ACCESS TO JUSTICE F0R THE MARGINALISED

COMMUNITIES: IN SPECIAL REFERENCE T0 THE NALSA

ACT
Submitted to:
Ms. Eritriya Roy
(Faculty of Economics)

Submitted by:
Anushruti Shah
B.A. LLB (Honours)

Date of Submission: 26th August, 2019

Semester III, Section – C, Roll No: 23

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, opp. Jungle Safari,
Atal Nagar, District Raipur,
Chhattisgarh 492002
 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from

many people and I am extremely privileged to have got this all along the completion of m

project .

All that I have done is only due to such supervision and assistance and I would not forget to

Thank them.

I respect and thank Ms. Eritriya Roy, for providing me an opportunity to do the project

work and giving us all support and guidance which made me complete the project duly. I am

extremely thankful to her for providing such a nice support and guidance.

I would not forget to remember my seniors for their encouragement and more over for their

timely guidance till the completion of our project work, my family and friends without whose

support and encouragement this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing

extensive database resources in the library and through internet.

Anushruti Shah

Semester II
 TABLE OF CONTENTS

1. What is Marginalisation?......................................................................1-3
2. Various Marginalised groups in India and their problems…….........4-7
3. Introduction to Legal Aid……………………………………………….8
4. Objectives of the Project………………………………………………..9
5. Research Methodology………………………………………………….10
6. History…………………………………………………………………....11-12
7. Criterion for Providing Legal Aid……………………………………..13-14
8. Hierarchy Of The Bodies Created Under The Act…………………...15
9. Supreme Court Legal Services Committee…………………………….16-19
10. Supreme Court On Legal Aid…………………………………………..20-21
11. Amendments made to the Legal Services Authority Act……………..22
12. Salient features of the Amendment……………………………………..23-24
13. Obstacles to Legal Assistance…………………………………………...25
14. Problems in India’s Legal Aid Scheme…………………………………26-27
15. Inadequacies of the Current System……………………………………28
16. Conclusions and Suggestions……………………………………………29
 MARGINALISATION

In general the term marginalization describes the over actions or tendencies of human
societies where people perceive to under reliable or without useful fiction are excluded, i.e.
marginalized. The people who are marginalized are outside the existing system of protection
and integration. This limits their opportunities and means for survival. 1

The term defined marginalization can be in the following ways-

1) Peter Leonard defines -“Marginality as being outside the mainstream of productive

activity.”

2) Latin observes - “Marginality is so thoroughly demeaning, for economic well-being , for

human dignity as well as for physical security marginal peoples can always be identified by
the members of dominant society and will face irrevocable discrimination.”

3) The encyclopedia of public health defines - “Marginalization as to be marginalized is to

be placed in the margins as thus excluded from the privilege and power found at the center.”

4) Merriam Webster’s online dictionary defines the term marginalization as “To relegate to a
un important or powerless position within a society or group”.

5) Ghana S Gurung and Michael Kallmair mentions,” The concept of marginality is

generally, used to analysis socio-economic, political and cultural spheres, where
disadvantaged people struggle to gain access to resources and full participation in social life.
In other words marginalized people might be socially, economically, politically and legally
ignored, excluded or neglected and therefore vulnerable to live hood change.

6) Views and Ideas

Marginalization is a multidimensional, multi causal, historical phenomenon. There are no

general laws to understand and comprehend the complex nature of marginalization. The

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analytical tools that can be used in most cases include class in relation to specific social,
cultural, economical and political conditions as well as ideological systems.

The nature of marginalization varies in different settings. For example the marginalization of
women in Arab is not the same as in India. Though they broadly share some feature. The
religious, ideological system patriarchy, political economy of a country and the overall social
system has its impact on the marginalization of specific group or an individual.

The idea of marginalization also varies in relation to elderly people living in different
countries and cultures. In some societies the elders are given more respect compared to
others. But it is opposite in some society because of this situation old people are subject of
marginalization.

Marginality deals with the socio cultural and human problems of people belonging to various
sections of society such as Dalits, Black slaves, African, Americans, Native Americans,
Pariah, other minorities such as Muslims and problems of females due to their peripheral
place. Writers raise the voice in the different form of these marginalized groups. Whether
they are Indian, Canadian, Caribbean, Indonesian or American. Words like center and
periphery have become so common that everyone is familiar with these terms. 2

Marginalization is not a new phenomenon. In fact it is as old as human race but the question
has begun to attract greater attention only in our time especially with the advent of the post
colonial literature. The marginality is based on the binary opposition of center and periphery
writers who are at periphery try to occupy a marginal or borderline position.

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To further clarify the meaning and concept let us discuss certain characteristics of
marginalized groups:

Usually, a minority group has the following characteristics:

1) It suffers from discrimination and subordination.

2) They have physical and/or cultural traits that set them apart, and which are disapproved of,
by a dominant group.

3) They share a sense of collective identity and common burdens.

4) They have shared social rules about who belongs, and who does not.

5) They have a tendency to marry within the group.

Thus, marginalization is complex as well as a shifting phenomenon linked to social status.

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 VARIOUS MARGINALIZED GROUPS IN INDIA AND
THEIR PROBLEMS

Most vulnerable marginalized groups in almost every society can be summarized as below: 3

1. Women –

Under different economic conditions, and under the influence of specific historical, cultural,
legal and religious factors, marginalization is one of the manifestations of gender inequality.
In other words, women may be excluded from certain jobs and occupations, incorporated into
certain others, and marginalized in others. In general, they are always marginalized relative to
men, in every country and culture. Women (or, men) don’t present a homogeneous category
where members have common interests, abilities, or practices. Women belonging to lower
classes, lower castes, illiterate, and the poorest region have different levels of marginalization
than their better-off counterparts.

2. People with disabilities –

People with disabilities have had to battle against centuries of biased assumptions, harmful
stereotypes, and irrational fears. The stigmatization of disability resulted in the social and
economic marginalization of generations with disabilities, and, like many other oppressed
minorities, this has left people with disabilities in a severe state of impoverishment for
centuries. The proportion of the disabled population in India is about 21.9 million.

The percentage of the disabled population to the total population is about 2.13 percent. There
are interstate and interregional differences in the disabled population. The disabled face
various types of barriers while seeking access to health and health services. Among those
who are disabled women, children and age are more vulnerable and need attention.

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3. Schedule Castes (Dalits) –

The caste system is a strictly hierarchical social system based on underlying notions of purity
and pollution. Brahmins are on the top of the hierarchy and Shudras or Dalits constitute the
bottom of the hierarchy. The marginalization of Dalits influences all spheres of their life,
violating basic human rights such as civil, political, social, economic and cultural rights.

A major proportion of the lower castes and Dalits are still dependent on others for their
livelihood. Dalits do not refer to caste but suggest a group who are in a state of oppression,
social disability and who are helpless and poor. Literacy rates among Dalits are very low.
They have meager purchasing power and have poor housing conditions as well as have low
access to resources and entitlements.

Structural discrimination against these groups takes place in the form of physical,
psychological, emotional and cultural abuse which receives legitimacy from the social
structure and the social system. Physical segregation of their settlements is common in the
villages forcing them to live in the most unhygienic and inhabitable conditions. All these
factors affect their health status, access to healthcare and quality of life. There are high rates
of malnutrition reported among the marginalized groups resulting in mortality, morbidity, and
anemia. Access to and utilization of healthcare among the marginalized groups are influenced
by their socio-economic status within society.

Caste-based marginalization is one of the most serious human rights issues in the world
today, adversely affecting more than 260 million people mostly reside in India. Caste-based
discrimination entails social and economic exclusion, segregation in housing, denial, and
restrictions of access to public and private services and employment, and enforcement of
certain types of jobs on Dalits, resulting in a system of modern day slavery or bonded labor.
However, in recent years due to affirmative action and legal protection, the intensity of caste-
based marginalization is reducing. 4

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4. Scheduled Tribes –

The Scheduled Tribes like the Scheduled Castes face structural discrimination within Indian
society. Unlike the Scheduled Castes, the Scheduled Tribes are a product of marginalization
based on ethnicity. In India, the Scheduled Tribes population is around 84.3 million and is
considered to be socially and economically disadvantaged. Their percentages in the
population and numbers, however, vary from State to State. They are mainly landless with
little control over resources such as land, forest, and water.

They constitute a large proportion of agricultural laborers, casual laborers, plantation

laborers, industrial laborers etc. This has resulted in poverty among them, low levels of
education, poor health and reduced access to healthcare services. They belong to the poorest
strata of the society and have severe health problems.

5. Elderly or Aged People –

Aging is an inevitable and inexorable process in life. In India, the population of the elderly is
growing rapidly and is emerging as a serious area of concern for the government and the
policy planners. According to data on the age of India’s population, in Census 2001, there are
a little over 76.6 million people above 60 years, constituting 7.2 percent of the population.
The number of people over 60 years in 1991 was 6.8 percent of the country’s population. The
vulnerability among the elderly is not only due to an increased incidence of illness and
disability but also due to their economic dependency upon their spouses, children, and other
younger family members. According to the 2001 census, 33.1 percent of the elderly in India
live without their spouses.

The widowers among older men form 14.9 percent as against 50.1 percent widows among
elderly women. Among the elderly (80 years and above), 71.1 percent of women were
widows while widowers formed only 28.9 percent of men. Lack of economic dependence has
an impact on their access to food, clothing, and healthcare. Among the basic needs of the
elderly, medicine features as the highest unmet need. Healthcare of the elderly is a major
concern for society as aging is often accompanied by multiple illnesses and physical ailments.

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6. Children –

Children Mortality and morbidity among children are caused and compounded by poverty,
their sex and caste position in society.

All these have consequences on their nutrition intake, access to healthcare, environment, and
education. Poverty has a direct impact on the mortality and morbidity among children. In
India, a girl child faces discrimination and differential access to nutritious food and gender-
based violence is evident from the falling sex ratio and the use of technologies to eliminate
the girl child. The manifestations of these violations are various, ranging from child labor,
child trafficking, to commercial sexual exploitation and many other forms of violence and
abuse. 5

With an estimated 12.6 million children engaged in hazardous occupations (2001 Census), for
instance, India has the largest number of child laborers under the age of 14 in the world.
Among children, there are some groups like street children and children of sex workers who
face additional forms of discrimination. A large number of children are reportedly trafficked
to the neighboring countries.

Trafficking of children also continues to be a serious problem in India. While systematic data
and information on child protection issues are still not always available, evidence suggests
that children in need of special protection belong to communities suffering disadvantage and
social exclusion such as scheduled castes and tribes, and the poor (UNICEF, India).

7. Sexual Minorities –

Another group that faces stigma and discrimination are sexual minorities. Those identified as
gay, lesbian, transgender, bisexual, kothi and hijra; experience various forms of
discrimination within the society and the health system. Due to the dominance of
heteronomous sexual relations as the only form of normal acceptable relations within the
society, individuals who are identified as having same-sex sexual preferences are ridiculed
and ostracized by their own family and are left with very limited support structures and
networks of community that provide the conditions of care and support. Their needs and
concerns are excluded from various health policies and programs

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 INTRODUCTION TO LEGAL AID

"Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid
Committee formed in 1971. According to him, 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. Legal aid as defined, deals with legal
aid to poor, illiterate, who don't have access to courts. One need not be a litigant to seek aid
by means of legal aid. Legal aid is available to anybody on the road.

Article 39A of the Constitution of India provides 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. Articles 14 and 22(1) also make 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.
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.

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OBJECTIVES

To understand marginalisation and study about various marginalised groups

and their problems.

To study provision of Legal Aid and criteria for being a beneficiary.

To study hierarchy and mechanism of the Legal Aid Scheme.

To study the salient features, obstacles, inadequacies and obstacles in the Legal
Aid system.

To discuss existing problems and suggest possible remedies.

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 RESEARCH METHODOLOGY

In order to accurately obtain the relevant information needed to complete this project
Secondary Method of data collection was used.The Secondary Method of data collection
involved the use of textbooks, newspapers, magazines, e-resources, journals, websites and
economic reports.This method of data collection played an important role in effective
compilation of the project. The websites and journals used in the data collection process
contained the general information that corresponded with the topic of the project.

The project is descriptive in nature. The information that the newspapers and magazines
contained was vital in effective completion of the research. This method was solely
sufficient to complete the research.

The researcher during the research faced few problems such as limited amount of information
and lack of adequate knowledge regarding the subject because of a non economics academic

background. Also the fact that the researcher had to be balanced out with other internal
assessments and a time bound submission date were some of the problems faced by the
researcher.

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 HISTORY

The earliest Legal Aid movement appears to be of the year 1851 when some enactment was
introduced in France for providing legal assistance to the indigent. In Britain, the history of
the organised efforts on the part of the State to provide legal services to the poor and needy
dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee
to enquire about the facilities existing in England and Wales for giving legal advice to the
poor and to make recommendations as appear to be desirable for ensuring that persons in
need of legal advice are provided the same by the State. Since 1952, the Govt. of India also
started addressing to the question of legal aid for the poor in various conferences of Law
Ministers and Law Commissions. In 1960, some guidelines were drawn by the Govt. for legal
aid schemes. 6

In different states legal aid schemes were floated through Legal Aid Boards, Societies and
Law Departments. In 1980, a Committee at the national level was constituted to oversee and
supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr.
Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This Committee came to
be known as CILAS (Committee for Implementing Legal Aid Schemes) and started
monitoring legal aid activities throughout the country. Expert committees constituted, from
1950 onwards, to advise governments on providing legal aid to the poor have been
unanimous that the formal legal system is unsuited to the needs of the poor. The 1977 report
of the committee of Justices Krishna Iyer and P.N. Bhagwati, both of the Supreme Court,
drew up a detailed scheme which envisaged public interest litigation (PIL) as a major tool in
bringing about both institutional and law reform even while it enabled easy access to the
judicial system for the poor. Their report, as those of the previous committees, was ignored.
This explained partly the impatience of these two judges, in the post- emergency phase, in
making the institution appear responsive to the needs of the population that had stood
distanced from it. The two judges played a major role in spearheading the PIL jurisdiction.
The introduction of Lok Adalats added a new chapter to the justice dispensation system of
this country and succeeded in providing a supplementary forum to the litigants for
conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act was enacted

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to give a statutory base to legal aid programmes throughout the country on a uniform
pattern. 7This Act was finally enforced on 9th of November, 1995 after certain amendments
were introduced therein by the Amendment Act of 1994. Hon. Mr. Justice R.N. Mishra the
then Chief Justice of India played a key role in the enforcement of the Act. 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 on 17the July, 1997. Soon after assuming the office, His Lordship
initiated steps for making the National Legal Services Authority functional. The first Member
Secretary of the authority joined in December, 1997 and by January, 1998 the other officers
and staff were also appointed. By February, 1998 the office of National Legal Services
Authority became properly functional for the first time. In October, 1998, His Lordship Hon.
Dr. Justice A.S. Anand assumed the Office of the Chief Justice of India and thus became the
Patron-in-Chief of National Legal Services Authority. His Lordship Hon. Mr. Justice
S.P.Bharucha, the senior-most Judge of the Supreme Court of India assumed the office of the
Executive Chairman, National Legal Services Authority.

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 CRITERION FOR PROVIDING LEGAL AID

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal
services to the eligible persons.

Section 12 of the Act reads as under:- Every person who has to file or defend a case shall be
entitled to legal services under this Act if that person is 8 –

(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 within the meaning of clause (g) of
section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home
within the meaning of clause.

(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health
Act, 1987 (14 of 1987); or

(h) in receipt of annual income less than rupees nine thousand or such other higher amount
as may be prescribed by the State Govt., if the case is before a court other than the Supreme
Court, and less than rupees twelve thousand or such other higher amount as may be

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prescribed by the Central Govt., if the case is before the Supreme Court."(Rules have already
been amended to enhance this income ceiling).

According to section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case'
which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the 'court'
as 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
functions 9. As per section 2(1)(c) '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

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 HIERARCHY OF THE BODIES CREATED UNDER
THE ACT

A nationwide network has been envisaged under the Act for providing legal aid and
assistance 10. 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. It also disburses funds
and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes
and programmes.

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 organise 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.

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 SUPREME COURT LEGAL SERVICES
COMMITTEE

The Central Authority shall constitute a Committee to be called the Supreme Court
Legal Services Committee for the purpose of exercising such powers and performing
such functions as may be determined by regulations made by the Central Authority11.

NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign.
Almost all the State Legal Services Authorities are identifying suitable and trustworthy
NGOs through whom legal literacy campaign may be taken to tribal, backward and far-flung
areas in the country. The effort is to publicise legal aid schemes so that the target group, for
whom Legal Services Authorities Act has provided for free legal aid, may come to know
about the same and approach the concerned legal services functionaries.

NALSA has also called upon State Legal Services Authorities to set up legal aid cells in jails
so that the prisoners lodged therein are provided prompt and efficient legal aid to which they
are entitled by virtue of section 12 of Legal Services Authorities Act, 1987.

Certain Salient Features of the Act are enumerated below:-

Section 2 Definitions.- (1)... (c) 'legal service' includes the rendering of any service in the
conduct any case or other legal proceeding before any court or other Authority or tribunal
and the giving of advice on any legal matter; (d) 'Lok Adalat' means a Lok Adalat organised
under Chapter VI; (g) 'scheme' means any scheme framed by the Central Authority, a State
Authority or a District Authority for the purpose of giving effect to any of the provisions of
this Act; (h) 'State Authority' means a State Legal Services Authority constituted under
Section 6; (2) Any reference in this Act to any other enactment or any provision thereof
shall, in relation to an area in which such enactment or provision is not in force, be
construed as a reference to the corresponding law or the relevant provision of the
corresponding law, if any, in force in that area.

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Section 19

1. Central, State, District and Taluk Legal Services Authority has been created who are
responsible for organizing Lok Adalats at such intervals and place.

2. Conciliators for Lok Adalat comprise the following: - A. A sitting or retired judicial
officer. B. other persons of repute as may be prescribed by the State Government in
consultation with the Chief Justice of High Court.

Section 20: Reference of Cases

Cases can be referred for consideration of Lok Adalat as under:-

1. By consent of both the parties to the disputes.

2. One of the parties makes an application for reference.

3. Where the Court is satisfied that the matter is an appropriate one to be taken cognizance

of by the Lok Adalat.

4. Compromise settlement shall be guided by the principles of justice, equity, fair play and

other legal principles.

5. Where no compromise has been arrived at through conciliation, the matter shall be

returned to the concerned court for disposal in accordance with Law.

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Section 21

After the agreement is arrived by the consent of the parties, award is passed by the
conciliators. The matter need not be referred to the concerned Court for consent decree.
The Act provisions envisages as under:

1. Every award of Lok Adalat shall be deemed as decree of Civil Court .

2. Every award made by the Lok Adalat shall be final and binding on all the parties to the
dispute.
3. No appeal shall lie from the award of the Lok Adalat.

Section 22

Every proceedings of the Lok Adalat shall be deemed to be judicial proceedings

for the purpose of :-

1. Summoning of Witnesses

2. Discovery of documents

3. Reception of evidences

4. Requisitioning of Public record

Hon'ble Delhi High Court has given a landmark decision highlighting the significance of Lok
Adalat movement which has far reaching ramifications. Abdul Hasan and National Legal
Services Authority Vs. Delhi Vidyut Board and others -

Facts of the Case - The petitioner filed a writ petition before Delhi High Court for
restoration of electricity at his premises, which was disconnected by the Delhi Vidyut Board
(DVB) on account of non-payment of Bill. Inter alia, the grievances of the citizens were not

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only confined to the DVB but also directed against the State agencies like DDA, Municipal
Corporation, MTNL, GIC and other bodies, Court notices were directed to be issued to
NALSA and Delhi State Legal Service Authority.

Court Held- His lordship Hon'ble Mr. Justice Anil Dev Singh passed the order giving
directions for setting up of permanent Lok Adalats. The scholarly observations of His
Lordship Mr. Justice Anil Dev Singh deserve special commendations and are worthy of
note. It will be profitable to reproduce the important text and abstract from this judgment,
which should be an eye opener for all of us. It should also steer the conscience of all, as
there is an increasing need to make Lok Adalat movement a permanent feature.

Article 39A of the Constitution of India provides for equal justice and free legal aid. It is,
therefore clear that the State has been ordained to secure a legal system, which promotes
justice on the basis of equal opportunity. The
language of Article-39A is couched in mandatory terms. This is made more than clear by the
use of the twice-occurring word "shall" in Art-39 A. It is emphasized that the legal system
should be able to deliver justice expeditiously on the basis of equal opportunity and provide
free legal aid to secure that opportunities for securing justice are not denied to any citizens by
reasons of economic or other disabilities. It was in this context that the parliament enacted
the Legal Services Authority Act-1987.

The need of the hour is frantically beckoning for setting up Lok-Adalats on permanent and
continuous basis. What we do today will shape our tomorrow. Lok Adalat is between an ever-
burdened Court System crushing the choice under its own weight and alternative dispute
resolution machinery including an inexpensive and quick dispensation of justice. The Lok
Adalat and alternative dispute resolution experiment must succeed otherwise the consequence
for an over burdened court system would be disastrous. The system needs to inhale the life
giving oxygen of justice through the note.

If we closely scrutinize the contents of the decision of Delhi High Court, there has been an
alarming situation of docket-explosion and the ultimately remedy is the disposal of cases
through the mechanism of Lok Adalat.

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 SUPREME COURT ON LEGAL AID

The linkage between Article 21 and the right to free legal aid was forged in the decision in
Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of
thousands of under trials languishing in the jails in Bihar for years on end without ever being
represented by a lawyer. The court declared that "there can be no doubt that speedy trial, and
by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21." The court pointed out that
Article 39-A emphasised 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
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of Article 21.

In his inimitable style Justice Bhagwati declared: "Legal aid is really nothing else but equal
justice in action. Legal aid is in fact the delivery system of social justice. If free legal services
are not provided to such an accused, the trial itself may run the risk of being vitiated as
contravening Article 21 and we have no doubt that every State Government would try to
avoid such a possible eventuality". He reiterated this in Suk Das v. Union Territory of
Arunachal Pradesh and said "It may therefore now be taken as settled law that free legal
assistance at State cost is a fundamental right of a person accused of an offence which may
involve jeopardy to his life or personal liberty and this fundamental right is implicit in the
requirement of reasonable, fair and just procedure prescribed by Article 21." This part of the
narration would be incomplete without referring to the other astute architect of human rights
jurisprudence, Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra , he declared: "If
a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and
statutory right of appeal inclusive of special leave to appeal (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, power to assign counsel for such imprisoned individual 'for doing
complete justice".

In Khatri & Others v. St. of Bihar & others Bhagmati J. observed; "Right to free legal
aid, just, fail and reasonable procedures is a fundamental right (Khatoon's Case). It is

12
SC on Legal Aid (Aug.21,2019,10:45PM), https://indiankanoon.org/doc/26738839/

20
elementary that the jeopardy to his personal liberty arises as soon as the person is
arrested and is produced before a magistrate for it is at this stage that he gets the 1st
opportunity to apply for bail and obtain his release as also to resist remain to police or
jail custody. This is the stage at which and accused person needs competent legal
advice and representation. No procedure can be said to be just, fair and reasonable
which denies legal advice representation to the accused at this stage. Thus, state is
under a constitutional obligation to provide free to aid to the accused not only at the
stage of... Every individual of the society are entitled as a matter of prerogative."

In Indira Gandhi v. Raj Narain the Court: "Rule Of Law is basic structure of constitution of
India. Every individual is guaranteed the its give to him under the constitution. No one so
condemn unheard. Equality of justice. There ought to be a violation to the fundamental right
or prerogatives, or privileges, only then remedy go to Court of Law. But also at the stage
when he first is produced before the magistrate. In absence of legal aid, trial is vitiated."

21
 AMENDMENTS MADE TO THE LEGAL
SERVICES AUTHORITY ACT 1987

The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities
for providing free and competent legal services to the weaker sections of the society to
ensure that opportunities for securing justice were not denied to any citizen by reason of
economic or other disabilities and to organize Lok Adalats to ensure that the operation of the
legal system promoted justice on a basis of equal opportunity13. The system of Lok Adalat,
which is an innovative mechanism for alternate dispute resolution, has proved effective for
resolving disputes in a spirit of conciliation outside the courts. However, the major drawback
in the existing scheme of organization of the Lok Adalats under Chapter VI of the said Act is
that the system of Lok Adalats is mainly based on compromise or settlement between the
parties. If the parties do not arrive at any compromise or settlement, the case is either
returned to the court of law or the parties are advised to seek remedy in a court of law. This
causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to
decide the cases on merits in case parties fails to arrive at any compromise or settlement, this
problem can be tackled to a great extent. Further, the cases which arise in relation to public
utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need
to be settled urgently so that people get justice without delay even at pre-litigation stage and
thus most of the petty cases which ought not to go in the regular courts would be settled at
the pre-litigation stage itself which would result in reducing the workload of the regular
courts to a great extent. It is, therefore, proposed to amend the Legal Services Authorities
Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative
mechanism for conciliation and settlement of cases relating to public utility services.

13
Amendments (Aug.21,2019,10:45PM), https://indiankanoon.org/doc/26738839/

22
 SALIENT FEATURES OF THE
AMENDMENT

(i) to provide for the establishment of Permanent Lok Adalats which shall consist
of a Chairman who is or has been a district judge or additional district judge or
has held judicial office higher in rank than that of the district judge and two
other persons having adequate experience in public utility services 14;

(ii) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more
public utility services such as transport services of passengers or goods by air,
road and water, postal, telegraph or telephone services, supply of power, light or
water to the public by any establishment, public conservancy or sanitation,
services in hospitals or dispensaries; and insurance services;

(iii) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees
ten lakhs. However, the Central Government may increase the said pecuniary
jurisdiction from time to time. It shall have not jurisdiction in respect of any
matter relating to an offence not compoundable under any law;

(iv) it also provides that before the dispute is brought before any court, any party to
the dispute may make an application to the Permanent Lok Adalat for settlement
of the dispute;

(v) where it appears to the Permanent Lok Adalat that there exist elements of a
settlement, which may be acceptable to the parties, it shall formulate the terms
of a possible settlement and submit them to the parties for their observations and
in case the parties reach an agreement, the Permanent Lok Adalat shall pass an

14
Salient Features Of The Amendment, (Aug.21,2019,10:45PM), https://indiankanoon.org/doc/26738839/

23
 award in terms thereof. In case parties to the dispute fail to reach an agreement,
the Permanent Lok Adalat shall decide the dispute on merits; and

(vi) every award made by the Permanent Lok Adalat shall be final and binding on
all the parties thereto and shall be by a majority of the persons constituting the
Permanent Lok Adalat.

24
 OBSTACLES TO LEGAL ASSISTANCE
At present the legal aid movement in India is unorganized, diffused and sporadic. There is
lack of co-ordination in it. The ideal of equal access and availability of legal justice has
reached almost breakdown point. There is a wide gap between the goals set and met. One law
firm recently commented in a survey, We no longer do pro bono work, we are too busy trying
to survive . Lawyers don't engage themselves in pro bono activities because of various
reasons. There is lack of financial resources. The legal education imparted earlier did not
provide social education. Therefore they do not understand or accept their obligation to do so,
also the members of the profession do not regularly come into contact with members of the
community who need legal assistance. 15

Illiteracy is also a major obstacle to legal aid. Now it is common knowledge that about 70%
of the people living in rural areas are illiterate and even more then that are not aware of the
rights conferred upon them by law . It is the absence of legal awareness which leads to
exploitation and deprivation of rights and benefits of the poor.

MEASURES FOR EFFECTIVE LEGAL AID

1. The legal aid movement has to go to the grass root level and help to discover, identify and
solve the problems and difficulties of the poor.

2. The participation not only of the practicing lawyers but also of the courts, the law,
teachers, senior law students, trained social workers, public at large is also needed.

3. It should also include activities like spreading legal awareness and educating people on
their basic rights with the help of NGO's.

4. Promote more informal paralegal services in places where basic access to justice
opportunities and infrastructures are absent.

5. Promote a pro bono service culture and tradition within the legal profession.

6. Offer comparative models of legal aid to government in reforming the movement.

7. Support the development of demonstration legal aid/public defender offices in cooperation

with governments.

8. Lok Adalats should be promoted in the right direction as they settle the disputes quickly by
counseling and discussions, etc. Its basis is to provide quick justice with the mutual consent
of the parties. Their object is to reduce burden on the Courts so that the problem of law's
delay may be solved and people may get justice within due time. The machinery of the
Government engaged in the execution of this movement in the state must be geared from
bottom to top.

15
Obstacles, (Aug.21,2019,10:45PM), https://www.hindustantimes.com/india-news/quality-and-
accountability-twin-problems-in-india-s-legal-aid-scheme-report/story-M5aIfKeMwxbsjaYwYt6g9O.html

25
 QUALITY AND ACCOUNTABILITY TWIN
PROBLEMS IN INDIA’S LEGAL AID SCHEME:
REPORT
India has the world’s largest cover for legal aid, with more than 80% of the population

eligible to receive subsidised government legal help, but the programme is hobbled by lack of

quality and lack of accountability, a new national study has found. 16

The study, ‘Hope Behind Bars’ by the Commonwealth Human Rights Initiative based on data

received from 29 states and Union territories, found the national legal services authority as

having made rapid strides in the past decade but large discrepancies across states in legal aid

to people in custody.

Under the legal aid scheme, the government provides a lawyer free of cost to people who

cannot afford to hire outside lawyers, and therefore is crucial to marginalised and backward

communities, who make up more than half of India’s prisoners, according to the 2016 report

of the National Crime Records Bureau. The lawyers are compensated by the government at

rates that are below the market average.

“Despite evolving a formidable structure, there are shortcomings in providing legal aid…the

scheme has failed to attract competent lawyers and there is no mechanism for the clients to

question,” said justice AP Shah, former chief justice of the Delhi high court, on Sunday.

The study found that there are 70,000 legal aid lawyers in India but the per capita spending

on legal aid was just Rs 0.75, one of the lowest in the world. In contrast, the per capita

spending in Australia is $23 and in Argentina $17, the study said. The average time between

application for legal aid and lawyer assigned was 11 days nationally, which stretched to 48

for Rajasthan. The best performers were states such as Andhra Pradesh (which took less than

16
Obstacles, (Aug.21,2019,10:45PM), https://www.hindustantimes.com/india-news/quality-and-
accountability-twin-problems-in-india-s-legal-aid-scheme-report/story-M5aIfKeMwxbsjaYwYt6g9O.html

26
a day to allocate a lawyer) and Kerala (which had the highest number of legal aid lawyers per

district at 234)

“Legal aid lawyers are human rights defenders. But one major concern is the quality of legal

aid. We have to pay lawyers better, if not the market rate. Otherwise legal aid for the poor, as

it is said, will continue to be poor legal aid,” said justice S Muralidhar of the Delhi high

court. 17

To resolve the situation, the study called for greater consultation between the civil society,

law schools, lawyers and the government legal services authorities.

“Article 22 of the Constitution guarantees the right to a lawyer for an arrestee, but there is no

national scheme for legal aid at the police station, neither do any state have such a scheme.

For a majority of people brought before the police station, having a lawyer by your side is the

only hope behind bars,” said Raja Bagga, the author of the report.

17
Obstacles, (Aug.21,2019,10:45PM), https://www.hindustantimes.com/india-news/quality-and-
accountability-twin-problems-in-india-s-legal-aid-scheme-report/story-M5aIfKeMwxbsjaYwYt6g9O.html

27
 INADEQUACIES OF THE CURRENT SYSTEM
The legal aid system in India has largely proven ineffective.

There are four main reasons why the National Legal Services Authorities has not been able to
18
deliver real legal aid:

(1) there is a general lack of awareness of the availability of legal aid;

(2) there is a perception that free service is incompatible with quality service;

(3) there are not enough lawyers delivered by the legal services authorities, and;

(4) lawyers generally are uninterested in providing competent legal assistance because of
financial constraints.

So, in spite of the fact that free legal aid has been held to be a necessary adjunct of the rule of
law, the legal aid movement has not achieved its goal.
Moreover, too often lawyers assigned to provide legal aid and paid with public funds do not
faithfully represent their clients, casting serious doubt on the credibility of the scheme of
legal aid provided to weaker sections of society. Some lawyers engaged by legal aid
committees hold their clients’ cases for ransom by employing delay tactics. These lawyers
compel their clients, many innocent, to pay additional amounts of money to them, even
though they are supposed to obtain their fee from the legal aid committee. One factor that
may be contributing to this is that the remuneration paid to lawyers by the legal aid
committee is very low and sometimes does not even meet the lawyer’s incidental expenses.

Another major obstacle to the legal aid movement in India is that the delivery system for
legal aid is far too inefficient. More lawyers must be encouraged to delivery free legal aid and
a campaign should be launched to inform people about the existence of free legal aid. The
legal aid movement cannot achieve its goal so long as people are not aware of their basic
rights. When the poor are not aware of their legal rights, they are subject to exploitation and
ultimately deprived of the rights and benefits provided to them under law. Thus, the key to a
successful free legal aid system is increased awareness among the populace and more
efficient delivery processes.

18
Inadequacies,(Aug.21,2019,10:45PM), https://indialawnews.org/2010/03/01/indias-legal-aid-system-issues-
and-challenges-2/

28
 CONCLUSION AND SUGGESTIONS:
Legal aid is not a charity or bounty, but is an obligation of the state and right of the
citizens. 19The prime object of every state is equal justice for all. This can only be achieved if
the poor illiterate people are imparted with legal knowledge and are provided with free legal
aid.

Even today in the 21st century people are not aware of their basic human rights. This is one of
the reasons why the legal aid movement has not yet achieved its goal. Due to the absence of
legal awareness poor people are often exploited and deprived of their rights. Thus it is the
need of the hour that the poor illiterate people should be imparted with legal knowledge and
should be educated about their basic rights which should be done from the grass root level.

Further while 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. This will save time of both court and
the parties.

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.

19
Suggestions,(Aug.21,2019,10:45PM), https://racolblegal.com/free-legal-aid-as-a-right-issues-and-
challenges/

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 BIBLIOGRAPHY

1. www.indialawnews.org

2. www.nalsa.gov.org

3. www.hindustantimes.com

4. www.indiankanoon.org

5. www.cgslsa.gov.in

6. www.bspdlsa.in