LEGAL AID IN INDIA AND THE JUDICIAL CONTRIBUTION

Submitted By:

Aarav Anand

Roll No 2, B.A. LLB. (Hons.) (Self Finance)

Faculty of law

Jamia Millia Islamia

April,2019

Under the guidance of

MR.RASHEED C A

Assistant Professor

Faculty of Law,

Jamia Millia Islamia

New Delhi, 110025

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 Acknowledgement
I am very glad that I got an opportunity to learn and imbibe so many things while making

this project. It helped to a great extent in developing researching skills which are very

important for a student of law. First and foremost, I would like to thank to Mr. Rasheed CA

For giving me this opportunity and always being such a great support. Secondly, I would

Like to thank my friends and family who are always there for me and without whom I

Won’t think that I could achieve anything in life.

Thank you

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 TABLE OF CONTENTS

1.INTRODUCTION………………………………………….Page-4

2.Legal Aid in India………………………………….Page-5

3.OBJECTIVE BEHIND UNDER ARTICLE 39A……….Page-7

4.Free Legal Aid in India : The positive Contribution of Judiciary…Page-8

5.Bodies under the Act and Their Hierarchy……..Page-10

6.CONCLUSION…………………………………………….Page-11

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 INTRODUCTION

The concept of “legal aid” is inseparable from its function as a vital means of access to
justice. Access to justice is defined as “the ability of people to seek and obtain a remedy
through formal or informal institutions of justice, and in conformity with human rights
standards,” and it is also seen as fundamental to the protection of human rights.1 Legal aid
plays a crucial role in enabling people to navigate the justice system, to make informed
decisions, as well as to obtain justice remedies. Legal aid makes a critical connection between
populations and their justice systems and provides guidance on how to navigate the often
difficult-to-understand justice system. The purpose of legal aid derives from evolving
standards of justice and fairness, encapsulated in the UN Principles and Guidelines2.Although
the UN Principles and Guidelines address legal aid in the context of criminal justice, the
goals of ensuring fundamental fairness and inspiring trust in justice proceedings and their
outcomes run across all spheres of justice. For the specific purpose of this study, “legal aid”
is defined as “legal advice, assistance and representation at little or no cost to the person
designated as entitled to it,” mirroring the more detailed definition used in the UN Principles
and Guidelines3 However, as the scope of this Study is wider than legal aid for criminal
matters, the definition of “legal aid” also encompasses services provided by lawyers and
paralegals in criminal as well as in civil and administrative matters to individuals who are
poor, marginalized, or otherwise in need of special legal protection, to enable them to
exercise their rights. This includes the provision of legal advice, representation in courts or
proceedings under other State tribunals, assistance in drafting of documents and pleadings,
mediation, assistance in navigating the rules and procedures of State administrative agencies,
along with range of other services.

1
United Nations Development Programme, Access to Justice Practice Note (2004). United Nations Office on
Drugs and Crime, Access to Justice: Legal Defence and Legal Aid (2006)
2
the UN Principles and Guidelines (see footnote 2) recognize that: “Legal aid is an essential element of a fair,
humane and efficient criminal justice system that is based on the rule of law. Legal aid is a foundation for the
enjoyment of other rights, including the right to a fair trial, as defined in article 11, paragraph 1, of the
Universal Declaration of Human Rights, a precondition to exercising such rights and an important safeguard
that ensures fundamental fairness and public trust in the criminal justice process.”
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. The UN Principles and Guidelines states that “the term ‘legal aid’ is defined as “legal advice, assistance and
representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a
criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for
those without sufficient means or when the interests of justice so require. Furthermore, “legal aid” is intended
to include the concepts of legal education, access to legal information and other services provided for persons
through alternative dispute resolution mechanisms and restorative justice processes.”

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Legal Aid in India

Legal aid was introduced by way of the Forty-Second Amendment under Article 39A, of the
Constitution of India. It obligated the State to provide free legal aid, by introducing
legislation and to promote justice equality before law. This constitutional promise reads as
under –

“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 this way, legal aid endeavors to shield that the constitutional pledge is satisfied in its latter
and spirit and equal justice is made open to the intimidated and weaker areas of the general
public. It is the obligation of the State to see that the legal framework maintains justice on the
premise of equal opportunity for every one of its nationals. Since the 1952, the Government
of India got to be quick to give legal aid to poor people and various conferences of Law
ministers and law commissions were accounted for. In the year 1960, a couple of rules were
set up by the legislature. In various states of the nation, the provisions of legal aid were lifted
through Legal Aid Boards, Societies and Law Departments. In the year 1980, a Committee
known as Committee for Implementing Legal Aid Schemes (CILAS) was constituted under
the Chairmanship of Honorable Justice P.N. Bhagwati to oversee and regulate legal aid
programs all through the nation. The formulation of Lok Adalats added another domain to the
justice dispense system of India which remained as a supplementary forum to the litigants. In
the year 1987, the Legal Services Authorities Act was established to give a statutory
acknowledgment to legal aid programs all through the nation. It was implemented on 9
November 1995. Legal aid is provided to the entitled persons through the legal service
authorities from NALSA to Taluka levels. Applications received by NALSA are forwarded to
the concerned authority. Once the application is submitted with the proper authority, it would
be pursued by the legal service institutions and action would be taken upon the same.
Information regarding the next step is sent to the parties concerned. The action taken on the
application would vary from providing counselling or advice to the parties, and providing a

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lawyer to represent them in the court if required. Every person who has to file and defend a case
becomes entitled for legal services under the Legal Services Authorities Act, 1987 if that person is–

1. A member of a Scheduled Caste or Scheduled Tribe;

2. A victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution;

3. A woman or a child;

4. A mentally ill or otherwise disabled person;

5. 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

6. An industrial workman; or

7. In custody, including custody in a protective home or in a juvenile home

8. 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

9. A person whose annual income less than nine thousand rupees or such other higher
amount as may be prescribed by the State Government, and less than twelve thousand
rupees or such other higher amount as may be prescribed by the Central Government
if the case is before the Supreme Court the above categorisation ensures that the
opportunities for securing justice, are not denied to any citizen, by reason of economic
or other disabilities. Legal aid assistance is thus, premised on the two contingencies
that the party is unable to pay for the legal assistance and it is in the interest of justice
that the party may receive legal assistance, nonetheless4.

4
https://blog.ipleaders.in/article-39a/viewed on 26th march

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Objective Behind Under Article 39A

GRANVILLE AUSTIN13 said “Seeking justice in court was expensive for the common
man, often prohibitively so. Two reasons were the cost of the lawyer, and the existence of the
fee system under which the litigant had to pay a fee to register his case. This had to
changeThe law commission said indicating out that that India was the lone countries under
the modern system of government that prevents a person who has been deprived of his
property or whose legal rights have been encroach on from seeking recompense by imposing
tax on the remedy he seeks. Fees for the petitioner acting under Article 32 and Article 226 of
the Constitution ought to be low, if not minimal , the Commission suggested , but did not
recommend stopping the practice altogether. Fees calculated according to the damages sought
are still charged, with the exception of the fee of the two hundred and fifty rupees charged for
approaching the Supreme Court under Article 32 – its original jurisdiction over the
fundamental rights. The Law Commission advocated legal aid, so that the poor could afford a
lawyer. Citing the Preamble‟s pledges and Article 14‟s assurance of equality before law and
equal protection of the law, the Commission said that “In so far as a person is unable to
obtain access to a court of law for having his wrongs redressed, or for defending himself
against a criminal charge, justice becomes unequal and laws meant for (The poor man‟s)
protection having no meaning. Legal aid should be available for all and not be confined to
those “normally closed” as poor. Those unable to pay should get aid free;others would pay on
the graduated scale. With this recommendation, as with many others, the Fourteenth Report
would be far ahead of its time- and consequently ignored”5 „The scope of Article 39A is
envisaged by the Supreme Court of India in Air India Statutory Corporation v. United
Labour Union15, that Article 39A furnishes beacon light that justice is done on the basis of
equal opportunity and no one is denied justice by reason of economic or other disabilities.

5
Durga Das basu, Commentary on the Constitution of India(a comparative treatiseon the universal principles
of justice and constitutional government with special reference to the organic instrument of india (8 edn,
LexisNexis) 4097

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In Abdul Hasan v. Delhi Vidhyut Board, AIR 1999 Del.80 it was held that “it is
emphasized that the legal system should be able to deliver expeditiously on the basis of equal
opportunity and provide free legal aid to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities.

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 Khatoon6 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 Bihar7 , 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
person if the circumstances of the case and the needs of justice so require…The 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
Pradesh8 , 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

6
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98
7
Khatri v. State of Bihar, AIR 1981 SC 262
8
AIR 1986 SC 991.

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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 steps of 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‘.9t is a statutorily recognized public duty
of each great branch of government to obey the rule of law and uphold the tryst with the
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constitution by making rules to effectuate legislation meant to help the poor. 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 Court in State of Haryana v. Darshana Devi11 ,
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 court‖…even 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 willful default.

9
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81
10
Order 33, Rule 9A,Code Civil Procedure,1908.
11
AIR 1972 SC 855.

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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 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.

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 CONCLUSION

The idea of legal aid is an old one, yet the way in which we comprehend it today is a late
marvel. Legal aid is envisioned to afford the cost of poor people and vulnerable segments of
the general public, the support to look after themselves in admiration of the activity and
implementation of their legal right. Legal is thought to be an instrument to accomplish
equality in the witness of law as given in our Constitution and in addition diverse in the
constitution of different nations as well. 'Keeping in mind the end goal to keep that the
underprivileged, oppressed and weaker areas of the general public are not denied of the
advantages, there ought to be appropriate consciousness of law and lawful procedures. Pandit
Jawaharlal Nehru opined that 'the rule of law must run close to the rule of life. It cannot go
off at a tangent from life‟s problems…..It has to deal with today‟s problems‟. The law is
intended to serve the general population and maintain the spirit of the Constitution which can
be managed by social justice. Regardless of innumerable disadvantages, the legal efficiently
abstained from matters identifying with such defenseless groups with a practical
methodology in securing their interests. The natives of India have put the judiciary on a high
platform. In the process the legal framework has possessed the capacity to reach to the
poorest of the poor by empowering and demonstrating free legal aid to them. Yet, it can
likewise be found that various individuals are being denied of it as they need legitimate
mindfulness.'23 In this manner it can be concluded with the expressions of Dr. Manmohan
Singh, the ex-Prime Minister, who has said 'the rule of law can become a living reality for
millions and millions of our people, only if the rights of law-abiding citizens are effectively
protected and safeguarded, only if justice is seen to be delivered and delivered in time, only if
right of the weak and dispossessed are protected‟. India being inequitably graded society, Dr.
Ambedkar recognized the need for a threefold strategy: a) Provision of equal rights
(overturning the customary framework of caste system based on principle of equality and
denial of equal rights, particularly, to untouchables). b) Provision of legal safeguards against
the violation of these rights in terms of laws c) Pro-active measures against discrimination for
fair share and participation in legislature, executive, public services, education and other
public spheres for discriminated groups (in the form of reservation).

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