LEGAL AID IN INDIA AND THE ROLE OF THE JUDICIARY,

GOVERNMENT AND ADVOCATE AND WHETHER THE PUBLIC

Legal aid in India is a government program that offers assistance, advice, and representation to
those who cannot afford legal services. It is considered a fundamental human right under the
Indian Constitution. Legal aid services encompass legal advice, court representation, drafting of
legal documents, and other forms of legal assistance. It addresses various legal issues, including
criminal cases, civil disputes, family matters, and more. Legal aid clinics are established across
the country to offer legal assistance at the grassroots level. These clinics are typically operated
by lawyers and paralegals. Access to justice is crucial for maintaining the rule of law in a
democratic society, particularly for the poor, marginalised, and disadvantaged. Article 14 of the
Indian Constitution ensures equal treatment before the law and access to a fair judicial system. In
1976, Article 39A was added, establishing free legal assistance as a fundamental principle.
Pursuant to Article 39A, the Indian government enacted the Legal Services Authorities Act,
1987, establishing the legal framework for providing legal aid in India. This act led to the
creation of the National Legal Services Authority (NALSA) and State Legal Services Authorities
(SLSAs) to oversee the implementation of legal aid programs and services at the national and
state levels, respectively. The National Legal Services Authority oversees this program, ensuring
support for the poorer sections of society as specified in Section 12 of the Legal Services
Authority Act, 1987 providing legal aid to the poor, weak, and illiterate is essential for upholding
the rule of law, as these individuals are often denied justice without legal counsel. The Legal
Services Authorities Act, effective since 1995, ensures free legal services across India for the
socially and economically disadvantaged. A crucial aspect of the legislation requires pro bono
attorneys to provide free services to those unable to afford them. However, practical challenges
hinder its full implementation, often denying the poor access to high-quality justice. Other
legislations such as The Bar Council of India, The Bar Council of India Legal Aid Rules, 1983
and The Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting
the Interest of Clients and Promoting the Rule of Law) Bill, 2010 also support Legal Aid.
Despite these legislations, there remain significant gaps in the effective operation of Legal Aid
services in India. In the case of Sheela Barse vs. State of Maharashtra, it was ruled that providing
legal assistance to an indigent accused, who is detained and at risk of losing life or personal
liberty, is a fundamental requirement mandated by Articles 21, 14, and 39-A of the Constitution.
Free legal aid refers to the offering of legal services at no cost to impoverished and marginalised
individuals who cannot afford a lawyer to represent them in civil or criminal matters before any
Court, Tribunal, or Authority. Provision of free legal aid may include:
a. Representation by an Advocate in legal proceedings.
 b. Payment of process fees, expenses of witnesses and all other charges payable or incurred in
connection with any legal proceedings in appropriate cases;
c. Preparation of pleadings, memo of appeal, paper book including printing and translation of
documents in legal proceedings;
d. Drafting of legal documents, special leave petition etc.
e. Supply of certified copies of judgments, orders, notes of evidence and other documents in
legal proceedings.
Free Legal Services also include the provision of aid and advice to the beneficiaries to access the
benefits under the welfare statutes and schemes framed by the Central Government or the State
Government and to ensure access to justice in any other manner.
The 1987 Act also postulates the modes of providing free legal services:
i. 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
ii. Through representation by a legal practitioner in legal proceedings;
iii. By supplying certified copies of judgment, orders, notes or evidence and other documents
in legal proceedings
iv. By drafting, Copying, Printing of legal documents;
v. By giving legal advice on any legal matter
vi. Through meditation centers or family counseling Centers.
The 1987 Act also states the scenarios when legal services are 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.
The Act also provides various cases in which free legal aid is not provided.
In the following cases legal aid is not available
 Defamation
 Malicious prosecution,
 Contempt of court,
  Perjury,
 Lying under oath
 Proceedings relating to election;
 Cases where the fine imposed is not more than Rs.50/-
 Economic offences,
 Offences against social laws;
 Cases where the person seeking legal aid is not directly concerned with,
 The proceedings and whose interests will not be affected.
The 1987 Act specifies the requirements for providing legal assistance to those who qualify. It
makes someone qualified for aid under the statute. if he is – (a) a member of a Scheduled Caste
or Scheduled Tribe; (b) a victim of trafficking in human beings or begar as referred to in Article
23 of the Constitution; (c) a woman or a child; (d) a mentally ill or otherwise disabled person; (e)
a person under circumstances of undeserved want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or (f) an
industrial workman; or (g) in custody, including custody in a protective home or in a juvenile
home (h) 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. State governments have the authority to raise the income limit for eligibility.
However, this income restriction does not apply to individuals belonging to scheduled castes,
scheduled tribes, women, children, persons with disabilities, and others. This step by the Indian
Parliament signifies progress towards ensuring legal aid across the country.
The Legal Services Authorities evaluate applicants' eligibility and, upon finding a strong initial
case in their favor, provide legal representation at the state's expense. This includes covering
court fees and all associated expenses related to the case. Recipients of this legal aid are not
required to contribute financially throughout the litigation, provided it is approved by a Legal
Services Authority. The Legal Services Act has established a comprehensive nationwide network
for delivering legal aid and support. The National Legal Services Authority (NALSA) is the
highest governing body responsible for formulating policies and guidelines to ensure accessible
legal services as per the Act's provisions. NALSA also designs cost-effective and efficient
schemes for legal services. In each state, a State Legal Services Authority implements NALSA's
policies and directives and provides legal services to the population. These authorities also
organize Lok Adalats within their respective states. The Chief Justice of the State High Court
serves as the Patron-in-Chief of the State Legal Services Authority, with a serving or retired
High Court Judge nominated as its Executive Chairman. At the district level, a District Legal
Services Authority is established in every district to execute Legal Aid Programs and Schemes.
The ex-officio Chairman of this authority is the District Judge. Taluk Legal Services Committees
are formed for each Taluk, Mandal, or group of Taluks or Mandals to oversee legal services
activities and organize Lok Adalats in their respective areas. Each committee is led by a senior
Civil Judge serving as its ex-officio Chairman within the committee's jurisdiction.
Role of Judiciary
The Supreme Court of India has established the Supreme Court Legal Services Committee
(SCLSC) to ensure that impoverished and underprivileged individuals receive free legal
assistance, as mandated by the Legal Services Authorities Act. This committee is chaired by a
Supreme Court judge and includes members appointed by the Chief Justice of India. It maintains
a roster of capable Advocates on record who meet specified minimum experience levels to
handle cases in the Supreme Court. Furthermore, the SCLSC employs a full-time Legal
Consultant who provides legal advice to indigent litigants either through face-to-face meetings or
correspondence. The Supreme Court of India had a significant opportunity to affirm the rights of
impoverished individuals in the case of Hussainara Khatoon v. State of Bihar. The petitioner
highlighted that many under-trial individuals faced prolonged detention due to their inability to
afford legal representation, which resulted in unfair treatment exceeding potential sentences. The
Court emphasized that under Article 39-A, providing free legal assistance is essential for a fair
judicial process, inherent in the guarantee of Article 21.
Two years later, in Khatri v. State of Bihar, the Court expanded on the right to free legal aid for
financially incapable accused individuals. It ruled that the state is constitutionally obligated to
provide legal assistance not only during trials but also from the accused's first appearance before
a magistrate. This right cannot be denied based on financial constraints, administrative issues, or
the accused's failure to request it. Magistrates and Sessions Judges must inform the accused of
these rights. Ensuring free legal services is crucial for a just legal process, integral to Article 21,
and the state must provide a lawyer when justice demands it, regardless of financial or
administrative challenges.
In Suk Das v. Union Territory of Arunachal Pradesh, Justice P.N. Bhagwati stressed the
importance of raising legal awareness among the poor, who often lack knowledge of their rights,
including the right to free legal aid. This lack of awareness impedes their ability to seek legal
help and undermines their self-reliance. Promoting legal literacy has thus been central to the
legal aid movement in India, ensuring that constitutional promises of justice reach every citizen.
Justice Krishna Iyer underscored that under Article 142, read with Articles 21 and 39-A, the
Court has the authority to appoint counsel for imprisoned individuals unable to exercise their
legal rights due to lack of assistance. He emphasized that it is a public duty of all branches of
government to uphold the rule of law and implement legislation intended to assist the poor.
In State of Haryana v. Darshana Devi, the Supreme Court observed that economic barriers like
court fees should not prevent the poor from accessing justice. It criticized states for failing to
enforce laws meant to aid the indigent, despite their enactment, which has caused frustration
among the populace.
Role of government
The government has acknowledged the inequities faced by the poor and underprivileged in the
current justice delivery system and has recognized the necessity for providing free legal aid to
them. To address this, legislative actions such as the Legal Services Authorities Act, 1987 have
been enacted. Additionally, bodies like NALSA (National Legal Services Authority) and SCLSC
(Supreme Court Legal Services Committee) have been established to ensure the provision of free
legal aid to the disadvantaged.
The Legal Services Authorities Act, 1987 was introduced following the 42nd Amendment Act of
1976, which added Article 39A to the Constitution. This provision mandates the state to secure a
legal system that promotes justice on the basis of equal opportunity and includes providing free
legal aid through appropriate legislation or schemes. This ensures that economic or other
disabilities do not deny any citizen the opportunity to seek justice. According to the Act legal aid
can be provided to individuals for a 'case,' which encompasses suits or any proceedings before a
court. The definition of 'court' under Section 2(1)(a) includes civil, criminal, or revenue courts,
as well as any tribunal or authority established under current laws to perform judicial or quasi-
judicial functions. Under Section 2(1)(c), 'legal service' encompasses offering any service in the
management of a case or other legal proceedings before any court, tribunal, or authority, as well
as providing legal advice on any legal matter. Upon assessing an applicant's eligibility and
finding a prima facie case in their favor, Legal Services Authorities provide them with counsel at
the expense of the State. They also cover required court fees and all incidental expenses related
to the case. Once supported by a Legal Services Authority, the recipient of legal aid is not
required to bear any costs associated with the litigation.
Under this Act, Legal Services Authorities assess an applicant's eligibility and the presence of a
prima facie case in their favor. If approved, the authorities provide legal representation at the
state's expense, cover court fees, and bear all related expenses. The recipient of legal aid does not
bear any costs throughout the litigation process once supported by a Legal Services Authority.
To empower marginalized sections of society and promote legal awareness, the Supreme Court
of India has established the Supreme Court Legal Services Committee (SCLSC). Led by a
Supreme Court Judge and including members appointed by the Chief Justice of India, the
SCLSC aims to establish a just and equitable social order through its initiatives.
Section 304 of the Criminal Procedure Code, 1973 stipulates that in a trial before the Court of
Session, if the accused does not have the means to engage a pleader (lawyer), the court must
assign a pleader for the accused at the expense of the State. The State Government is authorized
to extend this provision to trials before other courts within the state.
Order 33 of the Civil Procedure Code allows indigent persons to file suits without paying court
fees if they are unable to afford them. This provision enables impoverished individuals to
institute legal actions without financial barriers.
Role of advocates
The legal profession in India carries high traditions that its members are expected to uphold. As a
noble profession, law views advocates as officers of justice and friends of the court, integral to
the administration of justice. Historically, advocates have been recognized for their duty to
represent poor litigants without reward when required by the court, a practice acknowledged in
India, England, the US, and other countries. However, in practice, counsel is often only provided
in serious criminal and a few civil cases.
Advocates hold a critical position in administering justice, imposing a responsibility to ensure
justice for all. Rule 46 of the Bar Council of India Rules, part VI, emphasizes advocates’
obligation to society, stating that anyone genuinely in need of a lawyer is entitled to legal
assistance, even if they cannot fully pay for it. Within their economic limits, providing free legal
assistance to the indigent and oppressed is one of the highest obligations an advocate owes to
society.
To ensure justice for poor and marginalized communities, advocates must provide legal
assistance even when clients cannot pay. Advocates are expected to sincerely implement various
legal aid schemes under the Legal Services Authorities Act, 1987, including legal aid for the
poor, promoting legal literacy, and facilitating dispute resolution through Lok Adalats.
Advocates are essential for these schemes due to the monopolistic nature of the legal profession.
Assigning a competent advocate to represent a poor litigant is crucial for effective legal aid. The
Legal Services Authority pays the advocate, but the fee is often much lower than their usual
rates. Consequently, established advocates are reluctant to take on legal aid cases, leading to
substandard assistance from newly enrolled or less busy advocates. This reluctance from senior
advocates hampers the success of legal aid schemes. The Supreme Court, in Kishore Chand vs.
State of H.P. (AIR 1990 SC 2140), highlighted the need for experienced advocates to volunteer
for defending indigent accused as part of their professional duty.
Many Indian advocates have nobly served the poor without reward, but there are instances of
lawyers exploiting the legal aid system. While free legal aid aims to benefit the poor, it has also
bred corruption. Lawyers often demand fees from clients they are supposed to represent for free,
exacerbated by low payments from the Legal Aid Committee. Moreover, case assignments
sometimes favor lawyers based on factors other than their ability to deliver results,
compromising the quality of legal services for the poor.
Given that administration of justice is central to advocates, they must play a vital role in
implementing legal aid schemes under the Legal Services Authorities Act, 1987. Advocates,
especially senior ones, have a duty to ensure justice for all, particularly the poor and
marginalized. The consequences of failing legal aid schemes are severe, but there is confidence
that the legal community in India will rise to the challenge, ensuring justice for the poor, which
is essential for the rule of law and democracy.