According to the World Bank Report of the year 2016, India has recorded to have
270,000,000 Indians as poor and because of being socially and economically
disadvantageous, it is difficult for them to access justice and exercise their
constitutional/ legal rights.
India came up with Legal Service Authority Act, 1987(herein after referred to as
the Act), by virtue of which, the marginalized sections of the society will be
eligible for proper legal aid. The Act is a step forward on the principles of
Article 39-A of the Indian Constitution, which ensures that justice to be
provided by equal opportunity.
The section 2(1) (c) of the Act, defines the term Legal Service, read under
'Legal Service' includes the rendering of any service in the conduct any case or
other legal proceeding before any court or other Authority or tribunal and the
giving of advice on any legal matter.
Therefore, it is clear that the services which are rendered in the conduct of
any legal proceeding before the court of law is legal service.
The concept of assigning a legal representative was suggested in the 14th Law
Commission Report. Again, in the year 1970, a committee was set-up, known as
Justice P.N. Bhagwati Committee, which was aimed to create a channel for those
who are not being able to reach out to enforce their rights guaranteed by law.
This will in turn ensure equal justice and nobody will be denied of justice on
the grounds of being poor, illiterate etc.
The constitution has rightly guarded the concept of Legal Aid to all the
sections of the society and it provides the opportunity of being heard to uphold
justice. Article 38 of the constitution, in itís clause (1) entrusts the state
with the duty to promote the welfare of the people by promoting the nation to
establish all kinds of justice-social, economic and political.
Article 39A of the Constitution, inserted by the 42nd Amendment Act, has
assigned the state to secure the operation of justice in the legal system and
provide free legal aid by establishing statutes or such bodies which are
necessary for the purpose.
Legal Aid is a part of Right to Life (Article 21) and
as stated by the Supreme Court of India in the case of Hussainara Khatoon v.
State of Bihar
[i], that, it is the right of every accused person to be
represented by a lawyer, if he/she is unable to do so due to poverty then the
state shall provide the person with the required representative. There have been
number of instances, where the provision of providing free legal aid has been
made as a mandatory duty of the state and can nowhere be treated as a form of
Apex Court, being the highest court of Justice has also widened the scope of
Article 39-A to include the proceedings related to bail also in the ambit of
free legal aid.[iii] It is important to note here that the idea of free legal
aid starts from the time of arrest and ends after the final judgement is
pronounced. It is also the duty of the advocate appointed under free legal aid
to comply to the procedure of law and appear in the court during the time of
proceedings and if he/ she doesnít do so, then be eligible for punishment and
the case to be started afresh.
The Criminal Procedure Code, 1973, contains the idea of free legal aid under the
Section 304, clause (1), which puts an obligation on the Court to appoint a
pleader for the accused, where he is not being able to do so.
The Civil Procedure Code 1908 provides Order XXXII, where when a suit is filed
by an Indigent person, there is no requirement to pay the Court fee and if he
requires a pleader then the Court to appoint the same. The same benefit is
applicable to the defendant also, if he is an Indigent Person.
Eligibility for free legal aid
To be benefit under the free legal aid service of the government, the person to
satisfy either of the following criteria:
Reports made by NALSA (National Legal Service Authority) in context of Legal Aid
- Member of the Schedules Caste/ Scheduled Tribe
- Human trafficking victim/ beggar (Article 23 of the Indian Constitution)
- A woman/ child
- A disabled person (according to the provisions mentioned in Persons with
Disabilities Act, 1995)
- Victim of disaster Ė flood/ drought/ earthquake etc
- Industrial workman
- in custody
- in a juvenile care home
- has annual income less than Rs. 9,000 (amount to be specified by the
- Legal Assistance to family members of Prisoners:
The report is a
detailed document containing the problems of the third sect, other than the
victim and the offender Ė the families of the offenders who are dependable
on offenders for their daily living. The report throws light upon the various
steps taken by the Legal Service Authority to protect the families of the
- Legal Aid to women prisoners and their accompanying children in
Women are more vulnerable to face exploitation, abuse, violence etc. The draft
is a report of the 10-day campaign launched by NALSA which was launched to
enhance the legal aid services for the women prisoners.
- Rajoo v. The State of Madhya Pradesh (09.08.2012 - SC) : MANU/SC/0641/2012
In the year 1998, Rajoo along with 6 others, gangraped a female. They were found
guilty by the trial court and each of them was sentenced to 10-year rigorous
imprisonment and fine.
All the convicts filed an appeal in the High court, which resulted in the
removal of conviction from all of them, except Rajoo and Vijay.
Vijay accepted the decision but Rajoo filed for an appeal in the Supreme Court
- Whether Rajoo was entitled for free legal aid?
- In Other words, whether free
legal aid can be provided during the appellate stage of a case or is only
applicable at the trial stage?
The Article 39-A, containing the provisions for free legal aid, came in effect
from the year 1977 by virtue of the 42nd Amendment Act. The Court noted that
this provision is applicable to those parties of the case who satisfy the
criteria stated under Section 12 of The Legal Service Authority Act, 1987 at all
the stages of the case.
Supreme Court observed that the High Court, while hearing the appeal didnít
discharged itís duty effectively by enquiring whether Rajoo was in need of any
assistance in form of free legal aid and hence, it was found that Rajoo was
disabled from being benefited out from this provision.
Therefore, the Supreme Court ordered the High Court to hear the fresh case for
Anokhilal v. State of Madhya Pradesh AIR 2020 SC 232
The accused was convicted of rape and murder of a 9-year-old girl. The Legal Aid
Advocate, who was appointed, didnít appeared at the hearing of the case.
Afterwards, another Legal-aid counsel was appointed for the same and on the same
day charges were framed against the accused. He was then sentenced to death
penalty, along with fine, which was to be executed after the permission of the
Though the accused appealed in the High Court and the High Court upheld the
order of the Trial Court.
Hence, the appeal was made to the Supreme Court.
- Whether while exercising the right of free legal aid, the accused was given
meaningful and real assistance or not?
It was observed by the Apex Court that the Amicus Curie so appointed while
granting free legal aid to the accused was not given enough time to prepare,
which lead the hearing to be unmeaningful
The conviction was set aside and the highest court of justice in India ordered
to hear the case afresh.
Court framed guidelines in regards to this to avoid such mis-happenings in
future, such as:
- In cases, where the convicts can be sentenced to life imprisonment or
death sentence, only those advocates to be appointed, as legal aid counsels,
who hold a minimum of 10 years of experience.
- If the death sentence is in confirmation, then only senior advocates to
be appointed for the purpose of legal aid counsels.
- Each legal-aid counsel to be allotted enough time to prepare for the
case. Normally, a 7-day time period may be considered as a reasonable time
for the same.
- The counsels to be granted to have meetings and discussions with
- The World Bank, India's Poverty Profile (worldbank.org) (Last visited May
10, 2021, 9:29 P.M.).
- National Legal Service Authority, legal assistance to the family members
of the prisoners book - National Legal Services Authority! (nalsa.gov.in) (Last
Visited May 11, 10:00 P.M.).
- A.I.R. 1979 S.V. 1369.
- M.H. Hoskot v. State of Maharastra, A.I.R. 1978 S.C. 1548.
- Khatri v. State of Bihar A.I.R. 1981 S.C. 928.