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Legal Aid In India

Since independence, the percentage of people in India who can afford a good lifestyle has been increasing steadily, while the percentage of people under the poverty line has decreased considerably. This change can undeniably be linked as a direct or indirect consequence of the policies of the government for upliftment of the poor people. Yet many people still have not been able to reap the benefits of these policies and provisions and the associated economic growth.

This has resulted in the widening of the gap between the rich and the poor. As such, the poorer sections of the society feels ostracized and face various social injustices. Compounding their problems, it is seen that they don’t have anyone to represent them before the court to face judicial proceedings and thus, are deprived of justice. When the literate, affluent and urban sections of our population tend to escape and avoid taking the help of the law due to complexity of judicial proceedings, how can one expect the rural and backward masses to see the system of courts and judges as a tool of providing justice?

Although all problems cannot be solved to the core, nonetheless our Constitution as well as legislations provides a solution for the poorer and needy sections of the society, who do not have the means to avail legal services, by providing them with free legal assistance. This free legal assistance is called legal aid.

The constitution of Indian provides under Article 39-A that State, shall secure the operation of the legal system 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 constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and section of the society.

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 governs his right and duties towards the other member 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 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 legal aid implies give 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.

An act to constitute legal service authorities to provide free and competent legal service to weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalat to secure that the operation of legal system promotes justice on a basis of equal opportunity.

THE MEANING AND DEFINITION OF LEGAL AID
Free or inexpensive legal advice, assistance, or representation provided to those who, because to their financial condition, otherwise would not be able to get. Legal aid schemes usually require that the matter for which aid is requested must have at least a 50 percent chance of succeeding in the court. Commonly, legal aid cannot be availed-of where:

  1. alternative funding is available to the party requesting it,
  2. the case is likely to be heard by the small claims court,
  3.  the case involves corporate matters, or
  4. involves administration of trusts, inheritance and wills, and/or land ownership.

Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To fail to do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.

DEFINITIONS OF LEGAL AID
According to Cambridge Advanced Learners’ Dictionary Legal Aid means a system of providing free advice about the law and practical help with legal matters for people who are too poor to pay for it.

The meaning of the expression Legal Aid has also been defined in Government of Gujarat, Report of the Legal Aid Committee, 1971 as under:
“Legal aid, in its common sense, conveys the assistance provided by the society to its weaker members in their effort to protect their rights and liberties, bestowed upon them by the laws.” Legal aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid Committee formed in 1971. In the words of Justice P.N. Bhagwati- “Legal aid means providing an arrangement in the society so that the machinery of administration of justice becomes easily accessible and is not out of reach of those who have to resort to for enforcement of the rights given to them by law.” According to Pollock, Legal aid is an instrument by which poor can approach to get justice, otherwise deprived of and also can enforce their human rights.

KINDS OF LEGAL AID
There are basically two types of legal aid:

  1. Pre-litigation legal aid
  2. Legal aid during the proceeding of litigation.

PRE-LITIGATION LEGAL AID
It has been rightly said that prevention is better than cure. Increase in the number of cases is a matter of harsh concern. Litigation should be the last resort. Matters should be resolved without restoring to the complicacies of the legal framework of the country. Such pre- litigation legal aid includes
  • Legal education
  • Legal advice
  • Legal awareness
  • Seminar on legal aid
  • Pre- litigation settlement

In order to remove complexity, more and more emphasis should be laid on pre litigation services. Litigation should be used as the last resort. If pre-litigation services are properly rendered then both time and expenditure could be saved. In pre-litigation services there will be minimum financial burden upon the state. Therefore, priority is given to pre- litigation services in the country.

LEGAL AID DURING THE PROCEEDING OF LITIGATION
The basic aim of legal aid during the proceeding of litigation is to provide free legal services to poor and socially downtrodden people after the commencement of litigation and during proceeding. The Supreme Court has warned on many occasions that only experienced lawyers may be put on the panel as inexperienced lawyers may not represent the complaints of the poor in a proper manner. Legal community must respond in a wholehearted manner. Well structured and effective planning for operation of the provisions of Legal Services Authorities Act must be evolved.

PHILOSOPHY OF FREE LEGAL AID
The basic philosophy of legal aid is to ensure equal justice to all, especially to the poor, so that no one is deprived of equal rights in the eyes of the law or denied access to the court only because of poverty, illiteracy or other incapacities. Generally, in a society a lot of people are unable to get fair access to the court and equal opportunity and equality before the law due to illiteracy and poverty. These are the two main factors which creates a gulf between the poor and the court. In the existing system of Administration of Justice, millions are deprived of equal justice as they are unable to get access to the court due to hefty court fees, lawyers‟ fees, and lengthy procedure and so on.

Due to their illiteracy and ignorance they are unaware of the rights and privileges provided by laws and the Constitution. As a result, they are always deprived of those rights and liberties. Besides, because of their poor economic condition, they are not able to protect those rights against people and systems with means. So the existing structure of court procedure is not conducive to secure equal justice to the poor.

Moreover, the provision of judiciary is to protect the Fundamental Rights of the people and not to destroy the rights of the people.7 But present legal system is not adequate to protect the interest of the poor. The scheme of legal aid aims to provide the legal aid to these people and to remove the gap, which exists, between the poor and the court. Thousands of people remain in jails for decades without trial and defence endangering their life and liberties. Millions of labourers and workers, tillers, consumers are exploited due to their illiteracy and ignorance about their rights and liberties.

Without legal help to these classes of people, we cannot exert their participation in the existing system of justice. And in a system, when millions are unable to access justice, equality before law and equal protection of law provided by the Constitution, it is nothing but a shame. The idea of legal aid is the challenge to ensure equal justice to the poor millions. Legal aid scheme is the measure to help these people, by providing them legal aid and advice with proper representation to secure justice and the establishment of true democratic society with equal justice for all.

LEGAL AID IN INDIA- ITS DEVELOPMENT
The concept of equal justice was not unknown in ancient India. Manusmriti casts a duty on king to administer justice ignoring his whims Emphasizing on the religion, Manu states that it includes administration of justice in social, economic and political aspects, whose sanctity has to be preserved and developed. In the medieval period, though the king was required to administer Islamic law in deciding all cases irrespective of religion of the parties to the suit.

Yet Hindus were administered by Hindu Law in deciding civil and religious of which the parties were Hindus. It was Jahangir who took the credit for dispensing even-handed justice to all irrespective of birth, rank of the official position. He used to say that God forbid to favour nobles or even princes in that matter of dispensation of justice. Because of his fair hearing, the justice was known as "Jahangiri Nyaya".

In the modem period, 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. The Committee also recommended four-tier machineryi.e.

  1. at Taluka (tehsil) level,
  2. at district level,
  3. at greater Bombay level and
  4. at State level.

For giving legal aid although the same could not be implemented due to certain reasons. In the same year, another Committee on "Legal Aid and Legal Advice" was appointed under the Chairmanship of Justice Arthur Trevor Harries, the then Chief Justice of Calcutta High Court. This Committee recommended giving legal assistance to the poor.

CONSTITUTIONAL COMMITMENT TO LEGAL AID
Article 14 guarantees equality before law and equal protection of laws. Equality before law necessarily involves the concept that all the parties to a legal proceeding must have an equal opportunity of access to the court and of presenting their cases to the court. For the indigent, who are unable to meet their economic needs, the justice access to the court would remain a myth because their inability to pay court fee and lawyer's fees etc. would also deny him access to the court.

Therefore, under Article 14, rendering legal services to the poor litigant is not just a problem of procedural law but a question of a fundamental character. A person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.

Article 21 asserts the right to life and personal liberty. This right cannot be taken away except by procedure established by law. A procedure is fair and just only when it follows the principles of natural justice. Right to hearing is an integral part of natural justice. If the right to counsel is essential to fair trial then it is equally important to see that the accused has sufficient means to defend them.

It has been observed and re-observed by the Apex Court of the Country that an accused person at least where the charge is of an offence punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Further counsel for the accused must be given time and facility for preparing the defense. Breach of these safeguards of fair trial would invalidate the trial and conviction, even if the accused did not ask for legal aid.

Article 22(1) provides that a person arrested should not be detained in custody without being informed of the grounds for such arrest and should not be denied the right to consult and be defended by a legal practitioner of his choice. Article 38 urges that the State should strive to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice: social, economic and political shall inform all the institutions of national life.

Article 39A of the Constitution, inserted by 42nd Amendment of the Constitution in 1976, provides for equal justice and free legal aid. It commands the state to secure that the operation of 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 the opportunities for securing justice are not denied to any citizen by reason economic or other disabilities.

Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity The Constitution provides for the post of an Attorney General of India to offer legal advice to the Union Government. He is appointed and can be dismissed by the President alone. Likewise provisions are made in the Constitution for the appointment of the Advocate General of a State.

He is entitled to attend all legislative sessions and take part in discussions on matters in which expert legal knowledge is required. His duty includes advising Government on legal matters pertaining to his state. These provisions do accord the due status to the legal aid and ample scope for developing legal aid jurisprudence through which human rights culture can be created and social justice can be assured as envisioned by founding fathers of the Constitution.

Post Independence Era – After Independence schemes of legal aid was developed under the aegis of Justice N.H. Bhagwati, then of Bombay High Court and Justice Trevore Harris of Calcutta High Court. The matter of legal aid was also referred to the Law Commission to make recommendations for making the legal aid program an effective instrument for rendering social justice.

Coming up with recommendation in its XIV report, under the leadership of leading jurist M.C. Setalvad, the Commission opined that free legal aid is a service which should be provided by the State to the poor. The State must, while accepting the obligation, make provision for funds to provide legal aid. The legal community must play a pivotal role in accepting the responsibility for the administration and working of the legal aid scheme. It owes a moral and social obligation and therefore the Bar Association should take a step forward in rendering legal aid voluntarily.

These would include representation by lawyers at government expenses to accused persons in criminal proceedings, in jails, and appeals. “The Commission also recommended the substitution in Order XXXIII, Civil Procedure Code of the word ‘pauper’ with ‘poor persons’.” Acting on the recommendations of the Law Commission, the Government of India in 1960 prepared a national scheme of legal aid providing for legal aid in all courts including tribunals.

It envisaged the establishment of committees at the State, District and Tehsil level. However due to the inability of States to implement the scheme because of lack of finances the scheme did not survive. Meanwhile the judicial attitude towards legal aid was not very progressive.

In Janardhan Reddy v. State of Hyderabad and Tara Singh v State of Punjab, the court, while taking a very restrictive interpretation of statutory provisions giving a person the right to lawyer, opined that this was, “a privilege given to accused and it is his duty to ask for a lawyer if he wants to engage one or get his relations to engage one for him.

The only duty cast on the Magistrate is to afford him the necessary opportunity (to do so). Even in capital punishment cases the early Supreme Court seemed relentless when it declared that “it cannot be laid down in every capital case where the accused is unrepresented the trial is vitiated.

Thus it can be pointed out that newly Independent India was not clear about the broad perspective of its legal aid programme. Although legal aid was recognized by the Courts as a fundamental right under Article 21 reversing their earlier stance, the scope and ambit of the right was not clear till this time.

The step was taken in Sunil Batra v. Delhi Administration, where the two situations in which a prisoner would be entitled for legal aid were given first to seek justice from the prison authorities and second, to challenge the decision of such authorities in the court. Thus, the requirement of legal aid was brought about in not only judicial proceedings but also proceedings before the prison authorities which were administrative in nature.

The court has reiterated this again in Hussainara Khatoon v. State of Bihar and said:
it is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him. Free legal service to the poor and the needy is an essential element of any reasonable, fair and just procedure.

The court invoked Article 39-A which provides for free legal aid and has interpreted Article 21 in the light of Article 39-A. The court upheld the right to free legal aid to be provided to the poor accused persons ‘not in the permissive sense of Article 22(1) and its wider amplitude’ but in the peremptory sense of article 21 confined to prison situations’.

LEGISLATIVE METHODS OF PROVIDING FREE LEGAL AID
Government has shown its concern over the existing position of justice delivery system. It has acknowledged the fact the poor and underprivileged sections of society have suffered the worst under the present system. Need for free legal aid to poor has been realized. Therefore it has incorporated legislative actions such as The Legal Services Authorities Act, 1987 and set up bodies such as NALSA and SCLSC to ensure free legal aid to poor and under privileged.15

The Legal Services Authorities Act, 1987 Judicial Contribution for the Formation of the Act: By the constitutional 42nd Amendment Act of 76, a new provision was incorporated in the Constitution under Article 39A, for providing free Legal Aid and concept of equal justice found a place in our constitution Article 39A 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 Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favor 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. Supreme Court Legal Services Committee To empower the marginalized sections of society by promoting legal awareness with the ultimate objective of establishing a just and equitable social order, the Supreme Court of India has set up Supreme Court Legal Services Committee (SCLSC). The SCLSC is headed by a Judge of the Supreme Court of India and has distinguished members nominated by the Chief Justice of India.

OTHER PROVISIONS RELATING TO LEGAL AID
Criminal Procedure Code, 1973 11 Section 304 provides that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defiance at the expense of the State; and the section further empowers the State Government to extend the application of the above provision in relation to any class or trials before other courts in the State.16 Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court-fees and allows them to institute suits without payment of requisite court fees.

Universal Declaration of Human Rights: Article 8 “Everyone has the right or an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.”International Covenant on Civil and Political Right Article 14(3) guarantees to everyone: The right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him any such case if he does not have sufficient means to pay for it.17

IMPORTANCE OF LEGAL AID IN DEMOCRATIC SOCIETY LIKE INDIA
16 S, Muralidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, Lexis Nexis Butterworths, 2004,spp.1-454, see generally John Rawls, A Theory of Justice, Harvard University Press, 1971.

17 Sharma, B.R., (Associate Professor of Law), Himachal Pradesh University, “Justice at The Doorsteps of The Poor: Some Reflections on India‟s Legal Aid Programme”, Indian Bar Review Vol.20 (2)1993, pp.7-8 Civil Procedure Code, 1908

Law and social welfare are the twin objectives of any developing country as India. Unless there is due emphasis on and implementation of social welfare schemes to help the underdog in a democratic society, the Rule of Law cannot be a reality. 'Is Justice being sold?' is a poignant question that arises in our mind. This question brings the attention on the unbecoming concept of sale of Justice in India. Sale in what manner?

Needless to say the question must not be misconstrued as to suggest that the Judiciary is corrupt. It is one of the fortunes of India that we have a well-organized and fairly efficient Judiciary without any trace of corruption on the whole. The above question can be answered by vividly portraying how court-fees was exorbitant, as also Lawyers fees and the cost of litigation occasioned by that Constant menace called 'Law's delays'.

It is sometimes said that Article 14 is not a positive guarantee of Legal Aid to the deserving citizens. We fail to see how the doctrine of Equality before Law or the equal protection of laws can be guarantee under Article 14 without vouchsafing equal access to Courts of Justice. In the matter of breach of a fundamental right by State action a millionaire as well as a pauper are affected, the former can rush to court at all levels, engage the best lawyer and wins his case despite all law's delays and laws' heavy cost. But the latter, the poor chap cannot afford to do so.

Even if he engages some lawyer within his means, he is at a great disadvantage when pitted against the able advocacy of a Senior Counsel at fabulous fees engaged by the other side. Thus it can be said that to the extent that a person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.18

Legal Aid under Legal Services Authority Act, 1987: 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:
18 Menon, N.R.M., “Legal Aid and Justice for the Poor”, in Upendra Baxi (ed.), Law and Poverty: Critical Essays p.341, Tripathi Publications, 1988.

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.

Who can be the Beneficiaries of free Legal Services?
The following categories of persons are entitled to free legal service in terms of S. 12 of the SLSA Act:
  1. A member of a Scheduled Caste or Scheduled Tribe
  2. A victim of trafficking in human being or beggar as referred to in article 23 of the Constitution;
  3. A Woman or Child;
  4. A mentally ill or otherwise disabled person;
  5. 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
  6. An industrial workman;
  7. In custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 or in a psychiatric hospital or psychiatric nursing home within the meaning of clause(g) of section 2 of the Mental Health Act, 1987; or
  8. A person whose yearly income is less than Rs. 25,000/- if the case is before a court other than Supreme Court and less than Rs 50,000/-. If the case is before the Supreme Court;
    Modes of Providing Legal Services

Following are the modes of providing the free legal services:
  1. By payment of court fee, process fee, expenses of witnesses, preparation of the paper book, lawyers fee and all other charges payable or incurred in connection with any legal proceeding
  2. Through representation by a legal practitioner in legal proceedings;
  3. By supplying certified copies of judgment, orders, notes or evidence and other documents in legal proceedings
  4. By drafting, Copying, Printing of legal documents;
  5. By giving legal advice on any legal matter
  6. Through meditation centers or family counseling Centers;


When can legal services be rejected?
A legal service be rejected if the applicant

  • Has adequate means to access justice
  • Does not fulfill the eligibility criteria;
  • Has no merit in his application requiring legal action.


Various Cases In Which Free Legal Aid Is Not Provided
In the following cases legal aid is not available

  • Defamation
  • Malicious prosecution,
  • Contempt of court,
  • Perjury,
  • Lying under oath
  • Proceedings relating to election;
  • Cases where the fine imposed is not more than Rs.50/-
  • Economic offences,
  • Offences against social laws;
  • Cases where the person seeking legal aid is not directly concerned with,
  • The proceedings and whose interests will not be affected.


LOK ADALATS - MECHANISM PROCEDURE
All the authorities and the Committees constituted under the provisions of the SLSA Act are obliged to organize lok adalats in order to provide a forum for the litigating people to settle their cases amicably. Even those disputes that are yet to be instituted in any court can be settled in a lok adalat a case can reach a Lok Adalat for settlement under the following circumstances:

  1. If the parties to the dispute agree; or
  2. one of the parties to the dispute makes an application to the Court for referring the Case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or
  3. If the court is satisfied that the matter as an appropriate one, to be taken cognizance of by the Lok Adalat. Award of the Lok Adalat is deemed to be a decree of a Civil Court and is final as no appeal or revision is provided therefore. Even the Court fee paid is eligible to be refunded. To provide sanctity to this mechanism constitution of the Benches of the Lok Adalats been taken care of by the SLSA Act, and persons of repute, knowledge and integrity have to be the members of the Lok Adalat.19 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:

  1. a member of a Scheduled Caste or Scheduled Tribe
  2. a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
  3. a woman or a child;
  4. a mentally ill or otherwise disabled person;
  5. a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake 19 Shrivastav, Alka., Legal Aid Programme in India, A Constitutional Guarantee,p.871, part-13. or industrial disaster; or
  6. an industrial workman; or
  7. 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);
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.

1.11 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 under trials 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 tree 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 tiy 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 16 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. 20

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. 21

In Indira Gandhi v. Raj Narain the Court said:
Rule of Law is basic structure of constitution of India. Every individual is guaranteed the it’s 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 goes to Court of Law. But also at the stage when he first is produced before the magistrate. In absence of legal aid, trial is vitiated."

Exempt 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 exempt provisions of order XXXIII, CPC. The state of Haryana, mindless of the mandate of equal justice to the indigent under the magna carat 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.

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.

"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 socioeconomic 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 39-20 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."

LITERATURE REVIEW
S. Muralidhar, in his work “Law Poverty and Legal Aid Access to Criminal Justice” explained right to equal access to criminal justice and availability of legal aid provisions in criminal justice system. The book also explains interaction between the criminal justice system and the poor and pleads for a better legal aid system.

The book is confined to legal aid in criminal jurisprudence. O.P. Tewari, in his book “Public Interest Lawyering, Legal Aid and Para Legal Services” has elaborately discussed the concept of legal aid, para legal services and public interest lawyering. The author’s concentration was primarily on jurisdiction of Supreme Court and High Court in relaxing locus standi in modern perspective. Dr. N.V. Paranjapee in his book on “Public Interest Litigation Legal Aid & Services, Lok Adalats & Para-Legal Services” described the role of public interest litigation in protection of life and liberty of persons. The concept of legal aid was also explained at international perspective.

The different provisions of legal aid were also analyzed in this book. Role of Para-Legal Services in legal education was also elaborately discussed. P.S. Narayanas in his book on “Public Interest Litigation” discussed the concept of public interest litigation launched by advocates, social activists and voluntary organization as a tool of legal aid movement. The author also provides valuable guidelines for bar, bench and social bodies in protecting rights of needy sections of the society through public interest litigation. Dr. Kailash Rai in his book on “Public Interest Lawyering”, Legal Aid and Para Legal Service, explained the concept of public interest litigation.

The author also analysed the powers of the Legal Services Authorities and various provisions of that Act. Sujan Singh in his book on “Legal Aid Human Right to Equality” elaborately explained the concept of free legal aid. After that the author has discussed various aspects of legal aid like historical development, existing provisions of legal aid and judiciary and legal aid. H.M. Seervai, in his “Constitutional Law of India”, has mentioned that in strict sense in Indian Constitution, the doctrine of Separation has no place of Powers.

Seervai stated that familiar feature of the Constitutions of India, Canada and Australia is the principle of judicial review. So the functions of different organs of the government have been differentiated sufficiently, therefore, one organ of the government could not seize, the functions of another. Parmanand Singh in his “Protection of Human Rights” mentioned that to access to legal information may also lead to the cancellation, diffusion or defiance of liberate judicial directions, weak communication channels accompanied by well-nurtured and well-structured barriers stated by Lower Echelon legal actors. Rajeev Dhavan in his “Law As Struggle: Public Interest Law in India” Stated that successive political regimes have provided enormous resources as well as legal and normative value system favourable to the new social classes, that the economic policies of liberalization and privatization are pursued.
It have caused due to atrocities on women, pauperization, massive unemployment, state oppression and children and dalits.

To check the growing frustration among the exploited and oppressed classes, the applauded and publicized judicial activism has completely failed. Dicey in his “Law of the Constitution” mentioned as in the earlier editions of Dicey that the rule of law is an essential part of accountability, of course he modified in later editions there is something inconsistent with the rule of law, therefore, that conferment of any discretion tends to arbitrariness.

The conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with, but then, as when time passed that it was realized by Dicey. Basu, D.D., in his “Introduction to the Constitution of India” stated Introduction to the Constitution of India that the Supreme Court may grant special leave to appeal from any judgment or final order in any matter or in case passed by any court or tribunal in the territory of India, in its discretion, if a case in question does not fall into the above appellate categories. Under a law relating to the armed forces, this does not apply to the judgments. The special leave petitions are given in Art. 136 under the provisions relating to Constitution of India.

1.13 PROBLEM STATEMENT
21
This research has been carried out under the repeated public opinion that law protects the rich people not the poor. Provisions of legal aid are in papers only. Under this backdrop, following problems regarding the functioning of legal aid in India have been identified:
  • Functioning of State Legal Services Authority
  • Functioning of the Legal Services Authorities Act, 1987. 23
  • Teaching of law as a profession, as a tool for judicial and social activism and motivating the students for the benefit of society.
  • Functioning of the Law Colleges in imparting proper guidelines.
  • Support is necessary from the State.
  • Lack of political will on the part of the Government to implement the policies.
  • Lack of co-ordination between and among the various government organs (Legislative, Judiciary and Executive).
  • Poor implementation of statutory laws.
  • Legal awareness within society.


OBJECTIVES
The present study which is basically empirical in nature has the following objectives:

  1. To find the level of legal awareness of the people about their rights and remedies vis a vis their knowledge about the legal aid schemes for the poorer sections of the society
  2. To find out the problems of difficulties facing the weaker sections of the community by visiting different parts of the State,
  3. To make an appraisal of the value and effectiveness of legal aid schemes and to carry out performance audit of the functioning of these schemes in the State,
  4. To suggest means for further involvement of lawyers, academic and other non- professional groups in the legal service programme; and
  5. To find ways and means of making this programme a successful venture and to further make proposals for strengthening the existing infrastructural facilities so that free legal services and social justice reach at the doorsteps of the poor. The study also aims at bringing on record all those factors which are resulting in denial of justice to the disadvantageous sections of our society because of social, economic and other disabilities.


HYPOTHESES
The hypotheses framed and proposed to be tested in the study are as under:

  1. Whether the administration and implementation of legal aid schemes is uniform and well organised
  2. Whether the criteria adopted by the State for identifying beneficiaries of legal aid schemes is logical and progressive,
  3. Whether the professional lawyers who have been associated with the court oriented legal aid programme have shown a keen interest in the operational aspect of the legal aid schemes.
  4. Whether there is any nexus between the budgetary allocation/utilization for the implementation of the legal aid schemes and the actual number of persons who have been benefited by this scheme.


RESEARCH METHODOLOGY
The present study is based on Doctrinal and Empirical study. Both Primary and secondary sources will be used from researcher. Primary sources are judgments and original documents and government reports. Secondary documents are Articles, Journals, Books and Internet Sources. The methodology of the present study has been designed in such a way so that the administrative as well as the socio-legal aspects of the administration and implementation of legal aid schemes in the state can be investigated.

In order to examine critically the provisions of the constitution, laws and rules pertaining to the above scheme, secondary information has been used. But the major portion of this research work concentrates on field investigations. The first hand information regarding the implementation of the legal, aid scheme has been collected from three stratas, viz., the beneficiaries, legal aid authorities involved at different levels and the professional lawyers who are usually associated in providing legal aid to the poor in court cases.


PLAN OF STUDY
Chapter 1 Introduction
Chapter 2 Historical perspective of Legal Aid
Chapter 3 Legal Aid under International Law
Chapter 4 Provisions of Legal Aid under Constitution of India
Chapter 5 Judicial approaches toward Legal Aid
Chapter 6 Conclusion and Suggestions

HISTORICAL PERSPECTIVE OF LEGAL AID
LEGAL AID : CONCEPT, DEFINITION AND LEGALITY:
Legal aid may be taken to mean free legal assistance to the poor persons in any judicial proceeding before the court, tribunal or any authority. It intends to provide free legal assistance to the poor persons who are not able to enforce the rights given by law to them. Justice P.N. Bhagwati clearly stated that legal aid means providing an arrangement to the society which makes the machinery of administration of justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law.

He has rightly said that the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an implement in the way of justice from the courts. The Constitution of India give much importance to rule of law In India it is regarded as a part of the basic structure of the Constitution and also of natural justice. Free legal aid to the poor and weak persons has been held to necessary adjunct of the rule of law

LEGAL AID
Legal Aid, in its modern sense, is a recent concept, having taken its shape in the twentieth century. But unlike many other socio-legal concepts, legal aid has attracted a world-wide attention. The basic reason for such a broad approval and that too more or less at the same point of time is that the concept of legal aid is firmly fastened to the concept of ‘rule of law' which has the principle of ‘equality before law’ as its concomitant. And the ‘rule of law’ and ‘equality before law’ are the fundamental pillars of a democracy.

Since, the democracies are well scattered over the entire globe and their preservation and perpetuation is the interest of all States and their international combinations, the contemporaneous acclaim of legal aid, as an integral part of administration of justice, practically throughout the world is natural.23

The democracy, as a system of governance, is placed on the bedrock of equality of all citizen bequeathed with certain liberties and freedoms which can be enjoyed by
23 Available at http://www.legalserviceindia.com/arlicle/l240-Legal-Aid.html (accessed on 22.02. 2020). 25

the citizen only in a proper socio-economic climate, nurturing the legal provisions aimed at restoring the deprived rights, if any. And when all the citizens, rich and poor, mighty and the meek, privileged and the prevented are to equally enjoy such rights and freedoms, it becomes essential that those socially and economically lagging or lacing are afforded some leverage to make them face the ‘luck-ones’ on an equal pedestal. And if this is not done, equality before law and the rule of law or, in other words, the democratic functioning of the society carries practically no meaning or mechanics

 It is, therefore, important that the benefit of legal aid should have an adequate contents and potency to make the deprived and downtrodden in the democracy enjoy the benefits of freedoms, liberties and other rights made available to them as the citizen, without any fear, extortion or extinction.

THE GENERAL MEANING OF LEGAL AID
Legal Aid, in its common sense, conveys the assistance provided by the society to its weaker members in their effort to protect their rights and liberties, bestowed upon them by the laws, and to make them get such benefits and rights back if these are snatched from them by the mighty and muscled members of the society.

In the words of justice P.N. Bhagwati, "the legal aid means providing an arrangement in the society so that the machinery of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of the rights given to them by law." In such an arrangement, justice Bhagwati emphatically observes, "the poor and the illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts."

24 According to justice V.R. Krishna lyar, "the spiritual essence of a legal aid movements consists in inviting law with a human soul: its constitutional core is the provision of equal legal service as much to the weak and in want as to the strong and affluent, and the dispensation of social justice through the legal order."25 The general meaning of the term legal aid, therefore, is a social arrangement extending and providing special assistance or help to the poorer and weaker members to enable them enforce their legal rights, facing on an equal platform

24 Government of Gujrat, report of the legal Aid Committee, 1971,

25 Government of India, Ministry of Law, justice & Company Affairs, Report of the Expert Committee on legal Aid- ‘Procession justice to the People, ‘May 1973,

26 powerful and the rich members, through the legal process.
Rule of law, as we have earlier referred, is the fundamental principle of a democracy. If the rule of law does not prevail in a Society, the order and equipoise cannot be preserved and promoted in it. And obviously, the disorder and disturbance in the society leads to its disintegration and destruction, which no society desires or can even afford. Thus, for a peaceful and prospering society, more so if it is a democracy, it is necessary that there prevails rule of law and not the rule of some individuals, how mighty and haughty such persons may be. ‘But there can be no rule of law,’ analyses, the Gujrat Report on legal Aid,26 ‘unless the common man, irrespective whether he is rich or poor, is able to assert and vindicate the rights given to him by law. ‘Law,’ it underscores, ‘is useless, a futile exercise of legislative power, unless actively effective and it is the machinery of justice that gives life to the law and makes it actively effective. The machinery of justice must, therefore, be readily accessible to all equally irrespective of their social economic, geographical, biological or any other types of differences.’
The provision of legal aid is, therefore, essential for the safe walk of democracies on the track of rule of law and the equal protection of laws. And when the laws, in the present day world, have embraced the whole of life of the people and the statutes have gained higher degrees of complexities.
It is necessary for a society so as to remain peaceful and prospering that ‘law must no only speak justice but also behave justly to do justice and this can be done only by infusing of legal aid in arteries of legal system.’27 summing up the general importance of legal aid in the modern societies, it can be safely said that the godess of justice can now dispense justice blind-folded only if the administrators, dispensers and practitioners of justice keep their eyes wide open and the poor and destitute in the society are being helped to stand equal to their dominating and prosperous adversaries. And this can be ensured only by way of effective provisions of legal aid in all societies developing, developed or the under-developed. Technicalities, the importance and need of legal aid become more express.
26 Supra Note 1,
27 Sharma,S.S., Legal Aid to the poor 1993,Deep&Deep Publication, New Delhi

IMPORTANCE IN DEVELOPING SOCIETIES
Development is the law of nature but certain things do not grow is also a fact of life. The reason found is that such creations do not have a life within. We call them in animates, i.e. the things lacking the biological structure having the capacity or potency to grow. There are others which sprout to its optimum level and them, as per the rule of nature, they stop increasing. We call such animates as grown-up.

And there is a third category of things, obviously the animates again, which have developed to some extent and also possess the potentially for further springing up. Such animates are named as the growing ones.

But if these are the new-born ones or their process of growth has not yet started, we may give them the name of infants. Among the animates, we find two categories of developing animates, the infants or ones having not yet started growing or the growing ones, i.e. having achieved some level of growth with the visible signs of their further development to its optimum level and the ones having achieved their fuller levels of growth or development.28

The societies are no different from the animates because they are organic combinations, i.e. groups of living beings or the animates of the highest category, i.e the human beings. A "society is a system of usages and procedures of authority and mutual aid of many groupings and divisions, of controls of human behaviour and of liberated. This ever-changing complex system we call society. It is the web of social relationship. And it is always changing.".

A society, therefore, possesses a life within it and can thus be named as an animate, distinct form the individual members of it, 29 having its aspirations and the needs, both bare and the borne, which it is to yearn for accomplishing. And it is like the animates that they may be new-born and yet to take off the process of growth, if not otherwise barren and incapable of any development even after some life.

Such societies are the under-development ones. The second type of social groups, with a potency for further growth and goals to be accomplished, are the developing societies; whereas the others (a few, however, unlike the human beings and other animates) having surmounted the peaks of development and growth are called 28 Article 39A- Equal Justice and Free Legal Aid – The State shall secure that the operation of 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.

29 Available at http://www.legalserviceindia.com/arlicle/l240-Legal-Aid.html (accessed on 22.02. 2020).

28 the developed societies. Since the number of barrens or impotents amongst the human beings and the societies. Since the number of barrens or impotents amongst the human beings and the societies alike are only a few and those having Achieved the perfect levels of growth and development are also not many, the big chunk falls in the middle category of developing or growing ones.

Therefore, such individuals, in the name of toddlers or children amongst the human specie and the developing ones in the category of societies, remain to be the major concern of the biologists and the sociologists have to undergo a variety of rapid changes in their body-structure, thereby providing enough scope for the scientists to read and research. In the developing societies, as it is now explicit, many swift changes in the existing structures and the relations within their areas take place and also more institutions and relations bear and rear. And all these, transforming or taking birth, are regulated y the laws in today’s world.

THE IMPORTANCE IN INDIA SETTING
India is a developing country, rather the most prominent and promising amongst the developing nations on the globe. Therefore, she is in face with the objectives and on-the-way problems for developing countries and democracies. And to confront with such difficulties and impediments on the journey towards development and growth, legal aid for the destitute and the deprived members of developing societies is much more important. It is for this basic reason that the importance of legal aid in India cannot be gainsaid.

India won political democracy inheriting poverty and scarcities. The economic democracy was the goal set-forth to be achieved through the phases of planned development. But over four decades of planning and a long grapple with the country’s problems has not moved much nearly 40 percent under-privileged and under-nourished sons of this rural land, who are given the status of those living below the poverty line.30.

A multitude and a variety of special schemes, launched for a long-lasting attack on poverty have not borne fruit. Instead, we have been blessed with a new problem of rapidly growing unchecked population growth, which is eating into the vitality of our agricultural and industrial development. The problems of regional imbalances and contradictions have not minimized. Language has rather further gained prominence as
30 Available at http://www.legalserviceindia.com/arlicle/l240-Legal-Aid.html (accessed on 25.02. 2020).29

A basis for provincial disunity and disintegration. Our religions have also not synthesized to give a national out-look. The fears and frustrations, tears and tribulations, and our sorrows and sufferings have not decreased as per the biblical wishes of our constitution-fathers. Their ambition of delivering social, economic and political justice at every door-step of this vast country, their resolve to ‘wipe every tear from every eye’ is still a far cry and a distant dream31.

Legal aid may be taken to mean free legal assistance to the poor persons in any judicial proceeding before the court, tribunal or any authority. It intends to provide free legal assistance to the poor persons who are not able to enforce the rights given by law to them. Justice P.N. Bhagwati clearly stated that legal aid means providing an arrangement to the society which makes the machinery of administration of justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law. He has rightly said that the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an implement in the way of justice from the courts. The Constitution of India give much importance to rule of law In India it is regarded as a part of the basic structure of the Constitution and also of natural justice. Free legal aid to the poor and weak persons has been held to necessary adjunct of the rule of law.

THE IMPORTANCE IN FUTURE WE FORESEE
Legal Aid, as a part of Administration of justice, is of much importance for the developing and developed societies alike, however, for the former its importance is much more because it is to act as a catalyst for achieving the standards of social and economic development. Nonetheless, legal aid is to remain relevant and important for such societies in their future too. The reason for this is obvious. Legal Aid is a leverage provision in the juridical administration, pulling up the weak and the meek to stand equal before the strong and a resourceful adversary. In short, legal aid is a pedestal for the unequals in a society, facing litigation, to make them look of ‘equal-size’ as that of the long-statured opposing party. Therefore till inequality prevails in a society, the need and importance of legal aid will remain to be there. And inequality, in its economic, social, physical, culture and geographical sense, is existing in the developed,

31 Available at http://www.legalserviceindia.com/arlicle/l240-Legal-Aid.html (accessed on 25.02. 2020).

30 developing and also the under-developed societies in the world over. Inequality has been existing in the past, continues today, thereby giving us a foresight that it will perpetuate in future also.

32 Now, making an analysis of the world developments, we have to appreciate that only the communist, also named the socialist regimes, having taken birth towards the early years of the present century, talked of achieving socio-economic equalities amongst all members of their societies. The political movement gained strength and as an ideology it had its way in economic, social and cultural thoughts of the people of all nations and lands.

But today it requires a little discussion that socio-economic equality, as an objective of society, is only a myth. And the eve-years of twentieth century are accelerating adopting the techniques, technologies, plans and programmes of free economic-a popular name for it was ‘laissez’ faire’ in the nineteenth century worlds. Visibly, the free-economic and free-society, as a bye- product there of, is to be the only strategy and technology in the twenty-first century. And more inequalities bear and rear in the free system. Therefore, we see a continuous and growing importance of legal aid in our future also.

Further, when we foresee the importance of legal aid in the coming years of India, we recall that our illiteracy and poverty have remained unchecked while treading, though half- heartedly, along the path of planned development with a socialist bias. The problem of growing population is adding to our twin- problems earlier referred. And now, with a desire to walk with the world, our Government has made a resolve to enter into the twenty-first century with an advanced technology and the developed objectives of economy. The institutions of free world are funding and monitoring our plan objectives, strategies and targets. Liberalization is the watchword for our planning and industrial policy. Laws have and are being made to make way for the growth and development of the ‘have’ of the country. The result, to the mind of this researchers, will be, at least in the near future, large scale problems of poverty and squalor, multiplied number of unemployment, a title care for tackling illiteracy, and enlarging proportions of inequalities, deprivations and exploitations. In short, the problems of the Indian population, obviously the legal ones too, shall grow much more in numbers and 32 Available at http://www.legalserviceindia.com/arlicle/l240-Legal-Aid.html (accessed on 25.02. 2020).
31
nomenclatures. And legal aid, as a satisfying remedy for the unequals and deprived sections of the society facing legal problems, shall gain an added importance in the coming years of this century and in the approaching twenty-first century, in which our country is girding up to enter with pomp and a show.
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.
32
CHAPTER - 3 LEGAL AID UNDER INTERNATIONAL LAW
Access to justice is one of the most critical issues facing the legal community worldwide. Poor people the world over do not have access to the tools they need to protect and promote their rights and interests. In short, no legal system has escaped the difficulties to providing the justice system to poor people. If equality before the law is more than an empty promise, States must accept the task of guaranteeing all citizens an equal opportunity to protect their rights and promote their interests. Legal aid is undergoing profound changes around the globe. It is of course no accident that these changes are occurring simultaneously. Members of the legal profession are alarmed at the decline of state legal aid and are attempting to fill, at least partially, the resulting vacuum33.
Equal justice became more attainable when many governments established state legal aid schemes in the post- Second World War era. These schemes represented one of a variety of welfare state programs in health, housing, income support and increased funding to pay lawyers to undertake legal aid cases at a rate approaching the market price;
In order to understand and appreciate the Indian Legal System, it is desirable to make a brief survey of legal aid under International law. Hence, this chapter discusses the evolution of legal aid in International Conventions and its influence on national legislations especially in Indian perspective.
3.1 LEAGUE OF NATIONS AND LEGAL AID (1924)
In the first half of the Twentieth century, at the end of the First World War, international concern for human rights found expression in certain provisions of the Covenant of the League of Nations. It was also realised that universal peace could be established only by imparting social justice to all.34 There was a necessity of legal aid, because without legal aid social justice to all was not possible. Therefore, after due advance preparation under the auspices of the League of Nations, International
33 Francis Regan, "Legal Aid Without the State, Assessing the Rise of Pro bono Schemes", 33 U.B.C.L Rev. (2000) 1
34 United Nations Publication, The United Nations and Human Rights ( New York, 1984)
33
Committee of Legal Aid experts met at Geneva from 30th July to 31'd August 1924. France, England, Norway, Italy, Poland, Spain, U.S.A, and Japan sent their representatives to participate in the conference. Justice for the poor was the primary issue in those meetings. The League of Nations submitted a report in 1927 on the survey regarding legal aid in various countries.35
3.2 UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)
The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of the United Nations on 10th December 1948. Its purposes were to provide a common standard of achievement for all peoples and all nations and to promote respect for these rights and freedoms by progressive measures; national and international .The Declaration consists of a Preamble and 30 articles set forth the basic human rights and fundamental freedoms which all human beings are entitled.
The provisions of the Declaration, directly or indirectly providing social justice to the poor. Preamble to the Declaration recognizes the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. It is the main component of the Declaration expressing its main objectives and ideals. From the language of the preamble it is clear that equality and justice are basic objectives of the Declaration. Equality and Justice are reciprocal. Without equality there can be no justice. A person due to paucity of money will not be able to enforce his human rights and hence frustrate the whole purpose of the Declaration of Human Rights. At this juncture legal aid becomes sine-qua-non for achievement of ideals enshrined in the preamble of the Declaration of Human Rights. Article 1 lays down the philosophy upon which the Declaration is based. It emphasises equality in dignity and rights. With the help of equality, the tree of social justice may be planted out and the legal aid may nourish it and create environment for its development. Hence from 1948 access to justice in the form of legal aid recognised.
Article 2 sets out the basic principle of equality and non-discrimination as regards the enjoyment of human rights and fundamental freedoms. It provides guarantee against discrimination on the basis of "Property". The rich and poor are given equal rights and equal protection. With the help of legal- aid to the poor the concept of
35 Dr. Sharma S.S, Legal Services, Public Interest Litigations and Para Legal Services (Central Law Agency, lst Ed. 2003) 42
34
equality can be maintained for imparting social justice to them. Article 15(1)36 of the Indian Constitution resembles this provision. Article 7 provides that all are equal before the law and are entitled without any discrimination to equal protection' of the law. A person should not be debarred from equal protection only because he cannot pay the cost required in the legal process. It is incumbent upon the state to provide equal protection to all even at the cost of state expenditure. Art.14, 15, 16 and 39A of the Indian Constitution, Protection of Civil Rights Act, 1955 have a close similarity with this provision. Article 8 provides that everyone has a right to approach the national tribunal for an effective remedy for acts violating the fundamental rights.37 Article 10 provides that everyone is entitled in full equality to fair and public hearing by an independent and impartial tribunal in determination of his rights. Hearing means hearing through a counsel. If a person carmot afford legal counsel, it will be the duty of the state to provide counsel to him even at state's expenditure. Article 50 of the Indian Constitution, Part V, Sec.55,303,304, 310,327,461,479 of Code of Criminal Procedure 1973 are having similar concepts of this Article.
Although, the Declaration is not legally binding instrument as such, yet it was more in the nature of a binding moral commitment, a yardstick of international standards and path finding instrument. It has made deep impact upon the massive global legal- aid movement.
3.3 EUROPEAN CONVENTION FOR PROTECTION OF HUMAN RIGHTS (1950)38
The European Convention of Human Rights was signed in Rome on November 4, 1950 and came into force on 31-`1 September 1953. Article 6(3) (C) of the Convention directly deals with legal aid in criminal cases. Article 6(3) provides that "Every one charged with a criminal offence has the following rights: to defend himself in person or through legal assistance of his own choosing or if he has no sufficient means to pay for legal assistance to be given it free when the interests of justice so require."
36 The state shall not discriminate against any citizen on grounds only of religion, race,caste ,sex place of birth or any of them.
37 Muralidhar S, Law Poverty and Legal Aid (Lexis Nexis, Butterworth, New Delhi, 2004) vi
38 Bimal N Patel, A Comprehensive guide of laws of Human Rights in Commonwealth Countries, 1st edi.,2007, Wadhwa , Nagpur, at 88.
35
Through this Article, the Convention guaranteed the right to free legal aid to a person charged with a criminal offence, to enable him to defend himself. If a person wants to take the advantage of the Article 6(3) (C) of the Convention, he has to prove that he fulfils all the requirements set forth in aforesaid article. Article 6 of the convention only applies to persons charged with a criminal offence. This provision does not guarantee the right to free judicial procedure but only the free assistance of counsel when the interest of justice so requires.
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3.4 UNITED NATIONS CONFERENCE, 196539
In 1965 there was a third United Nations Conference on the Prevention of Crime and Treatment of Offender at Stockholm. The Conference has realized need for legal aid. The availability of legal aid for accused and convicted persons was discussed in this conference. There was unanimity on the need to provide legal assistance to arrested and accused persons and to convicted persons. Providing legal aid is not only a human right but also a printer to the failure to provide adequate legal aid which may amount to injustice. Therefore, the lack of an adequate legal aid system tends to increase recidivism.
3.5 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 196640
The Universal Declaration of Human Rights was also followed by two significant instruments, which transformed the principles enunciated in the Declaration into the treaty provision and established legal obligation on the part of each ratifying country. Those instruments were a) International Covenant on Civil and Political Rights and its Optional Protocol b) International Covenant on Economic, Social and Cultural Rights.
The General Assembly adopted these two Covenants and Protocols on 16th December 1966. They were duly ratified and came into force on 23th March 1976 and 311 January 1976 respectively. India also ratified these Covenants with Protocol, but with certain reservations. Indian Judiciary has given due importance to these civil and political rights and has even endeavoured to enforce these rights, while interpreting and giving effect to Part III of the Constitution of India.
Art.14 (1) of the International Covenant on Civil and Political Rights provides that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
39 Sujan Singh, Legal Aid Human Right to Equality (Deep & Deep Publications, New Delhi, 1996) 15
40 Andrew S. Butler, "Legal Aid Before Human Rights Treaty Monitoring Bodies", 49 ICLQ (2000)
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It is gratifying to note that in this Covenant there is a clear mention of right to legal aid. A person who cannot afford lawyer's fee may be provided counsel at state's expenses in the interest of just• ice1.2 One of the important rule in principles of Natural Justice, No one shall be punished unheard, shows the object of Art.14 (3).
3.6 TEHRAN CONFERENCE
The International Conference on Human Rights at Tehran was the first conference ever organized on worldwide basis to consider the question of human rights in all its aspects. It was attended to by representatives of 84 States, three United Nation bodies, four specialized agencies of the United Nations, four intergovernmental organizations and forty —eight nongovernmental organizations41.
The Conference in its final proclamation declares that it is impossible without enjoyment of economic, social and cultural rights no state can realise the Civil and Political Rights.
The Conference adopted the resolution on legal aid which declares that
a) The governments should encourage the development of comprehensive legal aid system for the protection of human rights and fimdamental freedoms.
b) Standards to be devised for granting financial, professional and other legal assistance in appropriate cases to those whose fimdamental rights appeared to have been violated.
c) The Governments should consider ways and means of defraying the expenses involved in providing such comprehensive legal aid system.
d) The Governments should take all possible steps to simplify laws and procedures so as to reduce the burdens on the financial and other resources of individuals who seek legal redress.
e) The Governments should co-operate in extending the availability of competent legal assistance to aggrieved individuals who need it.
3.7 AMERICAN CONVENTION ON HUMAN RIGHTS, 196942
The American Convention on Human Rights adopted in 1969 has general resemblance with the European Convention for protection of Human Rights. For
41 Dhyani S.N, Law Morality and Justice, (Metropolitan Book Co.(p)ltd. New Delhi, 1`4 Ed.1984) 119
42 Available at http://www.hrcrorg/docs/American_convention/oashr5.html (Last visited on 3 /3/2020
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example, Article 24, of the Convention provides that all persons are equal before the law; consequently, they are entitled without any discrimination to equal protection of law.
Under Article 8(2)(e) during the trial proceedings (i.e. remand stage on words till the pronouncement of judgment) every indigent person is entitled with full equality, the inalienable right to be assisted by counsel provided by the state. Indigent person is who does not defend himself or engage his own counsel.
3.8 STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS
Under Rule 93 an untried prisoner can apply for free legal aid and to receive visits from his legal advisor with a view to his defence and to prepare and hand to him confidential instructions.43 In India under legal services authorities act , prison clinics established. Legal Aid advocates, professors and students from law colleges will visit the jail and inform to inmates of jail about their legal aid provisions." District Judge had a duty to sudden inspections to jail.
3.9 CONVENTION ON INTERNATIONAL ACCESS TO JUSTICE, 1980
According to Article 1, it is important to note that irrespective of nationality of the persons who habitually resident of contracting state is entitled to legal aid for the court proceedings in civil and commercial matters as if they were nationals of that state.
This Article apply to cases not only which are pending before courts but also tribunals as well.
3.10 INTERNATIONAL COURT OF JUSTICE TRUST FUND44
Legal Aid not only individual cases but also extends to individual states when the matters are pending before international court of justice. In connection with the agenda item titled 'Report of the International Court of Justice', Former UN Secretary General, Javier Perez de Cuellar announced in the General Assembly on November 1,1989, the establishment of the Secretary-General's Trust Fund to assist States in the settlement of disputes through the International Court of Justice. The trust fluid was
43 Adopted by General Assembly Resolution 42/173 of 9 December 1988
44 Peter H.F.Beldcer, "International Legal Aid In Practice ; The ICJ Trust Fund", 87 Am. J. Ind. L.(1993) 659 - 668
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introduced as a device to overcome financial impediments to the judicial settlement of disputes between states by offering them financial assistance in bringing their disputes before the ICJ.
The statutory purpose of the trust fund is to advance the peaceful settlement of disputes by offering limited financial assistance to states as an inducement to submit their disputes to the ICJ. The assistance is to enable developing states to meet the expenses incurred in connection with the submission of a dispute to the ICJ by special agreement, or the execution of a judgment by the court resulting from such an agreement.
Litigation before the court can be quite expensive. "The expenses of the court" borne by the United Nations, but this concerns only the courts internal administrative costs. The cost of printing the pleadings, including translations of documents that are not in English or French, is borne by the parties. Not all applicants are eligible to be considered for financial assistance from the fimd. First of all, an applicant must be a state eligible to litigate before the ICJ. Members of the United Nations are ipso facto parties to the ICJ statute. States that are not members of the United Nations may become a party to the statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.
To acquire access to the ICJ state must become a party to the Statute, by depositing with the Registrar of the court a general or particular statement accepting the Courts jurisdiction and undertaking to comply with its decision and to accept the obligations of a UN member under Article 94 of the Charter. Besides having the requisite standing, an applicant state must be in such a financial position that it cannot proceed before the ICJ or execute an ICJ judgment for lack of funds.
Thus in the initial stages legal aid was recognised in several international instuments as a part of concept of equality. This is evident in UDHR. Legal aid as a separate concept came into forefront in 1966 by International Covenant on Economic, Social and Cultural Rights. These documents led the way to many countries to formally recognise legal aid as a matter of right. In contrast legal aid in India was recognised as a legal right much before these international agencies. This trend may be attributed to British rule in India. Post colonial era in India witnessed a concerted effort in developing legal aid.
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3.11 AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD-199045
This is otherwise known as The African Children's Charter (ACC) was adopted by the Organisation for African Unity in 1990 and entry into force on Nov.29, 1999. Art.17 (2)(c)(iii) states that State has to provide to every child accused legal assistance for his defence, when he is unable to appoint advocate at his cost. It is mandatory obligation and not a charity.
3.12 CONCLUSION
Before concluding it is necessary to make a remark on the need for international conventions and the role they play in influencing national legislations. Often municipal legislations are a result of some international conventions, which sometimes require the counties to reinforce the country's regime on certain aspects by national legislations. There is no denying that sometimes municipal laws do go beyond the vision of International Conventions. Other times it is far sighted national legislation or judicial interpretation by municipal courts that inspire International conventions. On the other hand International conventions have an impact on judicial creativity within municipal courts. Sometimes courts adopt the attitude of favouring judicial interpreeatation in keeping with an international convention which might not. have been enforceable by itself, especially if there is a gap or ambiguity in interpretation. Such is the case in India where Supreme Courts and High courts have used international instruments to enlarge the scope of a law in light of a vision provided by international convention. In the globalising world the need is felt for uniformity of legal concepts in certain areas amidst the cultural diversity. Such is the case for instance in Human Right regime. Due to political and cultural diversities some concepts on right to life, human dignity, recognition of rights of females, child etc have to evolve and develop. Hence some good international legislation which is fair and just does help in this process. This is noticed in India, England, and USA etc which are fast progressing on the path of human rights. After identifying the international conventions and its influence on national legislation, the fifth chapter is devoted to evolution, Growth and Development of Legal Aid in India.
45 Supra note 9 at 283.
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CHAPTER - 4 PROVISIONS OF LEGAL AID UNDER CONSTITUTION OF INDIA
The idea of legal aid originated in medieval period. In modern society, if law has to play a purposeful and significant role for the socio economic reconstruction of the society, legal aid must give meaningful and substantive education to the poor about law and their rights and provide solution to their problems.
After coming into force of Constitution of India, in order to implement the basic fundamental rights of the citizens and to give effect to the constitution mandate of the right of life and liberty especially in case of poor and down trodden people of the country, government started doing ground work for providing free legal aid to deserving persons and in this regard some discussions took place in various conferences of Law Ministers and Law Commissions but no effective proposal could come forward. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments.
History of legal services can be traced back to 1944 in England, when a committee under the Chairmanship of Lord Rushcliffe was appointed to ascertain the facilities provided for giving legal advice and assistance to poor and neglected citizens in England. After extensive discussion the committee proposed certain measures for providing legal advice to the poor and also to expedient the existing system whereby legal aid is available to persons. The committee submitted its report in 1945 and after being accepted by the British Parliament, The Legal Aid and Advice Act, 1949 came in existence. 46
4.1 CONSTITUTIONAL PROVISIONS RELEVANT TO LEGAL AID:
In India the rule of law is regarded as a part of basic structure of Constitution and also of natural justice. The constitution of India has defined and declared the common goal for its citizens as ―to secure to all the citizens of India, justice – Social, Economic and Political.‖ Under the Constitution, it is primary responsibility of the state
46 Available at http://www.usiofindia.org/Article/?pub=Jonrnal&pubno=564&ano=435, (accessed on 11.02.2020)
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to maintain law and order so that the citizens can enjoy peace and security.
4.2 PREAMBLE AND LEGAL AID:
The preamble the constitution speaks of justice, social, economic and political and also speaks of equality of status and opportunity which points out that protecting the interest of the poorer section of the society is the constitutional goal. But without the effective, efficient functions of the legal aid programmes and legal literacy programmes this very idea of protecting poor people cannot be promoted. In the Constitution, Justice is the first promise of the republic which means that state power will execute the pledge of justice. 47
Justice is considered to be the primary goal of a welfare state. In the general sense justice involves man fold ideals and principals. Justice includes legal justice, social justice, natural justice, democratic justice, political justice etc. According to Daniel Webster, justice is the greatest interest of man on earth. Aristotle said justice is the bond of men in society and states without justice are a rubber bands1. In the abstract sense ‗Justice‘ means a course of conduct both legal and moral, which tends to argument human ‗welfare‘. It is very difficult to define the concept of Justice in absolute form because it has to be changing socio-economic contours of a given society. In the words of Kelsen ‗justice is a social happiness. It is happiness guaranteed by a social order.‘ By happiness we must understand the satisfaction of certain needs, recognised by social authority, the law giver, as needs worthy of being satisfied, such as the need to be fed, clothed, housed and the like.48
The expression social and economic justice‘ means removal of economic inequalities and rectifying the injustice resulting from dealings and transactions between the unequal in society. Social justice means the restoration of properties to those who have been deprived of them by unconscionable bargains. It was held that ―Social justice is adevice to ensure life to be meaningful and livable with human dignity. State has to provide facilities to reach minimum standard of health, economic security and civilised living to the workmen. Social justice is a means to ensure life to
47 Consumer Education & research Centre vs Union of India, 1995 SCC p.42
48 Suresh Kumar Sharma: Distributive justice under Indian Constitution with refrence to right to equality and property, deep and deep publications Quoted in philosophy of justice and distributive justice p-17
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be meaningful and livable.‖2 So we can see that the Supreme Court has always stepped in to protect the interest of Indian citizens, whether it has been has the case of consumer protection or claiming insurance or be it representation of suppressed classes, it has used the medium of social justice as an umbrella term to deliver justice.
4.3 FUNDAMENTAL RIGHTS AND LEGAL AID:
Part III of the Constitution deals with Fundamental Rights which are enforceable by law. The Fundamental Rights given to every citizen and Directive Principles of the Executive and Legislative for governance of country are considered to be the heart of the Constitution. The object behind them is to ensure certain basic rights to the citizens. Dr. Ambedkar is of opinion that the inclusion of Fundamental Rights in the Constitution is to ensure firstly that every citizen must be in a position to claim those rights, secondly they must be binding on every authority. Although, there is no express statement or direct provision of legal aid as a fundamental right in our Constitution, but there are many provisions in the Constitution providing legal aid. It is not only the constitutional duty of legislature and executive but also of those who operates the levels of judicial power. Art. 14, 21 & 22 of the Constitution incorporates the idea of Legal Aid and equal justice.
4.4 ARTICLE 14 - RIGHT TO EQUALITY:
Article 143 of the Constitution deals with Equality before Law and Equal Protection of Laws. Indian Constitution guaranties equal justice to all under Article 14. the very nature of this Article makes it clear that the Legal Aid to the indigent person is directly derived out of this Article and made positive to implement the legal aid schemes within the territory of India. Equal justice means access to law and justice to both the poor and the rich. The Doctrine of equality enshrined in Article 14 is a dynamic concept, which has many facets. It is embodied not only in Article 14 but also in Articles 15 to 18 of part III as well as Article 38, 39-A, 41 and 46 part IV of the Constitution. The objective of all these provisions is to attain- justice social, economic and political which is indicated in the preamble and which is the sum of total of the aspirations incorporated in part IV. 49
49 Article 14 provides that State shall not deny to any person equality before the law or the equal protection of law.
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Right to equality under Article 14 of the Indian Constitution is also extended to the foreigners and also for artificial personalities like companies in certain circumstances. The legal aid is an instrument to achieve equality before law. It is a concept of administration of justice. Concept of equality before law means that all the parties to a proceeding in which justice is sought must have an equal opportunity of access to the court and of presenting their cases to the court. Justice become unequal when a poor person is unable to obtain access to a court of law for defending himself against a criminal charge because he cannot afford the court fee and fee of skilled lawyer and the laws which are meant for his protection have no meaning and to that extent fail in their purpose. A poor man is denied equality in the opportunity to seek justice unless some provision is made for assisting him for the payment of lawyer‘s fee and other litigation costs. So rendering the legal aid to the poor litigant is a question of a fundamental character. The court should interpret Article 14 in such a way as to invoke its aid to the poor and direct the State not to deny equality to those who have not ample means of representing themselves in the court of law. Equal justice demands access to law and justice to both the poor and the rich and unless concession is provided to the poor persons, the Article 14 regarding equality will be futile and a mockery. The legal aid is really a fact of the right of equality before law.
The concept of equal justice means that the legal rights of the poor man and his ability to enforce those rights should be same as that of rich man. There is no justice if there is not uniformity about it. In India where the poor are neither aware of their rights nor have money to engage lawyers, justice ends up ends up becoming a rich man indulgence. The only object behind free legal service for poor is to ensure equal and uniform justice. The ideals of equal justice, legal services and legal aid are a mechanism to realise equality before law and equal protection of law as these are basic aspects of administration of justice.
4.5 ARTICLE 21- RIGHT TO PROTECTION OF PERSONAL LIFE AND LIBERTY:
Article 2150 of the Constitution of India guarantees against the deprivation of personal liberty. The purpose of Article 21 is to protect the life or personal liberty of
50 Article 21 of the Constitution of India says,‖ No person shall be deprived of his life or liberty except according to the procedure established by law‖.
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every person. The state can not deprive a person of his life or liberty, except according to procedure established by law. Prior to Maneka Gandhi‘s case5 decision, Article 21 guaranteed right to life and personal liberty to citizens only against the arbitrary action of executive, and not from legislative action. But in Maneka Gandhi‘s case a limitation was imposed upon legislations while depriving a person of his life and liberty, following condition must be fulfilled. 51
The Supreme Court of India has laid down that right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21. The State Government can not avoid the Constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative liabilities. The State is under a constitutional mandate to provide free legal services on account of indigence and whatever is necessary for this purpose has to be done by the State.6 In Suk Das vs Union Territory of Arunachal Pradesh7, The Supreme Court set aside the conviction and the sentence passed by the trial court because free legal aid was not provided to the accused during the trial as it is violative of Article 21.
4.5.1 Article 22(1) and Legal Aid:
Article 22(1) deals with the rights of arrested person. Article 22(1) of the Constitution provides that no person shall be denied the right to consult, and to be defended by a legal practitioner of his choice. The right of the accused to have a counsel of his choice is fundamental and essential to fair trial.
In Janardhan Reddy vs State of Hydrabad52 The Supreme Court held that the right guaranteed to an accused person under Article 22(1) is not absolute right to be supplied with a lawyer by the State, the only right is to have an opportunity to engage a lawyer. But later in subsequent cases the Supreme Court held that it is the constitutional duty on the part of the Stateto assign a lawyer to every accused person who is unable to engage a lawyer due to his poverty. When a person is arrested, he has right to consult a lawyer. The right extends to any person who is arrested under the general law or under a special statute. The right to consult and defended by a lawyer of
51 Maneka Gandhi vs Union of India A.I.R. 1978 SC. 597,
52 Janardhan Reddy vs State of Hydrabad, A.I.R. 1951 SC, 217
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his choice belongs to the person arrested not only at pre-trial stage but also at the trial of any offence whether the offence is punishable with death, imprisonment or otherwise53.
The right to be defended includes not only the defence against arrest but also against charges. If an arrested person is released on bail it does not mean that he has ceased his right under this Article. The right to consult a lawyer extends to preventive detention cases. The old view of Supreme Court that this Article does not guarantee any absolute right to be supplied with a lawyer is vitiated.
4.5.2 Directive Principles and Legal Aid:
The Directive Principles of State Policy are contained in the Part IV of the Constitution. The Directive Principles set out the aims and objectives to be taken up by the States in the governance of the country. It was the time that the State was mainly concern with the maintenance of law and order and the protection of life, liberty and the property of the people. Such a restrictive role of the State is no longer a valid concept. Today we are living in the era of Welfare State which has to promote the prosperity and well-being of the people. The Directive Principles lay down certain economic and social policies. They impose certain obligation on the State to take positive action in certain directions in order to promote the welfare of people and achieve economic democracy.
Article 3854 of the Constitution imposes a duty on the State, which includes judiciary also to promote a social order in which justice- social, economical and political must inform all institution of national life. So by widening the access to justice,‘ the court is discharging its Constitutional duty to promote a just social order.
Article 39A of the Constitution directs the states to ensure that the operation of the legal system promote justice, on the basis of equal opportunities and shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This article was added to the Constitution pursuant to new policy of Government to give legal aid to economically
53 D.D.Basu: Shorter Constitution of India. P. 135
54 Article 38 of the Constitution provides that the State shall strive to promote the welfare of people by securing and protecting as effectively as it may, a social order in which justice, social, economical and political shall inform all the institutions of national life.
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backward classes of people. Legal aid and speedy trial have now been held to be fundamental rights under Article 21 of the Constitution available to all prisoners and enforceable by the courts. The state is under duty to provide lawyer to a poor person and it must pay to lawyer his fees as fixed by the court.
4.6 LEGAL AID UNDER THE CODE OF CIVIL PROCEDURE, 1908:
The Code of Civil Procedure, 1908 lays down the procedure for the courts of civil judicature. The civil litigation primarily deals with the property of the persons, is not paid that much concern by the State and society as is done to protect the life of the individual which falls in the category of criminal law. The equality before law and the principle of equal standing is an essential principle of civil jurisprudence also. There are some provisions in ‗The Code of Civil Procedure‘ for extending the benefits of legal aid to those who are poor and are incapable to engage the services of counsel and unable to pay the amount of court fees, which are as follows:
Assigning and Selecting a Pleader to an Unrepresented Indigent Person (Order Xxxiii, Rule 9a(1) and Rule 9a(2)): 55
Order XXXIII, Rule 9A(1) of The Code of Civil Procedure provides, where a person who is permitted to sue as an indigent person, is not represented by a pleader, the court may assign a pleader to him.
Order XXXIII, Rule 9A(2)11 of The Code of Civil Procedure provides for making the rules for selecting a pleader to be assigned under Rule 9A(1). The High Court may with previous approval of the State Government, is empowered to make rules for the mode of selecting pleaders which will be assigned to an indigent person under Rule 9A(1). The Court may also provide the facilities to such pleader and any other matter which is require to be or may be provided by the rules for giving effect to the provisions of Rule 9A(1).
Defence by an Indigent Person (Order XXXIII, Rule 17):
As per Order XXXIII, Rule 1712 of The Code of Civil Procedure provides, any defendant, who desire to plead a set-off or counter claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may
55 Inserted by the Code of Civil Procedure (Amendment) Act,1976, Sec. 81 (w.e.f. 01-02-1977)
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be, apply to him as if he were a plaintiff and his written statement were a plaint.
In other words, an indigent person can also figure as a defendant and he can also plead a set-off and counter claim as an indigent person.
Power of Government to Provide Free Legal Services to Indigent Person (Order XXXIII, Rule 18):
Order XXXIII Rule 18 empowers the State to make supplementary provisions for extending the legal aid benefits to the indigent person. As per Rule 18, ―Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons. With the previous approval of the State Government, The High Court is also empowered to make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to the indigent persons. Such rules may include the nature and extent of legal services and also the conditions under which they may be made available and the agencies through which services may be rendered among others.
At what Stage of Suit the Plaintiff Can Claim as Indigent:
At any stage during the pendency of a suit the plaintiff can raise the claim as indigent under Order XXXIII. Once such application to claim as indigent is filed before the court, the court has to conduct an independent inquiry on the question of indigency.56
Applicability of Order XXXIII to the Tribunals:
The poor shall not be priced out of justice, marked by insistence on court fee and refusal to apply the provisions of Order XXXIII of The Code of Civil Procedure. The provisions of Order XXXIII will apply to tribunals which have the trappings of the civil courts.
Settlement of Disputes outside the Court (SEC. 89 of the Code of Civil Procedure):
As per sec. 89 of The Code of Civil Procedure, where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of observation and after receiving the observations of the
56 Sivarajan K vs State of Kerala AIR 1998 Ker. 98
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parties, the court may reformulate the terms of a possible settlement and refer the same for–
(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement including settlement through Lok Adalat;
(d) Mediation.
Where a dispute has been referred—
(a) For arbitration or conciliation, the provision of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration and conciliation were referred for settlement under the provision of this act;
(b) To Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provision of sec. 20(1) of the Legal Services Authorities Act,1987, and all other provisions of the Act shall apply In respect of the dispute so referred to the Lok Adalat;
(c) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and the provisions of the Legal Services Authorities Act, 1987, shall apply as if the dispute were referred to Lok Adalat under the provisions of that Act;
(d) For mediation, the court shall effect a compromise between the parties and follow such procedure as may be prescribed.
The intention of the legislature behind enacting the sec. 89 is to provide opportunity to the parties to opt for one of the four methods to resolve their dispute.57
4.7 LEGAL AID PROVISIONS UNDER CRIMINAL LAW:
In 1972, the Law Commission of India gave its 48th report where it recommended that all accused persons must be furnished with counsel for their defence at state expense. The Law Commission explained its recommendation thus58:
Defence of the indigent accused by a pleader assigned to the state should be
57 Salem Advocate Bar Association vs Union of India, AIR 2005 SC 3353
58 Available at http://www.usiofindia.org/Article/?pub=Jonrnal&pubno=564&ano=435, (accessed on 11.02.2020)
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made available to every person accused of an offence, i.e. in all criminal trials, so that mere poverty may not stand in the way of adequate defence in a proceeding which may result in the deprivation of liberty or property or loss of reputation. The assistance of counsel is required at every step in the proceedings and irrespective of the nature of the offence under trial." The Law Commission recommended that Legal Aid be made available for all criminal cases including maintenance cases.
A Legal Aid to the Accused Person:
Section 304 of code of criminal procedure deals with legal to the accused at the state expenses. This section appears under chapter XXIV title as general provisions as to inquiries and trials. Under sub section 1 in a trial before the Court of Session where the accused is not represented by pleader and it appears to the court that the accused has no sufficient means to engage a pleader, the court has to assign the pleader for his defence at the expense of the state. Sub Section 2 empowers the High Court to make the rules with the previous approval of state government for providing matters such as mode of selecting the pleaders for defence, facilities to be allowed to the pleaders by the courts and the fee which is payable by the government to such pleaders among others. Under Sub Section 3 the state government is empowered through a notification direct that the provisions of sub section 1 and 2 to apply in relation to class of trials before the courts in the state as they apply in relation to trials before the court of Sessions. Thus we see that the first sub section refers to trials before Court of Session where as the third sub section applies to a class of trials before other notified courts in the State.
Bail to An Indigent Accused:
Chapter XXIII of Code of Criminal Procedure 1973 deals with provisions as to bail and bonds. In this regard it is interesting to analyse section 436 as it partly refers to bail for an indigent person. As per section 436(1) a person who is arrested or detained by an officer in charge of police station in a bailable offence without warrant shall be released when he is prepared to give bail. The proviso refers to indigent person who is unable to furnish the surety. In such a case the officer or court discharges him when he is unable to provide surety on executing a bond. The explanation sets up a period of week. If the arrested person is unable to give bail within a week of arrest the officer or court can presume that he is an indigent person for the purpose of the proviso.
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4.8 THE LEGAL SERVICES AUTHORITIES ACT, 1987:
The most important legislation on Legal Aid is the Legal Service Authority Act 1987, a central legislation, aimed at constituting legal services authorities to provide free and competent legal services to the weaker section of the society to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the Legal System promotes justice on a basis of equal opportunity. To achieve thus objective the statute makes various provisions. The Legal Services Authorities Act, 1987 as amended by the Legal Services Amendment Act, 1994 came into force with effect from 9 November, 1995. The said Act was enacted to constitute the Legal Services Authorities to provide free and competent legal services to the weaker sections of society and to ensure that the objectives laid out in the Preamble to provide justice-social, economic and political are achieved. There is no economic disability which prevents a section of the society to attain justice. With the object to provide free legal aid, the Government of India had, by a resolution dated 26th September, 1980 constituted a Committee known as ―Committee for Implementing Legal Aid Schemes (CILAS) under the chairmanship of Mr. Justice P.N. Bhagwati to monitor and implement legal aid programmes on an uniform basis in all the States and Union Territories. CILAS evolved a model scheme for legal aid programmes applicable throughout the country by which several legal aid and advice Boards were set up in the States and Union Territories. The Government is accordingly concerned with the programme of legal aid as it is implementation of a constitutional mandate. But on a review of the working of CILAS, certain deficiencies have come to the force. It is; therefore, felt that it will be desirable to constitute statutory legal service authorities at the National, State and District levels so as to provide for effective monitoring of legal aid programme.
National Legal Services Authority
The Legal Services Authorities Act, 1987 was passed with the object to form statutory legal services authorities at the National, State and District levels. The term legal services are defined as: ‗Legal Services‘ includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or
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tribunal and the giving of advice on any legal manner.59
The National Legal Services Authority (NALSA) 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 paralegal volunteers 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. The Supreme Court Legal Service 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.60
National Legal Services Authority was constituted on 5th December, 1995. Hon‘ble Dr. Justice A.S. Anand, Supreme Court of India took over as the Executive Chairman of National Legal Services Authority on 17th 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 property functional for the first time. A nationwide network has been envisaged under the Act for providing legal aid and assistance.61
4.9 NEED FOR LEGAL AID REALISED
An advancement in the system of courts, the adaptation of formal procedures and the rules of evidence made the administration of justice relatively complex. A need was therefore, felt that lawyers should present cases. And the institution of lawyers
59 S.2(1) (e) of the Legal Services Authority Act, 1987.
60 Available at http://www.usiofindia.org/Article/?pub=Jonrnal&pubno=564&ano=435, (accessed on
11.02.2020)
61 http://www/legalserviceindia.com/article/155-Working-of-Statute-of-Legal-Aid-in-India.html. visit on 22-2-2020
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meant the expenditure on their fees, which some could afford and others couldn't. The legal experts, appearing before the courts, were called Vakils. Two Muslim Indian Codes, Figh-e-Firoz Shahi and Fatwa-e-Alamgiri, stated the duties of a vakil. A specialised knowledge of law was necessary for a Qazi and one practising law. Therefore, the lawyers played an important role in the administration of justice during the medieval period of Indian history though there was no institution of lawyers, like the present Bar Council.62
The poor people could get speedy and a free justice in the panchayats but when they were required to approach the courts above, it was necessary that they should afford engaging a lawyer. It has been mentioned by some authors that during the reign of Shahjehan and Aurangzeb, the state vakils were directed to give advice free of charge to the poor.63 Such state lawyer known as 'Vakil-e-Sarkar' or 'Vakil-e-Sharai' were whole-time and appointed" by Chief Qazi of the Province or sometimes by the Chief Justice, the Qazi-id-Quzat.
We can, therefore, make out that the concept of legal aid and advice took its birth with the institution of lawyers, establishment of courts and the adoption of legal procedures. Since, these developments occurred during the Mughal period of Indian history, we can safely say that the concept of legal aid took its origin in India during this era. The British rule, which followed the Muslim period of Indian history, further expanded and complicated the administration of justice, thereby giving an impetus to the need of legal aid for the poorest of the poor and the lowliest of the low in Indian society, however, the institution of panchayats continued to sufficiently protect their legal interests.
The members belonging to the scheduled castes and the scheduled tribes, however, were identified as a class in the Indian society which could in general be named as the one belonging to lowliest of the low in their socio-economic setting. The Constitution of Indian Republic promises a special treatment and nursing for this class, to make them capable of enjoying equality guaranteed by the freedom. Under the special schemes launched by the Government of India for the welfare of Indian people
62 Moreland, W.H., India at the death of Akbar, p. 35.
63 Report of the Expert Committee on Legal Aid: Processual justice to the people, may 1973, p. 43; quoting: Mohammed Bashir, Administration of justice in medieval India, pp. 163 and 191.
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belonging to scheduled castes and scheduled tribes, legal aid was also identified as one of them.
In 1963-64, this matter received attention of the government in the Report of the Commission for Scheduled Castes and Scheduled Tribes. The Report stressed the point that legal aid should be invariably made available for cases in the various regulations promulgated in scheduled areas. The Report also highlighted the aspect of making payments to lawyers involved in the process of providing legal aid. It also laid down that the fees to be paid to the lawyers associated with legal aid should be on a scale of those paid in government cases. The Report, however regretted that the scheme was hot given due publicity.64
Again the legal aid movement in India diverted to Bombay. The Bombay Committee for Legal Aid was raised in February 1967 by an interested group of local lawyers. Taking a more experimental approach than any previous legal aid agency, the committee' sought a work very closely with a Bombay Social Work Organisation, the Family Service Centre, in striving to solve problems of poor people. Its approach led to a programme which was oriented towards providing legal advice rather than assistance in litigation. The feeling of the participating members was that if proper advice was provided, litigation could generally be avoided, and less expensive and more efficient solutions to the problems of the poor could thus be found. The chief difficulty of the programme was the limited scope of the committee's programme due to the very small number of lawyers and social workers actively participating and the fact that it received no, funds whatsoever from either public or private sources.65 The need for state-sponsored legal aid scheme was felt in all quarters. Not only the social activists and the men in legal profession understood this urgent need but the parliamentarians also joined them.
Accordingly, Mr. Madhu Limaye, a noted parliamentarian of India, drafted a private Bill on January 30,1970 on the subject. The Bill, aimed at enacting a law for legal aid to poor and needy persons involved in criminal cases, was introduced into the
64 Government of India, Report of the Commissioner for Scheduled Castes and Scheduled Tribes, 1963-64, pp. 27-28.
65 Scott, C.H., Legal Aid Past and Present, in Dr. L.M. Singhvi's (et al.) Law and Poverty Cases and Material, N.M. Tripathy Pvt. Ltd., Bombay, 1973, pp. 291-92.
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Lok Sabha on March 13, 1970. It was entitled "The Free Legal Aid Bill, 1970."
The Rajasthan Committee, chaired by Dr. L.M. Singhvi, submitted a comprehensive report in May 1975.66 The committee inter-alia made two important recommendations viz. the constitution of a special committee to identify issues of public interest and to undertake Public Interest Litigation; and for setting up 'Nagrik Salqh Kendra' to redress personal grievances, of the aggrieved, who approach for it. Putting the recommendations of the committee into effect, the Rajasthan government constituted the State Legal Aid and Advice Board in November 1975 and constituted legal aid committees at the levels of the State High Court, the districts and the tehsils.
The central expert committee report not only stimulated actions for legal aid at the level of states but it also brought the thinking of the union government to the level of actually doing something for extending this welfare benefit to the destitute and deprived sections of the Indian society. Under its influence, the ruling political party, Indian National Congress, and the representative trade union organisation of India also having proximity to the ruling party, Indian National Trade Union Congress (INTUC), came forward to put their might behind the legal aid movement.
This initiative was read from the establishment of an organization named the National Forum of Lawyers in 1975.
The National Forum for Lawyers and its Recommendations National Forum for Lawyers was a national organisation, with its branches at the level of each state and the union territory of India, under the auspices of All India Congress Committee, Indian National Trade Union Congress and Indian National Rural Labour Federation, an affiliate of INTUC.
The basic objective of this forum was to provide infrastructural support for the implementation of 20-point economic programme of Mrs. Indira Gandhi to ameliorate the lot of the poorest of the poor in the country. The legal aid was a part of this programme.
The forum, headed by a legal luminary, Mr.Rajni Patel, set up its branches at state, district and tehsil levels. The forum organised state level conferences of lawyers to involve them in legal aid programme. Such conferences were held in Maharashtra,
66 Government of Rajasthan, Report of Rajasthan Law Reforms and Legal services committee, 1975
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Assam, Karnataka, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Orissa, Bihar, West Bengal, Gujarat and Punjab. Through these conferences, the forum recommended for providing a constitutional status to legal aid. This recommendation was further discussed and deliberated upon in the Swaran Singh Committee.
Swaran Singh Committee and its Recommendations
Indian National Congress, the party in power, grew more socialistic in its approach in the seventies. For the purpose, it was planning to bring about constitutional amendments. It was with this end in view that the Government of India appointed a committee in 1975 involving some members from the National Forum for Lawyers, under the chairmanship of Mr. Swaran Singh, a former Union Minister.
The Swaran Singh Committee made exhaustive recommendations, for amending the Constitution, which were incorporated by way of ' the 42nd Amendment of the Constitution. The Amendment, with its wider amplitude, also inserted legal aid in the Indian Constitution.
Forty-second Amendment on Legal Aid -
The forty-second Amendment67 of the Indian Constitution, so far as the topic of legal aid was concerned, brought about two changes, viz. inserting Article 39-A in Part IV of the Constitution and including entry 11-A, i.e. Administration of Justice' in the concurrent list. The Amendment, therefore, made it explicit that both the central and state governments were competent to legislate on matters relating to legal aid. Article 39-A rather cast a positive duty on the state to provide for legal aid, which was essential for the implementation of agrarian reforms and achieving socio-economic justice ideals of the Constitution.13 This Amendment brought about a new era in the field of legal aid movement in India.
The Post-42nd Amendment Period
After the 42nd Amendment, both the state governments and the union government of India, which have so far been shifting liability, took active steps towards the implementation of legal aid programme. Marking from the records, government of Karnataka 'instituted its State Legal Aid and Advice Board in November 15, „ '1976 ;.-
67 The forty-second amendment act, 1976 was enforced w.e.f 3-1-1977.
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the states of Tamil Nadu and Madhya Pradesh constituted such boards in the same year. Similarly, the state of Maharashtra constituted its Legal Aid and Advice Board in February 14,1977. In states like Gujarat, Kerala, Andhra Pradesh, Rajastnan, West Bengal, Orissa, Bihar, Uttar Pradesh, Jarnmu & Kashmri, Punjab,
Haryana and Himachal Pradesh, the Legal Aid and Advice Boards were-functioning earlier to it. Accordingly, some of the union territories like Pondicherry, Goa, Daman & Diu and Nagar & Haveli also proceeded in the same direction. But the most important development in the post-42nd amendment era was the constitution of another central committee by the government of India on 19th May 1976. the committee submitted its report to the Prime Minister of India on August 31,1977. Under the title report on National Juridicare: Equal Justice-Social Justice.
The Legal Services Authorities Act, l987
The long demand of providing statutory support to the legal aid programme was met in 1987 with the enactment of the Legal Services Authorities Act. The objective of the law is "to constitute legal service authorities to provide free and competent, legal services to the weaker sections of the society to ensure that-opportunities for securing justice are not denied to any citizen by reason of economic Or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal opportunity."
The Act running into Directions provides for the constitution of National Legal Services Authority, State Legal Services Authorities and the District Authorities. The law casts an obligation for extending legal aid to the members of the scheduled castes and scheduled tribes, the victims of trafficking in human beings of begar, the women and children, mentally ill or otherwise disabled persons, the persons under circumstances of undeserved want like the victims of mass disasters, ethnic violences, caste atrocities, floods, droughts, earthquakes or industrial disasters; the industrial workmen, offenders in custody and all other people earning less than nine thousand rupees per annum if the case is before a court other than the Supreme Court and less than twelve thousand rupees per year or the amount fixed by central government if the case is before the apex court of the country. The prima-faciexase test, however, remains a condition for extending legal aid benefit. The finances for the National or State or District Legal Aid Funds, to be established under the Act, are to be collected from:
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(a) all sums of money given as grants by the Central Government (in the case of Central Authority)/Central Authority (in case of State Authority) and State Authority (in case of District Authority);
(b) any grants Or donations that may be made by any other person for the purposes of this Act and by the State Government (in case of State Authorities);
(c) any other amount received by the Authority under the orders of any Court or from any other sources.
The Act makes an attempt to co-ordinate the legal services programme under the Central Authority and to make them uniform to the possible extent Section 4 of the Act obligates the Central Authority, however, under directions of the Central Government, to perform all or any of the following functions:
1. lay down policies and principles for making legal services available under the provisions of this Act;
2. frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act;
3. utilise the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities;
4. take necessary steps by way of social litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections of the society and for this purpose, give training to social workers in legal skills;
5. organise legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes through Lok Adalats;
6. encourage the settlement of disputes by way, of negotiations, arbitration and conciliation;
7. undertake and promote research in the field of legal services with special reference to the need for such services among the poor;
8. to do all things necessary for the purpose of ensuring commitment to the
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fundamental duties of citizens Under Part IV-A of the Constitution;
9. monitor and evaluate implementation of the legal aid programmes at periodic intervals, and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act
10. recommend to the Central Government grants-in-aid for specific schemes to various voluntary social welfare institutions and the State and District Authorities from Out of the amounts placed at its disposal for the implementation of the legal services schemes under the provisions of this Act;
11. develop, in consultation with the Bar Council of India, programmes for clinical legal education and promote guidance and supervise the establishment and working of legal services clinics in Universities, Law Colleges and other institutions;
12. take appropriate measures for spreading legal literacy and legal awareness amongst the people and in particular, to educate weaker sections of society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures;
13. make special efforts to enlist the support of voluntary social welfare institutions working at the grass-root level, particularly among the Scheduled Castes and the Scheduled Tribes, women and rural and urban labour; and
14. co-ordinate and monitor the functioning of States and District Authorities and other voluntary Social Welfare Institutions and other Legal services organisations and give general directions for the proper implementation of the legal services programmes.
4.10 INDIAN ASPIRATIONS FOR LEGAL AID
The historical study of legal aid concept brings to fore, the following a few important aspirations of the Indian people to be adopted and included in the legal aid schemes:
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1. Legal aid should be made available to all the persons, who cannot afford litigation for the enforcement or defence of their constitutional and legal rights.
2. The means test, keeping in view the economic position of Indian people and the high cost of litigations should be liberal to accommodate not only the poorest of the poor but also others who find it difficult, to afford Costly justice.
3. The legal aid should ask for some contribution from the beneficiary, depending upon the means available with him. Therefore, legal aid should be made available as a right to the person.
4. The benefit of legal aid should include counsel's fee, court fees and all other costs of litigation.
5. The beneficiary of legal aid should have a choice in the selection of his counsel and he should have direct dealing with him for the payment of his fees etc,
6. The legal aid administration should be independent of government control and should provide a net-work of services, with their hierarchical inter-connections, throughout the country. The benefits of legal aid and the eligibility requirements should be uniformally applicable throughout the country.
7. The benefit of legal aid should be made available to individuals and also the combinations of deprived and destitute people in Indian society.
8. A provision for legal insurance should be made to extend the benefit of court services at reasonable costs to organisations and associations.
9. The preventive part of legal aid must be more emphasised than its remedial aspect.
10. Voluntary organisations must be encouraged and associated in legal aid programmes. The law students and law teachers should also contribute actively in legal aid programme.
11. The Bar Associations at every level must come forward to contribute in this humanitarian effort.
12. Indian society has religious institutions playing an important role in the society. Such institutions, as voluntary groups, should also share the responsibility of legal aid.
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13. The legal aid benefit should be capable of generating confidence amongst the poor that they have an equal access to the law courts.
14.Legal Aid Committee Representing ... vs Union Of India & Ors. (2020) Having considered the materials on record and bearing in mind the protracted period of detention suffered by the petitioner and in view of the law declared in Supreme Court Legal Aid Committee representing Under-trial Prisoners vs. Union of India & Ors. (1994) 6 SCC 731, we are inclined to grant bail to the petitioner, however subject to strict conditions. Accordingly, the petitioner be released on bail upon furnishing a bond of Rs. 10,000/- with two sureties of like amount each, one of whom must be local to the satisfaction of the learned Judge, Special court, under NDPS Act Howrah on condition that the petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that the petitioner while on bail shall not leave the district Howrah until further orders except for attending court proceeding and shall provide address where he shall presently reside to the investigating agency as well as to the court below and shall report to the officer in charge of the concerned police station once in a week until further orders.
15. Shyamal Dutta vs Sheli Dutta (2020) However, I fully agree with Mr. Basu that on the face value of the evidence in the background of the facts discussed in the foregoing paragraph, there is no prima facie case of domestic violence as defined under Section 3 of the D.V. Act inasmuch as I find from the order of Secretary Legal Aid Service West Bengal dated 05.10.2001 (Annexure P/2) that on 25th July, 2000, the opposite party-wife admitted during counselling that she was never tortured either physically or mentally, though she made some allegation in her letter. It is also depicted from the Final Report no. 2 dated
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15.01.2002 that Sankrail P.S. case no. 73/2001 dated 23.4.2001 It is admitted fact that the husband had rented out a separate mess, obviously for living with the wife and child and she had stayed with him only four months during the period of fifteen years of marital life. Therefore, the application under Section 12 of DV Act filed in the year 2013 with the allegation that she was subjected to mental and physical violence or otherwise emotionally and economic abused cannot be viewed readily on the findings that she had left her matrimonial house out of her own volition. It is in the finding of the learned Magistrate that the wife had joined WBREDA of no work no pay to run educational expenses of her daughter studying in class-XII and also that she had joined since 2014 on average income of Rs. 5,000/- to 6,000/- and has not intimated about her employment in 2013 at the time of filing of the case about her employment whereas she had stated on affidavit that she had no income of her own. The learned Appeal Court found on evidence that the husband had earning of Rs. 79,000/- per month which fact was suppressed in his objection and on consideration that he was employed as a Grade-I category employee of Central Government in Income Tax Department, awarded compensation of Rs. 25,000/- to the wife from the date of the filing of the petition and Rs. 7,000/- for the rent of the house and thus, directed a total sum of Rs. 32,000/- to be paid. Mr. Basu has relied on a decision in a case of Shalu Ojha Vs. Prashant Ojha (2018 (7) Supreme 121) wherein it has been held that proceedings under DV Act, 2005 being summary in nature, amount of maintenance cannot be adjudicated. Proper course would be a petition under Section 16 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code Criminal Procedure, 1973. I humbly agree with the observation of the Hon'ble Supreme Court.
16. Every child who has to file or defend a case is entitled to free legal services
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under Legal Services Authority Act, 1987. [Section 12(1)(c) of Legal Services Authority Act,1987].
17. The Board shall ensure free legal services to all juvenile through State Legal Aid Services Authority or recognized voluntary legal services organisations or the University legal services clinics [(Rule 9(16)].
18. The Board may also deploy the services of the student legal services volunteers and non-governmental organisation volunteers in para-legal tasks such as contacting the parents of juveniles and gathering relevant social and rehabilitative information. [(Rule 9(17)].
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CHAPTER 5 JUDICIAL APPROACHES TOWARD LEGAL AID
Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the existence of the orderly society. Until and unless poor illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step towards making the legal service serve the poor and the deprived; the judiciary has taken active interest in providing legal aid to the needy in the recent past. The Indian Constitution provides for an independent and impartial judiciary and the courts are given power to protect the constitution and safeguard the rights of people irrespective of their financial status. Since the aim of the constitution is to provide justice to all and the directive principles are in its integral part of the constitution, the constitution dictates that judiciary has duty to protect rights of the poor as also society as a whole. The judiciary through its significant judicial interventions has compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections of the society. Public Interest Litigation is one shining example of how Indian judiciary has played the role of the vanguard of the rights of Indian citizens especially the poor. It encouraged the public spirited people to seek justice for the poor. For that Supreme Court relaxed procedure substantially. Apart from Public Interest Litigation and judicial activism, there are reforms in the judicial process, where it aims to make justice cheap and easy by introducing Lok Adalat system as a one of the methods to provide free legal aid and speedy justice at the door steps of the poor. In this article the author highlights the importance of free legal aid in a constitutional democracy like India where a significant section of the population has still not seen the constitutional promises of even the very basic fundamental rights being fulfilled for them.
5.1 CRITERION FOR GIVING LEGAL SERVICES:
Section 12 of the Act describes the criterion for giving legal aid. 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;
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(b) A victim of trafficking in human beings or beggar as referred in article 23 of the Constitution;
(c) A woman or a child;
(d) A person with disability as defined in clause (i) of section 2 of the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;
(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, or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 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; or (h) In receipt of annual income less than rupees one lakh fifty thousand or such other higher amount as may be prescribed by the State
Government, if the case is before a court other than the Supreme Court, and less than rupees 3,00,000 or such other higher amount as may be prescribed by the Central Government, if the case is before Supreme Court.
Section 13 of the Act explains as: (1) Person who satisfy or any of the criterion specified in section 12 shall be entitled to receive legal services provided that concerned authority is satisfied that such person has a prima-facie case to prosecute or defend and (2) an affidavit made by a person as to his income may be regarded as sufficient for making him eligible to entitlement of legal service under this Act unless the concerned authority has reason to disbelieve such affidavit.
In democracy, where rule of law is supreme it is essential to ensure that even the weakest amongst the weak, poorest among the poor, in the country does not suffer injustice arising out of any abrasive action on the part of state or private person. As a way forward there is need to ensure capacity building for legal aid movement. This requires strengthening the skills of stakeholders of legal aid; law teachers, lawyer, law
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students, volunteers etc. to act as intermediates between rural people and legal service institutions. The major drawback of legal aid movement in India is the lack of legal awareness. People are not aware of right and protection under the law. It needs to be realized that the promotion of awareness regarding legal aid is not exclusive duties of legal fraternity. It is equally the concern and responsibility of society at large. Constitutional commitment for legal aid can only be cherished if society comes forward to care for it vulnerable population. Ayodhya land dispute68 The Supreme Court put an end to the decades-old Ayodhya title dispute case in November. It gave the title to the entire 2.77-acre disputed property in Ayodhya to the deity Ram Lalla, after recognising it as a legitimate legal entity. A five-judge Constitution bench of the then Chief Justice Ranjan Gogoi, Justice SA Bobde, DY Chandrachud, Ashok Bhushan and SA Nazeer in a unanimous verdict said the disputed property will be managed in Lord Ram's. State Of Gujarat vs Manjuben D/O. Kasturbhai (2019)69 The appellant was put on trial in the court of the 2nd Additional Sessions Judge, Gandhidham, Kachchh, for the offences punishable under Sections 302, 307 of the Indian Penal Code and Section 135 of the Gujarat Police Act. At the conclusion of the trial, the trial court held the appellant guilty of the offences punishable under Sections 302 and 307 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The trial court, having regard to the serious nature of the offence being one of double murder, sentenced the appellant to death. Before we part with the case, we strike a note of warning. If inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds. The registry is directed to forward one copy each of this Judgment to the Director General of Police, State of Gujarat; Registrar General, High Court of Gujarat; Director, Gujarat State Judicial Academy at Ahmedabad; Member Secretary, Gujarat State Legal Services Authority; and Secretary, Gujarat High Court Legal Services Committee. Rafale case: The Supreme Court dismissed review petitions filed against its December 14, 2018 judgement upholding the 36 Rafale jets' deal. The apex court said
68 https://economictimes.indiatimes.com/news/politics-and-nation/year-end-review-supreme-courts- landmark-judgments-in-2019/ VISIT ON 15-2-2020
69 R/CRIMINAL APPEAL NO. 474 of 2019
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that there was no merit in the review petitions and that no probe was required in the purchase deal. Rahul Gandhi cleared of contempt case. The top court closed the contempt case filed against Congress leader Rahul Gandhi but censured him for wrongly attributing his remark 'Chowkidar chor hai'70 Sabarimala Temple review In 2018, the top court had allowed women of all ages to enter Kerala's Sabarimala Temple. The order came under stiff opposition from various groups who later sought a review of the verdict. Acting on the numerous petitions, in November this year, the Supreme Court referred the issue to a larger, seven-judge bench. The bench will re-examine other religious issues, including the entry of women into mosques, the practice of female genital mutilation in the Dawoodi Bohra community and also Parsi women married to non-Parsi men being barred from the holy fire temple.
Nirbhaya Rape: Death row convict Vinay Sharma now moves Election Commission for relief Barely a week after the Supreme Court dismissed a challenge to the President's rejection of his mercy plea, Vinay Sharma, a death row convict in the Nirbhaya gang rape case, has now moved the Election Commission of India seeking relief. Filed by Advocate AP Singh, the plea before the Election Commission questions the timing of the rejection of Sharma's mercy plea. In the representation, it is pointed out that the Code of Model Conduct for the recent Delhi elections was still in force when the the Delhi Government recommended that the President reject Sharma's mercy plea. Terming the same a Constitutional irregularity, which has resulted in a miscarriage of justice, the Election Commission has been urged to take cognizance of Sharma's case as soon as possible and in the interest of justice. Earlier today, an Additional Sessions Court heard another plea moved by Sharma praying that he be given "high level treatment" for mental illness, insanity and schizophrenia. (State vs Ram Singh & Ors). The Court today directed the Tihar Jail Superintendent to file his report in this regard and listed the matter for hearing on February 22. On February 14, the Supreme Court had rejected Sharma's challenge to the President's rejection of his mercy plea for commutation of the death penalty. Three days later, a Delhi Court issued a fresh death warrant against the four convicts in Nirbhaya gang rape case, including Sharma. As per
70 https://economictimes.indiatimes.com/news/politics-and-nation/year-end-review-supreme-courts-landmark-judgments-in-2019/ VISIT ON 15-2-2020
this warrant, the four convicts ie. Akshay, Pawan, Mukesh and Vinay are to be hanged on March 3 at 6 am.71
5.2 OVERVIEW OF LANDMARK JUDGEMENTS IN PILS:
In Peoples Union for Democratic Rights v. Union of India72, the court permits Public Interest Litigation or Social Interest Litigation at the instance of “Public spirited citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public Interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the Judicial door steps.
National Legal Services Authority (Free and Competent Legal Services) Amendment Regulations, 2019 F.No. L/61/10/NALSA.—In exercise of the powers conferred by Section 29 of the Legal Services Authorities Act, 1987 (39 of 1987) and in pursuance of the provisions in Section 4 of the Act to make available free and competent legal services to the persons entitled thereto under Section 12 of the said Act, the Central Authority hereby makes the following regulations further to amend the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, namely:— 1. Short title and commencement – (1) These regulations may be called the National Legal Services Authority (Free and Competent Legal Services) Amendment Regulations, 2019. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 (hereinafter referred to as the principal regulations), in Regulation 4 (i) after sub-regulation (1), the following sub-regulation shall be inserted, namely:- “(1A) The Front Offices shall act as one-stop centres for legal aid seekers to
71 https://www.barandbench.com/columns/india-justice-report-2019-15-million-out-of-1-billion- eligible-indians-provided-legal-aid-services visit on 12/2/2020
72 A.I.R. 1982, S C 1473
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receive legal aid and advice and all information about their cases and all legal services provided by the Legal Services Institutions.” 3. In the principal regulations, in Regulation 8, – (i) in sub-regulation (2), after first proviso the following proviso shall be inserted, namely: – “Provided further that the size of panel should be optimised so that each lawyer can be allotted sufficient cases.” (ii) for sub-regulation (11), the following sub-regulation shall be substituted, namely:- “(11) The number of Retainer lawyers in the panel of each Legal Services Institution, should not exceed the minimal requirement as determined by the Executive Chairman or the Chairman, as the case may be.” (iii) in sub-regulation (12), after first proviso the following proviso shall be inserted, namely: – “Provided further that the State Legal Services Authority may decide to make the payment of honorarium to the Retainer Lawyers on the basis of number of days they man the Front Office. In such cases, the honorarium so payable shall not be less than ` 1500 per day of sitting at the district and taluka court level and ` 2500 at the High Court level.” 4. In the principal regulations, in Regulation 10, – (i) in sub-regulation (2), in clause (i), for the words “a sitting or retired judge of the Supreme Court or a Senior Advocate as may be nominated”, the words “a Senior Advocate or an Advocate of at least 15 years of standing as nominated” shall be substituted. (ii) in sub-regulation (3), in clause (i), for the words “a sitting or retired judge of the High Court or a Senior Advocate as may be nominated”, the words “a Senior Advocate or an Advocate of at least 15 years of standing as nominated” shall be substituted. (iii) in sub-regulation (5), in clause (ii), after the word “officer”, the word “or” shall be inserted.
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In the Justice Transfer Case73, court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law and accelerating the balance between law and justice. It is a settled law that when a person approached the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.
In Shiram Food & Fertilizer case74, Public Interest Litigation directed the Company manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before re-opening the plant.
In the case of M.C Mehta vs Union of India75, this Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water, Supreme Court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga Water.
Council for Environment Legal Action v. Union of India76. Public Interest Litigation filed by registered voluntary organization regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.
State v. Union of India77 Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be abused and misued by the vested interest. In a recent ruling of Supreme Court on” GROWTH OF SLUMS” in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area. Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into
73 AIR 1982, SC 149
74 AIR 1989, SC 2039
75 (1988) 1 SCC 471
76 (1996) 5 SCC 281
77 AIR 1996 Cal 181 at 218
71
existence. Instead of “Slum Clearance”. There is “slum Creation” in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.
Devika Biswas v. Union of India The matter of Devika Biswas v. Union of India78 was listed before the chief justice on 8th may, 2014. In the state of Rajasthan, study on camp conditions in Bundi District it was found that Only 12% of women had been counseled about other forms of contraception; 42% not counseled about permanency of sterilization; 88% not informed about complications, side-effects or failures. 58% women experienced at least one adverse side effect.
D.K. Basu vs. State of a West Bengal79 In the judgement of above case the supreme court issued the clear guidelines which were to be followed by the police officials while arresting a person and during the custody.
There have been instances when an entire fleet of smoke splitting diesel, fleat of buses operating as public transport in Delhi were converted into CNG through the force of a judicial order pacsed in Public Interest Litigation titled M.C. Mehta vs. Union of India80 and there has been instances where almost all of Delhi was sealed and entire block of illegal constructions and properties built in contravention of master plan were ordered to be demolished/sealed, also through an order passed by Hon‟ble Supreme Court in a PIL titled as M.C. Mehta vs. Union of India.81
The Supreme Court has entertained PIL for curbing the environmental degradation and deterioration in the general outlook of beauty of Taj Mahal due to increased pollution levels and due to construction of a corridor just behind Taj Mahal which caused enormous damage to scenic beauty of Taj Mahal and has issued sufficient guidelines to stop the construction of Taj Corridor as well as initiated criminal prosecution against the persons in-charge who were instrumental in initiating the Taj Corridor Project as per decision of Supreme Court in case M.C. Mehta v. Union of India.82
78 WP(C) 95 of 2012
79 (1997) 1 SCC 416
80 AIR 2001 SC 1948; 2001(2) SCR 698
81 AIR 2006 SC 1325; 2006(2) SCR 264
82 2001(9) SCC 235 and AIR 2004 SC 800.
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In Milkmen Colony Vikas Samiti vs. State of Rajasthan.83 The Supreme Court observed in the said case that the menace of stray cattle has reached a state where the entire planning of the city has gone haywire and creating a lot of nuisance for the citizens and all this had happened at the cost of the health and decent living of the city residents violating their rights under Article 21 and the direction issued by the High Court to shift the Milk Dairies and relocate the same to other areas in the city were held to be correct and in the interest of justice.
In the landmark case of M.C. Mehta vs. Union of India,84 Supreme Court ordered that all industries operating within the residential realm of the city limits be relocated to industrial area at the outer limits of the city so as to obviate any environmental pollution and to make overall improvement in the general life standards of the residents of the city.
In another significant case Parmanand Katara vs. Union of India85 Supreme Court was aghast at the attitude of the hospitals which did not provide any first aid facilities to the injured who were brought at their doorsteps, insisting sheepishly on first completing the financial formalities and in that categorical judgment, the Supreme Court held that it is the paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.
In an another important ruling Nihal Singh vs. State of Punjab,86 the Punjab and Haryana High Court quashed the provisions of Jail manuals dividing the prisoners into A, B, and C classes, acting upon a PIL Petition and held that there cannot be any classification of convicts on the basis of their social status, education or habit of living.
P. Siva Kumar Vs Secretary, Ministry of Home Govt. of Karnataka87. In this PIL the Petitioner, a social activist has prayed for issue of a writ of mandamus to the competent authorities of the State of Karnatka and Tamil Nadu and other authorities to take preventive and prohibitive measures as there is violence in the stet because of an order passed by the court – the people cannot become law unto themselves and it is
83 (2017) 2 SCC 413
84 1996 (4) SCC 351
85 AIR 1989 SC 2039
86 2000 Crl. L.J. 3298
87 (2016) 8 SCALE 841
73
obligatory on the part of authorities of both the states namely State of Karnataka and State of Tamil Nadu to prevent such actions. The measures have been stated in the judgement and Hon'ble Supreme Court have reproduced them as it has been suggested to the cout for facilitating.
In Re Outrage as Parents End Life After Child's Dengue Death88 The matter has been taken up on the basis of news report titled "Outrage as parents end life after child's dengue death" published in the Sunday Times of India. Hon'ble Chief Justice of India has passed an order to treat it as Suo Moto Public Interest Litigation. The Chief Minister is unwell an perhaps may not be able to attend the meeting. If he is not in a position to attend the meeting, he will be represented by the Deputy Chief Minister. The court says that the court expends the participants to keep interest of people of Delhi in mind and look out the at the entire exercise in a positive manner and think about the future rather than past. The court also expect the efforts to be consultative, collaborative and cooperative.
Babli Devi vs State Of Himachal Pradesh (2019) Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:- This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569). Sh. Magdish Singh vs This Award Of Mine Will Dispose Off ( 2019) the decisions referred to above were noted and it was held as follows: "Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However,
88 (2016)9 SCALE 719
74
applying general principles and on reading the afore stated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attedance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self- serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be- the ground for the tribunal to draw an adverse inference against the management."
Legal Aid Committee Representing ... vs Union Of India & Ors. (2020) Having considered the materials on record and bearing in mind the protracted period of detention suffered by the petitioner and in view of the law declared in Supreme Court Legal Aid Committee representing Under-trial Prisoners vs. Union of India & Ors. (1994) 6 SCC 731, we are inclined to grant bail to the petitioner, however subject to strict conditions. Accordingly, the petitioner be released on bail upon furnishing a bond of Rs. 10,000/- with two sureties of like amount each, one of whom must be local to the satisfaction of the learned Judge, Special court, under NDPS Act Howrah on condition that the petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that the petitioner while on bail shall not leave the district Howrah until further orders except for attending court proceeding and shall provide address where he shall presently reside to the investigating agency as well as to the court below and shall report to the officer in charge of the concerned police station once in a week until further orders.
75
Shyamal Dutta vs Sheli Dutta (2020) However, I fully agree with Mr. Basu that on the face value of the evidence in the background of the facts discussed in the foregoing paragraph, there is no prima facie case of domestic violence as defined under Section 3 of the D.V. Act inasmuch as I find from the order of Secretary Legal Aid Service West Bengal dated 05.10.2001 (Annexure P/2) that on 25th July, 2000, the opposite party-wife admitted during counselling that she was never tortured either physically or mentally, though she made some allegation in her letter. It is also depicted from the Final Report no. 2 dated 15.01.2002 that Sankrail P.S. case no. 73/2001 dated 23.4.2001 It is admitted fact that the husband had rented out a separate mess, obviously for living with the wife and child and she had stayed with him only four months during the period of fifteen years of marital life. Therefore, the application under Section 12 of DV Act filed in the year 2013 with the allegation that she was subjected to mental and physical violence or otherwise emotionally and economic abused cannot be viewed readily on the findings that she had left her matrimonial house out of her own volition. It is in the finding of the learned Magistrate that the wife had joined WBREDA of no work no pay to run educational expenses of her daughter studying in class-XII and also that she had joined since 2014 on average income of Rs. 5,000/- to 6,000/- and has not intimated about her employment in 2013 at the time of filing of the case about her employment whereas she had stated on affidavit that she had no income of her own. The learned Appeal Court found on evidence that the husband had earning of Rs. 79,000/- per month which fact was suppressed in his objection and on consideration that he was employed as a Grade-I category employee of Central Government in Income Tax Department, awarded compensation of Rs. 25,000/- to the wife from the date of the filing of the petition and Rs. 7,000/- for the rent of the house and thus, directed a total sum of Rs. 32,000/- to be paid. Mr. Basu has relied on a decision in a case of Shalu Ojha Vs. Prashant Ojha (2018 (7) Supreme 121) wherein it has been held that proceedings under DV Act, 2005 being summary in nature, amount of maintenance cannot be adjudicated. Proper course would be a petition under Section 16 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code Criminal Procedure, 1973. I humbly agree with the observation of the Hon'ble Supreme Court.
In Swati Maliwal Jai Hind Chairperson Delhi commission for women vs. Raju
76
Through Juvenile Justice Board,89 the Hon'ble court said the legal issue raised in the main writ petition i.e. the need for ascertaining the factum of reformation of the Juveniles in conflict with law before they are released from the Special Home on expiry of period of stay ordered by the Juvenile Justice Board, is a larger issue of public importance which requires deeper consideration.
Subhas Datta vs Union of India and others90 Petition has been filed as public interest litigation on the issue of protection of historical objects preserved at different places in country particularly in various museums. Learned Additional Solicitor General and Counsel for respondents fairly stated that the concern of petitioner is genuine. They assured the court that the concern will be addressed and necessary steps in the matter will be taken. The court said that review meetings may be held at least once in every six months to consider further course of action and if any grievance survives, it will be open to any aggrieved person to take legal remedies in accordance with law.
89 Recent Apex Judgements (RAJ)18 (2016)
90 (2015)2 RCR (Civil) 1043
77
CHAPTER 6 CONCLUSION AND SUGGESTIONS
In India, majority of people still live below the poverty line. It is very difficult for them to prosecute or defend a case due to high cost involved. Supreme Court and High Courts have many times emphasized the need for free legal aid for poor and the needy. The Central Government, taking note of this had introduced the Article 39A in the Constitution of India in 1977. Under Article 39A of the Constitution, the Central and the State Government shall ensure that the operation of the legal system promote justice on the basis of equal opportunity and shall in particular provide free legal aid for the poor and ensure that justice is not denied to them for economic reasons or other disabilities.
Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object of the state should be “equal justice for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law, the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.
The need for legal aid has increased enormously with the growth of industrialism and urban conditions of life. The large mass of legislation in the modern State with the inevitable technicalities of the law has occasioned a considerable increase in litigation.1 In the United States, the question of legal aid has, during the present century, received considerable attention. In spite of the disturbing influences of the two world wars, the movement for legal aid has gained considerable momentum. In course of time a partnership was formed between the legal aid organizations and the Bar and this combination provided effective leadership to the legal aid movement.
Taking support and strength from both the models and judicial activism, Indian society read realities of abject poverty, large scale illiteracy and divisions on the Indian
78
plank and realized the need for both preventive and remedial aspects of the legal aid concept. Probing and perceiving Indian culture brimming with tolerance, contentment and sacrifice and looking the Indian deprivations through the cultural mirror, this research work records the Indian needs for legal aid as under:
1. A large scale literacy including legal literacy of the masses.
2. Liberal and extensive provisions of free legal aid to cater to the needs of multiple legal problems, arising out of large-scale distinctions, divisions, diversifications, destitution and changing socio-economic relations in the Indian society.
3. A solaced and conciliatory dealing in litigation, possible from a larger handling at the panchyat level.
4. Legal aid, sufficient in monetary content and capable of satisfying the beneficiary that he stands equal to his rich and a resourceful adversary.
5. Recognizing oppression and low status, while granting legal aid, form the social angle also. The low caste, weaker sex and the deprived situations need to be accepted as a criterion for granting legal aid.
6. The funds for legal aid should not come from the state alone but also other well-off people should contribute to give the impression that legal aid is aimed at serving a social need and a human want of the society.
7. The administration of legal aid requires largely to be handled by the delegates of the people including those representing the beneficiaries.
8. Legal Aid requires to help the industrial workers and in-want Indians but also it should encourage and serve their groups to grapple with the problem of class-distinctions and deprivations.
Legal Aid in India, in its modern sense, was mid-wifed and nurtured under inspiration and support from the British RushCliffe Committee Report and the judgments of the American Supreme Court. The concept, however finds its traces in Rig Veda and the social system of ancient Indian having operated along the principles of Dharma. It was however during the Mughal period of Indian history that the institution of courts, court procedures and appearance of vakils were established and
79
with the office of government pleaders surfaced the concept of legal aid. The needs and availabilities for state legal aid further gained strength during the British period with the adoption of complicated court, procedures and the complex laws. The voluntary efforts of the Bombay Society, initiated in the year 1924and increased in 1945 with its demand for a committee on the pattern of Rushcliffe also contributed to the enactment of statutory provisions in Cr. P.C. and C.P.C. The era of committees of legal aid, starting with Bhagwati Report of 1949 and followed by Arthur Terover Starris Committee, Gujarat Report etc; The Export Committee Report and the High Powered Committee On Judicial Justice also took strength and source from the activism of Bombay Society, which shook and stimulated the government of Independent India to do something for feeding the legal aid needs in this developing land. The Central Reports and the 42nd Amendment to the Indian Constitution, inserting inter- alia Article 39-A in it, made both the Union and the State Governments stop shifting liabilities on each other and undertake the task of legal aid under the state-sponsored schemes. The Legal Services Authorities Act, 1987, ( enforced in Nov. 1995) is a major union effort towards the objective of ensuring equal opportunities for procuring justice irrespective of the weak economic conditions and social deprivation of the litigating party. Committee for Implementing Legal Aid Schemes is actively working to catalyse the efforts of the state legal aid boards and committees, established under the state schemes or statutes, and to bring about the desirable uniformity in their programmes and provisions.
SUGGESTIONS
An analytical study of the historical development of legal aid in India and the socio- cultural milieu in which it took a shape and size made this researcher to measure and mint the aspirations of Indian people for legal aid as under:
1. Legal Aid should be made available to all the deserving persons for enforcement and defence of their rights.
2. The means test should be liberal to accommodate all those in need of legal aid.
3. Some token or partial contribution be made by a beneficiary to accept legal aid as a right.
4. The benefit should include all expenditure of litigation and the beneficiary should have some choice in the selection of his counsel and should have a direct
80
dealing with him.
5. The legal aid administration should be independent of government control and should provide a net-work of services, with their hierarchical inter- connections, throughout the country. The benefits of legal aid and the eligibility requirements should be uniformly applicable in every nook and corner of this land.
6. The Researcher is of the view that while it should be the duty of the State to provide funds for legal aid schemes in the largest possible measures, it must be the task of the legal profession to shoulder the main, if not the entire, responsibility for the working of the scheme. The training and equipment of the lawyer, his close association with the machinery for administration of justice and knowledge of its procedures tend to make him the fittest instrument for administering a scheme of legal aid.
7. It is submitted by the Researcher that though the State may provide funds for the purpose, the day-to-day administration of the scheme will have to be looked after by bodies which are wholly or partially composed of lawyers.
8. Researcher is of the view that the Legal Profession owes moral and social obligation to poor members of society. Every member of the profession including the busy senior members at its top should make it a rigid rule to do a certain number of cases of poor persons every year. This obligation is owed in a greater degree by the senior members of the Bar who can better afford the sacrifice involved and whose example in assisting poor persons are likely to be followed by the junior members.
9. It is suggested by the Researcher that in welfare State it is the obligation of the State to ensure the citizen’s justice according to law. For ensuring this justice, assistance of a lawyer is essentially required because of intellectual deficiency or disability of the persons concerned. Due to financial constraint his inability to engage a lawyer, it becomes, as a corollary to the first obligation, the second obligation of the State to provide the necessary financial assistance to such aggrieved person.
10. It is opined by Researcher that in a developing country, like India where problems like illiteracy, ignorance, poverty and backwardness are existing, providing of legal literacy and creation of legal awareness is more important than
81
providing of legal aid, so that the people of the country are made conscious of their rights and duties. Then only can we translate the Constitutional philosophy of Article 39A into a reality.
11. The insufficiency of legal aid to the accused during a Court martial is another serious defect of the present system. “The most significant is the absence of the services of an experienced legal officer as counsel for the accused. Military rules permit an accused to engage a civilian lawyer at his own expense or to be defended by a military officer known as the defending officer. In reality, very few of the accused can engage a civilian lawyer at their own expense and service officers normally detailed for the duty are inexperienced and unwilling to undertake this commitment”.15
In an effort to assess and evaluate our existing provisions of legal aid along our needs and aspirations, this research work refers to the preamble of the Constitution, setting-forth the goal of equalities of status and of opportunity for all Indians and ensuring social, economic and political justice. The fundamental rights, under Article 14 adumbrating equality before law and equal protection of laws, prescribing there with a classification for special dealing on the basis of an intelligible differentia, Article 21 laying down the condition precedent of an ‘Established Procedure of Law’ for taking life or personal liberty of person, with its concomitant for a reasonable, fair and just procedure and bringing it synonymously closer to the American ‘due process clause’ and article 22 bestowing right to consult a consult a counsel of one’s choice on every accused. Article 32,another fundamental right of Indian citizens, providing means and wheels to the other fundamental rights and freedoms by extending right to constitutional remedies, along with its mutatis mutandis provision under Article 226, has added another facet to legal aid concept by way of a dynamic interpretation of our Supreme Court, liberalizing the locus standi’ principle to introduce and encourage Public Interest Litigation to protect and promote the rights and interests of the weak and the meek in the Indian society with a society effort. Article 39-A, the most fundamental directive principle of state policy, is the most important, potent and the pointed provision in India for legal aid benefits to the destitute and deprived to help securing justice for them.
Apart form the constitutional provisions, the Code of Criminal Procedure, under section 304, makes a provision for legal aid at state expense to an unrepresented accused
82
facing a sessions trial. The Code of Civil Procedure, under Order XXXIII, provides legal aid to indigent persons. The Gram Panchayat Acts of the states, as the Punjab Gram Panchayat Act, 1994, provide for a cheaper, speedier and an enduring justice with conciliatory means and thus have been named as making a provision for legal aid. The legal Services Authorities Act, 1987, (enforced in Nov.1995) deals exclusively and exhaustively with legal aid and has certainly toned the concept of Lok Adalats, a prominent part of our present legal aid programmes.
OTHER SUGGESTIONS
Apart from the amendments in the statutes and the state schemes, submitted heretofore, the observations of this research work demand a few other suggestions for consideration of the judiciary, department of legal aid and the Indian society at large. Our humble submissions for the purpose are:
1. Legal Aid has gained source and strength from the members of the higher judiciary. Their pronouncements and precepts have been adopted in this research work as the Judicial Guidelines. All such guidelines should be printed and circulated to the members of the lower judiciary, who matter more in delivery of legal aid benefits. The need for legal aid and the role of judiciary in dispensing it should be reiterated in the refresher courses, training programmes and seminars attended by judicial officers.
2. Those brimming with qualities of commitment, dedication, sincerity and selflessness should be recruited in the legal aid scheme. The state functionaries in this programme should belong to a separate cadre and should be provided attractive service conditions like pay structure, promotion channel, training and re-trainings and office equipment, etc. The employment in state legal aid service must be placed higher than those of their counterparts employed in prosecution and other departments.
3. Legal Aid is a service to the humanity. Therefore, not state alone but the welfare and voluntary organisations too should adopt this scheme. Religion and religious organizations are rendering yeoman's service in the Indian society on the educational and health fronts but legal aid has escaped from their attention. The religious organisations like S.G.P.C., Arya Samaj, Radha Soami Satsang, etc. should undertake the task of legal aid to the poor and those in want in the
83
Indian society.
4. To make state legal aid competitive and within the reach of everyone, the concept of Legal Insurance, for natural and corporate persons alike, should be adopted by the Insurance Companies.
84
BIBLIOGRAPHY
BOOKS AND RESEARCH WORKS
• Austin, Granville, The Indian Constitution: Cornerstone of a Nation, 1966.
• Ahinad, M.B., The Administration of Justice in Medieval India.
• Alm1ed, S. Maqbul, Islam ,and Medieval and Modern Societies, in Translations of the Indian Institute of Advanced Study, 1965, Vol. I.
• Beveridge, History of India, Vol I.
• Basu, Durga Dass, Constitutional Law of India, 1991.
• Chhabra, K.S., Quantum of Punishment in Criminal Law in India, 1970. Cappelletti Maurao (et a1.), Towards Equal Justice: A Comparative Study of Legal Aid in Modern Societies, 1975.
• Chander, Shailja, v.l Krishna lyer on Fundamental Rights and Directive Principles, 1992.
• Chhabra, Sunil, Constitutional Philosophy of Legal Aid in India: An Empirical Study of the Administration of Legal Aid to the Wear - Sections of the Society in the State of Himachal Pradesh (A Ph.D. Thesis unpublished).
• Dhyani, S.N., Law-Morality and Justice: Indian Developments, 1984.
• Fleet, J.W., Introductory Note in Kautilaya's Arthashastra, translated by R Shamasastry (4th Edn.), 1951.
• Goldberg, Equal Justice for Rich and Poor.
• Ghoshal, U.N., Studies in Indian History and Culture.
• Govt. of India, Outlines of a Scheme for Legal Aid to the Poor, 1960.
• Govind Singh, Hindi translation of important parts of Rig Veda, 1992.
• Hegel, Studies in Hegelian Cosmology.
• Kane., P.V., History of Dharmashastra, Vol. III, 1973.
• Kelker, RV., Outlines of Criminal Procedure, 1984.
85
• Kulshreshta, V.D., Landmarks in Indian Legal and Constitutional History, 1984.
• Laskar, Sirajul Islam, Directive Principles of State Policy in Indian Constitution.
• Morean, Edward Society, Practical Legal Aid, 1976.
• Pandey, J.N., Constitutional Law of India, 1991.
• Pollock Seton, The English Legal Aid System, 1974.
• Raymond D. Schachter, Legal Aid Hand Book, 1975.
• Spencer, Herbert, Social Statistics, 1850.
• Chandrashekhar, D.M., Legal Aid to the Weaker Sections of the People, Paper read at the Seventh Annual Conference of Indian Society of Criminology, Aligarh Muslim University, Dec. 28-30, 1977.
• Charlien, Thomas, A Progress Report from the Legal Services, Corporation, 62, A.B.A., II, 1976, p. 1138.
• Dworkin, Gerald, The Progress and Future of Legal Aid in Civil Litigation, 28 MLR 432-33.
• Govt. of India, Alternative Dispute Resolution, (A paper by the Govt. of India for meeting of Commonwealth Law Ministers Conference at Chrit Church, Newzealand from 23-27 April 1990), Legal Aid Newsletter, New Delhi, May-August 1990.
• Jois, M. Rama, Defining True Dharma, Indian Express, Chandigarh, Sep. 12, 1993; p. 6.
• Joshi, S.N., Programme and Movement of Legal Aid to Poor, AIR (journal), 1981, p. 27.
• Menon, N.R Madhava, Legal Aid & Justice for the Poor, in Dr. Upendra Baxi's (Ed.) Law and Poverty.
• Murthy, K. Vasudeva, Legal Aid Services, .in Select Mateials on Public Legal Education, National Law School of India University, Bangalore, 1991, pp. 227-28.
• Mukherji, Sobyasachi, Role of Judiciary and Public Interest Litigation, Legal Aid News letter, New Delhi, Vol. X (Parts 1 & 2), August 2005, p. 21.
86
• Narpin, Jagat, Legal Aid - Litigation or Educational: An Indian "Experiment, Journal of the Indian Law Institute, 28 (1986).
• Singhvi, L.M., Exordial Address to the National Conference on Legal Aid, in Ahmed, M.B., The Administration of Justice in Medieval India?
• Sampath, D.K., Conciliation Through Mediation: An informal Programme For Dispute Resolution in the Country-side, Newsletter, Nov. 1986 to Feb. 1987.
• Sharma, S.K., Jurisprudence of Legal Aid: A Constitutional Juridical Perspective, The Academy Law Review XIII, 1999.
• Spara, Edward V., The Role of the Welfare Clients Lawyers, 12 UCLA, Law Review, 361.
REPORTS
• European Convention of Human Rights.
• Law Commission of India, Fourteenth Report, 1958.
• The International Commission of Jurists, Report of Committee IV, New Delhi, 1959.
• Rushcliffe Committee Report.
• 'Prevention of Crime and Treatment of Offender', 1965.
IMPORTANT ACTS
• Legal Services Authorities Act, 1987.
• Karnataka Legal Aid Board Act, 2014.
• Karnataka Legal Aid (District and Taluka Committees) Scheme, 1983.
• Punjab State Grant of Free Legal Service to the Poor Rules, 1990.
• Advocates Act, 2018.
• Punjab Panchayati Raj Act, 1994.
• Indian Constitution.

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