INTRODUCTION
The Indian constitution's preamble seeks to provide the people of India with fairness,
both socioeconomic and political. The Indian constitution's Articles 38 and 39A are
noteworthy.
Article 38(1) states that the state shall promote the welfare of the people by securing
and protecting the social order, including justice, and Article 39-A states that the state
shall, in particular, provide free legal aid, through appropriate legislation or schemes,
to ensure that no citizen's opportunities for securing justice are denied.
When the Legal Services Authorities Act went into force in 1995, it made free legal
services available throughout India to people who are socially and economically poor.
One of the key components of the legislation, which seeks to provide equal access to
justice for all, mandates pro bono attorneys and advocates to give their services free
of charge to those who cannot afford it. In practise, however, it is extremely difficult,
preventing it from reaching its full potential and denying the poor access to high-
quality justice.
Legal Aid: The Concept
Legal Aid implies giving free legal services to the poor and needy who cannot afford
the services of a lawyer for the conduct of a case or a legal proceeding in any court,
tribunal or before an authority. Legal Aid is the method adopted to ensure that no one
is deprived of professional advice and help because of lack of funds. Therefore, the
main object is to provide equal justice is to be made available to the poor, down
trodden and weaker section of society. In this regard Justice P.N. Bhagwati rightly
observed that:1
“The legal aid means providing an arrangement in the society so that the missionary
of administration of justice becomes easily accessible and is not out of reach of those
who have to resort to it for enforcement of its given to them by law, the poor and
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. Legal aid
should be available to the poor and illiterate, who don't have access to courts. One
need not be a litigant to seek aid by means of legal aid.”
1
Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with
its Chairman, Mr. P.N. Bhagwati along with its members, His Lord ship answered to the question of inequality in the
administration of justice between the rich and the poor
Therefore, legal aid is to be made available to the poor and needy by providing a
system of government funding for those who cannot afford the cost of litigation.
Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit
and equal justice is made available to the poor, downtrodden and weaker sections of
the society. It is worthy to mention that the Constitution of India provides 2 that State
shall secure that the operation of the legal system promotes justice on a basis of equal
opportunity, and shall in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disability. Constitution of India
also makes it obligatory for the State to ensure equality before law and a legal system
which promotes justice on a basis of equal opportunity to all.3
Free Legal Aid in India : The positive Contribution of Judiciary
The Supreme Court of India got a major opportunity to make an emphatic
pronouncement regarding the rights of the poor and indigent in judgment of
Hussainara Khatoon 4where the petitioner brought to the notice of Supreme Court that
most of the under trails have already under gone the punishment much more than
what they would have got had they been convicted without any delay. The delay was
caused due to inability of the persons involved to engage a legal counsel to defend
them in the court and the main reason behind their inability was their poverty. Thus,
in this case the court pointed out that Article 39-Aemphasized that free legal service
was an inalienable element of ‗reasonable, fair and just‘ procedure and that the right
to free legal services was implicit in the guarantee of Article 21.
Two years later, in the case of Khatri v. State of Bihar 5 , 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…The State cannot avoid this obligation by pleading financial or
2
Article 39A of the Indian Constitution
3
Articles 14 and 22(1) of the Indian Constitution.
4
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
5
Khatri v. State of Bihar, AIR 1981 SC 262.
administrative inability or that none of the aggrieved prisoners asked for any legal aid.
In Suk Das v. Union Territory of Arunachal Pradesh 6 , Justice P.N. Bhagwati,
emphasized the need of the creating the legal awareness to the poor as they do not
know the their rights more particularly right to free legal aid and further observed that
in India most of the people are living in rural areas are illiterates and are not aware of
the rights conferred upon them by law. Even literate people do not know what are
their rights and entitlements under the law. It is this absence of legal awareness they
are not approaching a lawyer for consultation and advise. Moreover, because of their
ignorance and illiteracy, they cannot become self-reliant and they cannot even help
themselves. That is why promotion of legal literacy has always been recognized as
one of the principal items of the program of the legal aid movement in the country. I
would say that even right to education would not fulfill its real objective if education
about legal entitlements is not made accessible to people and our constitutional
promise of bringing justice to the door stepsof the people would remain an illusion.
Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that if
a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional
and statutory right of appeal inclusive of special leave 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, the power to assign counsel for such imprisoned
individual for doing complete justice.7
It is a statutorily recognized public duty of each great branch of government to obey
the rule of law and uphold the tryst with the constitution by making rules to effectuate
legislation meant to help the poor.8 Though the law has been enacted to protect the
poor the governments are lazy to implement the enacted law. The same was observed
by Supreme Court in State of Haryana v. Darshana Devi9 , that "the poor shall not be
priced out of the justice market by insistence on court-fee and refusal to apply the
exemptive provisions of order XXXIII, CPC. The state of Haryana, mindless of the
mandate of equal justice to the indigent under the magna carta of republic, expressed
in article 14 and stressed in article 39A of the constitution, has sought leave to appeal
against the order of the high court which has rightly extended the 'pauper' provisions
to auto-accident claims. Order XXXIII will apply to tribunals, which have the
trappings of the civil court‖…even court also expressed its poignant feeling that ―no
state has, as yet, framed rules to give effect to the benignant provision of legal aid to
the poor in order xxxiii, rule 9A, civil procedure code, although several years have
passed since the enactment. Parliament is stultified and the people are frustrated. Even
6
AIR 1986 SC 991.
7
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
8
Order 33, Rule 9A,Code Civil Procedure,1908.
9
AIR 1972 SC 855.
after a law has been enacted for the benefit of the poor, the state does not bring it into
force by willful default.
Legal Aid in India: Statutory Recognition
Though there was a statutory procedure providing free legal 10aid by appointing the
advocate for defending criminal case and by exempting court fees in civil cases, it
was not really making any significant impact on the ability of the underprivileged
people to get the judicial redressal for their grievances. Hence under tremendous
constitutional persuasion from the Supreme Court the Legal Services Authorities Act,
1987 was passed by the parliament of India. The Act prescribes the criteria for giving
legal services to the eligible persons. It makes a person eligible for assistance under
the act if he is -
a) makes a person eligible for assistance under the act if he is -
b) member of a Scheduled Caste or Scheduled Tribe;
c) a victim of trafficking in human beings or begar as referred to in Article 23 of the
Constitution;
d) a woman or a child;
e) a mentally ill or otherwise disabled person;
f) 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
g) an industrial workman; or
h) in custody, including custody in a protective home or in a juvenile home of in a
psychiatric hospital or psychiatric nursing home within the meaning of clause (g)
of section 2 of the Mental Health Act, 1987; or
(i) A person whose annual income less than rupees fifty thousand or such other higher
amount as may be prescribed by the State Government.11
This limit on income can be increased by the state governments. Limitation as to the
income does not apply in the case of persons belonging to the scheduled castes,
scheduled tribes, women, children, handicapped, etc. Thus by this the Indian
Parliament took a step forward in making the legal aid possible in the
[Link] to the Act the 'court' is 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 12. Under the Act 'legal
10
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure.
11
Section 12 of the Legal Services Authorities Act, 1987.
12
Section 2(1) (a) of the Legal Service Authority Act,1987
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.13
Legal Services Authorities after examining the eligibility criteria of 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.
Bodies under the Act and Their Hierarchy
A nationwide network has been envisaged under the Act for providing legal aid and
assistance. National Legal Services Authority is the apex body constituted to lay
down policies and principles for making legal services available under the provisions
of the Act and to frame most effective and economical schemes for legal services.
In every State a State Legal Services Authority is constituted to give effect to the
policies and directions of the Central Authority (NALSA) and to give legal services to
the people and conduct Lok Adalats in the State. State Legal Services Authority is
headed by the Chief Justice of the State High Court who is its Patron-in-Chief. A
serving or retired Judge of the High Court is nominated as its Executive Chairman.
District Legal Services Authority is constituted in every District to implement Legal
Aid Programmes and Schemes in the District. The District Judge of the District is its
ex-officio Chairman.
Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal
or for group of Taluk or Mandals to coordinate the activities of legal services in the
Taluk and to organize Lok Adalats. Every Taluk Legal Services Committee is headed
by a senior Civil Judge operating within the jurisdiction of the Committee who is its
ex-officio Chairman.
In order to provide free and competent legal service, the NALSA has framed the
National Legal Service Authority (Free and competent Legal service) Regulations,
2010. The salient feature of Regulation is engaging senior competent lawyers on
payment of regular fees in special cases like where the life and liberty of a person are
in jeopardy.
Supreme Court of India has also set up Supreme Court Legal Services Committee
(SCLSC) to ensure free legal aid to poor and under privileged under the Legal
Services Authorities Act. It is headed by a judge of Supreme Court of India and has
distinguished members nominated by Chief justice of India. The SCLSC has a panel
of competent Advocates on record with certain minimum number of years of
experience who handle the cases in the Supreme Court. Apart from that the SCLSC
13
Section 2(1)(c) of the Legal Service Authority Act,1987.
has full time Legal Consultant who provides legal advise to poor litigants either on
personal visit or through the post.
Conclusion
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 law14, 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.
Suggestions
It is suggested that it is the need of the hour that the poor illiterate people should be
imparted with legal knowledge and should be educated on their basic rights which
should be done from the grass root level of the country. For that judiciary needs the
support from state administration to conduct legal literacy programme.
The judiciary should focus more on Legal Aid because it is essential in this present
scenario where gulf between haves and have-nots is increasing day by day. And
elimination of social and structural discrimination against the poor will be achieved
when free Legal Aid is used as an important tool in bringing about distributive justice.
There are number of precedents as well as legislations to up hold the right to free legal
aid but they have just proven to be a myth for the masses due to their ineffective
implementation. Thus the need of the hour is that one should need to focus on
effective and proper implementation of the laws which are already in place instead of
passing new legislations to make legal aid in the country a reality instead of just a
myth in the minds of the countrymen.
In providing Legal Aid, the Legal Aid institutions at all level should use proper ADR
methods so as to speed up the process of compromise between parties to the case and
with that matter will be settled without further appeal.
Free Legal Services Authorities must be provided with sufficient funds by the State
because no one should be deprived of professional advice and advice due to lack of
funds.
Bibliography
Books Referred:
Raman Mittal, ‘Legal Aid: Catalyst for Social Change,’ Satyam Law
International (2012)
S. R. Myneni: Law & Poverty, Allahabad Law Agency, 2017
Websites Referred:
[Link]
scenario-and-future-challenges
[Link]
b9de496f8751/Custom/Legal%20Aid%20April%202020(1).pdf
Articles Referred:
Justice S. Muralidhar: Law, Poverty and Legal Aid: Access to Criminal Justice,
LexisNexis, India, Gurgaon.
