12-08-2024
LEGAL AID
1. INTRODUCTION
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.
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.
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.
1. THE MEANING 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:
• Alternative funding is available to the party requesting it,
• The case is likely to be heard by the small claims court,
• The case involves corporate matters, or
• 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.
1. 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.
1. KINDS OF LEGAL AID
There are basically two types of legal aid:
2. Pre-litigation legal aid
3. Legal aid during the proceeding of litigation.
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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.
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.
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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 organized efforts on the part of the State to
provide legal services to the poor and needy dates back to 1944, when Lord Chancellor,
Viscount Simon appointed 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 machinery.
➢ At Taluka (tehsil) level,
➢ At district level,
➢ At greater Bombay level and
➢ 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.
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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.
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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
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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
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Authorities Act, 1987 and set up bodies such as NALSA and SCLSC to ensure free legal
aid to poor and under privileged.
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
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:
➢ A member of a Scheduled Caste or Scheduled Tribe
➢ A victim of trafficking in human being or beggar as referred to in article 23 of the
Constitution;
➢ A Woman or Child;
➢ A mentally ill or otherwise disabled person;
➢ 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
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➢ An industrial workman;
➢ 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
➢ 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:
➢ 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
➢ Through representation by a legal practitioner in legal proceedings;
➢ By supplying certified copies of judgment, orders, notes or evidence and
other documents in legal proceedings
➢ By drafting, Copying, Printing of legal documents;
➢ By giving legal advice on any legal matter
➢ 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,
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➢ 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.
LEGAL AID IN OTHER COUNTRIES
Hong Kong
A unitary jurisdiction, Hong Kong provides legal aid solely provided through the Legal
Aid Department, which is in turn overseen by the Legal Aid Services Council.
Administratively the Legal Aid Department was under the Administration Wing of the
Chief Secretary’s Office. In 2007, it was moved to the Home Affairs Bureau, which chiefly
oversees cultural matters and local administration. This was heavily criticized by the
opposition pro-democracy camp for jeopardising neutrality of the provision of legal aid.
They voted en bloc against the whole package of reorganisation of policy bureaus, of
which the transfer of the Legal Aid Department was part.
United States
Legal aid in criminal cases is a universal right guaranteed by the Sixth Amendment to
the United States Constitution. A number of delivery models for legal aid have emerged
in the United States.
The Legal Services Corporation was authorized at the federal level to oversee these
programs. In a “staff attorney” model, lawyers are employed by levels of government on
salary solely to provide legal assistance to qualifying low-income clients, similar to staff
doctors in a public hospital.
In a “judicare” model, private lawyers and law firms are paid to handle cases from
eligible clients alongside cases from fee-paying clients, much like doctors are paid to
handle Medicare patients in the U.S. The "community legal clinic" model comprises non-
profit clinics serving a particular community through a broad range of legal services
(e.g. representation, education, law reform) and provided by both lawyers and non-
lawyers, similar to community health clinics.
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England and Wales
Legal aid in England and Wales is administered by the Legal Aid Agency (until 31 March
2013 by the Legal Services Commission), and is available for most criminal cases, and
many types of civil cases. Exceptions include libel, most personal injury cases (which are
now dealt with under Conditional Fee Agreements, a species of contingent fee), and
corporate cases. Family cases are also sometimes covered. Depending on the type of
case, legal aid may or may not be means tested and in some cases legal aid can be free to
those on benefits, out of work and have no savings or assets.
South Africa
In 1969 the government of South Africa recognized a need for legal aid, and responded
by creating the South African Legal Aid Board which began its work in 1971 and now
provides the majority of legal aid throughout the country. The Board has autonomy and
is independent from government in its decision-making, and has sole jurisdiction over
determining the provision of legal aid. The Board provides legal aid to all “qualifying
indigent individuals” with an income of R600.00 or less. If individuals do not meet this
qualification they are provided other methods of obtaining a lawyer, such as hiring one
or, if this is not within their means, finding one who will work pro bono.
LEGAL AID UNDER INTERNATIONAL LAW
➢ LEAGUE OF NATIONS AND LEGAL AID (1924)
➢ UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)
➢ EUROPEAN CONVENTION FOR PROTECTION OF HUMAN RIGHTS (1950)
➢ UNITED NATIONS CONFERENCE, 1965
➢ INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966
➢ TEHRAN CONFERENCE
➢ AMERICAN CONVENTION ON HUMAN RIGHTS
➢ CONVENTION ON INTERNATIONAL ACCESS TO JUSTICE, 1980
➢ INTERNATIONAL COURT OF JUSTICE TRUST FUND
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