Unit 8-LEGAL SERVICES

A : Legal Background
In a participatory democracy, it is essential that citizens have faith in their institution.
A judiciary that is as fair and independent is an important component in sustaining their trust
and confidence.
An impartial independent judiciary is the guardian of the individual rights in a democratic
society.
In order for citizens to have faith in their court system, all people must have access to the
courts when necessary.
Citizens agree to a limitation on their freedom in exchange for peaceful coexistence, and they
expect that when conflicts between citizens or between the state and citizens arise, there is a
place that is independent from undue influence, that is trustworthy, and that has an authority
over all the parties to solve the disputes peacefully.
It is also the responsibility of the State to ensure that fair and impartial justice is made
available at the door steps of the poor and economically weaker sections irrespective of their
caste, creed, religion, geographical position at free of cost.
The fundamental value of Indian system of justice is that the stability of our society depends
upon the ability of the people to readily obtain access to courts, because the court system is
the mechanism recognized and accepted by all to peacefully resolve disputes.
Denying access to the courts forces dispute resolution into other arenas and results in
vigilantism and violence.
Human rights and human dignity form the premises for socio-legal foundations of free legal
aid.
As part of the human rights, it is necessary to recognize the principle of equality and ensure
access to justice.
These foundations reflect the incorporation of legal obligation in the international treaties,
regional treaties, the working of monitoring bodies under these treaties or in the national legal
systems.
In the M H Hoskot case, the court observed: The system compels to collaborate lawyer-power
thereby steering the wheels of equal justice under the law by providing free legal aid to
certain categories of persons. It is due to the formal nature of proceedings in an adversarial
system, requiring pleadings and court fees, that makes access to justice, a dream, for poor
masses in India.
 B.i. Free Legal Aid Under Criminal Law
 Section 340(1) of the Code of Criminal Procedure, 1898, provided that if a man was charged with an offence
punishable with death, the court could provide him with a counsel upon his request.
 However, India in the Code of Criminal Procedure, 1973, facilitated statutory implementation of free legal aid
subsequently.
 Section 304(1) provides that: In a trial before the sessions judge, if the accused has not sufficient means to
engage a pleader, the court should assign a pleader for his defense at the expense of the State.

B. ii . Legal Aid Under the Indian Constitution

 In 1976 ( 42 Amendment of the Constitution) inserted Article 39-A in the Constitution which is as follows:
Equal -Justice and free legal aid - The State shall secure that the operation of the legal system promotes justice, equal
opportunity, and free legal aid. By suitable legislation or schemes and to make ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities. Only a fair procedure can ensure the concept of equality
and access to justice.

 Article 15 the Constitution of India, the State shall not discriminate against any citizen on grounds of religion, race, caste,
sex, place of birth or any of them. Based on this cardinal principle, no citizen shall on the grounds only of religion, race,
caste, sex, place of birth or any of them, be subject to any disability.

 Article 14 the Constitution of India provides that the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
B. iii . Free Legal Aid Under International Law :
International law addresses the provision for free legal services from the perspective of human rights. An explicit
provision for legal services is incorporated in the International Covenant on Civil and Political Rights (ICCPR).

India has ratified the International Covenant on Civil and Political Rights, which came into force in 1976 and is
bound by the international obligation to provide free legal assistance as per the requirements of the Covenant.
The Indian Supreme Court has adopted the method of giving effect to international legal obligations when these
obligations exist in the Indian legal system expressly. The Court also recognized international legal obligations as
part of the law of the land when Indian law can be harmoniously interpreted as in conformity with international
law.

Other international treaties like the International Covenant on Economic, Social and Cultural Rights (ICESCR),
Convention on Elimination of Discrimination Against Women (CEDAW), and International Convention on
Elimination of All Forms of Racial Discrimination may be interpreted as implicitly referring to the need for free
legal services while aiming at effective legal remedy and access to justice.

Article 8 of the Universal Declaration of Human Rights (UDHR) provides that everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution
or by the law.
C. Legal Service Authority Act 1987 ( BRIEF HISTORY )
 The 14th Report of the Law Commission of India in 1958 mooted the idea of providing free legal aid to the poor
by the State.
 The Report highlighted the responsibility of the legal community to administer legal aid scheme and the State to
fund legal representation to the accused in criminal proceedings, appeals and jails.
 In 1960, the Union Government initiated the national legal aid scheme which faced financial shortages and died
a natural death.
 In 1973, in the second phase, the Union Government constituted a committee under the chairmanship of Justice
Krishna Iyer to develop a legal aid scheme for states. The Committee devised a strategy in a decentralized mode
with legal aid committees in every district, state and the centre.
 In 1980, the Committee was constituted at the National Level to supervise legal Aid programmes throughout the
country and the chairmanship of Justice Bhagwati and this committee started monitoring legal aid activities
throughout the country.
 Subsequently, the Parliament enacted the Legal Services Authorities Act, 1987 to provide free legal aid to certain
categories of citizens.
 The preamble of the Legal Services Authorities Act, 1987 states: ‘An Act to constitute legal services authorities to
provide free and competent legal services to the 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
adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.’
 The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and
succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes.
C . ii. SECTION 12 & 13 (Criteria for Giving Free Legal Services )
Every person who has to file or defend a case shall be entitled to legal services under this Act if
that person is -
(a) A member of a Scheduled Caste or Scheduled Tribe;
(b) Victim of trafficking in human beings or beggar as referred in article 23 of the Constitution;
(c) A woman or a child;
(d) A person with disability as defined in clause (i) of section 2 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);
(e) A victim of a mass disaster, violence, caste atrocity, flood drought, earthquake or industrial
disaster; or
(f) An industrial workman; or
(g) In custody, including in a protective home within the meaning of clause (g) of section 2 of
the Immoral Traffic (Prevention) Act, 1956, or in a Juvenile home within the meaning of
clause (j) of section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health
Act, 1987.
(h) Annual Income less than Rs 9000 ( case not in Supreme Court) , in case of Supreme Court
less than Rs 25000.
D. Legal Services- Meaning and types
D. i . The Free Legal Services include :
1. Payment of court fee, process fees and all other charges payable or incurred in connection with any legal
proceedings;
2. Providing service of lawyers in legal proceedings;
3. Obtaining and supply of certified copies of orders and other documents in legal proceedings;
4. Preparation of appeal, paper book including printing and translation of documents in legal proceedings.
D. ii. Legal services can be broadly categorized into the following two types:
• Pre-litigation legal services, and Post-litigation legal services.
E. Pre-litigation legal services
Before the case goes to the Court . The pre-litigation legal services include:
• Legal Education
• Legal Advice
• Legal Awareness
• Pre - litigation Settlement

Post Litigation services include all those services that are required to be rendered by an Advocate to his client when
the case is already started.
E . i . National Legal Services Authority
The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor
and evaluate the implementation of legal aid programs and to lay down policies and principles for making legal services
available under the Act.
In every State, a State Legal Services Authority and in every High Court, a High Court Legal Services Committee have been
constituted. District Legal Services Authorities, Taluk Legal Services Committees have been constituted in the districts and most
of the taluks to give effect to the policies and directions of the NALSA and to provide free legal services to the people and
conduct Lok Adalats in the State.
Supreme Court Legal Services Committee has been constituted to administer and implement the legal services programme
insofar as it relates to the Supreme Court of India.
NALSA lays down policies, principles, and guidelines and frames effective and economical schemes for the State Legal Services
Authorities to implement the Legal Services Programmes throughout the country.
Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, etc. have
been asked to discharge the following main functions on regular basis to:
1. Provide Free and Competent Legal Services to the eligible persons;
2. Organize Lok Adalats for amicable settlement of disputes; and
3. Organize legal awareness camps in rural areas.
VI. NALSA Regulations, 2010
In 2010, the National Legal Services Authority (NALSA) of India adopted the National Legal Services Authority
(Free and Competent Legal Services) Regulations in exercise of its power under Section 29 of the Legal Services
Authorities Act, 1987. The Regulations are applicable to the Legal Service Committees of the Supreme Court, High
Courts, the States, districts and taluks
Features of the Regulation
1. Selection of Panel Lawyers
a) The panel shall be prepared by the Executive Chairman of the legal service institution in consultation with the
Attorney-General (for Supreme Court), Advocate-General (for High Courts), Government pleader (for
districts/Taluks) and the Bar Association President.
b) The legal practitioner shall have three years or more of experience at the bar for being considered for
empanelment. The personal traits like competence, integrity, suitability and experience shall be given due
consideration. The Regulations also provide for retainer lawyers.
c) The Panel has to be reconstituted every three years without disturbing the work of panel lawyers already
representing on-going cases.
d) In such cases where the panel lawyer wishes to withdraw from a case entrusted to him shall communicate this to
the Member Secretary and the latter may permit him to do so.
e) The panel lawyer is barred from taking any fee, remuneration or other valuable consideration from any person
for whom legal services are rendered under the Regulation or Act. The panel lawyer may be withdrawn from a
case or his name removed from the panel on account of nonperformance of duties satisfactorily or for actions
against the object and purpose of the Act or Regulations.
2. Payment of Fee
Regulations specify amount of fees for panel lawyers according to the State regulations. Periodical revision of fees for the
different types of services provided by panel lawyers in legal aid cases.
3. Senior Advocates
The services of senior advocates may be availed if the Chairman of the legal services institution forms an opinion to that effect in
cases of great public importance and where serious threats to life and liberty of the applicant exists.
When can Legal Aid be denied or withdrawn?
1.If a person is found ineligible under Section 12 of the Legal Services Authorities Act, 1987;

2.If the aided person who applied under the income category is found to possess sufficient means;

3. Where the aided person obtained legal services by misrepresentation or fraud;

4.Legal aid can be with where the aided person does not cooperate with the Legal Services Authority/Committee or with the legal
services advocate;

5. Where the person engages a legal practitioner other than the one assigned by the Legal Services Authority/Committee;

6.In the event of death of the aided person except in the case of civil proceedings where the right or liability survives;

7.Where the application for legal service or the matter in question is found to be an abuse of the process of law or of legal
services.
F. The Legal Services Authorities (Amendment) Act, 2002
The Parliament of India realized that litigation oriented legal services cannot bring out desired
result, therefore, for encouraging pre-litigation legal services specially in public utility service,
the Parliament has made certain amendments in Legal Services Authorities Act by passing an
Act known as the Legal Services Authorities (Amendments) Act, 2002.
The purpose of this amendment is to bring out certain changes in the Legal Services Act, 1987
(hereinafter referred to as the principal Act) especially for the establishment of permanent Lok
Adalats to settle disputes concerning public utility services at pre-litigation state and pre
litigation conciliation and settlement pertaining to public utility services.
"Public utility service" means any-
1) Transport service for the carriage of passengers of goods by air, road or water; or
2) Postal, telegraph or telephone service; or
3) Supply of power, light or water to the public by any establishment; or
4) System of public conservancy or sanitations; or
5) Service in hospital or dispensary; or
6) Insurance service and includes any service which the Central Government or the State
Government, as the case may be, may in the public interest, by notifications, declare to be a
public utility service.
F .ii . Permanent Lok Adalat - Important Provisions
1. The Permanent Lok Adalat shall, during conduct of conciliation proceedings assist the
parties in their attempt to reach an amicable settlement of the dispute in an independent
and impartial manner.
2. It shall be the duty of every party to the application to cooperate in good faith with the
Permanent Lok Adalat and to comply with the direction of the Permanent Lok Adalat to
produce evidence and other related documents before it.
3. In case the parties reach at an agreement on the settlement of the dispute, they shall sign
the settlement agreement and the Permanent Lok Adalat shall pass an award in terms
thereof. Where the parties fail to reach at an agreement, the Permanent Lok Adalat shall
decide the dispute.
4. Procedure of Permanent Lok Adalat - The Permanent Lok Adalat shall, while conducting
conciliation proceedings or deciding a dispute on merit under this Act, be guided by the
principles of natural justice, objectivity, fair play, equity and other principles of justice, and
shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908 ) and the Indian
Evidence Act, 1872 (1 of 1872 ).
5. The Award of Permanent Lok Adalat shall be final and deemed to be a decree of a civil
court.
 Legal Aid in Context of Social Justice and Human Rights
 Millions of people are denied their human rights simply because they cannot afford the cost required for the
enforcement of their rights.
 In order to do social justice to them and to make human rights meaningful, legal aid becomes essential.
 The Human Rights which cannot be enforced due to poverty are meaningless and worthless.
 Access to justice is a pre requisite for social justice. Access to justice is one of the most fundamental human
rights, and without it many other human rights may be impossible to achieve.
 Indeed, the right to assess to justice or Legal Aid is evolved by judicial creativity for the benevolence of poor
persons.
 Now, neither is it possible nor is it proper to isolate the right to legal aid from range of human right.
a) The reason is obvious, mere declaration and passing of resolutions about human rights are not enough, the
guarantee for the enforcement of these rights is equally essential.
b) Hence, it will not be incorrect to say that right to legal aid stands first in the specie of human rights. Human
rights are only mere pious declaration without legal aid.
c) The right to legal aid enables accomplishment of these human rights and makes them worthwhile for the poor
masses in the world.
 In the present legal system , justice is not given but sold . The consumers of justice have to pay the counsel ,
bear the cost and expenditure for court fees and other expenses and indeed poverty is an obstacle in getting
justice. Legal aid is only a way for providing social justice to all. Legal aid is an essential component of human
rights and it demands immediate attention , otherwise , there is a risk that poor’s patience would be exhausted
at some point and that will endanger the world peace.