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Legal Aid

Written by: Arindam Datta - Part - V , B.A.LL.B. Department of Law, University of Calcutta
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An act to constitute legal services authorities to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizens by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

India is a developing country. The development in the industrial sector is very much appreciable, but still this progress in the field of industrialization, marketing, finance, etc. cannot hide the indispensable drawbacks of our society like population explosion and illiteracy. These drawbacks, coupled with environmental and social hinges results in increase in poverty and lack of food for people.

It is true that the country is going through the phase of development but all the fruits of this tree are being en- cashed by those who stay in the upper half of the society. The poor resides in their own world of DARKNESS.

But those who are still neglected are the main foundation of the society that is to be remembered. So misusing their ignorance and encashing the fruits for the benefit of the upper half of our society is not at all good for the future of the country.

The society is divided into two parts, according to financial standard, namely HAVES and the HAVE NOTS. In our country with 100 million people, only a little part of the population comes within the purview of the HAVES, whereas, the Lion’s share is the HAVE NOTS.

The HAVE NOTS as well as the HAVES both looks for earning their livelihood, looking for the benefit of their family, giving a good future to the next generation, some are successful to it, some are not.

In this ways both categories of people spend most of their lives overlooking a lot of facts, intentionally or unintentionally, that a lot of wrongs are being done against them. Other people, or the Government or whoever may be is infringing their rights. But the wronged ones are not very eager to protest against the wrong doer. Even some times they are not knowledgeable enough that a wrong is being done against them.

If they do not know that a wrong is being done, it is a different scenario. But if they know about the fact, they are still not standing against it. As because, it may cause a lot of problem in their field of profession and might have to face a bigger loss. In this way they are actually ABATING THE WRONG.

So, for both the categories of people it is necessary to make them understand what sort of wrongs they actually are facing and the abatement is also causing a greater harm to the society and it can hamper the well being of their own next generation.

Keeping this fact in the mind the Government has taken up policies to spread awareness to the common mass through organizing different programmes held by different authorities, governmental or non-governmental. As the people of this country becomes aware about their legal rights, duties and liabilities they, themselves will understand how much better their lives can become.

Spreading the awareness about the rights of the people and how they are or can be infringed is the primary target of these authorities. So that the one who is wronged can himself realize that he has been wronged.

Once he has realized, that he has been wronged the question of redress arises. These authorities, governmental or non-governmental also provide the assistance, which is required by these wronged ones. These authorities provide HELP, in the legal field. This HELP is turned as LEGAL AID. These authorities and different other organizations hold such LEGAL AID CLINICS through the nation with the motto to help the VICTIMS.

Central Government has developed a plan and has also started to apply it by the help of the Legal Services Authorities, for this purpose. This authority spreads Legal Awareness amongst the citizens of our country, provides Legal Assistance like appointing advocates and giving advices to the people and also to suggest the Government different other plans relating this noble cause. These are the functions carried out by these organizations and authorities.

What Is Legal Aid?

Under Section 2(1)(c) of the Legal Services Authorities Act, 1987 (hereinafter referred to as ‘the said Act’), “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; To provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act. Justice - social, economic and political, is our constitutional pledge enshrined in the preamble of our Constitution. The incorporation of Article 39-A in the Directive Principles of State Policy in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid.

The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation, who are not able to pay for it.

Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.

Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose. Yet it has become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is engaged through legal aid, obviously the party or his men would come to the lawyer for consultation and it is then that they are asked to fish out some money, which they naturally cannot refuse. One factor that largely contributes to this is that the meager remuneration (less than Rs. 200/-) paid to the lawyers by Legal Aid Committee is a paltry and sometimes even does not meet the incidental expenses, what to speak of compensating the labour put in by the lawyer. Beyond that, the greed to pocket some easy money out of the helplessness of the victims is always there. But what speaks worst about the system is the fact that entrustment of cases under the scheme has become a case of distribution of largess amongst the favorites just as our Governments are notorious for distribution of licenses. The distribution is guided by many factors but largely other than by reason and the capacity to deliver the goods. In the circumstances, expectedly, the quality of aid is compromised to the determent of the beneficiary and, of course, Justice. The whole purpose is, thus, defeated.

Concept of Legal Aid

Legislative History - The right to assignment of counsel at Government expenses was emphasized in the 14th Law Commission Report. Thereafter, in 1969, the Law Commission again strongly recommended that the right of the accused to representation at the cost of Government should be placed on statutory footing in relation to trials for serious offences and as a first step in this direction, the Commission proposed that such a right should be available in all trials before the Court of Session.

In order to achieve the objective enshrined in Article 39-A of the Constitution, Government had, with the object of providing free legal aid, by a Resolution appointed a Committee for implementing Legal Aid Scheme to monitor and implement Legal Aid Programmes on a uniform basis in all States and Union Territories. The said Committee evolved a model scheme which was accordingly implemented by the Government. But on review, certain deficiencies were found and it was considered desirable to constitute statutory legal authorities at National, State and district levels so as to provide effective monitoring of Legal Aid Programmes.

For the disposal of large number of cases expeditiously and without much cost Lok Adalats have been constituted and they have been functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. In order to provide for the composition of statutory legal authorities and to provide statutory backing to Lok Adalats and its awards the Legal Services Authorities Bill, 1987, was introduced in the Lok Sabha on 24th August 1987.

Article 39-A of the Constitution provides that 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. With the object of providing free legal aid, Government had, by Resolution, appointed the “Committee for Implementing Legal Aid Schemes” (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to monitor and implement Legal Aid Programmes on a uniform basis in all the States and Union territories CILAS evolved a model scheme for Legal Aid Programme applicable throughout the country by which several Legal Aid and Advice Boards have been set up in the States and Union territories, cilas in funded wholly by grants from the central Government.

Object of the enactment of the said Act - In our democratic set-up, all laws are made for all men - common or uncommon. By common man, in common parlance, we understand a man on the street. A man who may not have any status, office, post or rank in society. He is only a human being, an ordinary citizen with expectations of a just and human order. He may be a Tom, Dick or Harry, Ram, Rahim or Shyam. The Expression includes a cobbler, sweeper, baker, butcher, a priest, or a soldier.

A person of whatever name and nomenclature known in the society. A legal system and its effectiveness has to be gauged or measured by the extent of its usefulness to the common man. The failure of law for common man is due to no change of hear or outlook of other fellow beings who are privileged and have a better status in the society. There has been no emotional integration between haves in the society and have nots. The society cannot be improved by laws. Social reforms are done not by laws but by leaders in the society who are virtuous, wise and of high moral character. Before making the laws or along with them, no attempts have to be made on behalf of the State of their agencies to spread moral education to encourage science with spirituality. The spirituality and science alone can rule the world including the government based on democracy in the absence of any effort in proper direction, the common man is deprived of the benefit of the laws enacted for him which do not reach him due to inefficient bureaucracy and mal-administration.

Persons Who Are Entitled To Get Free Legal Aid Under The Legal Services Authorities Act, 1987

Criteria for giving legal service are prescribed under the Section 12 of the said Act. 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 of Scheduled Tribe;
b. a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
c. a women or a child;
d. a person with disability as defined in Clause (i) of Section 2 of the person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)’ Act, 1995
e. a person under circumstances to the underserved want such as beinga victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or an industrial workman; or 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 (j) 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); or in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, 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 Government, if the case is before the Supreme Court.

Also, there are factors for disentitlement from getting legal aid - As per rules, the following persons are not entitled to the legal aid unless the Chairman of the Committee approves it as a special case-
(1) Proceedings wholly or partly in respect of defamation or malicious prosecution or any incidental proceedings thereto;
(2) A person charged with contempt of court proceeding or any incidental proceedings thereto;
(3) A person charged with perjury;
(4) Proceedings relating to any election.
(5) Proceedings in respect of offences where the fine imposed is not more than Rs. 50/-
(6) Proceedings in respect of economic offences and offences against social laws, such as, the protection of Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act, 1956 unless in shc cases the aid is sought by the victim:
The legal aid is also denied where the person seeking the legal services -
(1) is concerned with the proceedings only in a representative or official capacity; or
(2) if a formal party to the proceedings, not materially concerned in the outcome of the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation.
In the above two circumstances even Chairman cannot sanction legal aid as a special case.

Constitutional Provisions Relating To Legal Aid

Legal aid a constitutional right - Articles 21 and 39-A of the Constitution are as under:-
“21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.
“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 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”.

Article 21 is a fundamental right conferred under Part III of the Constitution. Whereas Article 39-A is one of the directive principles of the State Policy under Part IV of the Constitution. It has been held by the Constitution Bench of Supreme Court in Chandra Bhawan Boarding and Lodging, Bangalore V. –State of Mysore, AIR 1970 SC 2042 at 2050, para 13 that “While rights conferred under Part III are fundamental, the directives given under part IV are fundamental in the governance of the country. There is no conflict on the whole between the provisions contained in Part III and Part IV. They are complementary and supplementary to each other.

Working of The Legal Services Authorities In India – Frame Works, Functions Under The Legal Services Authorities Act, 1987 At Different Levels
Functions of the Central Authority – According to Section 4 of the said Act, the Central Authority shall perform all or any of the following functions, namely :-
• lay down policies and principles for making legal services available under the provisions, of this Act;
• frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act;
• utilize the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities;
• take necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections, of the society and for this purpose, give training to socials workers in legal skills;
• organize legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes though Lok Adalats;
• encourage the settlement of disputes by way of negotiation, arbitration and conciliation;
• undertake and promote research in the field of legal services with the special reference to the need for such services among the poor;
• to do all things necessary for the purpose of ensuring commitment to the fundamental duties of citizens under Part IVA of the Constitution;
• monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act;
• provide grants-in-aid for specific schemes to various voluntary social service institutions and the State and District Authorities, from out of the amounts placed at its disposal for the implementation of legal services schemes under the provisions of this Act’)
• develop, in consultation with the Bar Council of India, programmes for clinical legal educations and promote guidance and supervise the establishment and working of legal services clinics in universities, law colleges and other institutions;
• take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of the society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures;
• make special efforts to enlist the support of the voluntary social welfare institution, working at the grass-root level, particularly among the Scheduled Castes and the Scheduled Tribes, women and rural and urban labour; and
• co-ordinate and monitor the functioning of (State Authorities, District Authorities, Supreme Court Legal Services Committee, High court Legal Services Committees, Tuluk Legal Servives Committees and voluntary social service institutions) and other legal services organizations and give general directions for the proper implementations of the legal services programmes.

Under Section 5 of the said Act, the Central Authority is required to work in co-ordination with other agencies. In the discharge of its functions under this Act, the Central Authority shall, wherever appropriate, act in coordination with other governmental and non-governmental agencies, universities and other engaged in the work of promoting the cause of legal services to the poor.

Under Section 7 of the said Act, the Functions of the State Authority are prescribed which are as follows

(1) It shall be the duty of the State Authority to give effect to the policy and directions of the Central Authority.
(2) Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any of the following functions, namely:
• give legal services to persons who satisfy the criterial laid down under this Act;
• conduct (Lok Adalats including Lok Adalats for High Court cases)undertake preventive and strategic legal aid programmes; and perform such other
Under Section 8 of the said Act, the State Authority is required to act in co-ordination with other agencies etc., and be subject to directions given by the Central Authority - In the discharge of its functions the State Authority shall appropriately act in co-ordination with other governmental agencies, non-governmental voluntary social service institutions, universities and other bodies engaged in the work of promoting the cause of legal services to the poor and shall also be guided by such directions as the Central Authority may give to it in writing)

Under Section 10 of the said Act, Functions of the District Authority are –

1. It shall be the duty of every District Authority to perform such of the functions of the State Authority in the District as may be delegated to it from time to time by the State Authority.
2. Without prejudice to the generality of the functions referred to in sub-section (1), the District Authority may perform all or any of the following functions, namely:
• co-ordinate the activities of the Taluk Legal Services Committee and other Legal Services in the District);
• organize Lok Adalats within the District; and
• perform such other functions as the State Authority may (***) fix by regulations.

Under Section 11 of the said Act, the District Authority is required to act in coordination with other agencies and be subject to directions given by the Central Authority, etc.- In the discharge of its functions under this Act, the District Authority shall, wherever, appropriate, act in coordination with other governmental and non-governmental institutions, universities and other engaged in the work of promoting the cause of legal service to the poor and shall also be guides by such directions as the Central Authority or the State authority may give to it in writing.

Judicial Decisions
A. The Supreme Court in Hussainara Kathoon V. Home Secretary, State of Bihar, AIR 1979 SC 1369: 1980 [1] SC 98: 1979 [3] SCR 532: 1979 Cri LJ 1045 : 1980 SCC [Cr] 40, had called upon the Government to frame appropriate scheme for providing legal aid to the poor. The following observations were made by the Supreme Court:
“We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to being about changes in their life conditions and to deliver justice to them. The poor in their contact with legal system have always been on the wring side of the law. They have always come across ‘law for the poor’ rather than ‘law of the poor’. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.

We also recall what was said by Leeman Abbot years ago in relation to affluent Americas –
“If every a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the court-room, the seeds of revolution will be sown’ the fire-brand of revolution will be lighted and put in to the hands of men and they will almost be justified in the revolution which will follow”.

We would strongly recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty confirmed by Article 21, but also the compulsion of the Constitutional directive embodied in Article 39-A.

B. As pointed out by the Court in Rhem v/s Malclm [377 F. Supp. 1995] the State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty.

C. In Abdul Hassan Vs. Delhi Vidyut Board [AIR 1999 Del 88: 1999 (77) DLT 640 : 1999 (2) AD (Del) 105 : : 1999 RLR 100 : 1999 (2) RCR (Civil) 291], the Delhi High Court observed that “it is emphasized in Article 39A 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 opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities. It was in this context that the parliament enacted Legal Services Authority Act, 1987. One of the aims of the Act is to organize Lok Adalat to secure that the operation of legal system promotes justice on the basis of an equal opportunity. The provisions of the Act, based on indigenous concept are meant to supplement the court system. They will go a long way in resolving the 0dispute at almost no cost to the litigants and with minimum delay. The Act is a legislative attempt to decongest the courts of heavy burden of cases.”

D. The Hon’ble Apex Court found and observed in the case of State of Haryana v. Smt. Darshana Devi [AIR 1979 SC 855 : 1979 [2] SCC 236: 1979 [3] SCR 184 : 81 Punj LR 472 : 1979 Ker LT 269 : 1979 UJ 389 : 1989 RLR : 1979 Rev LR 312 : 1979 ACJ 205 : 1979 Cur LJ [Civ] 343], no State, it seems, has , as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order XXXIII Rule 9-A, Civil Procedure Code, although several years have passed since the enactment. Parliament is stultified and the people are frustrated. Even after a law has been enacted for the benefit of the poor, the State does not bring into force by willful default in fulfilling the condition sine qua non. It is public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.

E. Also, as observed in Moni Mathai v. Federal Bank Ltd., [AIR 2003 Ker 164 at 170] by the Kerala High Court, the Lok Adalats are also bound to follow the principles of natural justice, equity, fair play and other legal principles. Had the Committee taken care to issue notice to the petitioners and obtain a written statement containing their version and placed the same before the Lok Adalat all these unfortunate disputes could have been avoided. The Lok Adalats shall also not forget that their duty is not to dispose of cases some how but settle cases amicably.

Also Read:
Legal Aid Movement: legal aid as phrase which is acquired by usage and court decisions, a specific meaning

Legal Aid In India: The provisions of legal aid to the poor are based on humanitarian considerations and the main

An introduction to the Legal Services Authorities Act, 1987:  Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid Committee formed in 1971

Legal Aid: Legal aid may be taken to mean free legal assistance to the poor persons in any judicial proceedings before the

What Is Legal Aid: Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a

Concept of Legal Aid: explores the efficacy after its express insertion in form Article 39A in the Constitution

Free Legal Aid: Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose

Working of Statute of Legal Aid in India: Article Focuses on working of legal aid through different broad headings including 42nd amendment and supreme court guidelines

Concept Of Social Justice And The Poor: The term social justice was first used in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio, and given prominence

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