legal aid in india
TRANSCRIPT
LEGAL AID IN INDIA
BY
AGAM RAJ
BBALLB(3rd yr)
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Introduction
Whatever standards a man chooses to set for himself, be they religious, moral, social or purely rational in origin, it is the law which prescribes and his rights and duties towards the other members of the community. This somewhat arbitrary collection of principles he has very largely to take as he finds and in a modern society it tends to be so diverse and complex that the help of an expert is often essential not merely to enforce or defend legal rights but to recognize, identify and define them. -Mathews and Outton.
Legal Aid implies giving free legal service to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.
The concept of legal aid in the form of Article 39A into our constitutional framework. Hence, legal aid is not a charity or bounty, but is a constitutional obligation of the state and right of the citizens. The problems of human law and justice, guided by the constitutional goals to the solution of disparities, agonies, despairs, and handicaps of the weaker, yet larger brackets of Bharat’s humanity is the prime object of the dogma of “equal justice for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities.
Justice Krishna Iyer regards it as a catalyst which would enable the aggrieved masses to re-assert state responsibility, whereas Justice P.N. Bhagwati simply calls it “equal justice in action”. But, again the constitution not being a mystic parchment but a Pragmatic package of mandates, we have to decode its articles in the context of Indian life’s tearful realities and it is here when the judiciary has to take center stage.
Time and again it has been reiterated by our courts that legal aid may be treated as a part of right created under Article 21 and also under Article 14 and Article 22(1)[Hussainara v. Home Secretary, State of Bihar. Also Khatri v. State of Bihar, Suk Das v. Union Territory of Arunachal Pradesh, Kishore v. State of Himanchal Pradesh.
The apex court has held access to justice as a human right.[ Tashi Delek Gaming Solutions v. State of Karnatka, thus, imparting life and meaning to law.
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Legal Aid Definition and Legality:
Conventionally, ‘Legal Aid’ has been taken too mean the organized effort of the bar
council, the community and the government to provide the services of lawyers free, or for
a token charge, to persons who cannot afford the usual exorbitant fees. Inability to
consult or to be represented by a lawyer may amount to the same thing as being deprived
of the security of law. Rawls first principle of justice is that each person is to have an
equal right to the most extensive total system of equal basic liberties compatible with a
similar system of liberties for all. In the context of our Constitutional demands and State
obligations Legal aid has assumed a more positive and dynamic role which should
include strategic and preventive services. Relieving ‘Legal Poverty’– the incapacity of
many people to make full use of law and its institutions has now been accepted as a
function of a ‘Welfare State’. Apart from the social, economic and political requirements
on which the claim of legal aid rests, its now recently recognized as a constitutional
imperative arising from Articles 14[2], 21[3], 22[4](1), 39-A[5] of The Constitution of
India.
Legal Aid is a movement that envisages that the poor have easy access to courts and other
government agencies. It implies that the decisions rendered are fair and just taking account of the
rights and disabilities of parties. The focus of legal aid is on distributive justice, effective
implementation of welfare benefits and elimination of social structural discrimination against the
poor. It was taking these mandatory provisions of The Constitution of India in mind that the
Parliament passed The Legal Services Authorities Act, 1987.
This Act, as amended with effect from 12.6.2002, now provides for decision even on merits, by the
Presiding Officers of the Permanent Lok Adalats constituted by the State Legal Services Authority, of
those matters which relate to public utility services, which have been duly defined in the Act.
Today we find that the law of supply and demand operates in all its naked fury in the legal profession.
There is practically no limit of the fees that a lawyer may charge his client. This directly leads to
inequality in the quality of legal representation as between the rich and the poor. Not only would there be
inequality in the competence of legal representation which would be available to the rich by reason of
their superior financial resources.
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History of Legal Aid in India:
The earliest Legal Aid movement appears to be of the year 1851 when some enactment was
introduced in France for providing legal assistance to the indigent. In Britain, the history of the
organized efforts on the part of the State to provide legal services to the poor and needy dates
back to 1944, when Lord Chancellor, Viscount Simon appointed the Rushcliffe Committee to
enquire about the facilities existing in England and Wales for giving legal advice to the poor and
to make recommendations as appear to be desirable for ensuring that persons in need of legal
advice are provided the same by the State. Since 1952, the Government of India also took the
initiative to addressing to the question of legal aid for the poor and indigent in various
Ministerial Law Conferences and Commissions. In 1960, some guidelines were drawn up by the
Government of India for legal aid schemes.
Legal Aid Schemes were floated through Legal Aid Boards, Societies and Law Departments in
various States in the Country. In 1980, a National Committee was constituted, under the
Chairmanship of Honorable. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of
India to oversee and supervise legal aid programs throughout the country. This Committee came
to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started
monitoring legal aid activities throughout the country. The introduction of Lok Adalats added a
new chapter to the Justice Dispensation System of this country and succeeded in providing a
supplementary forum to the litigants for conciliatory settlement of their disputes. The year 1987,
proved to be very significant in Legal Aid history, as the Legal Services Authorities Act was
enacted to give a statutory base to legal aid programs throughout the country and bring about a
uniform pattern. amendments were introduced therein by the Amendment Act of 1994.
Legal Aid Provisions in the Constitution:
Article 39A - Equal Justice and Free Legal Aid. The State shall secure that the operation of the
legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislations or schemes or in any other way, to ensure that
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opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities.
The Constitution of India under Article 39-A mandates for free legal aid to the poor and weaker
sections of society. The Legal Services Authorities Act, 1987, as amended by the Act of 1994
which came into force on 9th November 1995, aims at establishing a nation-wide network for
providing free and comprehensive legal services to the weaker sections. It makes it obligatory for
the State to ensure equality before law and a legal system which promotes justice on a basis of
equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its
letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections
of the society.
The Legal Services Authority Act, 1987 was enacted to effectuate the constitutional mandates
enshrined under Articles 14 and 39-A of the Constitution of India. The object is to provide
‘Access to Justice for all’ so that justice is not denied to citizens by reason of economic or other
disabilities. However in order to enable the citizens to avail the opportunities under the Act in
respect of grant of free legal aid, it is necessary that they are made aware of their rights.
By the Constitutional 42nd Amendment Act of 1976, a new provision was incorporated in the
Constitution under Article 39-A, for providing free Legal Aid and enhancing the concept of
equal justice found a place in our constitution Article 39-A which was incorporated under part
IV-Directive Principles of State Policy reads as under:-
Equal justice and free legal aid-The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.
LEGAL AID reasoned in the Act— The Court has been approached by an organization deeply
engaged in rendering social and judicial services for securing justice and equal opportunity to the
needy. They have approached the Court for mandamising the State to carry out the objectives
and obligation of Article 39-A of the Constitution of India as well as the mandate of the Act,
introduced with tall claims. The Court held that the petitioner are entitled to ask the High Court
to issue directions sought for in the writ petition for proper implementation of the provisions of
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the Act and to carry out the purposes of the Act in true sense and spirit and not to scuttle it by
resort to any pretences and/or treat the constitutional directives as an empty slogan.
With the object of providing free legal aid, the Government of India had, by a resolution dated
26th September, 1980 appointed a Committee known as Committee for Implementing Legal Aid
Schemes (CILAS) under the chairmanship of Chief. Justice P.N. Bhagwati to monitor and
implement legal aid programs on a uniform basis in all the States and Union Territories. ‘CILAS’
evolved a model scheme for legal aid programs applicable throughout the country by which
several legal aid and advice Boards were set up in the States and Union Territories.
Legal aid is an essential part of the Administration of Justice. Access to Justice for all is the
motto of the Authority. The goal is to secure justice to the weaker sections of the society,
particularly to the poor, downtrodden, socially backward, women, children, handicapped etc. but
steps are needed to be taken to ensure that nobody is deprived of an opportunity to seek justice
merely for want of funds or lack of knowledge.
The National Legal Services Authority is a statutory body which has been set up for
implementing and monitoring legal aid programs in the country. The Supreme Court Legal
Services Committee has also been constituted under the Act. In every High Court also, The High
Court Legal Services Committees are being established to provide free legal aid to the eligible
persons in legal matters coming before the High Courts. The Legal Services Authorities Act,
1987 also provides for constitution of the State Legal Services Committees, High Court Legal
Services Committees, District Legal Services Committees and Taluk Legal Services Committees.
According to Section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case' which
includes a suit or any proceeding before a court. Section 2(1) (a) defines the 'court' as a civil,
criminal or revenue court and includes any tribunal or any other authority constituted under any
law for the time being in force, to exercise judicial or quasi-judicial functions. As per Section
2(1)(c) 'legal service' includes the rendering of any service in the conduct of any case or other
legal proceeding before any court or other authority or tribunal and the giving of advice on any
legal matter.
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Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the litigation
once it is supported by a Legal Services Authority.
Under The Legal Services Authorities Act, 1987 every citizen whose annual income does not
exceed Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high courts.
In cases before the Supreme Court, the limit is Rs 12,000. This limit can be increased by the state
governments. Limitation as to the income does not apply in the case of persons belonging to the
scheduled castes, scheduled tribes, women, children, handicapped, etc.
Lok Adalats:
Lok Adalats are judicial bodies set up for the purpose of facilitating peaceful resolution of
disputes between the litigating parties. They have the powers of an ordinary civil court, like
summoning, examining evidence etc. Its orders are like any court orders, but the parties cannot
appeal against such orders. Lok Adalats can resolve all matters, except criminal cases that are
non-compoundable. Either one or both the parties to litigation can make an application to the
court for transferring the case to a lok adalat. Where no compromise or settlement is made by the
lok adalat, such a case is transferred to the court and that court deals with the litigation from the
stage the lok adalat had reached.
Lok Adalats have proved to be an effective mechanism for resolution of disputes through
conciliatory methods. Up to 31 December 1997, about 17633 Lok Adalats have been held in
different parts of the country where about 68.86 lakh cases were settled. In about 349710 motor
vehicles accident claims cases, compensation amounting to over 1,160.07 crore rupees were
awarded. Under the Legal Services Authorities Act, Lok Adalat has been given the status of a
Civil Court and every award made by Lok Adalat is final and binding on all parties and no
appeal lies to any court against its award. Under Chapter VI-A of the Legal Services Authorities
Act, 1987, there is the provision of Lok Adalats. Up to December 2004, over 2 lakh 52 thousand
Lok Adalats have been organized which have settled over 1 crore 74 lakh cases. For more
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effective use of provisions of this act, the conference will deliberate on the feasibility of setting
up permanent Lok Adalats in the states.
The constitution of the Committee for the Implementation of Legal Aid Schemes (CILAS) in
1980 was a major step in institutionalizing legal aid. The Legal Services Authorities Act, 1987,
displaced the ‘CILAS’ and introduced a hierarchy of judicial and administrative agencies. The
‘LSAA’ began to be enforced only eight years later, under the directions of the Supreme Court. It
led to the constitution of the National Legal Services Authority (NALSA) at the Centre and a
State Legal Services Authority in the States to give effect to its directions
National Legal Services Authority (NALSA):
The National Legal Services Authority is a statutory body which has been set up for
implementing and monitoring legal aid programs in the country. The legal aid program adopted
by ‘NALSA’ include promoting of legal literacy, setting up of legal aid clinics in universities and
law colleges, training of paralegals, and holding of legal aid camps and Lok Adalats. National
Legal Services Authority is the apex body constituted to lay down policies and principles for
making legal services available under the provisions of the Act and to frame most effective and
economical schemes for legal services. It also disburses funds and grants to State Legal Services
Authorities and NGOs for implementing legal aid schemes and programs.
National Legal Services Authority was constituted on 5th December, 1995. His Lordship Hon.
Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive Chairman of
National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His
Lordship initiated steps for making the National Legal Services Authority functional. The first
Member Secretary of the authority joined in December, 1997 and by January, 1998 the other
officers and staff were also appointed. By February, 1998 the office of National Legal Services
Authority became properly functional for the first time. A nationwide network has been
envisaged under the Act for providing legal aid and assistance.
National Legal Services Authority was constituted on 5th December, 1995. According to Section
3 (1) under the Chapter II of the Act[8], the Central Government is instructed to constitute a
body at the National level known as the National Legal Services Authority, to exercise powers
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and perform functions conferred on it or assigned to it under the Act. His Lordship Hon. Dr.
Justice A.S. Anand, Judge, of The Supreme Court of India took over as the Executive Chairman
of National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His
Lordship initiated steps for making the National Legal Services Authority functional. The first
Member Secretary of the authority joined in December, 1997 and by January, 1998 the other
officers and staff were also appointed. By February, 1998 the office of National Legal Services
Authority became properly functional for the first time.
‘NALSA’ has also called upon State Legal Services Authorities to set up legal aid cells in jails so
that the prisoners lodged therein are provided prompt and efficient legal aid to which they are
entitled by virtue of section 12 of Legal Services Authorities Act, 1987. The Government has
sanctioned Rs 4 crores as grant-in-aid for ‘NALSA’ for 1998-99 for allocating funds to the State,
District authorities, etc. The ‘NALSA’ is also monitoring and evaluating the implementation of
the legal aid programs in the country. Up to December 1997 about 23.88 lakh persons were
benefited through court-oriented legal aid programs provided by the State Legal Aid and Advice
Boards/ State Legal Services Authorities. Of them, 3.73 lakh persons belonged to the scheduled
castes, about 2.14 lakh to the scheduled tribes, 240485 were women and 8578 were children.
Supreme Court Legal Services Committee:
The Supreme Court Legal Services Committee has been enacted under the Legal Services
Authorities Act, 1987 for the effective rendering of justice in the apex court. If a person belongs
to the poor section of the society having annual income of less than Rs. 18,000/- or belongs to
Scheduled Caste or Scheduled Tribe, a victim of natural calamity, is a woman or a child or a
mentally ill or otherwise disabled person or an industrial workman, or is in custody including
custody in protective home, he/she is entitled to get free legal aid from the Supreme Court Legal
Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter
and all applications connected therewith, in addition to providing an Advocate for preparing and
arguing the case. Any person desirous of availing legal service through the Committee has to
make an application to the Secretary and hand over all necessary documents concerning his case
to it. The Committee after ascertaining the eligibility of the person provides necessary legal aid
to him/her.
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Persons belonging to middle income group i.e. with income above Rs.18000/- but under Rs.
120000/- per annum are eligible to get legal aid from the Supreme Court Middle Income Group
Society, on nominal payments.
Taluk Legal Services Committee:Sections 11-A and 11-B were inserted by the Act 59 of 1994 whereby provisions relating to
Taluk Legal Services were added in the Legal Services Authorities Act, 1987.The Taluk Legal
Services Committee work under the rules made by the different States. Relating to its
composition, conditions of services in certain States, additional functions have also been
assigned, e.g. in Andhra Pradesh where the functions are subject to superintendence of the
District and the State Authority. Apart from the abovementioned four-tier machinery the Legal
Services Authorities Act also provides for the Supreme Court Legal Services Committee to
perform functions as may be determined by the Central Authority and State Authority
respectively
Cases, Jurist opinions and Judgements:
In the case of Hossainara Khatun v. State of Bihar in, the Supreme Court held that the right to
free legal services is an essential ingredient of reasonable, fair and just procedure for a person
accused of an offence and it must be held to be implicit in the guarantee of Article 21. This was a
case where it was found by Mr. Justice P.N. Bhagwati and Justice D.A. Desai that many under-
trail prisoners in different jails in the State of Bihar had been in jail for period longer than the
maximum terms for which they would have been sentenced, if convicted, and that their retention
in jails was totally unjustified and in violation of the fundamental rights to personal liberty under
Article 21 of the Constitution. While disclosing shocking state of affairs and callousness of our
legal and judicial system causing enormous misery and sufferings to the poor and illiterate
citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati,
made following observations in paragraph 6 of the judgment, which are thought provoking:-
This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal
service programs, but so far, these cries do not seem to have evoked any response. We do not
think it is possible to reach the benefits of the legal process to the poor to protect them against
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injustice and to secure to them their constitutional and statutory rights unless there is a nation-
wide legal service program to provide free legal services to them. We would strongly
recommend to the Government of India and the State Government that it is high time that a
comprehensive legal service program is introduced in the country. That is not only a mandate of
equal justice implicit in Article 14 and to right to life and liberty conferred by Article 21, but also
the compulsion of the constitutional directive embodied in Article 39A.
Two years thereafter, in the case of Khatri v. State of Bihar[11], Justice P.N. Bhagwati while
referring to the Supreme Court’s mandate in the aforesaid Hossainara Khatun’s case, made the
following comments, In paragraph 4 of the said judgment
It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an
accused person by a process of judicial construction of Article 21, most of the States in the
country have not taken note of this decision and provided free legal services to a person accused
of an offence. The State is under a constitutional mandate to provide free legal aid to an accused
person who is unable to secure legal services on account of indigence, and whatever is necessary
for this purpose has to be done by the State. The State may have its financial constraints and its
priorities in expenditure but the law does not permit any Government to deprive its priorities in
expenditure but the law does not permit any Government to deprive its citizens of constitutional
rights on the plea of poverty.
In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh[12], Justice P.N.
Bhagwati, while referring to the decision of Hossainara Khatun’s case and some other cases had
made the following observations in paragraph 6 of the said judgment:-
Now it is common knowledge that about 70% of the people living in rural areas are illiterate and
even more than that percentage of the people are not aware of the rights conferred upon them by
law. Even literate people do not know what are their rights and entitlements under the law. It is
this absence of legal awareness which is responsible for the deception, exploitation and
deprivation of rights and benefits from which the poor suffer in this land. Their legal needs
always stand to become crisis oriented because their ignorance prevents them from anticipating
legal troubles and approaching a lawyer for consultation and advice in time and their poverty
because magnifies the impact of the legal troubles and difficulties when they come. Moreover, of
their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves.
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The Law ceases to be their protector because they do not know that they are entitled to the
protection of the law and they can avail of the legal service programs for putting an end to their
exploitation and winning their rights. The result is that poverty becomes with them a condition of
total helplessness. This miserable condition in which the poor find themselves can be alleviated
to some extent by creating legal awareness amongst the poor. That is why it has always been
recognized as one of the principal items of the program of the legal aid movement in the country
to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it
were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid
would become merely a paper promise and it would fail of its purpose.
It was in the above backdrop that he Parliament passed the Legal Services Authorities Act, 1987,
which was published in the Gazette of India Extraordinary Part II, Section I No. 55 dated 12th
October, 1987. Although the Act was passed in 1987, the provisions of the Act, except Chapter
III, were enforced with effect from 9.11.1995 by the Central Government Notification S.O.893
(E) dated 9th November 1995. Chapter III, under the heading State Legal Services Authorities
was enforced in different States under different Notifications in the years 1995-1998.
In M.H Hoskot v. State of Maharashtra, the Supreme Court laid down some banning
prescription for free legal aid to prisoners which are to be followed by all the courts of India,
such as furnishing of free transcript of judgment in time, to the sentences; where the prisoner
seeks to file an appeal for revision, every facility for exercising such right shall be made
available by the jail administration and if a prisoner is unable to exercise his statutory and
constitutional right of appeal including special leave to appeal for want of legal assistance, there
is implicit in the court under Article 142, read along with Article 21 and 39-A of the
Constitution, the power to assign counsel to the prisoner provided he does not object to the
lawyer named by the court.
In Indira Gandhi v. Raj Narain
(AIR 1977 SC 69)
"Rule of Law is basic structure of constitution of India. Every individual is guaranteed the it’s rights give to him under the constitution. No one so condemn unheard. Equality of justice should be given to everyone. There ought to be a violation to the fundamental right or
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prerogatives, or privileges, only then remedy goes to Court of Law. But also at the stage when he first is produced before the magistrate. In absence of legal aid, trial is vitiated."
In State of Maharashtra v. Manubhai Pragaji Vashi
(AIR 1995, 5 SCC 730)
The court widened the scope of the right to free legal aid. The right to free legal aid is guaranteed fundamental right under Art 21 and 39A provides “equal justice” and “free legal aid”.
Centre for Legal Research V. State of Kerala:
AIR 1986 SC 1322
In order to achieve the objective of article 39A, the state must encourage and support the participation of voluntary organizations and social action groups in operating the legal aid programme. The government setup a “suitors fund” to meet the cost of defending a poor or indigent. The Court held that although the mandate in article 39A is addressed to the legislature and executive, yet the courts too are bound by the mandate contained therein
Contributions Made By Justice V.R.Krishna Iyer To The Development Of
Legal Aid - ‘Processionals Justice To Poor’- A Report
The contribution of justice Krishna Iyer towards the development and incorporation of the
concept of legal aid in the Indian legal system has been tremendous. His report titled
Processionals justice to poor’ has gone a step further in enabling the recognition of the poor for
the purpose of giving legal aid.
In a report on Free Legal Aid in 1971. Justice Bhagwati observed " even while retaining the
adversary system, some changes may be effected whereby the judge is given greater
participatory role in the trail so as to place poor, as far as possible, on a footing of equality with
the rich in the administration of justice."
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A similar report of the Committee on Legal Aid titled "processionals justice to poor" presided
over by Krishna Iyer in 1973, dealt with the nexus between law and poverty, and spoke of PIL in
this context. It emphasized the need for active and widespread legal aid system that enabled law
to reach the people, rather than requiring people to reach the law.
The two judges joined forces as a two member committee on juridicare, released its final report
in August 1977. The report while emphasizing the need for a new philosophy of legal service
programme cautioned that it ‘must be framed in the light of socio-economic conditions
prevailing in the Country’. It further noted that ‘the traditional legal service programme which is
essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems
of the poor in our country’. The report also included draft legislation for legal services and
referred to Social Action Litigation.
Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee
was formulated as on the 22nd day of October 1972. The Committee after conducting sample
surveys of large part of the country submitted a 275 page report to the Government on the 27th
day of May, 1973. This report came to mark the cornerstone of Legal Aid development in India.
The report clearly laid down that it is a democratic obligation of the State towards its subject to
ensure that the legal system becomes an effective tool in helping secure the ends of social justice.
He coined the word "Juridicare" to cover a scheme of legal aid which brought justice to the
doorstep of the lowly and which was comprehensive in its coverage.
The report clearly suggests the colonial hangover of the Indian legal system which has prevented
it from realising its true potential and extent. It also recognises the fact that much of our law was
created by the British to suit their convenience and as a result of this it is mostly insensitive to
the socio-economic problems of the masses it set out to govern and regulate.
The report also made an effort to classify those categories of persons who are most in need of
Legal Aid, they are as follows:-
1. The poor in general;
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2. Those persons belonging to the Scheduled Castes or Scheduled Tribes, i.e. that category of
persons who have been both economically as well as socially exploited by the cultural elitists
since time immemorial.
3. Those persons who either by reason of being inhabitants of backward areas or who are so
geographically placed that their voice cannot reach the Courts of justice, e.g. People who are
inhabitants of Scheduled Areas, Mountainous terrain’s, landlocked regions etc.
4.The workman and the peasantry class who toil and labour to earn rewards for their hard work
of which they are often deprived.
5. Those soldiers and armed forces personnel who in order to protect the boarders are stationed at
the edge of the land for long periods of time.
6. Women and children who are deprived social justice on grounds of biological infirmity.
7. Untouchables or those who are referred to as Harijans and who even after abolition of
Unctouchability under Article 17 of the Indian Constitution are shunned by the Administrative
class on the ground of their unacceptance in the community.
The 14th Law Commission Report stated the fact that if laws do not provide for an equality of
opportunity to seek justice to all segments of society the have no protective value and unless
some arrangement is made for providing a poor man the means to pay Court fee’s, advocates
fees and other incidental costs of litigation, he is denied an opportunity to seek justice. Justice
Krishna Iyer rightly observed that, "Such a consummation, a proposition to which we are
constitutionally dedicated is possible only through an activist scheme of legal aid, conceived
wisely and executed vigorously." He went on to state that Law and Justice cannot be regarded as
two separate wings any longer and that it had become necessary that they in unison work towards
resurrecting the faith of the poor man in the legal system by providing him with adequate non-
Governmental as well as Governmental assistance.
Justice Krishna Iyer regarded the Legal Aid program as a catalyst which would enable the
aggrieved masses to re-assert State responsibility under Part IV of the Constitution.
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Most social evils are an outcome or creation of poverty and the misery that comes with being
poor in a country like India, at the same time it also needs to be borne in mind that the judiciary
no matter however committed it may be towards uplifting the cause of the poor is ultimately
bound by procedural formalities which do not take into account the misery or problems of the
masses. Therefore the sufferings being so may it is not possible for the legal system to remove
even few of such problems. In keeping with the same view Justice Krishan Iyer asserted that
poverty is a creation of unjust institutions and unjust society. Therefore in a country like India if
you are poor you are ineffective socially as well as economically the only way that you can then
be empowered is through radical revamping of the socio-economic structure. Such a radical
change according to him could only be brought about in the form of a revolution that the legal
service programme only is capable of gearing. Thus the legal aid programme aimed at revamping
the socio-economic structure by way of removing the socially unjust institutions and creating a
new order based upon the ethos of human liberty, equality and dignity of mankind.
He realised the fact that though the system had been flagged off under the term "We the people
of India" it had no longer continued in the same direction want of procedural formalities had
taken precedence over the people at the cost of which justice often suffered casualties. He came
to recognise the fact that the Courts of law had merely become instruments for law’s sake and
were not administering justice as such. However, he placed blame for the attitude of the judiciary
on the colonial hangover of namely all institutional systems in the Country. This lead him to
express faith in the Gandhian system which professed the resolution of disputes at the grass root
level through village Panchayat’s.
The expert committee appointed under the chairmanship of justice Krishna Iyer has made
significant contribution toward the development of the concept of legal aid in India. The various
suggestions made by him can be summarized as under:
A national legal service authority accountable to the parliament but protected from official
control was recommended. Simplification of the legal procedure and an emphasis on conciliated
settlement outside court has to be the policy of legal aid schemes. The report adopted the three
fold test laid down for determining eligibility: Means test- to determine people entitled to legal
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aid Prima facie test- to determine whether there was a prima facie case to give legal aid or not
Reasonableness test- to see whether the defence sought by a person is ethical and moral.
In criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual
offenders and in cases, which essentially involve private claims. Regular arrangement for aid and
advice to the undertrials was to be provided. A liberalized bail policy which was not to be
dependent on financial consideration Legal services were to be extended to investigation as well
as post conviction stage. Legal services should also include rehabilitative services. In criminal
legal aid, the committee was in favour of salaried lawyers. The report also encourages payment
of compensation to victims in criminal cases. Family courts should be established for women and
children with women judges this is specially required in slum areas and rural villages. Public
defence council should be appointed in children’s court.
In backward areas, legal advice bureau should be established in each development block. The
report encourages the involvement of law students in legal aid schemes particularly for
preventive legal services. Public law service should be an alternative available as against the
private bar and legal services authority should fix the fees payable to the lawyer.
Contributions Made By Justice P.N.Bhagwati To The Development Of The Concept Of Legal
Aid-Report On National Jurdicare: Equal Justice-Social Justice, Ministry Of Law And Justice
And Company Affairs, 1977 Justice P.N. Bhagwati practiced at the High Court, Bombay, he
became a Judge of the Gujarat High Court on 21st July, 1960, and became Chief Justice
of .Gujarat on 16th September, 1967. On 17th July, 1973, he became the judge of the Supreme
Court of India. He was also Chairman of the Legal Aid Committee appointed by the Government
of Gujarat for suggesting ways and means of providing free legal aid and advice to the poor and
weaker section of the community; and also acted as Chairman of the State Legal Aid Committee
for running the Pilot Project of free Legal Aid and Advice in Gujarat. He worked successfully to
build up an elaborate legal aid programme. He is widely regarded as the originator of India’s
legal aid programme, including setting up of legal aid camps in rural areas, working with NGOs,
establishing legal aid clinics etc.
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The post independence legal aid development was initiated by formation of Bombay Committee,
in 1949 under the chairmanship of Mr. NH Bhagwati, followed by the below mentioned
sequence of reports, committees and rules. Trevor Harries Committee in West Bengal, 1949
Initiatives by the state governments such as The Legal aid formed in 1952 in UP, The Legal Aid
Committee formed in Madras in 1954, and so on. Kerala Legal Aid (to the poor) Rules, 1957
14th Report of the Law Commission of India. Central Government Scheme 1960. National
Conference on Legal Aid, 1970. The Gujarat committee along with Mr. P.N. Bhagwati
(Chairman) constituted of Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat
Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal
College, and Ahemdabad.
The focus of the committee was the indigent person seeking to access justice. Answering to the
question of inequality in the administration of justice between the rich and the poor the report
clearly stated that there can be no rule of law unless the common man irrespective of the fact
whether he is rich or poor is able to assert and vindicate to the rights given to him by the law.
The machinery of law should be readily accessible to all. The poor must be placed in the same
position as the rich by means of adequate legal service programme. It stated that the inequality
between the rich and the poor in administration of the justice can be removed by establishing and
developing effective system of the legal aid programme. Legal aid and advice should be regarded
not as a matter of charity or bounty but as a matter of right. It is a part of social security
programme just as much as medical aid is.
There was unanimous decision of the Committee that the State should regard it as an obligation
to provide legal assistance to the poor and indigent. It stated that this obligation of the State was
not merely, socio-economic or political but is also constitutional by reason of Articles 14 and
22(1}.
Further the report stated that the legislation and rules so made by the government should not be
another piece of legislation made with the reference of any foreign legislation as there is a
marked difference between socio-economic conditions prevailing in advanced countries and
those prevailing in developing countries like India.
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It also emphasized on having legal aid programmes and that the organization for effectuating the
legal service programme must be responsive to the poor in giving legal service and must not be
mechanical and wooden in its approach. Even after, such a programme is introduced there must
be a continues examination of its utility and its responsiveness to the poor.
They also suggested that the penal law should be amended with a view to providing that if the
accused willfully fails to appear in compliance with the order to appear or the promise contained
in his recognizance he shall be liable to be punished with imprisonment or fine or both. The law
should also provide that the failure of the accused to appear when required would constitute
prima facie evidence that the failure was willful. The Magistrates may start releasing the accused
on his own recognizance in cases where the offence charged does not involve imprisonment for
more than one year. The committee further stated that if it was found from experience gained as
a result of following this practice for a year or two, that the practice is working satisfactorily, the
Magistrates may extend this practice to cases involving slightly higher offences.
Legal Aid Schemes were floated through Legal Aid Boards, Societies and Law departments in
various states in the Country. In 1980, A national committee was constituted, under the
chairmanship of Honorable Mr. Justice P.N bhagwati then a judge of the Supreme Court of India
to oversee and supervise legal Aid programs throughout the country. This committee came to be
known as CILAS (Committee for Implementing Legal Aid schemes) and started monitoring legal
Aid activities throughout the country. The introduction of Lok Adalats added a new chapter to
the Justice Dispensation system of this country and succeeds in providing Supplementary forum
to the litigants for conciliatory settlement of their disputes. The year 1987, proved to be very
significant in Legal Aid History as the “Legal services Authorities Act” was enacted to give a
statutory base to the legal system programs throughout the country and bring about a uniform
pattern. This Act was finally enforced on the 9th of November, 1995 after certain amendments
were introduced therein by the Amendment Act of 1994.
LEGAL AID MOVEMENT:-
"Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid
Committee formed in 1971. According to him, the legal aid means providing an arrangement in
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the society so that the missionary of administration of justice becomes easily accessible and is
not out of reach of those who have to resort to it for enforcement of its given to them by law" the
poor and illiterate should be able to approach the courts and their ignorance and poverty should
not be an impediment in the way of their obtaining justice from the courts. Legal aid should be
available to the poor and illiterate. Legal aid as defined, deals with legal aid to poor, illiterate,
who don't have access to courts. One need not be a litigant to seek aid by means of legal aid.
Article 39A of the Constitution of India Says that State shall secure that the operation of the legal
system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disability. Articles
14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal
system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure
that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to
the poor, downtrodden and weaker sections of the society.
The beginnings of the modern legal aid movement in India had materialized in the 1950s and
1960s when efforts were made to ensure legal representation for indigent persons who were
accused in criminal cases. These initiatives were led by State governments and were mostly
dependent on the participation of practicing lawyers. However, the real impetus came with the
publication of the ‘National Juridicare Report’ in 1978 which made several recommendations to
give meaning to the constitutional command of ensuring legal aid for needy persons, as per
Article 39A which had been inserted in 1976. This was followed by the establishment of the
Committee for the Implementation of Legal Aid Schemes (CILAS) under the leadership of
Justice P.N. Bhagwati It was in pursuance of this body’s recommendations that the Legal
Services Authorities functioning at different levels were conceived of and the same found its way
into legislation.
ANALYSIS OF ARTICLE 39A AND ITS PROVISIONS IN THE INDIAN CONSTITUTION:-
Article 39 A of Indian constitution says that:-“It is the duty of the State to see that the legal
system promotes justice on the basis of equal opportunity for all its citizens. It must therefore
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arrange to provide free legal aid to those who cannot access justice due to economic and other
disabilities.”
Legal Aid implies giving free legal service to the poor and needy who cannot afford the services
of a lawyer for the conduct of a case or a legal proceeding in any Court, tribunal or before an
authority.
When free help is provided by lawyers to those who can’t afford the services of a lawyer for a
case or any legal proceeding in a court or tribunal or any such authority, it is called legal aid.
Legal aid is provided by the Legal Services Authority.
“If the accused does not have sufficient means to engage a lawyer, the court must provide one for
the defense of the accused at the expense of the state.”
It has been held that this article may be used as an aid to the interpretation of art 21, and the
result would be-Where a prisoner, owing to indigence or incommunicado situation, is disabled
from engaging a lawyer to exercise his statutory right of appeal, the court shall, if the
circumstances of the case and the ends of justice so require, assign a competent counsel for the
prisoner’s defence, provided the appellant does not subject to that lawyer. It is the duty of the
state, in such a case to pay reasonable remuneration for the defence counsel (not a matter of
charity), as may be equitably fixed by the court. The state must offer every reasonable facility to
such counsel for conducting the appeal, as a condition of ‘reasonable, fair and just’ procedure,
which is postulated by art. 21. This right to free legal aid arises when the accused is for the first
time produced before the magistrate and continues throughout the trial.
It extends even to security proceedings.
But the court cannot issue mandamus to the state to supply a lawyer to the accused; his remedy
would lie under the procedure laid down in s.304(1) of the Cr. P.C.,1973……gopalanachari v.
state of Kerala.
4. The ideal of equal access to justice would go against the imposition of an excessive rate of
court fee central coal field v jaiswal coal co.
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The Free Legal Services include:
1. Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings;
2. Providing Advocate in legal proceedings;
3. Obtaining and supply of certified copies of orders and other documents in legal proceedings;
4. Preparation of appeal, paper book including printing and translation of documents in legal proceedings.
The principle contained in Article 39-A are fundamental directs the state to ensure that the
operation of the legal system promotes justice, on a basis of equal opportunities and further
mandates to provide free legal Aid in any way-by legislation or otherwise so that justice is not
denied to any citizen by reason of economic or other disabilities. The crucial words to provide
free legal aid” by suitable legislation or by schemes” or in any other way. These words used in
Article 39A are very wide .In order to enable the state to afford free legal aid and guarantee sped
trial a vast number of persons trained in law are essential. Legal Aid is required in many forms
and at various stages, for obtaining guidance, for resolving disputes in court, tribunals and other
authorities. The need for a continuing and well organized legal education is absolutely essential
in view of new trends in the world order to meet the overgrowing challenges.
Article 39A ordains the state to secure a legal system which promotes justice on the basis of
equal opportunity. The language of article 39A is couched in mandatory terms as is clear by the
use of the word “shall” twice therein.
In the words of Delhi HC “it is emphasized that the legal system should be able to deliver justice
expeditiously on the basis of equal opportunity and provide free legal aid to ensure that the
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities”.
Article 39A puts stress upon legal justice. to put it simply the directive requires the state to
provide free legal aid to deserving people so that justice is not denied to anyone merely because
of economic disability. The Supreme Court has emphasized that legal assistance to a poor or
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indigent accused who is arrested and put in jeopardy of his life and personal liberty is a
constitutional imperative mandatory not only by article 39A but also by article 14 and 21.
In the absence of legal assistance, injustice may result. Every act of injustice corrodes the
foundation of democracy .The court also ruled that it would make a mockery of Legal Aid if it
were to be left to a poor, ignorant and illiterate accused person to ask for a free legal Aid.
Accordingly the presiding judge has been obligated to inform the accused that he can obtain free
legal service at the cost of the tate if he is unable to engage a lawyer because of his indigence.
Although the mandate in Article 39A is addressed to the legislature and the executives yet, as the
court can indulge in some “Judicial law making within the interstices of the constitution or any
statute before them for construction”. The courts too are bound by this mandatory.
For the legal Aid program to succeed it is necessary to involve public participation and, for this
purpose, the best way is to operate through voluntary organization and social Action groups. The
state should encourage and support such bodies in operating the legal aid program. The court
fees should be correlated to expenditure on administration of justice as HC fees bar effective
access to justice. The Supreme Court may have to consider whether such high court fees are just
or legal.
The constitution has setup some norms according to which a person a entitled to get free legal
Aid Service:
Eligible persons for getting free legal services include:
1. Women and children;
2. Members of SC/ST;
3. Industrial workmen;
4. Victims of mass disaster; violence, flood, drought, earthquake, industrial disaster;
5. Disabled persons;
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6. Persons in custody;
7. Persons whose annual income does not exceed Rs. 50,000/-
8. Victims of Trafficking in Human beings.
Criterion for Providing Legal Aid.
Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal
services to the eligible persons. Section 12 of the Act reads as under:-
Every person who has to file or defend a case shall be entitled to legal services under this Act if
that person is-
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or beggar as referred to in Article 23 of the
Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of clause (g) of
section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home
within the meaning of clause
(h) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act,
1987 (14 of 1987);
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(i) in receipt of annual income less than rupees nine thousand or such other higher amount as
may be prescribed by the State Govt., if the case is before a court other than the Supreme Court,
and less than rupees twelve thousand or such other higher amount as may be prescribed by the
Central Govt., if the case is before the Supreme Court. (Rules have already been amended to
enhance this income ceiling).
Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the litigation
once it is supported by a Legal Services Authority
HIERARCHY OF BODIES UNDER THIS ACT:-
A nationwide network has been envisaged under the Act for proving legal aid and assistance.
National Legal services authority is the apex body constituted to lay down policies and principles
for making legal services available under the provisions of this act to frame most effective and
economical schemes for legal services. It also disburses funds and grants to state legal services
Authorities and NGO’s for implementing free legal Aid schemes and programmes.
In every state, State legal authority is constituted to give effect to the policies and directions of
the central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats
in the state. State Legal services Authority is headed by the chief Justice of that High court who
is the patron in chief. A serving or the retired judge of the high court is nominated as its
executive chairman.
District legal services authority Act is constituted in every district to implement legal aid
programmes and schemes. The district judge of that particular district is its ex-officio chairman.
Taluk legal services committees are constituted for each of the Taluk or Mandal or for groups of
Taluk or mandals to coordinate the activities of legal services in the Taluk and to organize Lok
Adalats. Every taluk legal services committee is headed by a civil judge operating within the
jurisdiction of the committee who is its ex-officio chairman.
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Right to get legal aid starts from the time the accused is arrested. If the person is not aware of
this right then it is the duty of the Magistrate to inform the person about this. It is the duty of the
police to inform the nearest ‘legal aid’ committee also about the arrest of an accused seeking
legal aid for the first time and this goes on whenever the person is brought in for questioning.
Application made for free legal Aid can be rejected on the following basis:-
1. The applicant has enough money and can afford a lawyer,
2. Does not fulfill any of the eligibility criteria, or
3. The case does not deserve legal action.
If the application is rejected, then the reasons that it was rejected must be recorded and informed
to the applicant. The applicant also has the right to appeal against the rejection to the Chairman
of the authority.
The Legal Services Authority can’t arbitrarily take away the legal aid that they have given
you. But legal aid can be withdrawn if:
1. Applicant lied in his application for it.
2. Applicant is able to afford a lawyer.
3. Applicant misbehaves with any person.
4. Applicant does not cooperate with your lawyer.
5. Applicant hires another lawyer.
6. The process of law or the services of the lawyer are being misused.
7. You die - this applies only to criminal cases and not civil ones.
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If the application is rejected, then the reasons that it was rejected must be recorded and informed
to the applicant. The applicant also has the right to appeal against the rejection to the Chairman
of the authority.
If a poor person doesn’t get a lawyer then the trial becomes meaningless. This could even lead to
a sentence.
VARIOUS CASES IN WHICH FREE LEGAL AID IS NOT PROVIDED:-
1.Defamation,
2. Prosecution done out of vengeance
3. Contempt of court
4. Lying under oath
5. Proceedings related to elections
6.Cases where the fine imposed is not more than Rs. 50.
7. Economic offences and offences against social laws.
8. Cases where the person seeking legal aid is not directly concerned with
9. The proceedings and whose interests will not be affected, if not represented properly.
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CONCLUSION AND SUGGESTION:-
1. The focus of legal aid is on distributive justice, effective implementation of welfare benefits
and elimination of social and structural discrimination against the poor. It works in accordance
with the Legal services Authority Act, 1987 which acts as the guideline of the rendering of free
justice.
2. It is highly interesting to know the problems of the rural poor and urban poor separately and
also to find out how they compare with the legal problems of the non-poor living in rural and
urban India. An efficient organization of a legal services delivery system may have to take
account of all of these differences in legal needs of the poor and design the program accordingly.
3. It’s a very wonderful right incorporated in our constitution in the Article 39A to promote
Justice on equal basis. In the case of Khatri v. State of Bihar, the court held that the right to legal
aid is a fundamental right under article 21 of the Indian constitution.
4. NALSA has formulated a strategy to provide basic and essential knowledge to the vulnerable
groups so that they can understand the law and know the scope of their rights
under the law and eventually assert their rights as a means to take action, uplift their social status
and being in social change.
5. Lack of awareness is the main impendent in effective ‘legal aid’. Efforts should be made to
inform the public of the existence of these services by using electronic media and aggressive
campaigns. Government should also target rural areas for making them aware about this concept.
6. Free legal aid must not be read to imply poor or inferior legal services. The lawyers in the
panel should be experienced. The legal services which are given to the poor should be
qualitative.
7. A master plan for juridicare cannot succeed without sufficient financial resource. An annual
amount of only Rs. 6 crore is being allocated to NALSA for the execution of its policies which is
inadequate. So proper financial resources should be given in order to make the effective
implementation of Legal Aid.
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8. Awareness of schemes and programs to be able to guide the poor litigants about the issue of
Legal Aid.
9. Each district legal aid service authority should be evaluated and compared with other district
legal service authority as well as intra states to encourage legal aid.
[1] AIR 1979 SC 1377
[2] AIR 1981 SC 928
[3] AIR 1986 SC 99
[4] AIR 1990 SC 2140
[5] (2006) 1 SCC 442
[6] AIR 1921 SC 624
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BIBLIOGYAPHY
http://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-
India.html
http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.Vm02Gl5afIU
http://pib.nic.in/newsite/mbErel.aspx?relid=118011
Indian constitution.
Jurisprudence by Salmon.
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