged people. However, this framework in India has not achieved
its intended impact due to the lack of incentives and its voluntaristic nature. It is presently an unreliable source without much accountability and trust. Through voluntary legal assistance, lawyers have historically contributed
to landmark public interest litigation and ensured that low-income individuals can meet their most basic legal needs. The lack of confidence in legal aid mechanisms and the underutilisation of pro bono potential shows improper application. This gap necessitates a critical re-examination of
how pro bono work is structured, incentivised, and integrated within the justice delivery system.
The Justice Gap in India and the limits of Voluntary Pro Bono Practice
The Indian Legal System is inherently complex,
which causes systematic delays; this has caused a backlog of an estimated
50.3 million cases as of December 2023,
increasing at a rate of almost 3.5 per cent from 32.3 million in 2010.
Factors like insensitivity, complexity, high costs, language barriers, overburden on courts, unavailability of accessible legal aid, etc.
have caused legal aid to be beyond the reach of the vulnerable and underprivileged,
the people who need it the most.
The criminal justice system presents an illustration of this failure, as data from the National Crime Records Bureau
reveals that a significant majority of India’s prison population consists of undertrial prisoners,
many of whom remain under detention for years due to the absence of timely and effective legal representation.
There is no data to indicate how much and what kind of pro bono activities
are undertaken by approximately 2 million lawyers.
Existing Legislative Policies and their Inadequacies
Post recognition of need, the Indian Parliament enacted the Legal Services Authorities Act, 1987,
which came into effect on 9th November 1995,
establishing a nationwide multi-level legal aid framework under the supervision of the National Legal Services Authority (NALSA).
This framework includes State and District Legal Services Authorities, Taluka Committees, and Lok Adalats aimed
at providing free and competent legal services to weaker sections of society.
The Lok Adalats are quasi-judicial bodies that use alternative dispute resolution forums
and rely on settlement and mediation mechanisms, helping in quick resolution. While this structure is robust on paper, its implementation has been inconsistent and uneven. There is no compulsion under the Act on private professionals to provide such services. This limits the scope of such provisions and leads to a lack of competence. The only reference to pro bono duties in the private sphere is found in the Bar Council of India Rules,
framed under Section 49(1) of the Advocates Act, 1961,
which empower the Bar Council to regulate professional conduct and ethics.
Rule 46 of the BCI Rules merely casts a moral and non-mandatory obligation on advocates
To provide free legal assistance to the “indigent and oppressed,” contingent upon the advocate’s own economic capacity.
One of the most prominent recent initiatives
to promote pro bono culture is the Nyay Bandhu programme, launched in 2017 as a technology-driven platform
To connect marginalised individuals with volunteer advocates
This is a laudable initiative, but there is a flaw in relying on technological solutions without accounting for socio-economic realities.
Vulnerable populations, particularly rural, tribal, and economically disadvantaged communities who are in exceptional need of these services,
often lack access to smartphones, internet connectivity, or digital literacy; along with that, language barriers sideline potential beneficiaries.
Constitutional Mandate for Legal Aid and Legal Precedents that support the Enforcement of Reforms in Pro Bono Services.
Article 39A of the Constitution directs the State to ensure “Equal Justice and Free Legal Aid”;
it also ensures that the operation of the legal system
promotes justice based on equal opportunity to prevent denial of justice due to economic or other disabilities,
although it is located within the Directive Principles of State Policy.
Alongside, Article 14 of the Indian Constitution ensures that equal legal protection is given to all
regardless of caste, gender, religion, race or place of birth.
The Supreme Court in B. Sunitha v. State of Telangana was conscious of the reality
That direct regulation of lawyers’ fees is neither practical nor desirable,
and encouraged the legislature to devise a way to implement the constitutional mandate under Article 39A and ensure
that access to justice remains paramount.
In the case of Indira Jaising v. Supreme Court of India, the Supreme Court mandated pro bono as
one of the qualifying parameters for the designation of Senior Advocate.
This reform method is rather useful and emergent, as it incentivises lawyers
to take up such work without facing the repercussions of a complete mandate.
However, this does not take into account private organisations and resources which can be included within
the ambit rather than restricting it specifically to people aiming towards reaching the post of senior advocates.
Justice Prashant Kumar said that “the state has a constitutional responsibility to offer free legal assistance to an accused individual
who is unable to get legal services due to indigence,
and the state must do everything that is required for its purpose.”
The Supreme Court has repeatedly affirmed that
the right to legal representation is an essential component
of a fair trial and that failure to provide legal aid restricts justice. In cases such as Hussainara Khatoon and Suk Das v. Union Territory of Arunachal Pradesh,
the Court underscored that legal aid is not a matter of charity but a constitutional obligation,
the denial of which violates Article 21. These judgments collectively establish that access to legal representation is an enforceable fundamental right.
A Comparison to International Standards
India’s constitutional commitment to access to justice is reinforced by its international obligations
such as the International Covenant on Civil and Political Rights (ICCPR), to which India is a party; Article 14(3)(d) guarantees
The right of every accused person to legal assistance,
and the United Nations Sustainable Development Goal 16 emphasises equal access to justice.
A comparison to International norms provides valuable insight into how pro bono services can be institutionalised and beneficial. In the United States, the American Bar Association’s Model Rule 6.1
establishes an aspirational target of 50 hours of pro bono work per lawyer annually.
Several State Bar Associations have adopted mandatory or voluntary targets,
feedback mechanisms, and institutional initiatives like the Law Firm Pro Bono Challenge to integrate accountability. In South Africa, pro bono work was made mandatory, requiring legal practitioners to contribute a minimum of 20-24 hours annually. Australia has strong State-funded legal aid;
while not mandating specific hours, they have developed sophisticated referral and
coordination systems that integrate pro bono work into mainstream legal practice. This method has helped incentivise professionals to opt into the process and ensure due diligence. Even in the United Kingdom, where pro bono is not mandated, a strong legal aid infrastructure ensures voluntary efforts.
They also reveal that voluntarism alone is insufficient and should be aided by institutional design, accountability, and incentives. In the absence of monetary pro bono contributions by the state, courts may need to explore alternative funding avenues,
or incentivise professionals to ensure stability, such as higher user fees in high-value cases.
Potential Problems with Mandating Pro Bono Services and their Solutions: Suggesting Reforms for a Progressive Pro Bono Framework.
1. Overcoming the Problems of Mandatory Pro Bono: A Framework for Equal and Responsible Reform
Multiple concerns arise regarding the implementation of mandatory Pro Bono services. One significant issue relates to the condition of young and junior lawyers;
empirical studies reveal stark income disparities within the Indian legal profession,
with many young advocates earning barely enough to meet basic living expenses. This makes such a mandate disproportionate for young lawyers. Judicial observations have acknowledged the “sorry state of affairs” faced by junior lawyers who are often unpaid and overworked.
The solution to this problem can be to implement a policy
similar to progressive taxation, i.e., taxation based on income or ability to pay
(higher taxes for those with higher incomes) that leads to an increased willingness to pay tax.
If applied in the context at hand, the mandate on pro bono work
can be relative to the income/ability to afford such cases.
For example, the annual hours mandate for pro bono services depends
on the annual income of the lawyer, such as 10 hours of service for 50,000-1 Lakh p.a.,
5 hours for 50,000 p.a. or below, etc.
Another concern relates to quality and accountability.
2. Sustainable Structure for Pro Bono Services: Income-based Requirements, Quality Control, and Professional Motivators
Compulsory pro bono, if poorly designed, may result in unreliable representation, where lawyers participate merely to satisfy formal requirements; this risks harming vulnerable clients rather than assisting them, undermining the very purpose of the mandate. To solve this problem, quality standards need to be enforced through feedback mechanisms and periodic audits. The success of pro bono cases must be given credential value and appreciation, with incentives for growth and upliftment so as to ensure that lawyers do not take it lightly. Engaging directly with matters of significant legal importance, handling issues that carry meaningful consequences for your client. Such opportunities provide invaluable practical exposure and can substantially accelerate your development as a well-rounded and competent litigator.
There can also be other incentives to promote pro bono services, like recognition of such cases by the bar council in one’s portfolio and making it a standard of appreciation, providing opportunities that lawyers aspire to take up and making pro bono services a criterion for the same, making pro bono services a requirement for promotions in private sectors and encouraging people to take them up, mandating law-related bodies like legal educational institutions to take up a set standard of pro bono work annually, etc.
Conclusion
There exists a serious gap in justice aid, which can be seen by the reliance on volunteerism-based pro bono services and a purely State-driven approach. There is a need to adopt an inclusive approach, involving all the aspects and resources present in the legal ecosystem, including individual practitioners, law firms, law students, universities, Bar Council, etc. While there is recognition of access to legal representation as a fundamental right, the absence of enforceable mechanisms undermines its application, affecting the vulnerable and marginalised sections.
This paper argues that pro bono practice must evolve beyond charity. Comparative international models demonstrate that structured, incentive-based, and accountable pro bono frameworks can significantly enhance justice delivery without imposing unreasonable burdens on legal professionals. This will require a shift in perspective, and with this vision, India can achieve a meaningful transition. Even though frameworks for an accepting pro bono culture have some challenges, it is essential in uplifting the country’s pressing socio-economic realities.
