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FREE LEGAL AID-A JOURNEY FROM ANCIENT INDIAN JURISPRUDENCE TO L.S.A. ACT, 1987.

Project Assignment 5th Semester, 5 year B.A.,LL.B.(Hons.) Submitted By L. Ashish Kumar Hall Ticket No.201108

Damodaram Sanjivayya National Law University

ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted to DSNLU for their guidance and constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project.

I would like to express my gratitude towards my parents for their kind co-operation and encouragement which help me in completion of this project. I would also like to thank our Vice-Chancellor, Prof .R.G.B. Bhagvath Kumar and Registrar, Prof. P. Sudhakar for giving me this opportunity to do a detailed study on the FREE LEGAL AID-A JOURNEY FROM ANCIENT INDIAN JURISPRUDENCE TO L.S.A. ACT, 1987. I would like to thank my parents in a very special way for supporting me financially to complete this project. I would like to express my special gratitude and thanks for persons giving me such attention and time.

INDEX Introduction Literature Review Gap Area History of Legal Aid in India (A study of development of Legal Aid up to L.S.A Act, 1987) 5 4 4 5

Case Laws Research question Hypothesis Conclusion Bibliography

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Introduction: An equal and evenhanded justice has been a cherished ideal of administration of the justice since the dawn of civilization. In almost all the developed countries and in many undeveloped countries also, there are state financed schemes of legal aid and advice to weaker sections of the society. In fact, the strong move for legal aid in the recent years is an outcome of the emergence of the socio-economic philosophy and welfare state and consequent struggle against poverty to ensure just human living to people at large. The U.N. Conference on Human Rights held in Tehran in 1968 stressed the obligation to the state to provide legal aid to the poor. It adopted resolution to the effect that the Governments should encourage the development of the comprehensive legal aid system for the protection of human rights and fundamental freedoms and they should consider ways and means of deferring the expenses involved in this connection. It states that U.N. has already impressed upon the desirability of providing legal aid expressly or by implication in the international instruments. Definition of Legal Aid: In general, legal aid is money provided by a special organization to pay legal fees for people who cannot pay them themselves or aid provided by an organization established especially to serve the legal needs of the poor.1 Legal aid means giving persons of limited means gratis, or nominal fess, legal advice and legal assistance in courts in civil and criminal matters. The main object of legal aid is the equal protection of any man, woman, child irrespective of he or she is poor. Literature Review: The concept of legal aid has already been mentioned in the Constitution of India under Article 14, 38, 39 A. Article 39 A specifically mentions 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. Justice P.N. Bhagwati also made contributions regarding the development of the concept of legal aid by forming various committees which would be mentioned later in this paper. Justice Krishna

http://www.merriam-webster.com/dictionary/legal%20aid (accessed on 29-10-2013)

Iyer also contributed toward development of legal aid in India. His reports tremendously helped the recognition of the poor and for ensuring them to get legal aid. Gap Area: Legal Aid means an assistance given to the poor persons at States cost to avail fair justice. Researcher had gone through the history of the legal aid and its development. Researcher has gone through it in chronological order looking into the main aspects which lead the development of legal aid in India. History of Legal Aid in India (A study of development of Legal Aid up to L.S.A Act, 1987) If we consider the situation in ancient India, the concept of equal justice has no relevance. Manusmriti was the main text to administer justice and kings used to follow it. Manusmriti says that the sacredness of the administration of the social, economical and political aspects have to be conserved and developed. Hindus were controlled and looked upon by Hindu laws. In medieval period, the king used to administer Islamic law to everyone irrespective of religion. Jahangir was the main person who evaluated this system as he believed that God will never favour any one even if he is a noble, prince or any other eminent person. That is why his fair hearing was denoted as Jahangir Nyaya.2 So by this we can say that, legal aid has not been prevailed at the ancient times. It is only in the modern period, it became necessary that there shall be some rights regarding the legal aid. The concept of legal aid was well evolved before the formation of the Indian Constitution. Under the Chairmanship of Lord Rushcliffe, a committee was formed in 1944 in England to enquire the existing facilities in England and Wales for giving legal advice and assistance to the poor people. A report was submitted in 1945 with the following recommendation. It recommended that legal aid should be available in all Courts and it should apply not only to poor persons but also include wider income group. The State should bear the costs incurred in providing legal aid. Such recommendations were accepted by the British Parliament and as a result the Legal Aid and Advice Act, 1949 was passed. After the passage of this Act, the Bombay Legal Aid Society
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Justice T. Mathivanan: Legal Aid Issues, Challenges and Solutions - An Empirical Study at p.no-28,29.

brought to the attention of the Government of India and suggested to appoint a similar committee to enquire the availability of legal aid to poor and needy persons. So eventually Government asked the opinions of the Provincial Governments and in reply to it, those Provincial Governments refused to provide free legal aid due to financial problems.3 A committee was appointed by the Government of Bombay in 1949 and Late Shri. N.H. Bhagwati, a High Court Judge as the Chairman of the Committee. The main object of the committee was to recommend about the grant of legal aid to the poor persons in case of civil and criminal proceedings. The Committee submitted its report in 1949 and said that legal aid is a service which the modern welfare State owes to its citizens. The committee in its report stated that the concept of legal aid should be compared as same as the schemes like old age pensions, free education, free medical relief etc. The Committee also recommended that the scheme of legal aid at States cost should be prima facie applicable to the backward classes and other Scheduled Tribes. It also recommended means test and prima facie test. It also recommended to institute committees such as Taluka, District, State Legal Aid committees. But, the recommendation could not be implemented by the then Bombay Government. Another committee was appointed in West Bengal to report on legal aid and Sir Arthur Trevor Harries, a former High Court Judge, was appointed as the Chairman of the committee. With some differences in detail, the report was briefer than the Bombay Committee. n 1952, Government of India directed the State Government to extend Legal Aid in criminal cases in respect of offence punishable with not less than five years rigorous imprisonment and appeals arising out of them. But again State Government regretted their inability to do anything in this regard on account of financial stringency. In January 1956, the government of India for the third time sought from the State Government their tentative view for increasing the scope of Legal Aid to the poor. In 1957, there was Law Ministers Conference for evolution of Legal Aid programmes. It was unanimously agreed that each state should formulate a scheme of legal aid to the poor and forward it to the Ministry of the Law. However, again nothing was done by any State to implement it.4

3 4

Dr. B.N. Mani Tripathi: Jurisprudence, The Legal Theory, 19 Edition, at p.no:432-433. http://legalaidinindia.weebly.com/chapter-i.html (accessed on 29-10-2013).

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The Law Commission of India in its Report of Judicial Administration published in 1958 contained a chapter of legal aid. It stated the rendering of legal aid to the poor litigants is a mighty problem of procedural law and it is an issue of fundamental character.5 It also stated that facilities for legal aid in India are insufficient. There is no organized effort by the voluntary organizations either governmental or private except for few towns like Bombay, Calcutta and Bangalore. The State Governments or the legal professionals have not shown any enthusiasm about the proposals regarding the legal aid to the poor litigants. 6 The Commission strongly urged for rendering legal aid and it suggested for the adoption of Bhagwati Committee Report of Bombay and Trevor Harries Committee report of West Bengal. It suggested for certain measure to implemented immediately without the need of setting up elaborate legal aid organizations by amending the law of the rules of the Courts.7 On March 13, 1970 a Bill known as The Free Legal Aid Bill, 1970 was introduce in th e Lok Sabha by Mr. Madhu Limay, the then Member of Parliament. As the Bill was neither sponsored by the Government, nor it has the Government support, its fate was a foregone conclusion. But it did attract a serious attention on the subject which had been engaging consideration by various committees including the Law Commission of India.8 The Government of Gujarat appointed a Committee under the Chairmanship of the then Chief Justice, Gujarat High Court, to consider the question of grant of legal aid in civil, criminal, revenue, labour and other proceedings to poor persons, to persons of limited means and persons belonging to backward class, and to make such recommendations as may be desirable so as to render legal advice more easily available, and to make justice more easily accessible to such persons including recommendations on the question of encouragement and financial assistance to institutions engaged in the work of such legal aid. The Committee went into detail on the serious problems of providing legal aid to the poor, backward and innocent citizens of this country for

5 6

Law Commision of India, Fourteenth Report, Vol I at p. no: 587. Ibid., p.no: 692. 7 Ibid., p,no: 598. 8 Dr. Janak Raj Jai: Compensation Under the Motor Vehicles Act: A Critique, 1995, p.no- 128, Regency Publications, New Delhi

whom Art. 14 and Articles 38 had no meaning at all. The Committee therefore strongly felt that the State should regard it as an obligation to provide legal assistance to the poor and indigent.9 There had been general awareness to the dire need of providing legal aid to the millions of poor and helpless people of India. The Government of India, on 27th October, 1972, appointed a Committee known as Expert Committee on Legal Aid under the Chairmanship of Justice V.R. Krishna Iyer for making recommendations on the matter of legal aid. All the embers of this Committee were honorary, and thus they worked on this committee without any remuneration whatsoever. It recommended that the legal aid to be available to weaker sections i.e., socially and educationally backward classes. They shall be facilitated with legal advice to bring awareness of their constitutional and legal rights. They shall be entitled to legal aid in civil, criminal and revenue proceeding. A scheme for legal aid with available resources shall be formulated. It shall recommend the time and manner in which the scheme may be implemented. The Committee submitted its report in May, 1973. It is indeed a very valuable document under the Processual Justice. In this document the Committee has strongly advocate for the urgent need of providing legal aid and advice to the poor and needy.10 Another Central Government Committee in 1976 was formed under Justice P.N. Bhagwati and Justice V.R. Krishna Iyer of the Supreme Court of India with the former as the Chairman. The report mainly looked up to assess the value and effectiveness of legal aid schemes presently functioning in the country. It also made recommendations for the establishment of legal service programmes in all States. The Bhagwati Committee, after making various recommendations in their report, felt that many studies would be undertaken for formulating comprehensive legal aid programme and that many departments of knowledge would have to be coordinated for drawing up a suitable picture of legal aid programmes. The committee submitted a Draft Bill also for the enactment of a national programme of legal aid and advice. With some modifications, this has been enacted into the Legal Services Authorities Act, 1987.11 The successive reports by the committees etc., urged the country toward the achievement of its socio-economic goal brought about a strong awareness of the necessity and urgency of providing
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Ibid., p.no: 129 Ibid., p.no: 130. 11 Supra note 3, p.no: 444.
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legal aid. Thus, it has been made Directive Principles of State Policy by the Constitution (42nd Amendment) Act, 1976. Article 39-A has been inserted in the Constitution which says 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. In pursuance of the constitutional provision for legal aid and the suggestions of the Central Government Committee, the Central Government passed the Legal Services Authority Act, 1987 to provide legal aid to weaker sections of the society. It is 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.12 The enforcement of the Act was postponed and later amendments were done in 1994 and 2002. The Act came into force with the former amendment. This Act contains 30 sections. Chapter I deals with the short title, extent, commencement and various definitions. Chapter II deals with the National Legal Services Authority. It explains about the National Legal Services Authority and Supreme Court Legal Services Authority and its functions. Chapter III deals with the constitution of State Legal Services Authority, State Legal Services Authority, High Legal Services Committee, District Legal Services Authority, Taluk Legal Services Committee and their functions. Chapter IV deals with the persons who are entitled to legal services. Chapter V deal with finance, account and audit i.e., grants by the Central Government, National Legal Aid Fund, State Legal Aid Fund, District Legal Aid Fund. Chapter VI deal with the organisation of Lok Adalats. It deals with the powers of Lok Adalats, Award of Lok Adalats. Chapter VI A deals with Pre-Litigation Conciliation and Settlement. Chapter VII deals with the miscellaneous provisions. There are also some other existing provisions relating to legal aid other than the Legal Services Authorities Act, 1987. Section 304 of the Criminal Procedure Code, 1973 provides for the legal aid to the accused at the State expense in certain cases. It says:

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Preamble of Legal Services Authority Act, 1987.

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. (2) The High Court may, with the previous approval of the State Government, make rules providing for(a) The mode of selecting pleaders for defense under sub-section (1); (b) The facilities to be allowed to such pleaders by the Courts; (c) The fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session. Order XXXIII of the Civil Procedure Code, 1908 provides for the suits by the indigent persons. It provides for filing of suits by indigent persons. It enables persons who are too poor to pay court fees and allows them to institute suits without payment of requisite court fees. A person is indigent if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit.13 Order XLIV of the Civil Procedure Code deals with the appeals by the indigent persons. If a person is unable to pay court fees on memorandum of appeal may apply to allow him as an indigent person. The necessary inquiry as prescribed in Order XXXIII will be made before granting or refusing the prayer. But where the appellant was allowed to sue as an indigent person in the trial court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.14

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C.K. Takwani: Civil Procedure, 7 Edition, p.no: 451. Ibid., p.no: 455.

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Case Laws In M.H. Hoskot v. State of Maharashtra,15 the Supreme Court applied the ruling of Maneka Gandhis case16. Regarding the right to free legal aid, Krishna Iyer, J., declared. This is the States duty and not Governments charity. If a prisoner is unable to exercise his constitutional and statutory right of appeal including special leave to appeal for want of legal assistance, there is implicit in the court, under Article 142, read with Article 21 and 39-A of the Constitution, the power to assign counsel to the prisoner provided he does not object to the lawyer name by the court. Equally, is the implication that the State which sets the law in motion must pay the lawyer an amount fixed by the Court. In State of Maharashtra v. Manu Bai Pragaji Vashi,17 the Court has considerably widened the scope of the right to free legal aid. The Court held that in order to provide the free legal aid it is necessary to have well-trained lawyers in the country. This is only possible if there are adequate number of law colleges with necessary infrastructure, good teachers and staff. Since the Government is unable to establish adequate number of law colleges, it is the duty of the Government to permit establishments of duly recognised private law colleges and afford them grants-in-aid on similar lines on which it is given to Government recognized law colleges. This would facilitate these colleges to function effectively and in a meaningful manner and turn out sufficient number of well trained or properly equipped law graduates in all branches year after year. This will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. In Suk Das v. Union Territory of Arunachal Pradesh,18 the Court has held that failure to provide free legal aid to an accused at the State cost, unless refused by the accused, would vitiate the trial. He need not apply for the same. Free legal aid at the State cost is a fundamental right of a person accused of an offence and his right is implicit in requirement of reasonable, fair and just procedure prescribed by Art. 21. This right cannot be denied to him on the ground that he has failed to apply for it. The Magistrate is under an obligation to inform the accused of his right and
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A.I.R. 1978 S.C. 1548. A.I.R. 1978 S.C. 597. 17 (1995) 5 S.C.C. 730. 18 (1986) 25 S.C.C. 401.

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inquire that he wishes to be represented on the States cost, unless he refused to take advantage of it. In that case the appellant was tried and sentenced to two years imprisonment under Section 506 read with Section 34 of Indian Penal Code, 1860. He was not represented at the trial by any lawyer by reason of his inability to afford legal representation. The High Court held that the trial was not vitiated since no application was made by him. On appeal the Supreme Court set aside the conviction on ground that he was not provided legal aid at the trial which was violative of Art. 21 of the Constitution. In Veena Sethi v. State of Bihar,19 the Free Legal Aid committee, Hazaribagh brought to the notice of the Court through a letter about the illegal detention of certain prisoners in the Hazaribagh Jail for two or three decades without any justification. At the time of their detention prisoners were declared insane but afterwards they became sane but due to the inaction of authorities to take steps to release them they remained in jails for 20 to 37 years. It was held that the prisoners remained in jail for no fault of theirs but because of callous and lethargic attitude of the authorities and therefore entitled to be released forthwith. Research question: The purpose of taking this topic was, I just want to know how the concept of legal aid developed in India. For this I have gone through the books and net what actually means. Hypothesis: Legal aid is considered to be evolved from ancient times. But it has some differences when compared to the concept of legal aid in present era. Conclusion: By this I would like to conclude my topic that the concept of legal in India is evolved after much stringency. There have been many deviating conclusions while the formulation of legal aid. But, we have to appreciate the way the framers have strived for the enactment of provisions of legal aid which would be helpful for the poor persons to avail justice. So the State shall carefully observe that those poor persons are entitled to the legal aid.
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A.I.R. 1983 S.C. 339.

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Bibliography: Books Dr. B.N. Mani Tripathi: Jurisprudence, The Legal Theory, 19th Edition, Allahabad Law Agency, Haryana. Dr. Janak Raj Jai: Compensation Under the Motor Vehicles Act: A Critique, 1995, Regency Publications, New Delhi. C.K. Takwani: Civil Procedure, 7th Edition, Eastern Book Company, Lucknow. Dr. J. N. Pandey: The Constitutional Law of India, 48the Edition, 2011, Central Law Agency, Allahabad. Websites http://www.indiankanoon.org http://www.vakilno1.com http://www.indianlawcases.com http://legalaidinindia.weebly.com http://www.merriam-webster.com

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