Access to Justice Developments prior 1970

Component - I (A) - Personal Details

Role Name Affiliation

Principal Investigator
Principal Co-Investigator
Paper Coordinator
Content Writer/Author
Content Reviewer
Prof (Dr) Ranbir Singh
Prof(Dr) G S Bajpai
Dr. Bharti Yadav
Dr. Bharti Yadav
Dr.M.R.K.Prasad
Vice Chancellor
National Law University
Delhi
Registrar
National Law University
Delhi
Assistant Professor of Law
National Law University
New Delhi
Assistant Professor of Law
National Law University
New Delhi
Principal, V.M.Salgaocar
College of Law, Panaji, Goa
& Dean Faculty of Law, Goa
University

Component - I (B) Description of Module

Description of Module
Subject Name Law
Paper Name Access to Justice
Module Name/Title Access to Justice Developments prior 1970
Pre-requisites Understanding of the concept of justice and need of
Legal aid
Objectives • To know about Bombay Legal Aid Society
• To comprehend Bombay Committee Report
• To analyse West Bengal Legal Aid
Committee
• To highlight Fourteenth Law Commission
Report
• To understand Central Government’s efforts
from1952 to 1957
• To figure Outline of a Scheme for Legal Aid
to the Poor (1960)
• To grasp Report of Commission of
Scheduled Castes and Scheduled Tribes
• To follow Free Legal Aid Bill, 1970
• To learn the contribution of National
Conference on Legal Aid
Keywords Free legal aid, Legal aid committee, Pauper, Court
 fees, Legal aid advocate

Introduction

The roots of the concept of free Legal Aid in India can be traced back in Bombay
Committee Report which drew the attention of Government to Rushcliffee Report submitted in
England in 1944. This concept grew with the growth and development of India which was
influenced by socio-economic conditions prevailing in society. This chapter deals with origin,
growth and development of the concept of Legal Aid in different time periods.

In Ancient time, the life of people was very simple and their needs were very limited.
They used to satisfy their basic needs of food, shelter and clothing themselves. Every thing was
available in abundance so there was no scarcity of food, shelter and clothing. There was no chance
of fight over such things. Moreover the socio-cultural and religious heritage of India was very rich.
Religion used to govern the people's activities. Taking the benefits of others hard work without his
consent, injuring person or property of other was considered a sin. Fear of punishment from God
used to deter people from doing wrong. There were no so called legal rules and regulations to
govern the human activities.

Slowly and steadily desire of people to earn huge profit grew which led to the
evolution of trade and commerce. Long journey is indispensable part of business. Desire of earning
huge profit suppressed the fear of punishment by God for doing sin. Greed of people led to
depletion of moral values and enhancement of crimes in society. Then need of law was felt to
govern human activities. To curb the growing problem of crime commission, stringent and
complicated laws were made. But this led to another problem of inaccessibility of justice because of
complicated laws, which were beyond the understanding of laymen. Ignorance of law and delay in
disposal of cases destroyed the amicable relationship between the parties. Then the need of free
legal aid and quick amicable settlement of dispute was felt.

The Government of India was under an obligation to provide equal access to justice
irrespective of economic, social and political conditions prevailing in newly independent India.
Many judges, jurists and research scholars contributed in the growth of present day concept of free
Legal Aid by way of submitting many reports.
 Bombay
Legal Aid
Society
National Bombay
Conference Committee
on Legal Aid Report

West
Free Legal
Bengal
Aid Bill, Legal Aid
1970 Access to
Justice Committee
Development
s prior 1970

Report of
Commission Fourteenth
of
Law
Scheduled Commission
Castes and
Report
Scheduled
Tribes
Outline of a Central
Scheme for Government
Legal Aid to ’s efforts
the Poor from1952 to
(1960) 1957

Bombay Legal Aid Society

Present day concept of free Legal Aid owes its origin to Bombay Legal Aid Society,
which brought Rushcliffee Committee Report of England to the attention of Government of India.
Rushcliffee Committee’s recommendations were accepted by British Parliament and The Legal Aid
and Advice Act, 1949 was enacted in England. Bombay Legal Aid Committee was registered in
1924. Its object was to provide free Legal Aid to those who cannot afford it. For providing free
Legal Aid to poor, committee enrolled few advocates on its panel. This committee used to get
financial assistance from donations, government grants and membership subscription but it was not
adequate to meet the desired objects of the committee.

It requested the Government of India to form committee similar to Rushcliffee

Committee so that independent study of problems of Legal Aid could be done. On such request, the
Government of India in 1946 wrote to provincial governments to provide free Legal Aid to poor
people in both civil and criminal matters. The provincial governments replied that the existing
provision of Legal Aid in civil matters were sufficient and provision in criminal matter needed
some changes but due to inadequacy of finance they couldn’t provide it.

Bombay Committee Report

 The Government of Bombay appointed a committee in March 1949 under the
Chairmanship of Justice N.A. Bhagwati to consider the question of the grant of Legal Aid in civil
and criminal proceedings to poor persons, persons of limited means and persons belonging to the
backward classes and to make recommendations for making justice more easily accessible to these
persons. It submitted its report in October 1949.

The committee laid down that the Legal Aid was the government's responsibility and
the State was under a duty to provide lawyer to every citizen who could not engage one due to his
disadvantageous position in the society. All the lawyers should be under duty to undertake Legal
Aid work. They should do up to 6 cases without any fees and after that they should accept the
assigned cases at the fees prescribed for government pleader.

West Bengal Legal Aid Committee

In 1949 the Government of West Bengal formed a committee under the chairmanship
of Sir Arthur Trevor Harries, Chief Justice of Calcutta High Court to make suggestions for judicial
reform in the State. Apart from other matters committee discussed about Legal Aid also. But due to
financial inadequacy the recommendation of this committee for providing free Legal Aid to poor
people could not be implemented.

Fourteenth Law Commission Report

The 14th Law commission of India submitted its report in 1958. It studied both the
reports, i.e. Bombay Legal Aid Committee report and West Bengal Legal Aid Committee report in
detail and approved their suggestions. This committee suggested that free Legal Aid to Poor persons
and persons of limited means was a service which the modern State and in particular a welfare State
owes to its citizens. The State may therefore, accept this obligation and make funds available for
providing such Legal Aid to poor persons and persons of limited means. The legal profession must
accept the responsibility for the administration and working of schemes of Legal Aid. The legal
profession owes a moral and social obligation to poor members of society which must be
discharged through every member of the profession by doing certain amount of legal work free for
poor persons1 .

1
Fourteenth Law Commission of India Report (1958), vol. 1, p 599
 The scheme of Legal Aid to poor persons and persons of limited means outlined
by the Bombay Legal Aid and the West Bengal Legal Aid Committee should with suitable
modification made in the light of local needs and conditions be adopted by all States where
financial conditions permit. The State should pending the implementation of such scheme makes
provision for Legal Aid in gradual stages. Measures in furtherance of Legal Aid should be adopted
immediately. Bar Associations should take immediate measure to render Legal Aid on a voluntary
basis. Rule 1 Order 33 of Civil Procedure Code be amended to define a pauper as a person who
does not possess any sufficient means other than the subject matter of the suit and to enable a
pauper not only to sue as a pauper but also to defend a suit or other proceeding as a pauper. The
commission also suggested that the expression ‘pauper’ be replaced by the expression poor person
or assisted person.2

Central Government’s efforts from1952 to 1957

The Government of India was of view that Legal Aid to the poor was the
responsibility of the State so in 1952 it wrote to the State Governments to make further provisions
for Legal Aid in criminal cases in respect of offences punishable with not less than 5 years rigorous
imprisonment and appeals arising out of those case but due to financial stringencies the State
Governments expressed their inability to oblige the Central Government.3

In January 1956 the Government of India again wrote to the State Governments that
there was need for increasing the scope of legal assistance to poor and its inclusion in the five year
plan was under consideration. The State Governments were urged to examine the question again
and if possible to include provision for Legal Aid in their budgets. Though these appeal, as in the
past, failed to evoke the response, some of the States made a token provision from Rs.1000 to
Rs.2000 in their annual budget4. Despite the correspondence between the Central and the State, the
State Government showed just a casual interest and as compared to the other projects, the Legal Aid
was given very little importance in the five year plan.
Government of Kerala adopted in 1957, Kerala Legal Aid (to the scheduled castes and
scheduled tribes and the poor) Rules. Under the scheme any person whose monthly income did not

2
Ibid.
3
Ibid, p 588
4
Ibid, p 589
exceed Rs.100 was entitled to Legal Aid. The Legal Aid under Kerala rules included payment of
fees to counsel. The poor persons were entitled to Legal Aid in all criminal cases before high court,
session’s court and magistrates. Scheduled castes and tribes were also entitled to Legal Aid in civil
cases.5

In 1957, Law Ministers conference discussed the concept of Legal Aid and suggested
that each State Government should formulate a scheme for Legal Aid to the poor. The scheme
envisaged appointment of committee at different levels to entertain applications from the poor for
Legal Aid. Each State should forward to the central ministry of law the schemes formulated by it.

Outline of a Scheme for Legal Aid to the Poor (1960)

The Central Government in 1960 formulated a the systematic scheme for providing
free Legal Aid to poor people. It was called an “outline of a scheme for Legal Aid to the poor,
1960”. It clearly specified the facilities to be made available under Legal Aid, mode of functioning
of Legal Aid scheme and the sources of financial assistance.

The scheme clearly laid down that the professional assistance, remission of court fees,
remission of process fees, remission of subsistence and remission of traveling allowance of
witnesses, free certified copies of judgment and free preparation of appeal, paper books including
the printing and translation of documents wherever necessary should be provided under the
provisions of Legal Aid.

It proposed for the constitution of the State Legal Aid Committee, District Legal Aid
Committee and Taluka or Tehsil Legal Aid Committee. It suggested that plaintiffs and defendants,
appellants and respondents, the petitioners and the opponents should be entitled to Legal Aid in
civil and criminal cases. But for this they have to qualify means test, i.e. inability to pay for legal
assistance because of inadequacy of financial resources; prima facie test, i.e. the existence of prima
facie case in his favour and reasonableness test, i.e. for protecting the interest of justice it is
reasonable to file such suit. It provided that Legal Aid in complaint case would be available only if
it is punishable with imprisonment.
It suggested that legal Aid Scheme should be given statutory force and every Legal
Aid Committee should have an office open during the entire office hours. The Legal Aid

5
Ibid., Appendix 3(Kerala legal aid rules 1957)
Committee should grant a formal certificate to an applicant admitted to Legal Aid but such
certificate should be liable to cancellation if the committee at any stage is of the opinion that Legal
Aid is being misused. The period for which an application for Legal Aid remains pending before
the Legal Aid Committee, shall be excluded from computation of the period of limitation.

It proposed for the creation of the Legal Aid Fund in every State. Money provided by
the State Government, grants from the Central Government, contribution made by partially admitted
persons, cost released by assisted persons from their opponents, fees received from legal advice and
private donations was to be deposited in this Legal Aid Fund.

The suggestions of this committee could not be implemented because of financial

inadequacy in State. The Central Government also tried to provide the financial assistance but in
between financial emergency was declared in India because of Chinese aggression due to which
suggestions of this committee could not come out of papers.6

Report of Commission of Scheduled Castes and Scheduled Tribes

A report was given by Government of India SC & ST Commission, which suggested

that Legal Aid should be made available for cases in scheduled areas. The report also highlighted
the aspect of making payments to lawyers involved in the process of providing Legal Aid. It also
laid down that the fees to be paid to the lawyers associated with Legal Aid should be on a scale of
fees paid in government cases. The report however regretted that the scheme was not given due
publicity. 7

Free Legal Aid Bill, 1970

Mr. Madhu Limaye, a noted parliamentarian of India drafted a private bill on January
30, 1970 on the subject. The bill aimed at enacting a law for Legal Aid to poor and needy persons
involved in criminal cases. It was introduced into the Lok Sabha on March 13, 1970. It was titled as
“The Free Legal Aid Bill, 1970”.

6
Government of India outline of a scheme for legal aid to the poor, part V(1960)
7
Government of India report of commission for scheduled castes & scheduled tribes (1963-64), p
27
 The objects and reasons of above stated bill provided that Article 22 of the Constitution
of India conferred on all persons the right to consult and to be defended by a legal counsel of their
choice. Because of the poverty, the large number of people could not afford legal counsel. The fees
involved should be prohibited for people who were extremely poor. In civilized countries it was
considered to be the responsibility of the State to provide free legal assistance to all those who are
indigent. In cases involving murder charges the courts some times provided legal counsel but this
cannot be claimed by the accused as a right and any way this practice did not apply to a large
number of cases not involving capital punishment. The provision of this bill while it would impose
some financial burden on the state, would act as a deterrent on indiscriminate arrest, framing of
false charges and harassment of the ordinary citizens by the police even if this does not lead to a
significant fall in the total number of criminal cases. Provision for legal assistance would ensure fair
trial and better administration of justice.

The bill provided that the Central Government and the State Government should by
notification in their respective official gazette progressively enforce the provisions of this Act in
one third of the administrative units or districts within their jurisdiction in the Union territories and
States respectively, every three years so that by the end of the 9th year period, the Act shall become
applicable throughout the territory of India. 8

National Conference on Legal Aid

A national conference on Legal Aid was held under the chairmanship of eminent
parliamentarian and Supreme Court advocate Late Dr. L.M. Singhvi. He said that the task of
organising Legal Aid in a poor country like India was very difficult. It was stated that Legal Aid
programme was not uniform in its application. Some area did not have any Legal Aid programmes.
The scope of Legal aid was very limited. Scarcity of funds was the major problem in the path of
Legal Aid programmes. For making Legal Aid a reality the State would have to allocate substantial
funds for free Legal Aid.

He further added that Indian Bar Council is second largest bar in the world which
should be utilized for providing free Legal Aid. Law students should also be involved in providing
free Legal Aid. It would make them aware of the problems of poor and invoke a sense of social
responsibility which would make them better lawyers and better citizens. The above National Legal

8
The Free Legal Aid Bill, 1970, Section 1(3)
Aid Conference led to the amendment of Advocates Act,1961 in the year 1970 whereby the Bar
Council was called upon to take upon the responsibility of Legal Aid without getting financial
assistance from the government.9

Conclusion

To conclude it can be said that the contribution of various judges, jurists and research scholars in
the growth of present day concept of free Legal Aid by way of submitting many reports like
Bombay Legal Aid Society initiatives, Bombay Committee Report, West Bengal Legal Aid
Committee initiatives, Fourteenth Law Commission Report, Central Government’s efforts
from1952 to 1957, Outline of a Scheme for Legal Aid to the Poor (1960), Report of Commission of
Scheduled Castes and Scheduled Tribes, Free Legal Aid Bill, 1970 is remarkable as it led to
enactments of various schemes and Acts for promoting Legal Aid in India.

9
Advocates (Amendment) Bill, 1970, (Bill No. 40 of 1970)