Free Legal Aid in India

8/19/2019 Free Legal Aid in India

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LEGAL AID IN INDIA

BY

AGAM RAJ

BBALLB(3rd yr)

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Introduction

Whatever standards a man chooses to set for himself !e they reli"ious moral social or #urely

rational in ori"in it is the la$ $hich #rescri!es and his ri"hts and duties to$ards the other

mem!ers of the community% &his some$hat ar!itrary collection of #rinci#les he has very lar"ely

to ta'e as he finds and in a modern society it tends to !e so diverse and com#le that the hel# ofan e#ert is often essential not merely to enforce or defend le"al ri"hts !ut to reco"nie identify

and define them% *Mathe$s and +utton%

Le"al Aid im#lies "ivin" free le"al service to the #oor and needy $ho cannot afford the services

of a la$yer for the conduct of a case or a le"al #roceedin" in any court tri!unal or !efore an

authority%

&he conce#t of le"al aid in the form of Article 3,A into our constitutional frame$or'% -ence

le"al aid is not a charity or !ounty !ut is a constitutional o!li"ation of the state and ri"ht of the

citiens% &he #ro!lems of human la$ and .ustice "uided !y the constitutional "oals to the

solution of dis#arities a"onies des#airs and handica#s of the $ea'er yet lar"er !rac'ets of

Bharat/s humanity is the #rime o!.ect of the do"ma of 0e1ual .ustice for all2% &hus le"al aid

strives to ensure that the constitutional #led"e is fulfilled in its letter and s#irit and e1ual .ustice

is made availa!le to the do$ntrodden and $ea'er sections of the society% It is the duty of the

tate to see that the le"al system #romotes .ustice on the !asis of e1ual o##ortunity for all its

citiens% It must therefore arran"e to #rovide free le"al aid to those $ho cannot access .ustice due

to economic and other disa!ilities%

Justice 4rishna Iyer re"ards it as a catalyst $hich $ould ena!le the a""rieved masses to re*assert

state res#onsi!ility $hereas Justice 5%6% Bha"$ati sim#ly calls it 0e1ual .ustice in action2% But

a"ain the constitution not !ein" a mystic #archment !ut a 5ra"matic #ac'a"e of mandates $ehave to decode its articles in the contet of Indian life/s tearful realities and it is here $hen the

.udiciary has to ta'e center sta"e%

&ime and a"ain it has !een reiterated !y our courts that le"al aid may !e treated as a #art of ri"ht

created under Article 78 and also under Article 89 and Article 77(8):-ussainara v% -ome

ecretary tate of Bihar% Also 4hatri v% tate of Bihar u' ;as v%


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Legal Aid Definition and Legality:

=onventionally >Le"al Aid/ has !een ta'en too mean the or"anied effort of the !ar

council the community and the "overnment to #rovide the services of la$yers free or for

a to'en char"e to #ersons $ho cannot afford the usual eor!itant fees% Ina!ility to

consult or to !e re#resented !y a la$yer may amount to the same thin" as !ein" de#rived

of the security of la$% Ra$ls first #rinci#le of .ustice is that each #erson is to have an

e1ual ri"ht to the most etensive total system of e1ual !asic li!erties com#ati!le $ith a

similar system of li!erties for all% In the contet of our =onstitutional demands and tate

o!li"ations Le"al aid has assumed a more #ositive and dynamic role $hich should

include strate"ic and #reventive services% Relievin" >Le"al 5overty/? the inca#acity of

many #eo#le to ma'e full use of la$ and its institutions has no$ !een acce#ted as a

function of a >Welfare tate/% A#art from the social economic and #olitical re1uirements

on $hich the claim of le"al aid rests its no$ recently reco"nied as a constitutional

im#erative arisin" from Articles 89:7@ 78:3@ 77:9@(8) 3,*A:@ of &he =onstitution of

India%

Le"al Aid is a movement that envisa"es that the #oor have easy access to courts and other

"overnment a"encies% It im#lies that the decisions rendered are fair and .ust ta'in" account of the

ri"hts and disa!ilities of #arties% &he focus of le"al aid is on distri!utive .ustice effectiveim#lementation of $elfare !enefits and elimination of social structural discrimination a"ainst the

#oor% It $as ta'in" these mandatory #rovisions of &he =onstitution of India in mind that the

5arliament #assed &he Le"al ervices Authorities Act 8,C%

&his Act as amended $ith effect from 87%D%7EE7 no$ #rovides for decision even on merits !y the

5residin" +fficers of the 5ermanent Lo' Adalats constituted !y the tate Le"al ervices Authority of

those matters $hich relate to #u!lic utility services $hich have !een duly defined in the Act%

&oday $e find that the la$ of su##ly and demand o#erates in all its na'ed fury in the le"al #rofession%

&here is #ractically no limit of the fees that a la$yer may char"e his client% &his directly leads to

ine1uality in the 1uality of le"al re#resentation as !et$een the rich and the #oor% 6ot only $ould there !e

ine1uality in the com#etence of le"al re#resentation $hich $ould !e availa!le to the rich !y reason of

their su#erior financial resources%

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History of Legal Aid in India:

&he earliest Le"al Aid movement a##ears to !e of the year 88 $hen some enactment $as

introduced in France for #rovidin" le"al assistance to the indi"ent% In Britain the history of the

or"anied efforts on the #art of the tate to #rovide le"al services to the #oor and needy dates

!ac' to 8,99 $hen Lord =hancellor iscount imon a##ointed the Rushcliffe =ommittee to

en1uire a!out the facilities eistin" in Hn"land and Wales for "ivin" le"al advice to the #oor and

to ma'e recommendations as a##ear to !e desira!le for ensurin" that #ersons in need of le"al

advice are #rovided the same !y the tate% ince 8,7 the Government of India also too' the

initiative to addressin" to the 1uestion of le"al aid for the #oor and indi"ent in various

Ministerial La$ =onferences and =ommissions% In 8,DE some "uidelines $ere dra$n u# !y the

Government of India for le"al aid schemes%

Le"al Aid chemes $ere floated throu"h Le"al Aid Boards ocieties and La$ ;e#artments in

various tates in the =ountry% In 8,E a 6ational =ommittee $as constituted under the

=hairmanshi# of -onora!le% Mr% Justice 5%6% Bha"$ati then a Jud"e of the u#reme =ourt of

India to oversee and su#ervise le"al aid #ro"rams throu"hout the country% &his =ommittee came

to !e 'no$n as =ILA (=ommittee for Im#lementin" Le"al Aid chemes) and started

monitorin" le"al aid activities throu"hout the country% &he introduction of Lo' Adalats added a

ne$ cha#ter to the Justice ;is#ensation ystem of this country and succeeded in #rovidin" a

su##lementary forum to the liti"ants for conciliatory settlement of their dis#utes% &he year 8,C

#roved to !e very si"nificant in Le"al Aid history as the Le"al ervices Authorities Act $as

enacted to "ive a statutory !ase to le"al aid #ro"rams throu"hout the country and !rin" a!out a

uniform #attern% amendments $ere introduced therein !y the Amendment Act of 8,,9%

Legal Aid Provisions in the Constitution:

Article 3,A * H1ual Justice and Free Le"al Aid% &he tate shall secure that the o#eration of the

le"al system #romotes .ustice on a !asis of e1ual o##ortunity and shall in #articular #rovide

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free le"al aid !y suita!le le"islations or schemes or in any other $ay to ensure that o##ortunities

for securin" .ustice are not denied to any citien !y reason of economic or other disa!ilities%

&he =onstitution of India under Article 3,*A mandates for free le"al aid to the #oor and $ea'er

sections of society% &he Le"al ervices Authorities Act 8,C as amended !y the Act of 8,,9

$hich came into force on ,th 6ovem!er 8,, aims at esta!lishin" a nation*$ide net$or' for

#rovidin" free and com#rehensive le"al services to the $ea'er sections% It ma'es it o!li"atory for

the tate to ensure e1uality !efore la$ and a le"al system $hich #romotes .ustice on a !asis of

e1ual o##ortunity to all% Le"al aid strives to ensure that constitutional #led"e is fulfilled in its

letter and s#irit and e1ual .ustice is made availa!le to the #oor do$ntrodden and $ea'er sections

of the society%

&he Le"al ervices Authority Act 8,C $as enacted to effectuate the constitutional mandates

enshrined under Articles 89 and 3,*A of the =onstitution of India% &he o!.ect is to #rovide

>Access to Justice for all/ so that .ustice is not denied to citiens !y reason of economic or other

disa!ilities% -o$ever in order to ena!le the citiens to avail the o##ortunities under the Act in

res#ect of "rant of free le"al aid it is necessary that they are made a$are of their ri"hts%

By the =onstitutional 97nd Amendment Act of 8,CD a ne$ #rovision $as incor#orated in the

=onstitution under Article 3,*A for #rovidin" free Le"al Aid and enhancin" the conce#t of e1ual

.ustice found a #lace in our constitution Article 3,*A $hich $as incor#orated under #art I*

;irective 5rinci#les of tate 5olicy reads as under*

H1ual .ustice and free le"al aid*&he tate shall secure that the o#eration of the le"al system

#romotes .ustice on a !asis of e1ual o##ortunity and shall in #articular #rovide free le"al aid

!y suita!le le"islation or schemes or in any other $ay to ensure that o##ortunities for securin"

.ustice are not denied to any citien !y reason of economic or other disa!ilities%

LHGAL AI; reasoned in the Act &he =ourt has !een a##roached !y an or"aniation dee#lyen"a"ed in renderin" social and .udicial services for securin" .ustice and e1ual o##ortunity to the

needy% &hey have a##roached the =ourt for mandamisin" the tate to carry out the o!.ectives and

o!li"ation of Article 3,*A of the =onstitution of India as $ell as the mandate of the Act

introduced $ith tall claims% &he =ourt held that the #etitioner are entitled to as' the -i"h =ourt

to issue directions sou"ht for in the $rit #etition for #ro#er im#lementation of the #rovisions of

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the Act and to carry out the #ur#oses of the Act in true sense and s#irit and not to scuttle it !y

resort to any #retences andKor treat the constitutional directives as an em#ty slo"an%

With the o!.ect of #rovidin" free le"al aid the Government of India had !y a resolution dated

7Dth e#tem!er 8,E a##ointed a =ommittee 'no$n as =ommittee for Im#lementin" Le"al Aid

chemes (=ILA) under the chairmanshi# of =hief% Justice 5%6% Bha"$ati to monitor and

im#lement le"al aid #ro"rams on a uniform !asis in all the tates and =ILA/

evolved a model scheme for le"al aid #ro"rams a##lica!le throu"hout the country !y $hich

several le"al aid and advice Boards $ere set u# in the tates and


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Le"al ervices Authorities after eaminin" the eli"i!ility criteria of an a##licant and the

eistence of a #rima facie case in his favour #rovide him counsel at tate e#ense #ay the

re1uired =ourt Fee in the matter and !ear all incidental e#enses in connection $ith the case% &he

#erson to $hom le"al aid is #rovided is not called u#on to s#end anythin" on the liti"ation once

it is su##orted !y a Le"al ervices Authority%


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use of #rovisions of this act the conference $ill deli!erate on the feasi!ility of settin" u#

#ermanent Lo' Adalats in the states%

&he constitution of the =ommittee for the Im#lementation of Le"al Aid chemes (=ILA) in

8,E $as a ma.or ste# in institutionaliin" le"al aid% &he Le"al ervices Authorities Act 8,C

dis#laced the >=ILA/ and introduced a hierarchy of .udicial and administrative a"encies% &he

>LAA/ !e"an to !e enforced only ei"ht years later under the directions of the u#reme =ourt% It

led to the constitution of the 6ational Le"al ervices Authority (6ALA) at the =entre and a

tate Le"al ervices Authority in the tates to "ive effect to its directions

National Legal Services Authority NALSA!:

&he 6ational Le"al ervices Authority is a statutory !ody $hich has !een set u# for im#lementin" and monitorin" le"al aid #ro"rams in the country% &he le"al aid #ro"ram ado#ted

!y >6ALA/ include #romotin" of le"al literacy settin" u# of le"al aid clinics in universities and

la$ colle"es trainin" of #arale"als and holdin" of le"al aid cam#s and Lo' Adalats% 6ational

Le"al ervices Authority is the a#e !ody constituted to lay do$n #olicies and #rinci#les for

ma'in" le"al services availa!le under the #rovisions of the Act and to frame most effective and

economical schemes for le"al services% It also dis!urses funds and "rants to tate Le"al ervices

Authorities and 6G+s for im#lementin" le"al aid schemes and #ro"rams%

6ational Le"al ervices Authority $as constituted on th ;ecem!er 8,,% -is Lordshi# -on%

;r% Justice A%% Anand Jud"e u#reme =ourt of India too' over as the Hecutive =hairman of

6ational Le"al ervices Authority on 8Cthe July 8,,C% oon after assumin" the office -is

Lordshi# initiated ste#s for ma'in" the 6ational Le"al ervices Authority functional% &he first

Mem!er ecretary of the authority .oined in ;ecem!er 8,,C and !y January 8,, the other

officers and staff $ere also a##ointed% By Fe!ruary 8,, the office of 6ational Le"al ervices

Authority !ecame #ro#erly functional for the first time% A nation$ide net$or' has !een

envisa"ed under the Act for #rovidin" le"al aid and assistance%

6ational Le"al ervices Authority $as constituted on th ;ecem!er 8,,% Accordin" to ection

3 (8) under the =ha#ter II of the Act:@ the =entral Government is instructed to constitute a !ody

at the 6ational level 'no$n as the 6ational Le"al ervices Authority to eercise #o$ers and

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#erform functions conferred on it or assi"ned to it under the Act% -is Lordshi# -on% ;r% Justice

A%% Anand Jud"e of &he u#reme =ourt of India too' over as the Hecutive =hairman of

6ational Le"al ervices Authority on 8Cthe July 8,,C% oon after assumin" the office -is

Lordshi# initiated ste#s for ma'in" the 6ational Le"al ervices Authority functional% &he first

Mem!er ecretary of the authority .oined in ;ecem!er 8,,C and !y January 8,, the other

officers and staff $ere also a##ointed% By Fe!ruary 8,, the office of 6ational Le"al ervices

Authority !ecame #ro#erly functional for the first time%

>6ALA/ has also called u#on tate Le"al ervices Authorities to set u# le"al aid cells in .ails so

that the #risoners lod"ed therein are #rovided #rom#t and efficient le"al aid to $hich they are

entitled !y virtue of section 87 of Le"al ervices Authorities Act 8,C% &he Government has

sanctioned Rs 9 crores as "rant*in*aid for >6ALA/ for 8,,*,, for allocatin" funds to the tate

;istrict authorities etc% &he >6ALA/ is also monitorin" and evaluatin" the im#lementation of

the le"al aid #ro"rams in the country%


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5ersons !elon"in" to middle income "rou# i%e% $ith income a!ove Rs%8EEEK* !ut under Rs%

87EEEEK* #er annum are eli"i!le to "et le"al aid from the u#reme =ourt Middle Income Grou#

ociety on nominal #ayments%

$aluk Legal Services Co##ittee:

ections 88*A and 88*B $ere inserted !y the Act , of 8,,9 $here!y #rovisions relatin" to &alu'

Le"al ervices $ere added in the Le"al ervices Authorities Act 8,C%&he &alu' Le"al ervices

=ommittee $or' under the rules made !y the different tates% Relatin" to its com#osition

conditions of services in certain tates additional functions have also !een assi"ned e%"% in

Andhra 5radesh $here the functions are su!.ect to su#erintendence of the ;istrict and the tate

Authority% A#art from the a!ovementioned four*tier machinery the Le"al ervices Authorities

Act also #rovides for the u#reme =ourt Le"al ervices =ommittee to #erform functions as may

!e determined !y the =entral Authority and tate Authority res#ectively

Cases% &urist o"inions and &udge#ents:

In the case of -ossainara 4hatun v% tate of Bihar in the u#reme =ourt held that the ri"ht to

free le"al services is an essential in"redient of reasona!le fair and .ust #rocedure for a #erson

accused of an offence and it must !e held to !e im#licit in the "uarantee of Article 78% &his $as a

case $here it $as found !y Mr% Justice 5%6% Bha"$ati and Justice ;%A% ;esai that many under*

trail #risoners in different .ails in the tate of Bihar had !een in .ail for #eriod lon"er than the

maimum terms for $hich they $ould have !een sentenced if convicted and that their retention

in .ails $as totally un.ustified and in violation of the fundamental ri"hts to #ersonal li!erty under

Article 78 of the =onstitution% While disclosin" shoc'in" state of affairs and callousness of our

le"al and .udicial system causin" enormous misery and sufferin"s to the #oor and illiterate

citiens resultin" into totally un.ustified de#rivation of #ersonal li!erty Justice 5%6% Bha"$ati

made follo$in" o!servations in #ara"ra#h D of the .ud"ment $hich are thou"ht #rovo'in"*

&his unfortunate situation cries aloud for introduction of an ade1uate and com#rehensive le"al

service #ro"rams !ut so far these cries do not seem to have evo'ed any res#onse% We do not

thin' it is #ossi!le to reach the !enefits of the le"al #rocess to the #oor to #rotect them a"ainst

in.ustice and to secure to them their constitutional and statutory ri"hts unless there is a nation*

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$ide le"al service #ro"ram to #rovide free le"al services to them% We $ould stron"ly recommend

to the Government of India and the tate Government that it is hi"h time that a com#rehensive

le"al service #ro"ram is introduced in the country% &hat is not only a mandate of e1ual .ustice

im#licit in Article 89 and to ri"ht to life and li!erty conferred !y Article 78 !ut also the

com#ulsion of the constitutional directive em!odied in Article 3,A%

&$o years thereafter in the case of 4hatri v% tate of Bihar:88@ Justice 5%6% Bha"$ati $hile

referrin" to the u#reme =ourt/s mandate in the aforesaid Hossainara 'hatun(s case made the

follo$in" comments In #ara"ra#h 9 of the said .ud"ment

It is unfortunate that thou"h this =ourt declared the ri"ht to le"al aid as a fundamental ri"ht of an

accused #erson !y a #rocess of .udicial construction of Article 78 most of the tates in the

country have not ta'en note of this decision and #rovided free le"al services to a #erson accused

of an offence% &he tate is under a constitutional mandate to #rovide free le"al aid to an accused

#erson $ho is una!le to secure le"al services on account of indi"ence and $hatever is necessary

for this #ur#ose has to !e done !y the tate% &he tate may have its financial constraints and its

#riorities in e#enditure !ut the la$ does not #ermit any Government to de#rive its #riorities in

e#enditure !ut the la$ does not #ermit any Government to de#rive its citiens of constitutional

ri"hts on the #lea of #overty%

In 8,D in another case of u'hdas v%


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#rotection of the la$ and they can avail of the le"al service #ro"rams for #uttin" an end to their

e#loitation and $innin" their ri"hts% &he result is that #overty !ecomes $ith them a condition of

total hel#lessness% &his misera!le condition in $hich the #oor find themselves can !e alleviated

to some etent !y creatin" le"al a$areness amon"st the #oor% &hat is $hy it has al$ays !een

reco"nied as one of the #rinci#al items of the #ro"ram of the le"al aid movement in the country

to #romote le"al literacy% It $ould !e in these circumstances made a moc'ery of le"al aid if it

$ere to !e left to a #oor i"norant and illiterate accused to as' for free le"al service le"al aid

$ould !ecome merely a #a#er #romise and it $ould fail of its #ur#ose%

It $as in the a!ove !ac'dro# that he 5arliament #assed the Le"al ervices Authorities Act 8,C

$hich $as #u!lished in the Gaette of India Htraordinary 5art II ection I 6o% dated 87th

+cto!er 8,C% Althou"h the Act $as #assed in 8,C the #rovisions of the Act ece#t =ha#ter

III $ere enforced $ith effect from ,%88%8,, !y the =entral Government 6otification %+%,3

(H) dated ,th 6ovem!er 8,,% =ha#ter III under the headin" tate Le"al ervices Authorities

$as enforced in different tates under different 6otifications in the years 8,,*8,,%

In )*H Hoskot v* State of )aharashtra the u#reme =ourt laid do$n some !annin"

#rescri#tion for free le"al aid to #risoners $hich are to !e follo$ed !y all the courts of India

such as furnishin" of free transcri#t of .ud"ment in time to the sentencesN $here the #risoner

see's to file an a##eal for revision every facility for eercisin" such ri"ht shall !e made

availa!le !y the .ail administration and if a #risoner is una!le to eercise his statutory and

constitutional ri"ht of a##eal includin" s#ecial leave to a##eal for $ant of le"al assistance there

is im#licit in the court under Article 897 read alon" $ith Article 78 and 3,*A of the =onstitution

the #o$er to assi"n counsel to the #risoner #rovided he does not o!.ect to the la$yer named !y

the court%

In Indira Gandhi v. Raj Narain

(AIR 1977 SC 69)

"Rule of Law is basic structure of constitution of India. Every individual is guaranteed the it’s

rights give to him under the constitution. No one so condemn unheard. Equality of justice

should be given to everyone. here ought to be a violation to the fundamental right or

!rerogatives or !rivileges only then remedy goes to #ourt of Law. $ut also at the stage

when he first is !roduced before the magistrate. In absence of legal aid trial is vitiated."

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A similar re#ort of the =ommittee on Le"al Aid titled O#rocessionals .ustice to #oorO #resided

over !y 4rishna Iyer in 8,C3 dealt $ith the neus !et$een la$ and #overty and s#o'e of 5IL in

this contet% It em#hasied the need for active and $ides#read le"al aid system that ena!led la$

to reach the #eo#le rather than re1uirin" #eo#le to reach the la$%

&he t$o .ud"es .oined forces as a t$o mem!er committee on .uridicare released its final re#ort

in Au"ust 8,CC% &he re#ort $hile em#hasiin" the need for a ne$ #hiloso#hy of le"al service

#ro"ramme cautioned that it >must !e framed in the li"ht of socio*economic conditions

#revailin" in the =ountry/% It further noted that >the traditional le"al service #ro"ramme $hich is

essentially =ourt or liti"ation oriented cannot meet the s#ecific needs and the #eculiar #ro!lems

of the #oor in our country/% &he re#ort also included draft le"islation for le"al services and

referred to ocial Action Liti"ation%

Justice 4rishna Iyer $as a##ointed as the =hairman of =ommittee for Le"al Aid% &he =ommittee

$as formulated as on the 77nd day of +cto!er 8,C7% &he =ommittee after conductin" sam#le

surveys of lar"e #art of the country su!mitted a 7C #a"e re#ort to the Government on the 7Cth

day of May 8,C3% &his re#ort came to mar' the cornerstone of Le"al Aid develo#ment in India%

&he re#ort clearly laid do$n that it is a democratic o!li"ation of the tate to$ards its su!.ect to

ensure that the le"al system !ecomes an effective tool in hel#in" secure the ends of social .ustice%

-e coined the $ord OJuridicareO to cover a scheme of le"al aid $hich !rou"ht .ustice to the

doorste# of the lo$ly and $hich $as com#rehensive in its covera"e%

&he re#ort clearly su""ests the colonial han"over of the Indian le"al system $hich has #revented

it from realisin" its true #otential and etent% It also reco"nises the fact that much of our la$ $as

created !y the British to suit their convenience and as a result of this it is mostly insensitive to

the socio*economic #ro!lems of the masses it set out to "overn and re"ulate%

&he re#ort also made an effort to classify those cate"ories of #ersons $ho are most in need of

Le"al Aid they are as follo$s*

8% &he #oor in "eneralN

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7% &hose #ersons !elon"in" to the cheduled =astes or cheduled &ri!es i%e% that cate"ory of

#ersons $ho have !een !oth economically as $ell as socially e#loited !y the cultural elitists

since time immemorial%

3% &hose #ersons $ho either !y reason of !ein" inha!itants of !ac'$ard areas or $ho are so

"eo"ra#hically #laced that their voice cannot reach the =ourts of .ustice e%"% 5eo#le $ho are

inha!itants of cheduled Areas Mountainous terrain/s landloc'ed re"ions etc%

9%&he $or'man and the #easantry class $ho toil and la!our to earn re$ards for their hard $or'

of $hich they are often de#rived%

% &hose soldiers and armed forces #ersonnel $ho in order to #rotect the !oarders are stationed at

the ed"e of the land for lon" #eriods of time%

D% Women and children $ho are de#rived social .ustice on "rounds of !iolo"ical infirmity%

C%


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Most social evils are an outcome or creation of #overty and the misery that comes $ith !ein"

#oor in a country li'e India at the same time it also needs to !e !orne in mind that the .udiciary

no matter ho$ever committed it may !e to$ards u#liftin" the cause of the #oor is ultimately

!ound !y #rocedural formalities $hich do not ta'e into account the misery or #ro!lems of the

masses% &herefore the sufferin"s !ein" so may it is not #ossi!le for the le"al system to remove

even fe$ of such #ro!lems% In 'ee#in" $ith the same vie$ Justice 4rishan Iyer asserted that

#overty is a creation of un.ust institutions and un.ust society% &herefore in a country li'e India if

you are #oor you are ineffective socially as $ell as economically the only $ay that you can then

!e em#o$ered is throu"h radical revam#in" of the socio*economic structure% uch a radical

chan"e accordin" to him could only !e !rou"ht a!out in the form of a revolution that the le"al

service #ro"ramme only is ca#a!le of "earin"% &hus the le"al aid #ro"ramme aimed at revam#in"

the socio*economic structure !y $ay of removin" the socially un.ust institutions and creatin" a

ne$ order !ased u#on the ethos of human li!erty e1uality and di"nity of man'ind%

-e realised the fact that thou"h the system had !een fla""ed off under the term OWe the #eo#le

of IndiaO it had no lon"er continued in the same direction $ant of #rocedural formalities had

ta'en #recedence over the #eo#le at the cost of $hich .ustice often suffered casualties% -e came

to reco"nise the fact that the =ourts of la$ had merely !ecome instruments for la$/s sa'e and

$ere not administerin" .ustice as such% -o$ever he #laced !lame for the attitude of the .udiciary

on the colonial han"over of namely all institutional systems in the =ountry% &his lead him to

e#ress faith in the Gandhian system $hich #rofessed the resolution of dis#utes at the "rass root

level throu"h villa"e 5anchayat/s%

&he e#ert committee a##ointed under the chairmanshi# of .ustice 4rishna Iyer has made

si"nificant contri!ution to$ard the develo#ment of the conce#t of le"al aid in India% &he various

su""estions made !y him can !e summaried as under

A national le"al service authority accounta!le to the #arliament !ut #rotected from official

control $as recommended% im#lification of the le"al #rocedure and an em#hasis on conciliated

settlement outside court has to !e the #olicy of le"al aid schemes% &he re#ort ado#ted the three

fold test laid do$n for determinin" eli"i!ility Means test* to determine #eo#le entitled to le"al

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aid 5rima facie test* to determine $hether there $as a #rima facie case to "ive le"al aid or not

Reasona!leness test* to see $hether the defence sou"ht !y a #erson is ethical and moral%

In criminal #roceedin"s the committee is not in favour of "uaranteein" le"al aid to ha!itual

offenders and in cases $hich essentially involve #rivate claims% Re"ular arran"ement for aid and

advice to the undertrials $as to !e #rovided% A li!eralied !ail #olicy $hich $as not to !e

de#endent on financial consideration Le"al services $ere to !e etended to investi"ation as $ell

as #ost conviction sta"e% Le"al services should also include reha!ilitative services% In criminal

le"al aid the committee $as in favour of salaried la$yers% &he re#ort also encoura"es #ayment

of com#ensation to victims in criminal cases% Family courts should !e esta!lished for $omen and

children $ith $omen .ud"es this is s#ecially re1uired in slum areas and rural villa"es% 5u!lic

defence council should !e a##ointed in children/s court%

In !ac'$ard areas le"al advice !ureau should !e esta!lished in each develo#ment !loc'% &he

re#ort encoura"es the involvement of la$ students in le"al aid schemes #articularly for

#reventive le"al services% 5u!lic la$ service should !e an alternative availa!le as a"ainst the

#rivate !ar and le"al services authority should fi the fees #aya!le to the la$yer%

=ontri!utions Made By Justice 5%6%Bha"$ati &o &he ;evelo#ment +f &he =once#t +f Le"al

Aid*Re#ort +n 6ational Jurdicare H1ual Justice*ocial Justice Ministry +f La$ And JusticeAnd =om#any Affairs 8,CC Justice 5%6% Bha"$ati #racticed at the -i"h =ourt Bom!ay he

!ecame a Jud"e of the Gu.arat -i"h =ourt on 78st July 8,DE and !ecame =hief Justice of

%Gu.arat on 8Dth e#tem!er 8,DC% +n 8Cth July 8,C3 he !ecame the .ud"e of the u#reme

=ourt of India% -e $as also =hairman of the Le"al Aid =ommittee a##ointed !y the Government

of Gu.arat for su""estin" $ays and means of #rovidin" free le"al aid and advice to the #oor and

$ea'er section of the communityN and also acted as =hairman of the tate Le"al Aid =ommittee

for runnin" the 5ilot 5ro.ect of free Le"al Aid and Advice in Gu.arat% -e $or'ed successfully to

!uild u# an ela!orate le"al aid #ro"ramme% -e is $idely re"arded as the ori"inator of India/s

le"al aid #ro"ramme includin" settin" u# of le"al aid cam#s in rural areas $or'in" $ith 6G+s

esta!lishin" le"al aid clinics etc%

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&he #ost inde#endence le"al aid develo#ment $as initiated !y formation of Bom!ay =ommittee

in 8,9, under the chairmanshi# of Mr% 6- Bha"$ati follo$ed !y the !elo$ mentioned

se1uence of re#orts committees and rules% &revor -arries =ommittee in West Ben"al 8,9,

Initiatives !y the state "overnments such as &he Le"al aid formed in 8,7 in


19/30

It also em#hasied on havin" le"al aid #ro"rammes and that the or"aniation for effectuatin" the

le"al service #ro"ramme must !e res#onsive to the #oor in "ivin" le"al service and must not !e

mechanical and $ooden in its a##roach% Hven after such a #ro"ramme is introduced there must

!e a continues eamination of its utility and its res#onsiveness to the #oor%

&hey also su""ested that the #enal la$ should !e amended $ith a vie$ to #rovidin" that if the

accused $illfully fails to a##ear in com#liance $ith the order to a##ear or the #romise contained

in his reco"niance he shall !e lia!le to !e #unished $ith im#risonment or fine or !oth% &he la$

should also #rovide that the failure of the accused to a##ear $hen re1uired $ould constitute

#rima facie evidence that the failure $as $illful% &he Ma"istrates may start releasin" the accused

on his o$n reco"niance in cases $here the offence char"ed does not involve im#risonment for

more than one year% &he committee further stated that if it $as found from e#erience "ained as aresult of follo$in" this #ractice for a year or t$o that the #ractice is $or'in" satisfactorily the

Ma"istrates may etend this #ractice to cases involvin" sli"htly hi"her offences%

Le"al Aid chemes $ere floated throu"h Le"al Aid Boards ocieties and La$ de#artments in

various states in the =ountry% In 8,E A national committee $as constituted under the

chairmanshi# of -onora!le Mr% Justice 5%6 !ha"$ati then a .ud"e of the u#reme =ourt of India

to oversee and su#ervise le"al Aid #ro"rams throu"hout the country% &his committee came to !e

'no$n as =ILA (=ommittee for Im#lementin" Le"al Aid schemes) and started monitorin" le"al

Aid activities throu"hout the country% &he introduction of Lo' Adalats added a ne$ cha#ter to

the Justice ;is#ensation system of this country and succeeds in #rovidin" u##lementary forum

to the liti"ants for conciliatory settlement of their dis#utes% &he year 8,C #roved to !e very

si"nificant in Le"al Aid -istory as the 0Le"al services Authorities Act2 $as enacted to "ive a

statutory !ase to the le"al system #ro"rams throu"hout the country and !rin" a!out a uniform

#attern% &his Act $as finally enforced on the ,th of 6ovem!er 8,, after certain amendments

$ere introduced therein !y the Amendment Act of 8,,9%

LEGAL AID )/-E)EN$:0

OLe"al Aid scheme $as first introduced !y Justice 5%6% Bha"$ati under the Le"al Aid =ommittee

formed in 8,C8% Accordin" to him the le"al aid means #rovidin" an arran"ement in the society

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so that the missionary of administration of .ustice !ecomes easily accessi!le and is not out of

reach of those $ho have to resort to it for enforcement of its "iven to them !y la$O the #oor and

illiterate should !e a!le to a##roach the courts and their i"norance and #overty should not !e an

im#ediment in the $ay of their o!tainin" .ustice from the courts% Le"al aid should !e availa!le to

the #oor and illiterate% Le"al aid as defined deals $ith le"al aid to #oor illiterate $ho dont have

access to courts% +ne need not !e a liti"ant to see' aid !y means of le"al aid%

Article 3,A of the =onstitution of India ays that tate shall secure that the o#eration of the le"al

system #romotes .ustice on a !asis of e1ual o##ortunity and shall in #articular #rovide free le"al

aid !y suita!le le"islation or schemes or in any other $ay to ensure that o##ortunities for

securin" .ustice are not denied to any citien !y reason of economic or other disa!ility% Articles

89 and 77(8) also ma'e it o!li"atory for the tate to ensure e1uality !efore la$ and a le"alsystem $hich #romotes .ustice on a !asis of e1ual o##ortunity to all% Le"al aid strives to ensure

that constitutional #led"e is fulfilled in its letter and s#irit and e1ual .ustice is made availa!le to

the #oor do$ntrodden and $ea'er sections of the society%

&he !e"innin"s of the modern le"al aid movement in India had materialied in the 8,Es and

8,DEs $hen efforts $ere made to ensure le"al re#resentation for indi"ent #ersons $ho $ere

accused in criminal cases% &hese initiatives $ere led !y tate "overnments and $ere mostly

de#endent on the #artici#ation of #racticin" la$yers% -o$ever the real im#etus came $ith the

#u!lication of the >6ational Juridicare Re#ort/ in 8,C $hich made several recommendations to

"ive meanin" to the constitutional command of ensurin" le"al aid for needy #ersons as #er

Article 3,A $hich had !een inserted in 8,CD% &his $as follo$ed !y the esta!lishment of the

=ommittee for the Im#lementation of Le"al Aid chemes (=ILA) under the leadershi# of

Justice 5%6% Bha"$ati It $as in #ursuance of this !ody/s recommendations that the Le"al

ervices Authorities functionin" at different levels $ere conceived of and the same found its $ay

into le"islation%

ANA'SIS /0 ARIC'2 %9A AN3 IS R/"ISI/NS IN 42 IN3IAN

C/NSI5I/N+

Article 3, A of Indian constitution says that*0It is the duty of the tate to see that the le"al

system #romotes .ustice on the !asis of e1ual o##ortunity for all its citiens% It must therefore

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arran"e to #rovide free le"al aid to those $ho cannot access .ustice due to economic and other

disa!ilities%2

Le"al Aid im#lies "ivin" free le"al service to the #oor and needy $ho cannot afford the services

of a la$yer for the conduct of a case or a le"al #roceedin" in any =ourt tri!unal or !efore an

authority%

When free hel# is #rovided !y la$yers to those $ho can/t afford the services of a la$yer for a

case or any le"al #roceedin" in a court or tri!unal or any such authority it is called le"al aid%

Le"al aid is #rovided !y the Le"al ervices Authority%

0If the accused does not have sufficient means to en"a"e a la$yer the court must #rovide one for

the defense of the accused at the e#ense of the state%2

It has !een held that this article may !e used as an aid to the inter#retation of art 78 and the

result $ould !e*Where a #risoner o$in" to indi"ence or incommunicado situation is disa!led

from en"a"in" a la$yer to eercise his statutory ri"ht of a##eal the court shall if the

circumstances of the case and the ends of .ustice so re1uire assi"n a com#etent counsel for the

#risoner/s defence #rovided the a##ellant does not su!.ect to that la$yer% It is the duty of the

state in such a case to #ay reasona!le remuneration for the defence counsel (not a matter of

charity) as may !e e1uita!ly fied !y the court% &he state must offer every reasona!le facility to

such counsel for conductin" the a##eal as a condition of >reasona!le fair and .ust/ #rocedure

$hich is #ostulated !y art% 78% &his ri"ht to free le"al aid arises $hen the accused is for the first

time #roduced !efore the ma"istrate and continues throu"hout the trial%

It etends even to security #roceedin"s%

But the court cannot issue mandamus to the state to su##ly a la$yer to the accusedN his remedy

$ould lie under the #rocedure laid do$n in s%3E9(8) of the =r% 5%=%8,C3QQ"o#alanachari v%

state of 4erala%

9% &he ideal of e1ual access to .ustice $ould "o a"ainst the im#osition of an ecessive rate of

court fee central coal field v .ais$al coal co%

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indi"ent accused $ho is arrested and #ut in .eo#ardy of his life and #ersonal li!erty is a

constitutional im#erative mandatory not only !y article 3,A !ut also !y article 89 and 78%

In the a!sence of le"al assistance in.ustice may result% Hvery act of in.ustice corrodes the

foundation of democracy %&he court also ruled that it $ould ma'e a moc'ery of Le"al Aid if it

$ere to !e left to a #oor i"norant and illiterate accused #erson to as' for a free le"al Aid%

Accordin"ly the #residin" .ud"e has !een o!li"ated to inform the accused that he can o!tain free

le"al service at the cost of the tate if he is una!le to en"a"e a la$yer !ecause of his indi"ence%

Althou"h the mandate in Article 3,A is addressed to the le"islature and the eecutives yet as the

court can indul"e in some 0Judicial la$ ma'in" $ithin the interstices of the constitution or any

statute !efore them for construction2% &he courts too are !ound !y this mandatory%

For the le"al Aid #ro"ram to succeed it is necessary to involve #u!lic #artici#ation and for this

#ur#ose the !est $ay is to o#erate throu"h voluntary or"aniation and social Action "rou#s% &he

state should encoura"e and su##ort such !odies in o#eratin" the le"al aid #ro"ram% &he court

fees should !e correlated to e#enditure on administration of .ustice as -= fees !ar effective

access to .ustice% &he u#reme =ourt may have to consider $hether such hi"h court fees are .ust

or le"al%

&he constitution has setu# some norms accordin" to $hich a #erson a entitled to "et free le"al

Aid ervice

Eligi+le "ersons for getting free legal services include:

8% Women and childrenN

7% Mem!ers of =K&N

3% Industrial $or'menN

9% ictims of mass disasterN violence flood drou"ht earth1ua'e industrial disasterN

% ;isa!led #ersonsN

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D% 5ersons in custodyN

C% 5ersons $hose annual income does not eceed Rs% EEEEK*

% ictims of &raffic'in" in -uman !ein"s%

Criterion for Providing Legal Aid*

ection 87 of the Le"al ervices Authorities Act 8,C #rescri!es the criteria for "ivin" le"al

services to the eli"i!le #ersons% ection 87 of the Act reads as under*

Hvery #erson $ho has to file or defend a case shall !e entitled to le"al services under this Act if

that #erson is*

(a) a mem!er of a cheduled =aste or cheduled &ri!eN

(!) a victim of traffic'in" in human !ein"s or !e""ar as referred to in Article 73 of the

=onstitutionN

(c) a $oman or a childN

(d) a mentally ill or other$ise disa!led #ersonN

(e) a #erson under circumstances of undeserved $ant such as !ein" a victim of a mass disaster

ethnic violence caste atrocity flood drou"ht earth1ua'e or industrial disasterN or

(f) an industrial $or'manN or

(") in custody includin" custody in a #rotective home $ithin the meanin" of clause (") of section

7 of the Immoral &raffic (5revention) Act 8,D (8E9 of 8,D)N or in a .uvenile home $ithin the

meanin" of clause

(h) of section 7 of the Juvenile Justice Act 8,D (3 of 8,D) or in a #sychiatric hos#ital or

#sychiatric nursin" home $ithin the meanin" of clause (") of section 7 of the Mental -ealth Act

8,C (89 of 8,C)N

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(i) in recei#t of annual income less than ru#ees nine thousand or such other hi"her amount as

may !e #rescri!ed !y the tate Govt% if the case is !efore a court other than the u#reme =ourt

and less than ru#ees t$elve thousand or such other hi"her amount as may !e #rescri!ed !y the

=entral Govt% if the case is !efore the u#reme =ourt% (Rules have already !een amended to

enhance this income ceilin")%

Le"al ervices Authorities after eaminin" the eli"i!ility criteria of an a##licant and the

eistence of a #rima facie case in his favour #rovide him counsel at tate e#ense #ay the

re1uired =ourt Fee in the matter and !ear all incidental e#enses in connection $ith the case% &he

#erson to $hom le"al aid is #rovided is not called u#on to s#end anythin" on the liti"ation once

it is su##orted !y a Le"al ervices Authority

HIE.A.CH3 /2 ,/DIES 4NDE. $HIS AC$:0

A nation$ide net$or' has !een envisa"ed under the Act for #rovin" le"al aid and assistance%

6ational Le"al services authority is the a#e !ody constituted to lay do$n #olicies and #rinci#les

for ma'in" le"al services availa!le under the #rovisions of this act to frame most effective and

economical schemes for le"al services% It also dis!urses funds and "rants to state le"al services

Authorities and 6G+/s for im#lementin" free le"al Aid schemes and #ro"rammes%

In every state tate le"al authority is constituted to "ive effect to the #olicies and directions of

the central Authority (6ALA) and to "ive le"al services to the #eo#le and conduct Lo' Adalats

in the state% tate Le"al services Authority is headed !y the chief Justice of that -i"h court $ho

is the #atron in chief% A servin" or the retired .ud"e of the hi"h court is nominated as its

eecutive chairman%

;istrict le"al services authority Act is constituted in every district to im#lement le"al aid

#ro"rammes and schemes% &he district .ud"e of that #articular district is its e*officio chairman%

&alu' le"al services committees are constituted for each of the &alu' or Mandal or for "rou#s of

&alu' or mandals to coordinate the activities of le"al services in the &alu' and to or"anie Lo'

Adalats% Hvery talu' le"al services committee is headed !y a civil .ud"e o#eratin" $ithin the

.urisdiction of the committee $ho is its e*officio chairman%

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Ri"ht to "et le"al aid starts from the time the accused is arrested% If the #erson is not a$are of

this ri"ht then it is the duty of the Ma"istrate to inform the #erson a!out this% It is the duty of the

#olice to inform the nearest >le"al aid/ committee also a!out the arrest of an accused see'in"

le"al aid for the first time and this "oes on $henever the #erson is !rou"ht in for 1uestionin"%

A""lication #ade for free legal Aid can +e re5ected on the follo6ing +asis:0

8% &he a##licant has enou"h money and can afford a la$yer

7% ;oes not fulfill any of the eli"i!ility criteria or

3% &he case does not deserve le"al action%

If the a##lication is re.ected then the reasons that it $as re.ected must !e recorded and informed

to the a##licant% &he a##licant also has the ri"ht to a##eal a"ainst the re.ection to the =hairman

of the authority%

$he Legal Services Authority can(t ar+itrarily take a6ay the legal aid that they have given

you* ,ut legal aid can +e 6ithdra6n if:

8% A##licant lied in his a##lication for it%

7% A##licant is a!le to afford a la$yer%

3% A##licant mis!ehaves $ith any #erson%

9% A##licant does not coo#erate $ith your la$yer%

% A##licant hires another la$yer%

D% &he #rocess of la$ or the services of the la$yer are !ein" misused%

C% You die * this a##lies only to criminal cases and not civil ones%

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If the a##lication is re.ected then the reasons that it $as re.ected must !e recorded and informed

to the a##licant% &he a##licant also has the ri"ht to a##eal a"ainst the re.ection to the =hairman

of the authority%

If a #oor #erson doesn/t "et a la$yer then the trial !ecomes meanin"less% &his could even lead to

a sentence%

-A.I/4S CASES IN 7HICH 2.EE LEGAL AID IS N/$ P./-IDED:0

8%;efamation

7% 5rosecution done out of ven"eance

3% =ontem#t of court

9% Lyin" under oath

% 5roceedin"s related to elections

D%=ases $here the fine im#osed is not more than Rs% E%

C% Hconomic offences and offences a"ainst social la$s%

% =ases $here the #erson see'in" le"al aid is not directly concerned $ith

,% &he #roceedin"s and $hose interests $ill not !e affected if not re#resented #ro#erly%

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% A$areness of schemes and #ro"rams to !e a!le to "uide the #oor liti"ants a!out the issue of

Le"al Aid%

,% Hach district le"al aid service authority should !e evaluated and com#ared $ith other district

le"al service authority as $ell as intra states to encoura"e le"al aid%

:8@ AIR 8,C, = 83CC

:7@ AIR 8,8 = ,7

:3@ AIR 8,D = ,,

:9@ AIR 8,,E = 789E

:@ (7EED) 8 == 997

:D@ AIR 8,78 = D79

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