LAW AND POVERTY

LEGAL AID

Presented By:
AKASH NARAYAN
Roll no. - 6
4TH SEMESTER
BA.LLB. (Hons.) (Self-Financed)
Acknowledgement

I take immense pleasure in thanking Rasheed Sir, for having permitted me

to carry out this project. I express my gratitude to him for giving me an
opportunity to explore the world of information concerning my project
topic.

Finally, I’d thank my family members for their blessings and wishes for the
successful completion of the project.
Table of Content

1. Introduction
2. Legal Aid in India
3. Need for Legal Aid
4. Present Scenario
5. Landmark Judgements Highlighting Legal Aid As
Fundamental Right
Introduction

‘Justice’ is perhaps the most misconstrued term in the history of mankind. The concept of justice

varies with time and space. The theory of social contract says that people came together and gave

up certain rights and the ‘state’ came into being with the principal purpose of providing justice to

its citizens. Justice is the ground norm of social contract and without justice, foundation of

society would collapse. Thus, to make this foundation resilient, the concept of free legal aid

came into being which means granting free legal service to poor or poverty-stricken sections of

the society who are unable to afford the services of a lawyer who can handle the case and defend

them in court of law. However legal aid has yet another dimension in the sense that even

financially sound people require it, though of course not freely and in a different way, i.e. to

know whether launching a litigation is a viable option or not. If understood this way, legal aid

may play very important role in curbing ever mounting arrears of unnecessary litigation in

courts. At the same time it may also encourage people to look for alternative solutions like

mediation to save time and avoid needless litigation by holding counseling sessions.

In India, providing legal aid is not only the duty of the state but a constitutional obligation as

well. The principle of Legal aid received most explicit treatment in 1976, by way of 42 nd

Amendment to our Constitution.1

1.Ins. By constitution (forty-second Amendment) Act, 1976, sec. 8. (w.e.f. 3rd January 1977.)

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It provides, “The state shall secure that the operation of the legal system promotes Justice, on

the 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”.

Article 39-A of the Indian constitution2 bestows a duty on the state to give free legal aid to poor and

downtrodden to ensure justice is accessible to all. Compelling tone of the language of this provision

imposes certain mandatory obligations on the state. Although, being listed as one of the Directive

principles of the state policy, it also poses a disputable question; do these obligations create any

enforceable fundamental right of free legal aid for poor? Answer to this question depends upon as to how

one views the relationship of Directive Principles and Fundamental Rights. Those who support the literal

interpretation of our Constitution are bound to argue that Art. 39-A does not give rise to any enforceable

fundamental rights. On the other hand, some argue that although Directive Principles are not enforceable

in the courts of law, they are not certainly non-justiciable altogether. In an era of a welfare State, role of

State is not merely restricted to maintenance of law and order and the protection of life and liberty and

property of the subject. Today, the state has to promote inter alia the prosperity and well-being of the

people.

K. Ramaswamy J. of the Supreme Court had advanced a striking discourse in support of Direct
Principles being justiciable. His Lordships observed, “The Directive Principles in our

2 Article 39A.Equal justice and free legal aid-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.

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Constitution are fore-runners of the U.N.O. Convention on Right to Development as inalienable

human right………… therefore, the Directive Principles now stand elevated to inalienable

fundamental rights. Even they are justiciable by themselves.”3

The essence of imbibing legal aid in the Constitution is to fulfill the fundamental objective of

equality in society by extending a “helping hand” through legal aid. Therefore, legal aid aspires

to accomplish the constitutional pledge of “justice for all”. State has a duty to delve in and ensure

promotion of justice on the basis of equal opportunity for its citizens. Hence, it must make

necessary arrangements for implementation of free legal aid to financially incapable sections of

society.

Legal Aid Movement

Legal aid is not a recent concept. It dates back to 19th century. The evolution of the idea of legal

aid came up in France during the year 1851 when the French government decided to introduce an

Act to provide legal services to the deprived sections of society. As tracking back the existence

the first legal aid, it first took place in United States of America. In the United States, an

organized Legal Aid Movement for the poor began in 1876 with the establishment of an

organization for providing legal assistance for the then recently arrived immigrants4 by the

German Society of the New York. Then Legal Aid was a diffused movement till 1919, when

Reginald Heber Smith, an advocate with the Boston Legal Aid Society, published a work-‘Justice

and the Poor’- which gave way to some outstanding new ideas.

3 Air India Statutory Corp. v. United labour union, A.I. R.1997 S. C.645at p. 658.

4 M. Cappilletti: The Emergence of a Modern Theme in Cappilletti, Gordley and Johnson.

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The important idea was that there was a ‘collective social responsibility’ on the Bar to provide

opportunities for the unrepresented masses to secure access to the justice system and it was

indeed a crucial development in Public Interest Law.

Then came an organized form of Legal Aid in which there was an ‘independent private office’ –

separate from any commercial law firm- with salaried lawyers working full-time on the problems

of clients. This organization was, however, critical to the development of Public Interest Law. It

was a new kind of institution that moved away from the concept of individual service performed

on a voluntary contribution basis. It was a model that had been followed because of its

effectiveness. Under this model, those running the organization, the advocates did not have to

treat Public Interest service as an uneconomic enterprise, in contrast with an otherwise lucrative

commercial practice. It was indeed a radical beginning. However, Legal Aid was too big an

objective for charity to support. But, surely, the Legal Aid Movement accomplished a great deal.

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Legal Aid in India

In India, the concept of legal aid started in 1952 when the Government addressed the question of

providing legal aid to the poor in various Law Conferences. With the aim to set in motion the

implementation of the Constitution mandate of Art. 39-A, Government of India appointed the

very high power “Committee5 for Implementing Legal Aid Schemes” [CILAS] under the

chairmanship of P.N. Bhagwati J. [as he then was], to monitor and implement legal aid

programmes on a uniform basis in all states and union territories. CILAS evolved a model

scheme for legal aid programme applicable throughout the country by which several legal aid

and advice Boards have been set up in the states and union territories.6

The Committee made some noteworthy observations, “Preventive legal service...requires a

qualitative and radical change in the functioning of the legal service program...It does not

regard litigation as playing an important role...it is more concerned with the problems of the

poor as a class, and is calculated to help organize the poor, so that they may be able to act on

the realization that real political power rests with them, and....shape the destiny of the country."

The Committee made following recommendations: To promote legal literacy and awareness of

legal rights, setting up of legal advice board at State level creating a cadre of barefoot lawyers,

legal aid clinics, sensitizing the legal profession to the ultimate goal of social change, etc. and

make use of the mass-media, conduct socio-legal surveys etc.

5 By resolution dated, 26th September 1980.see also reports of Gujarat Committee chaired by Bhagvati
C.J. (1971) and The experts Committee on Legal aid, Govt. of India, Ministry of justice ,law and
company affairs, chaired y V.R. Krishna Iyer ,J. (1973).

6 The AIR Manual, vol.32, 5th edition, 1989, p.p. 267-68

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However, Government realized that recommendations of CILAS were not being carried out in

reality, as the legal aid programme has been reduced to a mere court oriented programmes and

not the kind of change that Justice P.N. Bhagwati [as he then was] envisaged, and legal aid cells

constituted as an outcome of these recommendations were suffering from some serious flaws,

and hence in order to effectively carry out the rather ambitious plan envisaged by Article 39-A

and Bhagvati, J (as he then was). It enacted “LEGAL SERVICES AUTHORITIES ACT, 1987.”7

Furthermore, Legal Services Authorities Act was enacted to give a statutory base to legal aid

programmes throughout the country on an identical pattern. The National Legal Services

Authority (NALSA) was constituted under the Legal Services Authorities Act, 1987 to provide

free Legal Services to the weaker sections of the society and to organize Lok Adalats for

amicable settlement of disputes. National Legal Services Authority was constituted on 5th

December, 1995. His Lordship Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took

over as the Executive Chairman of National Legal Services Authority (NALSA) on 17 th July,

1997. Soon after assuming the office, His Lordship initiated steps for making the National Legal

Services Authority functional. By February, 1998 the office of National Legal Services Authority

became properly functional for the first time.

A State Legal Services Authority is constituted in every state to give effect to the policies and

directions of the Central Authority (NALSA) and to provide 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.

7 All provisions except Chapter III enforced from 09-11-1995. See also G.S.R. 582(E) dated
3.7.2000 publishing the Supreme Court Legal Services Committee Rules, 2000.

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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.8

Legal aid, being one of the most vital elements of procedural due process under Article 21 is bound to

find place in principal procedural laws. Accordingly, there are specific provisions in Cr.P.C. 9 and C.P.C10.

Besides; in other legislations also there are provisions for legal aid, e.g. The Advocates Act, 1961. 11

However, the most vital legislative mechanism, which had become mandatory after the enactment of 42 nd

Amendment Act, 1976 took as many as 11 years to surface in the law books in the form of “LEGAL

SERVICES AUTHORITIES ACT,”12

This Act has been passed mainly with the twin objects of rendering legal aid to the victimized

and financially weak people13 and to provide statutory framework to the Institution of Lok

Adalat.

8 Introduction and History of NALSA,(October 16th, 2015, 8.30 AM), http://nalsa.gov.in/

9 Section 304(1)

10 Order xxxiii of C.P.C.1908

11 Rule 41, sec.vi of the Act

12 This Act took 8 years to come in to force

13 Sections 12, 7, 13 of the Act, 1987

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Need For Legal Aid

Despite all the advancements in the 21st century in the field of information and technology, legal

knowledge amongst the masses is still not sufficient and most of the people are unaware of their

basic fundamental rights. Due to this ignorance, they become vulnerable to exploitation and are

deprived of rights and benefits entitled for them. Justice P.N. Bhagawati has very clearly stated

that legal aid means providing an arrangement into society so that the machinery of

administration of justice becomes easily accessible and is not out of each of those who have been

resort to it for enforcement of rights given to them by law. 14 Thus, legal aid to the poor and

weaker sections is compulsory for the preservation of the rule of law which is necessary for the

existence of the society. Even after all the efforts to make the general populace aware of the

fundamental right to legal aid, there is still a long way to go for successful implementation of the

same in the country. Therefore, it is the urgent call of the hour to educate weaker sections of the

society regarding their basic right of legal aid so as to ensure that poverty is not an encumbrance

in obtaining justice.

14 Report of the Legal Aid Committee 1971, page. 5

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Present Scenario

A noble idea aimed at providing justice to every section of society is also plagued with certain

inherent anomalies. Unfortunately, in a country like India, where poverty is rampant and system

is rigid, it is bound to give birth to specific problems. Lawyers provided by the government by

way of legal aid programme are busy in satisfying their hunger for money and blatantly ignore

the responsibility delegated to them. Often, there have been cases where under trials have

undergone immense suffering just because the lawyer provided to them was too busy in

18 See Supra note 8

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promoting his private practice. Under trials have to rot in jail for a longer period of time just

because the lawyer appointed to them shows nonchalant attitude and does not follow up the case

or solely keeps on delaying the trial or the appointed lawyer sends his junior who has absolutely

no knowledge about the case.

Poverty and lack of access to justice are intrinsically connected. Poverty, which creates a vicious

circle of disempowerment,19 is not merely an indicator of economic deprivation but also an

indicator of the social, political and above all legal deprivation of people. Poverty disables

people to approach the formal legal system for assertion of their rights and for seeking remedial

action in cases of violation of legal rights.

Poverty compounds obstacles to access to justice-ignorance of the legal provisions and one’s

rights, procedural technicalities, lacking awareness about the complexities of the legal system,

very little or no access to legal services of any kind, along with lack of resources to manage the

high cost of litigation are some of the consequences of poverty. 20 This results in their being

shoved away from the mainstream, and they become constrained in becoming potential

economic factors contributing to the nation's development.21

19 Poverty is a reflection of powerlessness and the powerful need to be challenged if change is to

relievedisadvantaged as mentioned in Ton Dietz in the Agenda in Neil Middleton, Philokeefeked Rob Visser (Ed.),
Negotiating Poverty New Direction Renewed Debate form B. Wisner 1988, Power and Need in Africa, London,
Earth scan, London, 2001, p.21.

20Anindita Pujari (2009), Poverty and Access to Justice- Dimensions of Public Interest Litigation, New
Delhi:Eastern Economy Edition.

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Access to justice is not a clearly defined phrase. It covers a wide variety of matters including

accessibility to court, adequate legal representation, availability of legal aid, 22 legal advice and

legal education. All these approaches are merely facilitative in nature. However, it should rather

refer to a system which is not only equally accessible to all but also leads to results that are

individually and socially just.

Therefore, mechanisms that merely pave the way for approaching the justice delivery systems

and are devoid of consequent substantive justice are merely empty formalities.23 Above all these

tribulations, there are other invisible barriers infesting the system too, such as lack of courage to

exercise legal rights, the proclivity to suffer silently the denial of rights, and geographical and

spatial barriers are examples. Such barriers keep people disempowered and subjected to

exploitation by powerful people.

Thus, much more is required to enable the legal machinery to realize the goal of equal justice to

all and the protection of the weak and the underprivileged sections of the society.24

Landmark judgments highlighting legal aid as a fundamental right

Role of Judiciary in this area as an interpreter and enforcer of Constitutional mandate and as the

true custodian of the constitution is significant and pertinent. Although, now legal aid has been

21 U. Sarathchandran, Bringing legal aid a step closer home, The Hindu (2011), available at:
http://www.thehindu.com/opinion/lead/bringing-legal-aid-a-step-closer-home/article2609718.ece

22 Article 39-A of the constitution of India provides free legal aid to the poor and weaker sections of the
society.

23 See Supra Note 20

24 Pallavi Bahar (2009): Revitalizing Judiciary- Enhancing access to the Poor, New Delhi : Eastern Economy
Edition.

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recognized by the Courts as a fundamental right under Article 21, earlier there was an ambiguity

as to the scope of the right and position relating to its validity was unclear.

Supreme Court has enumerated two situations as to when a prisoner is entitled for legal aid in

Sunil Batra v. Delhi Administration 25. Firstly, to seek justice from the prison authorities and

secondly, to challenge the decision of such authorities in the court. Hence, the requirement of

legal aid was brought about in not only judicial proceedings but also proceedings before the

prison authorities which were administrative in nature.

The Apex Court has reiterated its position in Hussainara Khatoon v. Home Secretary, State of

Bihar26 and held: “…it is an essential ingredient of reasonable, fair and just procedure to a

prisoner who is to seek his liberation through the court’s process that he should have legal

services available to him. Free legal service to the poor and the needy is an essential element of

any reasonable, fair and just procedure.” The court invoked Article 39-A which provides for free

legal aid and has interpreted Article 21 in consonance with Article 39-A. The court upheld the

right to free legal aid to be provided to the poor accused persons ‘not in the permissive sense of

Article 22(1) and its wider amplitude ‘but in the peremptory sense of article 21 confined to

prison situations’

Two years thereafter, in the case of Khatri v. State of Bihar,27 Justice P.N. Bhagwati while

expressing his anguish at the State for not adhering to the order of providing free legal services

to an accused, held that the State was under a constitutional mandate to provide free legal aid to

25 1980 AIR 1579, 1980 SCR (2) 557

26 1979 AIR 1369, 1979 SCR (3) 532

27 1981 SCR (2) 408, 1981 SCC (1) 627

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an accused person who is unable to secure legal services on account of indigence, and whatever

is necessary for this purpose has to be done by the State.

Another case in which importance of legal aid was highlighted is M.H. Hoskot v. State of

Maharashtra,28 the Apex court held that there is implicit in the Court under Article 142 read

with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned

individual 'for doing complete justice’. In this case, it was held that an accused is expected to get

free legal aid under article 39A.

Although, it doesn’t mean that a writ of mandamus can be filed in Supreme Court compelling the

State to give financial assistance to engage a counsel of his choice. In 1986, in another case of

Sukhdas v. Union Territory of Arunachal Pradesh,29 Justice P.N. Bhagwati, while referring to

the decision of Hussainara Khatoon’s case30 made the following observations in (paragraph 6) the

said judgment:-

“Now it is common knowledge that about 70% of the people living in rural areas are illiterate

and even more than that percentage of the people 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 which is responsible for the deception, exploitation and

deprivation of rights and benefits from which the poor suffer in this land.

28 AIR 1978, 3 SCC 81

29 1986 AIR 991, 1986 SCR (1) 590

30 see Supra note 7

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Their legal needs always stand to become crisis oriented because their ignorance prevents them

from anticipating legal troubles and approaching a lawyer for consultation and advice in time

and their poverty because magnifies the impact of the legal troubles and difficulties when they

come. Moreover, of their ignorance and illiteracy, they cannot become self-reliant; they cannot

even help themselves. The Law ceases to be their protector because they do not know that they

are entitled to the protection of the law and they can avail of the legal service programs for

putting an end to their exploitation and winning their rights. The result is that poverty becomes

with them a condition of total helplessness. This miserable condition in which the poor find

themselves can be alleviated to some extent by creating legal awareness amongst the poor. That

is why it has always been recognized as one of the principal items of the program of the legal

aid movement in the country to promote legal literacy.

It would be in these circumstances made a mockery of legal aid if it were to be left to a poor,

ignorant and illiterate accused to ask for free legal service, legal aid would become merely a

paper promise and it would fail of its purpose.”

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