Right To Legal Aid

CRIMINAL JUSTICE SYSTEM PROJECT ON

RIGHT TO LEGAL AID

Raipur, Chhattisgarh

Submitted to:

Mr Manoj Kumar

Submitted by:

Shreyash Tiwari

Roll No.-`146

Semester- IX, B.A.L.LB.(Hons.)

Right To Legal Aid

Table Of Contents

1. Declaration .....03
2. Acknowledgment............................................................................04
3. Introduction.05
4. Object and Research Methodology...........................................................06
5. Humaan Right to legal aid.....07
6. Universal Right to legal aid........................................................................09
7. Legal Aid in india................................................................12
8. Statutory Provisions .....................................................16
9. Conclusion......................................................................................18
10.Bibliography/Webliography..19
Right To Legal Aid

Declaration

I hereby declare that the project work entitled Right To Legal Aid submitted to HNLU, Raipur,
is record of an original work done by me under the able guidance of Mr Manoj Kumar, Faculty
Member, HNLU, Raipur.
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Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer
hard work and honesty. This research venture has been made possible due to the generous
co-operation of various persons. To list them all is not practicable, even to repay them in
words is beyond the domain of my lexicon.
This project wouldnt have been possible without the help of my teacher Mr. Manoj
Kumar Faculty of Criminal Law at HNLU, who had always been there at my side
whenever I needed some help regarding any information. she has been my mentor in the
truest sense of the term. The administration has also been kind enough to let me use their
facilities for research work. I thank them for this.

Shreyash Tiwari ROLL NO- 146

Right To Legal Aid

1. INTRODUCTION

Legal aid programs are widespread, and spreading wider. They are part and parcel of the rule of
law, and where the rule of law is, or is being developed, so legal aid programs are ,or are being
developed. Nowhere, however, is legal aid a right, except within closely defined circumstances.
Speaking to an international conference on legal aid and human rights, was an opportune time to
set out an argument for recognition of legal aid as a human right, a fundamental right for all
people. Before going further with a discussion of legal aid, we must be clear about what we
mean by the term. If legal aid means nothing more than legal representation in court, then to
that extent there is limited recognition of a right to legal aid. It is a right that has beenfound to be
implicit, at least for some criminal trials, in various legal systems and in human rights
instruments. To have established that right is a significant achievement. In a criminal trial the
state is at its most powerful, and the liberty of a person is most at risk. Because of a right to legal
representation in criminal trials, countless thousands of people are represented and defended
where they would not have been otherwise. But legal aid could mean much more than legal
representation, and a right to legal aid could mean much more than a limited right to
representation in court. We can, instead, think of legal aid as providing public access to law, to
law that is preventive and protective, that brings change and hope, that relieves poverty and
promotes prosperity. We can think of legal aid as providing public access to legal information, to
legal advice and to legal education and knowledge. None of this broad and bold conception of
legal aid legal aid beyond legal representation is recognised as anyones by right. When there
is legal aid beyond legal representation, it is provided for a range of reasons Smith has
suggested six: charity, poverty reduction, efficiency in the legal system. self-interest and human
rights. Such legal aid is discretionary, provided by the state or by non-state actors as and when
they can or wish. Indeed, some aspects of the full scope of what legal aid could be would never
be provided willingly by the state; it is quite simply not in the states interest to encourage the
aggressive use of law as a force for change. The key to establishing a right to this broader idea of
legal aid lies in a different understanding of the role of the state, and that different understanding
is offered by the theory of human rights.
Right To Legal Aid

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. 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 provides2 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
Right To Legal Aid

2. Objectives

(1).To Discuss the meaning and concept of legal aid

(2).To Discuss the system of legal aid in india and its provisions.

(3). To Discuss the importance of legal aid on international and national levels.

Focusing on these objectives I will try to talk about right to legal aid through research and study
by the various resources and will try to bring the truth behind the curtain using the best of my
capabilities.

Research Methodology:

This project work is descriptive in approach. It is largely based on the description of Books &
other references as guided by faculty of Criminal Law were primarily helpful for the completion
of this project.
Right To Legal Aid

3. A HUMAN RIGHT TO LEGAL AID

The right to legal representation A right to legal representation is rarely stated explicitly.
Rather, it is established by inference from the systems and institutions of the state. Superior
courts and learned writers around the world have recognised a right to legal representation, in
some circumstances, through two ways of thinking: by implication in constitutional guarantees
of equality, and by implication in a guarantee of a fair trial.

Criminal matters

In the United States of America an explicit Constitutional right to legal representation is limited
by the Sixth Amendment to Federal criminal matters. By reading this right with the separate
Constitutional right to due process in the Fourteenth Amendment, the United States Supreme
Court in Gideon v Wainwright6 was able to infer a right to legal representation in all criminal
matters. But what a court gives a court can take away, and the United States Supreme Court
subsequently limited the right to legal representation to cases when a gaol sentence is possible,
saying that it is the defendants interest in personal freedom, and not simply the special Sixth
and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to
appointed counsel.7 As a result, the availability in the USA of a right to legal representation,
already limited to criminal matters, is subject to the states discretion in prescribing gaol as a
possible sentence.

Non-criminal matters

Because Gideon v Wainwright and Dietrich found the right to representation in criminal
matters to be implied in the availability of other rights due process and fair trial they have
been the basis for persistent, and persistently unsuccessful, calls for recognition of a similar right
to representation in non-criminal matters. A significant obstacle has been the refusal by courts
and policy makers to treat the needs of a party in a non-criminal case as deserving the same right
to representation that an accused has. There is certainly an inequality of arms when an accused
faces the state in a criminal trial, but the same inequality of arms occurs in many non-criminal
matters that involve well-resourced parties on one side of a case. Sometimes (as in Lassiter) that
Right To Legal Aid

It is a crude exercise, unsustainable on any rational basis, to measure the relative seriousness of
one persons being gaoled for a year with another persons losing their home or family or means
to earn a living. On the few occasions when a right to representation in non-criminal matters has
been recognised, the courts have always heavily circumscribed the right.

Reflecting on the right to representation Academic arguments for a right to legal

representation adopt the courts approach of finding a right by implication in a particular context.
They have made the case for the right in non-criminal as well as criminal matters, and have
looked beyond fair trial as a source for the right, to contexts as local as the terms of a provincial
constitution,23 or as broad as a democratic political system generally.24 When Luban argues for
a right to representation based on the USAs constitutional guarantee of equality before the law,
he recognises that his argument is context-specific, and disavows any claim to be articulating a
right to representation beyond the scope of the USAs system of law and politics25. Indeed,
Luban doubts whether any transnational claim can be made, precisely because of the differing
politico-legal contexts from one state to another. Luban is correct for as long the source for a
right to representation is inferred from the processes and institutions of a state, and the right to
representation that I have described above is always one that arises in a particular context, as part
of a particular system. By spelling out the circumstantial nature of the right to representation I do
not mean to undermine its importance. But the exercise does highlight that even this most
prominent aspect of legal aid is contingent, and has failed to establish itself as a secure and
broadly available right within the structures of the state. If the right to legal representation is of
such limited availability, then it is fanciful to think that courts will, in any circumstances, imply a
right to a broader conception of legal aid. What is needed is a way of freeing a rights claim of its
contingent provenance, and conceiving it in universal terms. This idea of a rights universality
suggests the modern conception of human rights.
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4. Universal Right To Legal Aid

Identifying human rights The source of a human right is neither the state nor any particular
system, it is the person. This is the key to its universality. A human right is a right that every
person has; it inheres in the person, it is with each of us from birth, it is ours because we are
human, and it is necessary to our living with dignity, to our exercise of reason and conscience.27
Those who do not enjoy their rights are not without rights they are deprived of their enjoyment
of them. Impoverished people surviving under a cruel and oppressive state have human rights,
but are deprived of their enjoyment. It is necessary to recall this because my argument is for the
recognition in principle of a human right to legal aid; whether and how that right can in fact be
enjoyed is a necessary but further issue. The first answer to the question what are the rights that
inhere in our being human? is the positive statement of human rights in the Universal
Declaration of Human Rights and the related International Covenants on Civil and Political
Rights, and Economic Social and Cultural Rights. But there is little there that speaks directly to
the relationship between the person and law: Article 14 of the International Covenants on Civil
and Political Rights (ICCPR) speaks of the guarantee of legal representation in criminal cases
where the interests of justice so require

Identifying a human right of access to law

The person who is the source of human rights is not an abstraction or a specimen, but lives in
society, exercising reason and conscience. Human rights are those rights and freedoms necessary
for a person to function with dignity in society, in whatever circumstances, and whatever state, a
person is. Peoples social relationships give rise to practices and expectations, to rules of
behaviour, which become vastly magnified in their number and complexity as society becomes
larger and more complex. Human life, in society, is universally rule-based. These rules call
them law may be oppressive or beneficial, setting limits or permitting conduct, denying
remedies or enabling claims. Law in some form is, universally, a part of a persons environment
Right To Legal Aid

Implementing a human right of access to law

The content of the right of access to law is not a right to a lawyer, any more than a right to free
expression is a right to make a radio broadcast, or a right to education is a right to private
tutoring. Access to law means a right to be told the law, to be given the opportunity to know
and understand the law, to use and comply with the law, to gain its benefit and protection. How
any human right is realised is a separate question from whether it exists, and it is an eternally
vexed one. There is cost and complexity in giving effect to human rights, and there are inevitable
limitations on the extent to which human rights can be realised in a state.29 But the prospect of
difficulties in implementing a human right cannot undermine the idea of the right itself. The
range of steps a state might take to give effect to a fundamental right of access to law is limited
only by imagination: from wide publication of plain language legislation to transparent judicial
appointments; from public training, education and information to simplified compliance and
legal procedures. There are manageable and affordable steps any state can take.

implications of the right of access to law

Legal representation is one way of achieving access to law and, as cases like Airey and Nkuzi
show, there will be times when legal representation is exactly the measure that is necessary.
Rather than relying, as the courts did in those cases, on implications from trial processes, a right
of access to law is an immutable basis for recognising a right to legal representation. Instead of
being dependent on a right to fair trial, and on the courts deciding that the circumstances are
appropriate, a right to legal representation will be recognised because in any court, in any place,
at any time, there is a human right of effective access to law. A human right of access to law is a
universal and independent rationale for sustaining measures of access that do exist, and for
advocating for measures that do not. It is a new and stronger starting point for practical debates
about policy and expenditure in states justice systems. It gives the state program of legal aid, in
all its variety, a pre-eminent place in social policy as the program through which the fundamental
human right of access to law is realised. It gives new meaning to a requirement, as is found, for
example, in the Copenhagen criteria for EU accession,34to establish a legal aid system.
Right To Legal Aid

5. Legal Aid in India: Statutory Recognition

Though there was a statutory procedure providing free legal aid10 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) 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 Government11 . 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 country. According
Right To Legal Aid

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 functions12. Under the Act 'legal 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 . Legal Services Authorities after examining the
eligibility criteria of an 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
Right To Legal Aid

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 has full time Legal Consultant who provides legal advise to poor litigants either
on personal visit or through the post.

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 where 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 , 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
Right To Legal Aid

person if the circumstances of the case and the needs of justice so requireThe State cannot
avoid this obligation by pleading financial or administrative inability or that none of the
aggrieved prisoners asked for any legal aid. In Suk Das v. Union Territory of Arunachal Pradesh
, 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 Courtin 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
Right To Legal Aid

courteven 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 after a law has been enacted for the benefit of the poor, the
state does not bring it into force by wilful default.
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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.
Right To Legal Aid

Conclusion

The concept of legal services has been imbibed in the working of the judiciary in order to secure
and promote justice in the society. Its the duty imposed on the government to grant legal
assistance. Given the lack of awareness in the country, expensive counsels, uncertain and time
consuming judicial proceedings and the menace of corruption in the judiciary, it is imperative to
refine the process of accessing justice in order to assure justice to the needy. Overall, it can be
said that India has performed decently in establishing mechanisms to dispense legal aid
efficiently.

By instituting Lok Adalats, Public Interest Litigation, Nyay Adalat, etc. it has only furthered the
cause of legal services. However, like all policy programmes, legal aid also suffers from some
inefficiencies such as access and awareness of legal to a small section of the population, and this
may be overcome by expanding legal literacy to the marginalised groups as well. Also if a proper
institution is put in place to organise and check the affairs relating to legal aid, the programme
would be able to do better.

Other voluntary and non state organisations should also be encouraged to engage themselves in
the granting free legal help so that more people can have access to justice. Legal aid institutions
should also be made more accountable to some autonomous external agency supervising the
working of these programmes. Legal help initiatives must also make use of alternative dispute
resolution mechanisms such as conciliation, client counselling, mediation.
Right To Legal Aid

6. BIBLIOGRAPHY/WEBLIOGRAPHY

1 www.legalservicesindia.com/article/article/right-to-free-legal-aid-1176-1.html

2 www.nilsindia.org/uploads/1/2/0/8/12081957/access_to_justice-_right_to_legal_aid.pdf

3 www.researchgate.net/publication/228243556_A_Human_Right_to_Legal_Aid

4 humanrightsinitiative.org/old/postoftheday/2012/4thOct.pdf