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Working of Statute of Legal Aid in India

Written by: Ishan V Vyas is II Year B.Com LL.B.(hons) student of Gujarat National Law University Gandhinagar, Author's Research Papers has already been selected in ICSSR and Ministry of Agriculture and consumer affairs
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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[1]

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 [6]

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. This Act was finally enforced on 9th of November, 1995 after certain amendments were introduced therein by the Amendment Act of 1994. Honorable Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the enforcement of the Act.

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 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 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.


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 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[7].

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 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.

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.[9]

Cases, Jurist opinions and Judgements:

In the case of Hossainara Khatun v. State of Bihar [10]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 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. 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[13], 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[14].

Recommendation
The growing litigation, delay in disposal, pendency in ordinary law courts are the reasons for the growth and popularity of this ancient but innovative alternative dispute resolution machinery. The Supreme Court of India, while giving effect to Article 39-A, has held in several cases that right to speedy justice and free legal aid is part of Article 21.

The new responsibilities of the Bench and the Bar must be assessed in the context of mass discontent and the dynamic rule of law as its answer. The Judiciary is a reverenced institution. Our judicial tryst with social destiny can only be redeemed by a spread out and institutionalized legal services project adjusted to the conditions of our society.[15]

It is also clear in the highly stratified Indian Society that the sources of poverty is not merely an economic phenomenon and it is linked up with a variety of complex social relationships aggravated by long period of colonial rule. Any program for using the law in at least reducing the effects of poverty will, therefore, necessarily require knowledge on who, the poor are, what their problems are, and how they are related to the exiting law and legal services.

The following points could be taken into consideration for development of this concept in its essence:
1. Review of the working of Legal Aid System.
2. Review of the Alternative dispute Resolution System in the country.
3. Up gradation of Judicial Infrastructure, including computerization, and
4. Up gradation of Judicial Manpower.

Conclusion
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 Authorities Act, 1987 which act as the guideline of the rendering of free justice.

It will be interesting to know the special problems of the rural poor and the urban poor separately and also to find 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 these differences in legal needs of the poor and design the program accordingly.

Except sketchy impressionistic references in the reports of the various legal aid committees, there has been a very little attention given to the analysis of the legal problems of the poor at the academic, official or professional level.

The discomfort of the bureaucracy arising out of the policing role of legal aid is understandable. In a Welfare State, the Government cannot be made available for litigation against itself to vindicate the legal rights of the poor. The criticism that legal aid litigation, aims at law reform thereby making the judiciary usurps the functions of the legislature is illogical and does not carry conviction in common law jurisprudence.
--------------------------------------------------------------------------------
[1] Mathews and Outton: Legal Aid & Advice, London, Butterworths, 1971.
[2] Constitution of India: Article 14 Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[3] Article 21 Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to the procedure established by law.
[4] Article 22 Protection against arrest and detention in certain cases – (1) No person who is arrested shall be detained in custody without being informed of the grounds , as soon as may be, for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
[5] Article 39 A 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 opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
[6] Legal Aid and Justice For the Poor – N.R. Madhava Menon, pp 344, paragraph 2.
[7] Law, Poverty and Legal Aid – Access to Criminal Justice – S.Muralidhar; Lexis Nexis
[8] The Indian Legal Services Authorities Act, 1987.
[9] Public Interest Litigation – Legal Aid and Lok Adalats, Mamta Rao, Eastern Book Company, pp 372, paragraph 3 and 5.
[10] Hossainara Khatun v. State of Bihar AIR 1979 S.C. page 1371
[11]Khatri v. State of Bihar AIR 1981 S.C. at page 926 (Bhagalpur Blinded Prisoners’ case)
[12] Sukhdas v. Union Territory of Arunachal Pradesh AIR 1986 S.C. at page 991.
[13] M.H Hoskot v. State of Maharashtra, AIR (1978) 3 SCC 544.
[14] Public Interest Litigation – Legal Aid and Lok Adalats, Mamta Rao, Eastern Book company, pp 351.
[15] J.Krishna Iyer: Legal aid to the Poor.

The author can be reached at: ishanvyas27@legalserviceindia.com / Print This Article

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