|
Legal Aid implies giving free legal services
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 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 organised 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 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.
One need not be a litigant to seek aid by
means of legal aid. Legal aid is available to anybody on the road. Justice
Blackmun in Jackson v. Bishop says that; "The concept of
seeking justice cannot be equated with the value of dollars. Money plays no role
in seeking justice."
Article 39A of the Constitution of India provides 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. Sec. 304, Criminal
Procedure Code: The Constitutional duty to provide legal aid arises from the
time the accused is produced before the Magistrate for the first time and
continues whenever he is produced for remand.
Since 1952, the Govt. of India also started
addressing to the question of legal aid for the poor in various conferences of
Law Ministers and Law Commissions. In 1960, some guidelines were drawn by the
Govt. for legal aid schemes. In different states legal aid schemes were floated
through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at
the national level was constituted to oversee and supervise legal aid programmes
throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati
then a Judge of the Supreme Court of India. 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. In 1987 Legal Services Authorities Act was enacted
to give a statutory base to legal aid programmes throughout the country on 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.
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."
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:-
# The poor in general;
# 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.
# 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.
# The workman and the peasantry class who
toil and labour to earn rewards for their hard work of which they are often
deprived.
# 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.
# Women and children who are deprived social
justice on grounds of biological infirmity.
# 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.
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 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.
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 Gujrat 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.
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.
The report also in detail dealt with the
true scope and extent of the legal aid. It recommended that the question is what
costs, charges and expenses to be incurred by a litigant in court should be
provided from the legal aid fund as part of legal aid scheme. The court fees
constitute one of the largest constituents of legal expenses involved in a
proceeding in a court of law. Instead of providing necessary funds to the
assisted person to make payment of court fees the State should by legislation
remit court fees in case of an assisted person. The scheme of legal aid should
not be based on class or status. The main test for determining whether the
applicant seeking legal aid is eligible for it is
1. The means test:
2. The prima-facie case test and
3. The reasonableness test.
The, means test must be applied to them as
well and must be presumed to be satisfied in the case of members, belonging to
Backward Classes. The Report stated that the administration of legal aid scheme
was to be placed in the hands of Legal Aid Committees to be formed all over the
State. Such Committees at all levels should be constituted into corporations
with perpetual succession and common seal. As regards to the composition of
Legal Aid Committee is concerned, it was suggested that there must be
representation of Government officials, the presiding Judge or Magistrate should
be ex-officio Chairman and member with the qualification that he should not
participate in the determination of the question whether the applicant has a
prima facie case or not. Neither the Collector nor the Mamlatdar, should be
ex-officio member and the Chairman: of any Legal Aid Committee. Lawyers should
be strongly represented on such committee. But the Committees should not consist
exclusively of lawyers. There should be representation from the social service
field and from other civic and business interests; proportion of lawyers on one
hand and social workers and public spirited persons on the other hand may be
roughly equal. The lawyers who are to serve on the legal aid committee should be
drawn from the members of the bar practicing in the respective areas and as far
as possible half of them should be senior members and half should be junior
members. The selection of such lawyers must be entrusted to a responsible
authority Viz. the chairman of the superior legal aid committee. The selection
must be made in consultation with the Chairman of the concerned Legal Aid
Committee and with the President of the respective Bar Association. The same
procedure can be followed for the appointment of social workers and public
spirited citizens on Legal Aid Committee. For clerical work as well as accounts
work and to attend to the applicants for legal aid it would be necessary to have
a full time Secretary for each Legal Aid Committee.
The report also in detail stated the
constitution and the working of different legal committees:
(a) The Taluka Legal
aid Committee.- It was recommended that there shall be a Taluka Legal Aid
Committee in every Taluka having a court of Civil Judge (Junior Division) or
Judicial magistrate, It shall have power to deal with the applications for legal
aid in proceedings before the taluka court as also before the Tenancy Tribunal
situated within the taluka.
The presiding Judge or Magistrate should be
the ex-officio member and Chairman and the other
members of the Committee shall be (i) the President
of the Taluka Bar Association ex-officio or a
senior lawyer practicing in the Taluka court,
(ii) one other lawyer practicing in the Taluka
Court
(iii) one retired Judge or Magistrate, if
available, and
(iv) one and if no retired Judge of or Magistrate
is available, two social workers or public spirited citizens. The members of the
Taluka Legal Aid Committee would work in honorary capacity and they would
ordinarily hold office for a period of three years. Its accounts were also to be
audited annually by the Government auditor along with the audit of the accounts
of the Taluka Court. The Secretary of the Taluka Legal Aid
Committee was to be appointed with the prior approval of the District
Legal Aid Committee.
(b)
The District Legal aid Committee, - The same
provisions was applicable mutatis mutandis in respect of the District Legal
Committee. Apart from the District Judge and the president of the District Bar
Association, one more lawyer, a retired Judge or Magistrate or two social
workers, the other members of the Committee was to be the Government Pleader of
the District Court ex-officio, the President of the District Panchayat
ex-officio and the Principal or a teacher of law college selected by the
district judge.
(c)
The State Legal Aid Committee. - It was to be at
the apex of the entire Legal Aid Organization and was suggested to be a High
power Body composed of different social interests dedicated to the cause of
administration of legal aid. It was to have as its Chairman the Chief Justice or
a High Court Judge nominated by him. The other members of the Committee
constituted of the Advocate General, President of the High Court Bar Association
or the Vice-President, Chairman of State Bar Councilor the Vice-Chairman, one
senior member of the High Court Bar, three members of the mofussil Bar, one
District Government Pleader, District Judges of Rajkot, Baroda and Surat,
Secretary, Legal Department and Finance Secretary of the State Government, two
members of the State Legislative Assembly, Director of Backward Classes, four
social workers and a teacher of law. This Committee was to have mainly
supervisory functions and lay down policies and principles for the
administration of the Legal Aid Scheme. There was to be a State Director of
Legal Aid responsible for the actual administration of the Legal Aid Programme
within the State and was to be the Chief Executive Officer of the State Legal
Aid Committee. The Committee was to exercise control over all the Legal Aid
Committee in the State, and similarly the Taluka Legal Aid Committees shall be
under the control and supervision of the District Legal Aid Committee.
A special mention and recommendation was
given regarding the Bail System. The bail system caused discrimination against
the poor since the poor would not be able to furnish bail, while wealthier
persons otherwise similarly situate would be able to furnish bail. The poor
accused had often to fall back on touts and professional sureties for providing
bail to suffer pre-trial detention the committee stated that the bail system was
extremely unsatisfactory as and required reform so that it should be possible
for the poor, as easily as for the rich, to obtain pre-trial release without
jeopardizing the interests of justice. The committee giving wide powers to the
magistrate suggested that if a Magistrate was satisfied after making an inquiry
into the conditions and background of the accused that the accused has his roots
in the community and is not likely to abscond, he could release the accused on
order to appear or on his own recognizance. The Magistrate must ordinarily do so
unless the Prosecutor can show that, having regard to the conditions and
background of the accused, there is a substantial risk of his non-appearance at
the trial. The decision as regards the amount of bail should be an individual
decision depending on the individual financial circumstances of the accused and
the probability of his absconding. When the accused is released on bail the
magistrate must give a sufficiently long date, so that on the date on which the
accused appears the case does not have to be adjourned on the ground that the
charge sheet is not filed. If on the adjourned date the charge sheet is not
filed the prosecution must be made to pay the cost of adjournment to the accused
or in the alternative the magistrate may grant exemption to the accused from
appearance until the charge sheet is filed provided that the accused is
represented by a lawyer. There should not be too many adjournments on the ground
that the prosecution is not ready with its witnesses. The magistrate should be
given power to order payment of costs of adjournment to the accused where the
prosecution has not taken reasonable steps to secure the presence of any witness
and the case has to be adjourned on that account.
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.
The committee knowing that a large amount of
finance would be required for an adequate legal service programme, suggested
that there should be a Legal Aid Fund created by statute which would consist of
moneys received from different sources such as donations from individuals,
associations of merchants, traders or manufacturers, charitable organizations
and Public Charitable Trusts. Tax exemption should be granted in respect of
such' donations; organizing entertainment programme through social service
organizations like the Rotary Club and the Lions Club and organizing a Rupee
Drive; providing by statute that every vakalatnama should bear in addition to
the usual Court fee stamp, Legal Aid Stamp of the denomination of Re. 1, amount
of costs awarded to a legally assisted person; amount of legal aid granted to a
legally assisted person when recovered from him or from the property or money
decreed in his favor; contributions made by partially assisted persons; fees
paid by applicant legal advice; grant made by the Central Government to State
Government to meet expenses of providing legal service to members of Scheduled
Caste and . Scheduled Tribes. Annual celebrations made by municipal
corporations, municipalities, and many such sources.
The report stated that we as a nation really
want to eradicate poverty and establish a truly free, just and egalitarian
society; the legal service programme recommended by the Committee should be
implemented wholly and in its entirety. But recognizing the difficulties that
the state government may face, it may not be possible for the State Government
to implement the whole of the legal service programme immediately in one single
stage. It was, therefore, suggested that the legal service programme may be
implemented in stages according to a phased plan. The committee recommended that
the state government may implement the legal service programme immediately in so
far as it relates to the provisions of legal aid in civil cases and cases before
the administrative tribunals and also in regard to criminal cases other than
committal proceedings and cases under the Bombay prohibition act, Bombay
prevention of gambling act prevention of food adulteration act and suppression
of immoral traffic in women and girls act. The provisions of legal aid in
committal proceedings may be left over for the second stage and the provisions
of legal aid in regard to offences under the enactment referred to above may be
taken up at the final stage. The implementation of the preventive legal services
programme should not be delayed. But if the state government thinks that it is
not possible to implement the preventive service programme immediately, it may
postpone implementation so far as the items of representation, legal research
and innovation, institutional changes and organization of the poor are
concerned. So far as the items of the legal service and education are concerned,
there should be no delay in implementation.
This report was followed by the Expert committee on Legal Aid, 1973 headed by
Mr. Krishna Iyer. Meanwhile there were many state initiatives taken and more
state Reports were prepared which lead to development of legal aid in the states
such as Tamil Nadu, Madhya Pradesh and Rajasthan.
On 19 May, 1976, the government of India
appointed a two member committee, known as Juridicare Committee, of justice P N
Bhagwati as chairman and Justice V.R.Krishna Iyer as member.
One of the purpose for setting up the
committee was that ‘the central government is of the view that an adequate and
vigorous legal service program is necessary to be establish in all the states in
the country on a uniform basis’. The terms of reference of the Juridicare
committee included making ‘recommendations for the establishing and operating
comprehensive and a dynamic legal service program for effective implementations
of the socio economic measures taken or to be taken by the government including
formulation of scheme (s) for legal services.’
The juridicare Committee’s report was titled
Report on National Juridicare: equal justice – social justice (hereinafter
referred as the 1977 report). The introduction of the 1977 report made it clear
that it was in continuation of the 1973 report. It said that ‘In a sense, the
present report is an extensive revision, updating, revaluating and adding to the
previous one.’
In an attempt to overcome the criticism of the 1973 report the Juridicare
Committee submitted an interim report furnishing a draft of the national legal
services bill, 1977, which comprehensively drew up the institutional setup for
the delivery of legal services.
The 1977 report first focused on the infrastructure of the legal services of the
organization and clearly stated that it was not to be a department of the
government but an autonomous institution headed by the Judge of the Supreme
Court. The body would have representations from Bar Associations, the
Government, the Parliament and the judiciary as well as voluntary associations
and social workers and that there would be a multi tier set up for the legal aid
organization.
The 1977 report was an amalgamation of the
1971 Gujarat report and the 1973 report but absence of certain aspects of the
legal services was conspicuous. For instance, both the 1971 Report and the 1973
report dealt with the issues arising from the criminal justice separately. Hence
it may be stated that except saying that it was continuation of the earlier
reports, the 1977 Report made no reference to these aspects.
The continuation with the earlier reports
was also evident in the reiteration by the 1977 Report of the failures of the
traditional legal services programme. The goals of the preventive legal services
programme, advocated forcefully by the 1971 Report were recapuliated in this
report, it stated that while the endeavor would be to launch a frontal attack on
the problem of the poverty, the legal service programme would have to be
directed towards providing representation to ‘groups of
social and economic protest’ and ‘must encourage
group oriented and institution directed approach to the problem of poverty’.
The other goals that were reiterated were:
the programme ‘should not identify lawyers with the law but should even pose
them against law, wherever law is the reflection of an unjust social order’, it
had to recognize the inter relatedness of social, legal, educational and
psychological problems which beset the poor; the content of the legal services
programme was to include spreading of awareness amongst the poor about their
rights, tackling the class problems of the poor, initiating socio-legal research
into the problems with a view to bringing about reform in law and administration
and helping different groups of the poor to organize themselves.
The 1977 report envisaged several modes of
delivery of legal services. The primary mode would be the providing of legal
advice through various legal aid offices having both salaried lawyers and
assigned lawyers.
The 1977 report favored the setting up of Nagrik Salah Kendra at each legal aid
office to provide counseling service and also act as a referral body for all
kinds of problems for which assistance may be needed.
A central concern in the 1977 report was the
de-centralization of the justice and redressed mechanism and in this connection
strengthening the existing system of Nay Achaia. A whole Chapter was devoted to
PIL: and legal aid. The 1977 report envisioned class action as an essential form
of redressing collective wrongs further the legal aid organization would be the
initiators of such class action. The 1977 report focused on the orientation of
the different actors who would be the participants in the program which included
members of judiciary, law universities and law students, voluntary agencies and
social workers. There was also an emphasis on the university law clinics and
their functions included preventive and positive service at pre-litigation stage
by negotiation and conciliation disputes outside the courts, giving postal
advice in respect of legal problems of individuals, seeking administrative and
legislative remedies against wrongs done and so on.
It was suggested that the Advocated Act,
1961 be amended to recognize and permit provision of legal aid by law teachers
and students. The report clearly stated that the funding of the legal aid
programme was the state responsibility and for this identified sources such as
court fees collected from the litigants, legal aid steps, levy of special cess,
donations and many more for the purpose of funding the legal aid programme and
so on.
Though the ideas as laid down by the Report was revolutionary but not much that
was mentioned in the report was implemented as the government that had appointed
the Juridicare committee was not in power when the 1977 report was submitted.
The 1977 report remained on the shelf along with it the National legal Services
Bill. Though the congress was voted back to power in 1980 but it was too
enthusiastic about the 1977 Report. Instead the government constituted the
Center for Implementation of legal Aid Scheme (CILAS) under Justice Bhagwati.
The 1977 Report was the latest attempt by
the Central government to comprehensively determine the issue of providing legal
services to the poor. It is further submitted that there were certain common
lacunae in all the reports, which need to be noticed:
Each of the reports though suggested of setting up of setting legal aid through
a network of autonomous legal aid bodies, there was no clarity on how that could
be achieved with the state being the major contributor of funds to the programme.
The 1977 report of the committee of Justices
Krishna Iyer and P.N. Bhagwati, both of the Supreme Court, drew up a detailed
scheme which envisaged public interest litigation (PIL) as a major tool in
bringing about both institutional and law reform even while it enabled easy
access to the judicial system for the poor. Their report, as those of the
previous committees, was ignored. This explained partly the impatience of these
two judges, in the post-emergency phase, in making the institution appear
responsive to the needs of the population that had stood distanced from it. The
two judges played a major role in spearheading the PIL jurisdiction.
Legal Services
Authorities Act, 1987.
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
begar 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);
or
(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
Created Under The Act
A nationwide network has been envisaged under the Act for providing 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 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 programmes.
In every State a State Legal Services
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 the State High Court who is its Patron-in-Chief. A serving or retired
Judge of the High Court is nominated as its Executive Chairman.
District Legal Services Authority is
constituted in every District to implement Legal Aid Programmes and Schemes in
the District. The District Judge of the District is its ex-officio Chairman.
Taluk Legal Services Committees are also
constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to
coordinate the activities of legal services in the Taluk and to organise Lok
Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge
operating within the jurisdiction of the Committee who is its ex-officio
Chairman.
Constitution of the National Legal
Services:
The Central Authority shall consist of -
a. the Chief Justice of India who shall be the Patron-in-Chief;
b. a serving or retired Judge of the Supreme Court to be nominated by the
President, in consultation with the Chief Justice of India, who shall be the
Executive Chairman; and
c. such number of other members, possessing such experience and
qualifications, as may be prescribed by the Central Government, to be nominated
by that government in consultation with the Chief Justice of India.
The Central Government shall in consultation
with the Chief Justice of India, appoint a person to be the Member-Secretary of
the Central Authority, possessing such experience and qualifications as may be
prescribed by that Government, to exercise such powers and perform such duties
under the Executive Chairman of the Central Authority as may be prescribed by
that Government or as may be assigned to him by the Executive Chairman of that
Authority.
The administrative expenses of the Central
Authority, including the salaries, allowances and pensions payable to the
Member-Secretary, officers and other employees of the Central Authority, shall
be defrayed out of the Consolidated Fund of India.
Supreme Court Legal
Services Committee:
The Central Authority shall constitute a Committee to be called the Supreme
Court Legal Services Committee for the purpose of exercising such powers and
performing such functions as may be determined by regulations made by the
Central Authority.
The Committee shall consist of -
a. a sitting judge of the Supreme Court who shall be the Chairman; and
b. such number of other members possessing such experience and
qualifications as may be prescribed by the Central Government to be nominated by
the Chief Justice of India.
The Chief Justice of India shall appoint a
person to be the Secretary to the Committee, possessing such experience and
qualifications as may be prescribed by the Central Government.
The schemes and measures implemented by the
Central Authority:
a. After the constitution of the Central
Authority and the establishment of NALSA office towards the beginning of 1998,
following schemes and measures have been envisaged and implemented by the
Central Authority:-
(a) Establishing Permanent and Continuous Lok Adalats in all the Districts in
the country for disposal of pending matters as well as disputes at pre-litigative
stage;
(b) Establishing separate Permanent & Continuous Lok Adalats for Govt.
Departments, Statutory Authorities and Public Sector Undertakings for disposal
of pending cases as well as disputes at pre-litigative stage;
(c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign;
(d) Appointment of "Legal Aid Counsel" in all the Courts of Magistrates in the
country;
(e) Disposal of cases through Lok Adalats on old pattern;
(f) Publicity to Legal Aid Schemes and programmes to make people aware about
legal aid facilities;
(g) Emphasis on competent and quality legal services to the aided persons;
(h) Legal aid facilities in jails;
(i) Setting up of Counseling and Conciliation Centers in all the Districts in
the country;
(j) Sensitisation of Judicial Officers in regard to Legal Services Schemes and
programmes;
(k) Publication of "Nyaya Deep", the official newsletter of NALSA;
(l) Enhancement of Income Ceiling to Rs.50,000/- p.a. for legal aid before
Supreme Court of India and to Rs.25,000/- p.a. for legal aid upto High Courts;
and
(m) Steps for framing rules for refund of court fees and execution of Awards
passed by Lok Adalats.
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.
In October, 1998, His Lordship Hon. Dr.
Justice A.S. Anand assumed the Office of the Chief Justice of India and thus
became the Patron-in-Chief of National Legal Services Authority. His Lordship
Hon. Mr. Justice S.P. Bharucha, the senior-most Judge of the Supreme Court of
India assumed the office of the Executive Chairman, National Legal Services
Authority.
The First Annual Meet of the State Legal
Services Authorities was held on 12th of September, 1998 at Vigyan Bhawan, New
Delhi which was presided over by His Lordship Hon. Dr. Justice A.S. Anand, the
then Executive Chairman, NALSA. His Lordship Hon. Mr. Justice S.B. Majmudar,
Judge, Supreme Court of India and Chairman, Supreme Court Legal Services
Committee, the Members of the Central Authority and the Executive Chairmen and
Member Secretaries of the State Legal Services Authorities attended this Meet.
In this Meet, the progress of on-going schemes which had been initiated by NALSA
was examined and decisions of far reaching implications were taken with a view
to strengthen and streamline legal aid programmes in the country. The Second
Annual Meet of the State Legal Services Authorities was held at Jubilee Hall,
Hyderabad on 9th of October, 1999. This Meet was inaugurated by His Lordship
Hon. Dr. Justice A.S. Anand, the Chief Justice of India and Patron-in-Chief,
NALSA. Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA delivered the
keynote address. Other dignitaries present at the inaugural function included
Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman,
Supreme Court Legal Services Committee, Hon. Mr. Justice M.S. Liberhan, Chief
Justice of Andhra Pradesh High Court and Members of Central Authority.
In pursuance of the call given by His
Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India in the First
Annual Meet, 9th of November is being celebrated every year by all Legal
Services Authorities as "Legal Services Day".
NALSA is laying great deal of emphasis on
legal literacy and legal awareness campaign. Almost all the State Legal Services
Authorities are identifying suitable and trustworthy NGOs through whom legal
literacy campaign may be taken to tribal, backward and far-flung areas in the
country. The effort is to publicise legal aid schemes so that the target group,
for whom Legal Services Authorities Act has provided for free legal aid, may
come to know about the same and approach the concerned legal services
functionaries.
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.
Constitution of
State Legal Services Authority:
A State Authority shall consist of -
(a) the Chief Justice of the High Court who shall be the Patron-in-Chief;
{b) a serving or retired Judge of the High Court, to be nominated by the
Governor, in consultation with the Chief Justice of the High Court, who shall be
the Executive Chairman; and
(c) such number of other Members, possessing such experience and qualifications,
as may be prescribed by the State Government, to be nominated by that Government
in consultation with the Chief Justice of the High Court.
The State Government shall, in consultation
with the Chief Justice of the High Court, appoint a person belonging to the
State Higher Judicial Service not lower in rank than that of a District Judge,
as the Member-Secretary of the State Authority, to exercise such powers and
perform such duties under the Executive Chairman of the State Authority as may
be prescribed by that Government or as may be assigned to him by the Executive
Chairman of that Authority.
A person functioning as Secretary of a State
Legal Aid & Advice Board immediately before the date of constitution of the
State Authority may be appointed as Member-Secretary of that Authority, even if
he is not qualified to be appointed as such under this sub-section, for a period
not exceeding five years.
The administrative expenses of the State
Authority, including the salaries, allowances and pensions payable to the
Member-Secretary, officers and other employees of the State Authority shall be
defrayed out of the Consolidated Fund of the State.
High Court Legal
Services Committee:
The State Authority shall constitute a Committee to be called the High Court
Legal Services Committee for every High Court, for the purpose of exercising
such powers and performing such functions as may be determined by regulations
made by the State Authority.
The Committee shall consist of -
a) a sitting Judge of the High Court who shall be the Chairman; and
b) such number of other Members possessing such experience and qualifications as
may be determined by regulations made by the State Authority, to be nominated by
the Chief Justice of the High Court.
Functions of the
State Authority:
It shall be the duty of the State Authority to given effect to the policy and
directions of the Central Authority.
The State Authority shall perform all or any of the following functions,
namely:-
a) give legal service to persons who satisfy the criteria laid down under this
Act.
b) conduct Lok Adalats, including Lok Adalats for High Court cases;
c) undertake preventive and strategic legal aid programmes; and
d) perform such other functions as the State Authority may, in consultation with
the Central Authority, fix by regulations.
Constitution of the
District Legal Services Authority:
A District Authority shall consist of :-
a) the District Judge who shall be its Chairman; and
b) such number of other Members, possessing such experience and qualifications
as may be prescribed by the State Government, to be nominated by that Government
in consultation with the Chief Justice of the High Court.
The administrative expenses of every
District Authority, including the salaries, allowances and pensions payable to
the Secretary, officers and other employees of the District Authority shall be
defrayed out of the Consolidated Fund of the State.
Functions of
District Authority:
The District Authority may perform all or any of the following functions,
namely:-
a. co-ordinate the activities of the Taluk Legal Services Committee and other
legal services in the District;
b. organise Lok Adalats within the Districts; and
c. perform such other functions as the State Authority may fix by regulations.
Constitution of the
Taluk Legal Services Committee:
The Committee shall consist of -
a. the senior Civil Judge operating within the jurisdiction of the Committee who
shall be the ex-officio Chairman; and
b. such number of other Members, possessing such experience and qualifications,
as may be prescribed by the State Government, to be nominated by that Government
in consultation with the Chief Justice of the High Court.
Functions of Taluk
Legal Services Committee:
The Taluk Legal Services Committee may perform all or any of the following
functions, namely:-
a. co-ordinate the activities of legal services in the taluk;
b. organise Lok Adalats within the taluk; and
c. perform such other functions as the District Authority may assign to it.
Certain salient
features of the Act are enumerated below:-
Section 2 Definitions.-
(1) (c) 'legal service' includes the rendering of
any service in the conduct any case or other legal proceeding before any court
or other Authority or tribunal and the giving of advice on any legal matter;
(d) 'Lok Adalat' means a Lok Adalat organised under
Chapter VI;
(g) 'scheme' means any scheme framed by the Central
Authority, a State Authority or a District Authority for the purpose of giving
effect to any of the provisions of this Act;
(h) 'State Authority' means a State Legal Services Authority constituted under
Section 6;
(2) Any reference in this Act to any other
enactment or any provision thereof shall, in relation to an area in which such
enactment or provision is not in force, be construed as a reference to the
corresponding law or the relevant provision of the corresponding law, if any, in
force in that area.
Section 19
1.Central, State, District and Taluk Legal Services Authority has been created
who are responsible for organizing Lok Adalats at such intervals and place.
2.Conciliators for Lok Adalat comprise the following: -
a. A sitting or retired judicial officer.
b. other persons of repute as may be prescribed by the State Government in
consultation with the Chief Justice of High Court.
Section 20:
Reference of Cases
Cases can be referred for consideration of Lok Adalat as under:-
1. By consent of both the parties to the disputes.
2. One of the parties makes an application for reference.
3. Where the Court is satisfied that the matter is an appropriate one to be
taken cognizance of by the Lok Adalat.
4. Compromise settlement shall be guided by the principles of justice, equity,
fair play and other legal principles.
5. Where no compromise has been arrived at through conciliation, the matter
shall be returned to the concerned court for disposal in accordance with Law.
Section 21
After the agreement is arrived by the consent of the parties, award is passed by
the conciliators. The matter need not be referred to the concerned Court for
consent decree.
The Act provisions envisages as under:
1. Every award of Lok Adalat shall be deemed as decree of Civil Court.
2. Every award made by the Lok Adalat shall be final and binding on all the
parties to the dispute.
3. No appeal shall lie from the award of the Lok Adalat.
Section 22
Every proceedings of the Lok Adalat shall be deemed to be judicial proceedings
for the purpose of :-
1. Summoning of Witnesses.
2. Discovery of documents.
3. Reception of evidences.
4. Requisitioning of Public record.
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) (aaa) 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.
Supreme Court On
Legal Aid
The linkage between Article 21 and the right to free legal aid was forged in the
decision in Hussainara Khatoon v. State of Bihar where the court was appalled at
the plight of thousands of undertrials languishing in the jails in Bihar for
years on end without ever being represented by a lawyer. The court declared that
"there can be no doubt that speedy trial, and by speedy
trial, we mean reasonably expeditious trial, is an integral and essential part
of the fundamental right to life and liberty enshrined in Article 21."
The court pointed out that Article 39-A emphasised that free legal service was
an inalienable element of ‘reasonable, fair and just’ procedure and that the
right to free legal services was implicit in the guarantee of Article 21. In his
inimitable style Justice Bhagwati declared:
"Legal aid is really
nothing else but equal justice in action. Legal aid is in fact the delivery
system of social justice. If free legal services are not provided to such an
accused, the trial itself may run the risk of being vitiated as contravening
Article 21 and we have no doubt that every State Government would try to avoid
such a possible eventuality".
Further in the case of Hussainara Khatoon &
Ors. (V) v. Home Secretary, State of Bihar, Patna Justice Bhagwati held that:
"it’s the constitutional right of every accused person who
is unable to engage a lawyer and secure legal services on account of reasons
such as poverty, indigence or incommunicado situation, to have free legal
services provided to him by the State and the State is under a constitutional
mandate to provide a free lawyer to such accused person if the needs of justice
so require. If free legal services are not provided to such an accused, the
trial itself may run the risk of being vitiated as contravening Article 21 and
it is hoped that every State Government would try to avoid such a possible
eventuality."
Two years
thereafter, in the case of Khatri & Ors. (II) v. State of Bihar & Ors. ,
the court answered the question the right to free legal aid to poor or indigent
accused who are incapable of engaging lawyers. It held that: "the state is
constitutionally bound to provide such aid not only at the stage of trial but
also when they are first produced before the magistrate or remanded from time to
time and that such a right cannot be denied on the ground of financial
constraints or administrative inability or that the accused did not ask for it.
Magistrates and Sessions Judges must inform the accused of such rights. 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 implicit
in the guarantee of Article 21 and the State is under a constitutional mandate
to provide a lawyer to an accused person if the circumstances of the case and
the needs of justice so require, provided of course the accused person does not
object to the provision of such lawyer. The State cannot avoid this obligation
by pleading financial or administrative inability or that none of the aggrieved
prisoners asked for any legal aid at the expense of the State. The only
qualification would be that the offence charged against the accused is such that
on conviction, it would result in a sentence of imprisonment and is of such a
nature that the circumstances of the case and the needs of social justice
require that he should be given free legal representation. There may, however,
be cases involving offences such as economic offences or offences against law
prohibiting prostitution or child abuse and the like, where social justice may
require that free legal or child abuse and the like, where social justice may
require that free legal services need not be provided by the State."
He reiterated this in Suk Das v. Union
Territory of Arunachal Pradesh and said "It may
therefore now be taken as settled law that free legal assistance at State cost
is a fundamental right of a person accused of an offence which may involve
jeopardy to his life or personal liberty and this fundamental right is implicit
in the requirement of reasonable, fair and just procedure prescribed by Article
21." This part of the narration would be incomplete without referring to
the other astute architect of human rights jurisprudence, Justice Krishna Iyer.
In M.H. Hoskot v. State of Maharashtra , he
declared: If a prisoner sentenced to imprisonment is virtually unable to
exercise his constitutional and statutory right of appeal inclusive of special
leave to appeal (to the Supreme Court) for want of legal assistance, there is
implicit in the Court under Article 142 read with Articles 21 and 39-A of the
Constitution, power to assign counsel for such imprisoned individual ‘for doing
complete justice
In Khatri & Others v. St. of Bihar & others Bhagmati J. observed;
Right to free legal aid, just, fail and reasonable procedures is a fundamental
right (Khatoon’s Case). It is elementary that the jeopardy to his personal
liberty arises as soon as the person is arrested and is produced before a
magistrate for it is at this stage that he gets the 1st opportunity to apply for
bail and obtain his release as also to resist remain to police or jail custody.
This is the stage at which and accused person needs competent legal advice and
representation. No procedure can be said to be just, fair and reasonable which
denies legal advice representation to the accused at this stage. Thus, state is
under a constitutional obligation to provide free to aid to the accused not only
at the stage of .... Every individual of the society are
entitled as a matter of prerogative.
In Indira Gandhi v. Raj Narain the Court said:
"Rule Of Law is basic structure of constitution of India.
Every individual is guaranteed the its give to him under the constitution. No
one so condemn unheard. Equality of justice. There ought to be a violation to
the fundamental right or prerogatives, or privileges, only then remedy go 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 Haryana v. Darshana Devi,
the Court said that:
"the poor shall not be priced out of the justice market by insistence on
court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC.
The state of Haryana, mindless of the mandate of equal justice to the indigent
under the magna carta of republic, expressed in article 14 and stressed in
article 39A of the constitution, has sought leave to appeal against the order of
the high court which has rightly extended the 'pauper' provisions to
auto-accident claims. Order XXXIII will apply to tribunals, which have the
trappings of the civil court.
Civil procedure code, 1908 - order XXXIII,
rule 9A - it is a 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.
The court should expand the jurisprudence of
access to justice as an integral part of social justice and examine the
constitutionalism of court-fee levy as a facet of human rights highlighted in
nation's constitution. If the state itself should travesty this basic principle,
in the teeth of articles 14 and 39A, where an indigent widow is involved, a
second look at its policy is overdue. The court must give the benefit of doubt
against levy of a price to enter the temple of justice until one day the whole
issue of the validity of profit-making through sale of civil justice, disguised
as curt-fee, is fully reviewed by the supreme court. Before parting with this
point the court must express its poignant feeling that no state has, as yet,
framed rules to give effect to the benignant provision of legal aid to the poor
in order xxxiii, rule 9A, 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 wilful default in fulfilling the conditio
sine qua non. It is a 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. It is a 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."
Justice Bhagwati while delivering the
judgement in the case of Kara Aphasia v. State of Bihar, where the petitioners
were young boys of 12-13 years when arrested, and were still languishing in jail
for over 8 years. They also alleged to have been kept in leg irons and forced to
do work outside the jail, directed that the petitioners must be provided legal
representation by a fairly competent lawyer at the cost of the State, since
legal aid in a criminal case is a fundamental right implicit in Article 21.
In Centre for Legal Research & Anr. v.
State of Kerala , Chief Justice Bhagwati took a step further and laid down
norms or guide-lines laid down for State to follow in giving support and
cooperation to voluntary organizations and social action groups in operating
legal aid programmers and organizing legal aid camps and lok adalats or niti
melas.
While delivering the judgment Bhagwati, C.J.,
stated that the writ petition raised a question as to whether voluntary
organizations or social action groups engaged in the legal aid programmed should
be supported by the State Government and if so to what extent and under what
conditions.
"There can be no doubt that if the legal aid
programme is to succeed it must involve public participation. The State
Government undoubtedly has an obligation under Article 39-A of the Constitution
which embodies a directive principle of State policy to set up a comprehensive
and effective legal aid programme in order to ensure that the operation of the
legal system promotes justice on the basis of equality. But we have no doubt
that despite the sense of social commitment which animates many of our officers
in the Administration, no legal aid programme can succeed in reaching the people
if its operations remains confined in the hands of the Administration. It is
absolutely essential that people should be involved in the legal aid programme
because the legal aid programme is not charity or bounty but it is a social
entitlement of the people and those in need of legal assistance cannot be looked
upon as mere beneficiaries of the legal aid programme but they should be
regarded as participants in it. If we want to secure people's participation and
involvement in the legal aid programme, we think the best way of securing it is
to operate through voluntary organizations and social action groups. These
organizations are working amongst the deprived and vulnerable sections of the
community at the grass-root level and they know what are the problems and
difficulties encountered by these neglected sections of Indian humanity. It is
now acknowledged throughout the country that the legal aid programme which is
needed for the purpose of reaching social justice to the people cannot afford to
remain confined to the traditional or litigation oriented legal aid programme
but it must, taking into account the socio-economic conditions prevailing in the
country, adopt a more dynamic posture and take within its sweep what we may call
strategic legal aid programme camps, encouragement of public interest litigation
and holding of lok adalats or niti melas for bringing about settlements of
disputes whether pending in courts or outside. The assistance of voluntary
agencies and social action groups must therefore be taken by the State for the
purpose of operating the legal aid programme in its widest and most
comprehensive sense, and this is an obligation which flows directly from Article
39-A of the Constitution. It is also necessary to lay down norms which should
guide the State in lending its encouragement and support to voluntary
organizations and social action groups in operating legal aid programmes and
organizing legal aid camps and lok adalats or niti melas. We are of the view
that the following norms should provide sufficient guidance to the State in this
behalf and we would direct that the State Government shall, in compliance with
its obligations under Article 39-A of the Constitution extend its cooperation
and support to the following categories of voluntary organizations and social
action groups in running the legal aid programme and organizing legal aid camps
and lok adalats or niti melas."
Legal Aid Under
C.P.C And Cr.P.C
S. 304(1) "Lays down that when accused facing a trial.
Concept of free legal aid scheme under legal services Authority. Act is only
when accused facing trial in court. When person is VV poor, then he can get
legal aid. In the absence of lawyer, the entire trial becomes vitiated and then
case to be remanded back to the trial court. Court to ask the accused, whether
he has services to engage a lawyer or not. If not, the court is bound to give
him lawyer from the bar, who should be well versed with the law and to be get
paid by St. Govt. Court cannot sympathize with a lawyer. Lawyer must be a
competent one...."is amicus curiae (friend of
court). S. 304, CrPC plays V. imp. role."
Order 33, rule 17, CPC: - Suit by or against an
indigent person. When a plaint along with petition, that person unable to avail
services of an lawyer, then court exempts him from court fees.
Recent Amendments
To Made To The Legal Services Authorities Act, 1987
The Legal Services Authorities Act, 1987 was enacted to constitute legal
services authorities for providing free and competent legal services to the
weaker sections of the society to ensure that opportunities for securing justice
were not denied to any citizen by reason of economic or other disabilities and
to organize Lok Adalats to ensure that the operation of the legal system
promoted justice on a basis of equal opportunity. The system of Lok Adalat,
which is an innovative mechanism for alternate dispute resolution, has proved
effective for resolving disputes in a spirit of conciliation outside the courts.
However, the major drawback in the existing
scheme of organization of the Lok Adalats under Chapter VI of the said Act is
that the system of Lok Adalats is mainly based on compromise or settlement
between the parties. If the parties do not arrive at any compromise or
settlement, the case is either returned to the court of law or the parties are
advised to seek remedy in a court of law. This causes unnecessary delay in the
dispensation of justice. If Lok Adalats are given power to decide the cases on
merits in case parties fails to arrive at any compromise or settlement, this
problem can be tackled to a great extent. Further, the cases which arise in
relation to public utility services such as Mahanagar Telephone Nigam Limited,
Delhi Vidyut Board, etc., need to be settled urgently so that people get justice
without delay even at pre-litigation stage and thus most of the petty cases
which ought not to go in the regular courts would be settled at the
pre-litigation stage itself which would result in reducing the workload of the
regular courts to a great extent. It is, therefore, proposed to amend the Legal
Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing
compulsory pre-litigative mechanism for conciliation and settlement of cases
relating to public utility services.
The salient
features of the amendment are as follows:
1) to provide for the establishment of Permanent Lok Adalats which shall consist
of a Chairman who is or has been a district judge or additional district judge
or has held judicial office higher in rank than that of the district judge and
two other persons having adequate experience in public utility services;
2) (ii) the Permanent Lok Adalat shall
exercise jurisdiction in respect of one or more public utility services such as
transport services of passengers or goods by air, road and water, postal,
telegraph or telephone services, supply of power, light or water to the public
by any establishment, public conservancy or sanitation, services in hospitals or
dispensaries; and insurance services;
3) (iii) the pecuniary jurisdiction of the
Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central
Government may increase the said pecuniary jurisdiction from time to time. It
shall have not jurisdiction in respect of any matter relating to an offence not
compoundable under any law;
4) (iv) it also provides that before the
dispute is brought before any court, any party to the dispute may make an
application to the Permanent Lok Adalat for settlement of the dispute;
5) (v) where it appears to the Permanent Lok
Adalat that there exist elements of a settlement, which may be acceptable to the
parties, it shall formulate the terms of a possible settlement and submit them
to the parties for their observations and in case the parties reach an
agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In
case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat
shall decide the dispute on merits; and
6) (vi) every award made by the Permanent
Lok Adalat shall be final and binding on all the parties thereto and shall be by
a majority of the persons constituting the Permanent Lok Adalat.
---------------------------------------------------------***********************************----------------------------------------------------------
The author can be reached at :
pathakvarun@legalserviceindia.com
|
A
Brief History Of Legal Aid
