CHAPTER III

ORIGIN AND DEVELOPMENT

OF LEGAL AID SYSTEM IN
INDIA
 CHAPTER III
ORIGIN AND DEVELOPMENT OF LEGAL
AID SYSTEM IN INDIA

3.1 INTRODUCTION
The concept of legal aid, as mentioned earlier, took birth on earth with the dawn

of civilization and with the emergence of the idea of thine and mine. Ancient India was

a land of plenitude and the traditional religion-oriented living and culture had helped the

growth of a philosophy of acceptance, a sense of tolerance and the growth of fraternity.

It was in India that the philosophy of treating the entire humanity as a large family, with

the Creator as its head, had developed. It is by virtue of such attributes that there was

very little or almost no existence of the sort of competitive living that we observe in

contemporary world. The struggle for existence was at a reduced level and disputes

were comparatively minimal. Philosophy of life built upon the thesis of co-existence

had generated a high sense of morality which, in its turn, had regulated human conduct.

As a religious mandate, no one was prepared to enjoy the fruits of another‟s labour.

Therefore, many of the aberrations of human conduct, which are considered as offence

under the penal law, were not found. Life was clean, less complex and the spirit of co-

existence prevailed.1

As per the view of contractualists, which is accepted by the sociologists and the

jurists alike, the itinerant man decided to end his free life in the State of Nature to start

an orderly and a regulated life, under the control of a sovereign. At the time when man

1 Govt. of India Alternative Dispute Resolution, a paper by the Government of India for meeting of
Commonwealth Law Ministers at Christ Church, New Zealand from (23-27)th April 1990, Published
in the Legal Aid News-letter, New Delhi, May-August 1990, p.13.

54
walked into an orderly society from the State of Nature, there was a pledge that

everyone would do justice to the other and the realization of this culture again became a

way of life in India at a fairly early point of time. Life and religion were closely knit and

inter-woven and the scriptures were taken as a code of conduct. Social norms, therefore,

were mostly self-enforced and dependence on law, for regulating human conduct, was

not very much looked for. Life‟s activities were confined into pockets and, in view of

the prevailing high sense of bondage of affinity, fraternity and a sense of mutual well-

being, an attitude of sufferance2was the way of life. As and when individuals fell from

these standards and started raising disputes, those were quickly settled by the

intervention of elders whose services were readily available. This gave rise to a system

of Panches- a board of five, corresponding to the Council of Elders. In course of time, in

some areas these became standing boards while other such boards sprang up as and

when necessity arose. Decision-making was traditionally accepted as an advice element

and, therefore, the panches, who gave their verdicts, were gradually looked upon as

divine agents and their decisions were accepted without demur. By this process, a social

dispute resolution mechanism with acceptability base developed and became the pattern

in ancient India. And on account of its widely popular prevalence and continuance for a

long period, acceptance of the Panchayat System, as the traditional process of dispute

resolution, has been handed over even at the modern times.3

Hence, the formal concept of legal aid took birth at the Indian soil when the

system of courts, the appearance of lawyers and the institution of court fees was adopted

2 The theory of expiation prevailed in Indian Society. Chhabra, K.S., Quantum of Punishment in
Criminal Law in India, Punjab University, Chandigarh,1970, pp. 42-43
3 Gujarat Committee Report, op.cit., p.1

55
in India. However, its roots can be found in the retributive4 instinct of man and the

efforts of Indian society to deliver justice. And in that sense, we can trace the

philosophy of legal aid to the ancient society, which is known to have systematically

commenced from the Vedic age.

Therefore, this chapter discusses legal aid movement in India from Vedic Period to

Modern Period. It includes the following sub-divisions-

 Vedic Period.

 Kautilyan Period.

 Gupta Period.

 Muslim Period.

 Vikramaditya Period.

 British Period.

 Pre- Independence Period.

 Post-Independence Period.

 Post-Constitution Period.
nd
 42 Amendment to the Constitution, 1976, and

 Reports of several Committees on Legal Aid.

3.2 VEDIC PERIOD

Vedas were regarded as the ultimate sources of knowledge from ancient times. It

is said that the contents of the Vedas are revelations of God Himself. There is no

4 Hegal, Studies in Hegelian Cosmology, quoted by Ewing, A.C, The Morality of Punishment, p.73,
puts the concept of retribution as-“Punishment is only the manifestation of crime, the second half of
which is necessarily presupposed in the first, retribution is the turning back of crime against itself.”

56
agreement as to the chronology of this period. Some sources accept it as existent since

some 6000 years ago whereas some others place its origin somewhere around 18th

century B.C. We can find traces of legal aid in the social practice and in the elements of

Dharma itself.

Rig Veda, the earliest of the four Vedas (viz, Rig, Sama, Yajur and Atharva)
th
does contain such elements of legal aid or social aid, as we may name it. The 36 and
nd 5
42 Slokas under Chapter I refer to the need of saving people from „rakshas‟ and

violent people, procuring strength for such protection alongside praying the Almighty to

bless those who donate. Therefore, we do find the existence of violence in the society,

or the foresight of its existence in the future societies. Rig Veda provides for mustering

strength, including monetary assistance, i.e. „Daan‟ for extending aid and assistance to

those fearing or facing the attacks. Sloka 103 of Chapter III clarifies that a king, who

gives money to one in such need, is the winner of the wealth of opponents and that God

always protects him. We therefore, can infer from such references in the Rig Veda that,

providing social aid and also King‟s (i.e. State) assistance to the one being or fearing to

be attacked upon is one‟s Dharma.6

3.3 THE KAUTILYAN PERIOD

During the Kautilyan era, Budhism was eclipsed and society again went under

the Vedic influence. But the developments during the Buddhist period did continue to

5 Singh, Govind., Hindi Translation of Important Parts of Rig Veda ,Sadna Pocket Books, New
Delhi,1992,pp. 31-36.
6 Vivekananda, Swami. ,Caste Culture and Socialism ,Advaita Ashram, Calcutta 1988,p. 88,
underscoring the quality of our rich writes- “It is culture that withstands shocks, not a simple mass of
knowledge…….. we all know, in modern times, of nations which have masses of knowledge, but
what of them? They are like tigers, they are like savages, because culture is not there”.

57
play a role. Social cohesion and Dharma emerged as the social ideals. In the social

sphere, the practice of slavery, under the later Kautilayan period known as the King

Ashoka‟s era, found its abrogation to a larger extent. The society experienced a secular

look and strengthened cohesion, arising out of the contentment of various sections of the

Indian society. This period is treated to be a golden period in the ancient Indian history

of jurisprudence.7

It was this period of history which had a system of Administration of Justice

through the court. According to Kautilya each town was under the jurisdiction of a

Profect (Nagaraka)8. In Kautilya‟s Arthashastra, the realm has been divided into four

administrative units, called (1) Sthaniya, (2) Dronmukha, (3) Kharvatika and (4)

Sangrahana. „Sthaniya‟ was a fortress established in the center of eight hundred villages,

a „Dronmukh‟ in the center of four hundred villages, „Kharvatika‟ in the midst of two

hundred villages and a „Sangrahana‟ in the center of ten villages. In each of these places

and at the meeting places of District („Janapada-Sandhishu‟), law courts were

established to decide disputes between citizens.9

There was a system of producing evidence. Ordinarily evidence was based on

10
any or all of the three sources, namely, documents, witnesses and the possession of

incriminating objects. 11 On the accord of punishment for committing offences, Kautilya

laid down that the awarding of punishment must be regulated by a consideration of the

7 Egerton, Historical Aspects of Legal Aid , 61 LQR (1945) p.37.

8 Kautilaya‟s, Arthashastra.,Jaico Publishing House,2009, Ch II ,p.36
9 Fleet ,J.W.Introductory note On Kautilya‟s Arthastra translated by R.Sharmastry 4th Edition., Mysore,
1951,p.5.
10 Muller, F. Maz (ed)., The Sacred Book of the East, Vol. XXXIII, p.79.
11 Kulshreshta, V.D., Landmarks in Indian Legal and Constitutional History, Eastern Book Company,
Lucknow, 1984, p.8.

58
motive and the magnitude of the offence.12 However, the time and place of the offence,

age of the offender, his social and monetary positions were also taken into account. The

repeaters of the offences were punished more severely.

Hence, Kautilyan Period of Indian history records a system of courts for

administering justice and developed principles of jurisprudence. But the absence of

13
lawyers and the institution of court fees, in its present day sense, did not demand a

need for legal aid.

3.4 GUPTA PERIOD

The system of Administration of Justice which was introduced during the reign

of King Ashoka continued and followed during the glorious reign of the Gupta

Period.There were no further jurisprudential changes during Gupta Period.

3.5 MUSLIM PERIOD

During the Muslim period14 the administration of justice was one of the most

important functions of the Sultans. The king‟s court exercised both original and

appellate jurisdictions. Two Muftis, who were highly qualified in law, assisted the

sultan. During that time in fact need for legal aid for the poor was not felt seriously. The

need for legal aid was felt only when a formal system of Administration of Justice came

into existence.

12 304 I.P.S 458 (1939) Vol. IV pp.10-11

13 In civil cases, however, on winning the case there did exist, as some historians mention, the practice
of paying some proportion of the value of property to the King. Therefore, this practice in itself
contained the element of paupers‟ suit, i.e. first permitting the suit to be filed without court fees and
then recovering the same if the plaintiff won the case.
14 M.Eliphin-Stone, History of India, p. 21 also see W. Brigges, Mohamedan Power in India Vol. III, p.
420

59
 The British Rule, which followed the Muslim Period, further complicated the

judicial system by modifying the existing system and introducing English laws. They

gave further impetus to the need for legal aid for the poorest of the poor. The British

who ruled India for nearly two centuries formalized the judiciary. Complicated

procedures were introduced. Judicial system became a bundle of technicalities and

formalities. The high lawyers‟ fees made litigation a costly affair. Moreover, the

technicalities made litigation time-consuming. Thus the legal system became an

instrument rested in the hands of the rich for harassing the poor. Gradually, the British

colonial system of judiciary became an inevitable and irrevocable part of the Indian

Society. In Britain, the history of the organized 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 the Rushcliffe Committee to enquire about the facilities existing in

England and Wales to provide legal advice to the poor and to make recommendations, is

deemed desirable, for ensuring that people in need of legal advice are provided the same
15
by the State.

3.6 VIKRAMADITYA PERIOD

During the time of the Vikramaditya Period, a judge of the highest court was

paid five thousand silver coins and was provided with a free furnished home. There was

an evolved law of pleading, very similar to the present one. Jurists of the stature of

Manu, Yagnabalka, Jaimini, Brihaspati and Narada did adorn the legal panorama of this

country in its golden age of history. Nonetheless, the common man was not required to

15 Sivakumar. S., (Lecturer Kerala Law Accademy Law College, Tiruvananthpurm) Legal Aid : How
effective Are Domestic Legal Aid Programmes?, Indian Bar Review Vol. 27(1) 2000, pp. 107-108

60
spend even a pittance for seeking justice. Through the village and community panchayat

justice reached the doors of the poorest sufferers.16

3.7 BRITISH PERIOD

In India in olden days‟ justice was rendered very cheaply without charging any

court fee or stamp duty. Pre-British India had practised “Constitutional Monarchy” and

the days of the Hindu and Muslim rulers had witnessed unsophisticated methodology of

dispensing justice to the poor, inexpensively and immediately. In short justice to the

citizens, high and low has been a creed in India since a long time ago. The British

brought with them an expensive system of Administration of Justice, which has made

Legal Aid to poor an obvious necessity.17

The British rule of almost two hundred years, particularly the English model of

adjudicatory process, had the effect of formalizing the procedure. Technicalities were

introduced into the justice system. Litigation soon turned out to be costly on account of

the lawyers and court fees. It also became time-consuming. The net effect was that the

poor man found it difficult to enter the portals of the courts and the rich man was able to

use the legal process as an instrument of harassment of his poor adversary.18

The East India Company carried with it the concept of common law. The

colonies which they established in and around modern Bombay, Calcutta and Madras

and their gradual acquisition of other parts of the country came to be subjected to an

16 Johari ,S.N., “Programme and Movement of Legal Aid to Poor”. AIR 1981, Jour.28,available at
shodhganga.inflibnet.ac.in visited on 09/01/2015
17 Rao, Srinivasa Kotagiri., The Emergence of the concept of Legal Aid in India and its application in
contemporary Goa – A Legal Study, Chapter V, A Thesis submitted to Goa University for the award
of the Degree of Doctor of Philosophy in Law, p.80
18 14th Report of the Law Commission of India, Reforms in the Administration of Justice, 1958,
Appendix IV,p. 621.

61
admixture of common law and the local system of adjudication. They did not

immediately dislocate the system of the Kazi nor did they interfere with the Panchas.

But the establishment of the adjudicatory court, in course of time, brought about

formalization of the justice system.19

The Muslim rulers were indigenous; the Englishmen brought with them the

concept of the ruler and the ruled and the sense of superiority over the local men. The

Englishman was, therefore, not subjected to the local laws and such a system of justice

kept him out of the purview of law that bound the local people. Gradually the

adjudicatory process became more and more formal with the introduction of the Angle-

Saxon system of jurisprudence and when India came to be a part of the British Empire

under the direct suzerainty of the crown, a full –fledged adjudicatory set-up came into

being.20

Furthermore, the British rule exposed the Indian leadership, majority of whom

were law students, to the British legal system. This proved to be a blessing in disguise.

The Indians could gauge the partial and discriminatory dealing being extended to them

vis-a-vis their British counterparts. Undoubtedly, this provided acceleration and

enlightenment to the India freedom struggle.

The international developments in the area of legal aid like those of Bill of

Rights, the report prepared by the League of Nations on the existing legal aid facilities

in various countries in the year 1927 and the efforts of the United Nations on the subject

made their way to the minds of Indian people through British education. All the more,

the available benefits of legal aid in England in criminal cases and under the new forma-

19 Singh, Sujan., Legal Aid Human Right to Equality, Deep & Deep Publications, p. 84
20 Roma, Mukharjee., Women, Law and Free Legal Aid in India, Deep and Deep Publications Pvt .Ltd,
2000,New Dehi-110027, p. 31.

62
pauper is suit encouraged Indian people, much poorer than the Britishers, to demand

coverage under the protection of such legal aid benefits. The result was discernible, as

we find such provisions in the C.P.C. and Cr.P.C. which were enacted for Indians

during the British regime in India. The adversary system and the institution of court fees

added to the prick much more.21

3.8 PRE- INDEPENDENCE PERIOD

For providing Legal Aid in the pre-independence phase the Bombay Legal Aid

Society (BLAS) was formed in 1924. The main objectives of the society were making

justice accessible to the poor and reducing the cost of litigation, providing lawyers to

the poor on the basis of need, rendering Legal Aid gratuitously and to make provision

for payment of court fees. To qualify for legal aid, an applicant had to satisfy the means

test and had to have a bonafide case.22

The question of legal aid to poor attracted the attention of the people even before

coming into force of the Constitution. In England, in 1944 a committee under the

Chairmanship of Lord Rushclifee was appointed to enquire what facilities at present

exist in England and Wales for giving legal advice and assistance to the poor persons

and to make such recommendations as appeared to be desirable for the purpose securing

that poor persons in need of legal advice might have such facilities at their disposal and

for modifying and improving, so far as seemed expedient and existing in which they

were concerned whether in civil or criminal court.23

21 Supra Foot Note Number 19 p. 85

22 Johari ,S.N., “ Programme and Movement of Legal Aid to Poor ,” AIR 1981 Jour. 28, p.26,available
at shodhganga.inflibnet.ac.in,visited on 09/01/2015
23 Tripathi, Dr. B.N. Mani., “Jurisprudence :Legal Theory”, 14th Edition,2003, Allahabad Law Agency,
p.402

63
3.9 THE RECOMMENDATION OF LORD RUSHCLIFFE

COMMITTEE 24

The Lord Rushcliffe Committee submitted its report in 1944. Its main

recommendations were -

 Legal Aid should be available in all the courts and in such a manner so

that even the poorest of the people in the direst of the needs are enabled

to get access to the professional help they require;

 This provision should not only be limited to those who are normally

classified as poor but should rather include a wide income group;

 Those who cannot afford to pay for legal aid should receive

this free of cost. There should also be a scope for different weighting and

scaling of contributions towards the legal aid fee based on the economic

status and paying capacity of the litigant;

 The cost of the scheme should be borne by the state, but the scheme

should not be administered either as a department of state or by local

authorities;

 The Legal Profession should be responsible for the administration of

the scheme, except the part of it that deals with the Poor Prisoners‟

Defence Act;

 Barristers and Solicitors should receive adequate remuneration for their

services;

 The term „poor person‟ should be discarded and the term „assisted

24 Supra Foot Note Number 23

64
 person‟should be adopted.

The recommendations of the Committee were accepted by the British Parliament

and as a result the Legal Aid Advice Act, 1949 was passed.

3.10 INITIATIVES BY BOMBAY LEGAL AID SOCIETY

After the submission of the report of Rushchiffe, the Bombay Legal Aid Society

in 1945 invited the attention of the Government of India to the said Report and

suggested the appointment of a similar committee in India to examine the question of

legal aid to the poor and the needy. The Government of India wrote to the provincial

governments asking whether they would be able to provide greater facilities for legal aid

to poor people in both Civil and Criminal cases. The Provincial Governments, on

account of financial stringency were unwillingly to provide legal aid beyond what was

statutorily granted.25

On 27-12-1945, Bombay Legal Aid Society wrote to the Law Ministry of the

Government of India drawing their attention to the report of the Rushcliffe Committee

in England. The Rushcliffe Committee had made a number of recommendations for

improving the system of Legal Aid in England. The letter suggested that a similar

committee be appointed in India.26

The process of codification of laws in India began during the British period. A

Law Commission had been set up in 1834. The Criminal Procedure Code was enacted

in 1878. This Code recognized the right of the accused to be defended by a pleader.27

But the judicial interpretation did not come forward to incorporate legal aid to the poor

25 Supra Foot Note Number 18.

26 Supra Foot Note Number 17,p.109
27 Mukherjee D.V., “Legal Education For Service To The Poor”, AIR 1982 Jour 27.

65
in this respect. Therefore, the relevant section lost its pertinence. Thus, the provision

continued to carry the meaning that the accused has to engage own counsel. It was the

redrafted Code in 1973 that spoke about legal aid. Thus, under section 304 of Cr.P.C.,

an accused facing a trial in the Court of Sessions and not represented by a pleader for

lack of sufficient means should be assigned counsel at the cost of the State. On the civil

side, the Code of Civil Procedure provided for pauper suits without payment of court

fees.28

In 1946, the Government of India asked provincial governments whether the

latter could provide facilities for legal aid to the poor in civil and criminal cases. The

provincial governments were of the opinion that the existing provisions for legal aid in

civil cases was sufficient, but that the provisions for the grant of such aid in criminal

cases might be liberalized. But primarily due to financial constraints the provincial

government was not ready to undertake a scheme of free legal aid for the poor in

criminal cases. Thus the effort of the Bombay society, though not fully successful, made

the government and the public to think in getting justice for them.29 Thus, the only

assured solace to the poor was still the Panchayat system that continued to deliver

justice at the grassroot level.30

3.11 POST–INDEPENDENCE PERIOD

Independent India was faced with numerous socio-economic problems. As such,

economic development and social equity were major political goals at that hour.

Consequently, legal aid was equally, or perhaps, even more relevant at that time since

28 Basu, D.D., Constitution of India, Prentice of India Pvt. Ltd., New Delhi, 1981, p.231.
29 Fourteenth Report of the Law Commission of India, p. 588
30 Sivakumar. S, (Lecturer, Kerala Law Accademy Law College, Thiruvananthpuram) Legal Aid : How
effective Are Domestic Legal Aid Programmes?, Indian Bar Review, Vol. 27(1) 2000 p. 109

66
legal aid has a direct co-relation with the development of the society as well as the

country, according to constitutional goals. In order to attain that goal, ambition and

aspiration, the seed of legal aid had already been germinated at the behest of Bombay

Legal Aid Society, who invited government attention to it.

Due to a period of protracted pressure on Provinces and the Government of India

to adhere to the constitutional dictums of social equity and principles of natural justice

for all, and as a result of a certain resolutions moved by the Bombay Legislative

Assembly and Bombay Legislative Council, the Government of Bombay appointed a

Committee in March 1949 under the Chairmanship of Hon‟ble Justice P.N. Bhagwati to

study in detail the issue of providing legal aid in civil and criminal proceeding to poor

people.

The Committee recommended the courts to provide people with limited income

and those belonging to backward classes with legal assistance to remit requisite justice

to those people. This committee was named as Bombay Legal Aid and Advice

Committee.

The recommendations of the Bombay Legal Aid and Advice committee were

more or less identical to the recommendations of the Rushcliffe Committee of England.

The committee made very exhaustive examination of the question of legal aid

and submitted its report in 1949. The subject of legal aid was studied in-depth and as

such it is a very valuable document. The committee emphasized that legal aid is a

service which the modern welfare state owes to its citizen31.

Under modern Welfare State, legal aids‟ conception should be the obligation of

the state and is to be treated on par with other social welfare schemes such as old age

31 Msani,Tripathi B.N., Jurisprudence and Legal Theory,Allahabad Law Agency,Faridabad,1999,14 th

Edition,p.360

67
pensions, free education and free medical relief and therefore the state must take upon

itself the responsibility of providing legal aid to the poor and people of limited means32.

3.12 JUSTICE BHAGWATI COMMITTEE33

On 23rd March 1949, the Government of Bombay appointed a committee under the
st
Chairmanship of Justice N.H. Bhagwati. In its report, submitted on 31 October 1949,

the Committee made the following recommendations:

a. Administrative machinery of legal aid should be constituted at four levels

namely,

i. State level

ii. High Court level

iii. District level and

iv. Taluk level

b. The Committee suggested two tests for determining eligibility for legal aid,

namely ,

i. Means test and

ii. Prima facie test

c. It was further proposed that no aid should be provided in trivial and trifling cases

d. There should be a declaration on oath about the “Disposable Income” and

“Disposable Capital”

e. There should be a certificate from a respectable citizen or responsible officers

regarding his means

32 State of Bombay Report of Committee on Legal Aid and Legal Advice, 1949, p.8.
33 Supra Note 17, pp. 109-110

68
 f. A bond should be executed by the party that there is no sympathy and he will not

make compromise without the consent of Legal Aid Committee.

Finally, the Committee recommended for-

i. Assignment of lawyers, i.e., every member of Bar should handle at least

six cases per year.

ii. The lawyer is entitled to get remuneration only after six cases.

iii.When assisted party is successful then cost should be credited in Legal

Aid Fund and in case of his failure, cost should be paid out of Legal Aid

Fund.

The Committee recommended for “Partial Legal Aid” as suggested in the Report

of Rushcliffe Committee in England. It had also mentioned the scope and extent of

Legal Aid. Legal Aid may be given to plaintiff and defendant, complainants, petitioners,

etc. Legal Aid may be provided in all courts.

3.13 TREVOR HARRIES COMMITTEE

The Trevor Harries Committee in West Bengal recommended a three-tier

institutional structure for delivery of Legal Aid Services. 34 Legal representation at state

expense however was available only where an indigent accused was being tried for an

offence punishable with a capital sentence. This was not a statutory right but was made

available at the discretion of the court.35

34 Ranjan Dwivedi vs. Union of India, AIR 1983 SCR (2) 982, 1983 SCC (3) 307.
35 State of Maharashtra vs. Manubhai Prayaji Vashi And Others , AIR 1989 Bom 296,(1989) 91
BOMLR 13,1989 MhLJ 344.

69
3.14 POST-CONSTITUTION PERIOD

India became independent in 1947 and in 1950 it proclaimed as a democratic

republic with a written Constitution. Even during the period from 1947 to 1950,

Bombay Legal Aid Society tried to bring attention of the Government towards the legal

aid in 1949 in England. Legal Aid Advice Act was enacted considering the report of

Rushcliffe Committee. At last the Government of Bombay appointed a committee in

1949. Mr. Justice Bhagwati headed this committee. The Committee studied thoroughly

the question of legal aid and a detailed report was submitted in October 1949 but the

Government did not act upon that report. In the same year Government of West Bengal

also set up a committee headed by Sir Arthur Trevor Harries, the then Chief Justice of

Calcutta High Court to recommend judicial reforms in the field of legal aid.36

The Central Government advised the State Government to make provisions for

legal aid in criminal cases with respect to offences of which punishment is not less than

five years imprisonment and appeals arising out of such offences.The Central

Government made this advice in accordance with the provision of Constitution as

enumerated in the Seventh Schedule. The Seventh Schedule of the Constitution of India

contains three lists, which enumerate subjects on which the central and state

governments can legislate. Administration of justice comes under state list or list II.37

The state governments‟ responses were discouraging for they had excuses of

financial difficulties and constraints. This revealed the fact that the issue of legal aid to

the poor was not taken seriously by the government at that time.38

36 Fourteenth Report of the Law Commission of India, p. 488

37 Air India Statutory Corporation vs. United Labour Union and others AIR 1997 SC 645.
38 Kishore Chand vs. State of H. P AIR 1990 Cri. LJ 2289(SC).

70
 In 1956, for the third time, the Government of India tried to elicit the view of the

state government, advising them to consider the matter again, in the light of the Five

Year Plan scheme for granting of legal aid to the poor. The central government advised

the state government to include, the provision for legal aid in their budget but this

attempt also was in vain.39

In 1957 the issue of legal aid was discussed at the law ministers‟ conference.

The conference unanimously agreed that -

 Each state would formulate a scheme for legal aid to the poor and

forward it to the central Ministry of Law.

 The scheme could suggest appointment of committees to entertain

applications from the poor for the legal aid.

 The committees will examine the genuineness of the requests.

 If the applicant really deserves aid, it would be provided.

 The services of the members of the Bar can be utilized in this regard.

Thus, the decision arrived at by the Law Ministry‟s Conference recognized the

necessity for establishing legal aid scheme by the state. But the tragic part of the story

was that nothing was done by any state to implement it.40

3.15 LAW COMMISSION OF INDIA

Law Commission of India is an Executive body established by an order of the

Government of India.The Commission is established for a fixed tenure and works as an

39 Supra Foot Note Number 29, p. 110

40 Ram Kishore Choudhury and Tapash Gan Choudhary, Judicial Reflections of Justice
Bhagwati,Kolkata Academic Foudation and Publication Pvt .Ltd.,2008 at Vigyan Bhavan, New
Delhi, September 11, 2008.

71
advisory body to the Ministry of Law and Justice.Its major function is to work for legal

reform.41

The Law Commission of India in its “Report of Judicial Administration”

published in 1958 devoted a Chapter to legal aid. The Commission stated-

“The rendering of legal aid to poor litigants is not a minor problem of

procedural law but question of fundamental character”42.

Reviewing the efforts made in that behalf in this country up-to date and also the

position with some respect to legal aid in foreign countries it stated-

“In India facilities for legal aid are very meagre. Apart from voluntary

organizations in a few towns like Bombay, Calcutta and Bangalore there is not much

organized effort either governmental or private to give to the poor benefit of law. As we

have already seen, the Governments of the states have not in general been very

enthusiastic about the proposals calculated to enlarge the scope of legal aid. Nor has the

legal profession with some creditable exceptions regarded the rendering of legal aid to

the poor litigants as its responsibility”.43

The commission strongly emphasized the need for rendering legal aid to poor

litigants. However, it did not offer any proposals and suggested for the adoption of

Bhagwati Committee Report of Bombay and the Trevor Harries Committee Report of

West Bengal. It suggested certain measures of legal aid to be implemented immediately

without the need of setting up elaborate legal aid organizations by amending the law of

the rules of the Courts.44

41 https://en.m.wikipedia.org,visited on 12-03-2014.
42 Law Commission of India, 14th Report Reforms of Judicial Admiration, Vol.1, p.587 `
43 Supra Foot Note Number 42 p.692
44 Supra Foot Note Number 28 p.598

72
3.16 INTERNATIONAL COMMISSION OF JURISTS 45

A Committee on judicial and legal profession under the Rule of Law at New

Delhi Congress of International Commission of Jurists 1959 expressed the view that the

States have an obligation to provide legal aid to those who are unable to pay for it if the

rights and remedies of the individual under the rule of law were to be given practical

reality.

3.17 CENTRAL GOVERNMENT SCHEME 46

In 1960, the Central Government drew up an outline of scheme for legal aid and

forwarded it to various existing Legal Aid Organizations and states for their comment.

The State Governments in a Conference of State Law Ministers in 1962 again expressed

their inability to bear the financial burden for Central support of legal aid activities.

However, due to proclamations of emergency in 1962, on account of Chinese

aggression, it suffered a setback.

3.18 ALL INDIA LAW CONFERENCE 47

The question of legal aid was again considered by the Committee on Legal Aid

at the Third All India Law Conference in 1962. It accepted that the provision of legal

aid was an obligation of the state and both Centre and states should make funds

available for the same. The Committee made various recommendations to be adopted by

the Bar Association of India and the Local Bar Associations for providing legal aid and

until such measure is taken the state may adopt a comprehensive legal aid programme.

45 Supra Foot Note Number 18 p.405

46 Ibid
47 Supra Foot Note Number 18, p.406

73
 However, nothing was done by any Bar Association and no substantial measure

was taken to implement these recommendations.

The problem of legal aid also attracted the attention of political leaders and

parliamentarians. They had gone a step further in its stride and suggested statutory

recognition of the legal aid. On March 13, 1970 a Bill to be known as “The Free Legal

Aid Act, 1970” was introduced in the Lok Sabha by Mr. Madhulimaye, Member of

Parliament. The objects and reasons of the Draft Bill were as follows-

i. Right to counsel and to be defended by a legal counsel of their choice as

guaranteed under Article 22 of the Constitution of India.

ii. Proper administration of criminal law and preservation of citizens‟ personal

liberties.

iii. In India also, in cases involving murder charges the courts sometimes provide

legal counsel, but this cannot be claimed by the accused as a right, and any way

this practice does not apply to a large number of cases not involving capital

punishment.

iv. For want of free legal aid, many of the accused cannot defend themselves

properly, and this sometimes results in their longest conviction.

v. This Bill seeks to provide free legal aid to indigent persons. The provisions of

this Bill, while it will impose some financial burden on the state, will act as a

deterrent on indiscriminate arrests, 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 of free legal assistance will

ensure fair trial and better administration of Justice. Interestingly this bill has not

been passed by the Parliament till now.

74
 The National Conference on Legal Aid of 1970 held in New Delhi also discussed

the problems of legal aid and insisted for legislation to make it statutory obligation of

the State. The Conference focused on various view-points on the necessity of evolving a

comprehensive legal aid programme.It also called upon the courts, the bar, law faculties

to come forward and contribute their best in the implementation of a nationwide

programme to help the economically under-privileged citizens of India. It was expressed

in the Conference that there is a vast gap between the constitutional guarantee under

Article22 (1) and everyday reality faced by the people of no or insufficient means.

Article 22(1) of the Constitution of India provides that no person shall be denied the

right to be advocated by a legal practitioner of his choice. No indigent person in a

criminal case can obtain a lawyer at the cost of the Government unless his crime is

punishable by the death sentence, and even then legal aid may not be easily available.48

The Advocates (Amendment) Bill was introduced in Rajya Sabha (Upper House

of the Parliament). This shifted the responsibility of legal aid upon the shoulder of the

Bar Council to work for poor without funds from Government.49 In 1972, the new Law

Minister Mr. H.R. Gokhale expressed Government‟s keen interest in implementing legal

aid programme in Parliaments.

3.19 KRISHNA IYER COMMITTEE REPORT, 1973 50

Justice Krishna Iyer presided over a committee set up on 22nd October, 1972 and

highlighted the nexus between law and poverty. The 275 pages report dated 27th

May,1973, focused the concept of public interest litigation and stressed the requirement

48 Janardan Reddy And Others vs. State of Hyderabad, AIR 1951 SC 217.
49 State of Madhya Pradesh vs. Shobaram, AIR 1968 SC 1910
50 The Lex-Warrier ,Online Law Journal available at lex-warrier.in visited on 19-09-2016

75
for dynamic and widespread legal aid system that empowers law to reach the people,

rather than requiring people to reach the law.

The report of this committee urged upon the democratic obligation of the State

towards its subject to guarantee that the legal system becomes an effective tool in aiding

to secure the ends of social justice and an effort was made to characterize those classes

of persons who are most needing legal aid and the poor man‟s confidence in the legal

system ought to be improved by giving him non-governmental as well as governmental

assistance.51

Some advancement in this course was made with the incorporation of Article 39-A

through the 42nd Amendment Act,1976,in view of the recommendations of the Expert

Committee on Legal Aid,1973,on Procedual Justice to the people under Justice

V.R.Krishna Iyer.

3.20 42nd AMENDMENT TO THE CONSTITUTION, 1976

Article 39-A was added in the Constitution of India in the year 1976 by 42nd

Amendment Act, 1976 to ensure equal justice which has been promised to all citizens

by the Preamble and to further guarantee equality before law, which would have no

meaning to the poor so long as they are unable to pay for their legal admission.52

After the 42nd Amendment, both the State Government and the Central

Government of India took active steps towards the implementation of legal aid

programme.

51 Varun Pathak, A Brief History of Legal Aid,available at www.legalservicesindia.com,accessed on

18-12-12.
52 Nawab Khan vs. State of Gujarat, AIR 1974 SC 1471.

76
 The impact of Article 39-A read with Article 21 has been to reinforce the right

of a person involved in a criminal proceeding to legal aid .The provision has been thus

used to interpret the right conferred by section 304 of the Code of Criminal Procedure,

197353.

Article 39-A of the Constitution gives constitutional status to free legal services

to the poor. The objective of Article 39-A has been explained by Supreme Court as-

“… it is clear from the terms of Article 39-A that the objective of Constitution

is to ensure social and equal justice so that legal aid has to be implemented by

comprehensive schemes. Directive Principles and Fundamental Rights have no

disharmony as both are aiming at the same goal of bringing about a social revolution

and the establishment of a welfare State, which is envisaged in the Preamble. Primarily

Article 39-A is addressed to the Legislature and Executive, but as far as the court of

justice can indulge in judicial law making, within the ambit of the Constitution, the

courts too are bound by this mandate”.54

Right to free legal aid and speedy trial is a mandate under Article 21 and 39-A. It

also means that the State would have to give grant-in-aid to recognized private law

colleges, similar to other faculties, which are qualified for receipt of grant. It cannot be

denied either by pleading paucity of funds or otherwise.55

Therefore, the concepts engrafted in the statutes require interpretation without

doing injustice to the language. Such an interpretation would elongate the spirit and

purpose of the Constitution and make the previously mentioned rights to the workers a

53 Nandini Satpathy vs. P.L. Dani And Anr., AIR1978 SC 1025.

54 State of M.P. vs. Hira Lal Gopi 1988 Cr. LJ 457 .
55 Dhyani, S.N., Law Morality and Justice Indian Developments, Metropolitan Book Co. Ltd, New
Delhi, 1st Edition, 1984, p.125

77
reality, lest establishment of an egalitarian social order would be frustrated and our

constitutional goals defeated.56

Though Article 39-A of the Constitution provides rights to equal justice and free

legal aid and though the state provides amicus curiae to defend the indigent accused, he

would be meted out with inadequate defence, if the young inexperienced members from

the Bar are assigned to defend him. It is high time that senior counsel practising in the

court concerned, volunteer to defend such indigent accused as a part of their

professional duty. If these remedial steps are taken and an honest and objective

investigation carried out, it will enhance a sense of confidence of the public in the

investigating agency.57

3.21 JUSTICE BHAGWATI’S ROLE IN DEVELOPING LEGAL AID

SCHEMES

During the emergency in 1975, Prime Minister Mrs. Indira Gandhi launched the

20-point programme and made legal aid a part of it. Justice Bhagwati readily embraced

the concept. When Mrs. Gandhi‟s government came back to power in 1980, it set up a

committee under the Chairmanship of Justice Bhagwati for implementing Legal Aid

Schemes. Apart from the traditional court-oriented legal aid programmes, the schemes

that Justice Bhagwati had set up had many variegated facets.58

The first strategy was promotion of legal literacy and creation of legal awareness

among the people. This was based on the fact that we have a lot of social welfare

legislation in this country but the beneficiaries of it, are not aware of the rights and

56 Supra Foot Note Number 19, p. 91

57 Sharma, S.S., Legal Services Public Interest Litigations and Para Legal Services, Central Law
Agency, Allahabad 2nd Edition, 2007, p.323.
58 Supra Note 17 pp. 117-119

78
benefits conferred upon them. Unless the people are aware, they will never be able to

know that a legal wrong is capable of legal redress. To give the programmes necessary

thrust, small booklets were produced, radio and television were used and documentary

films were made.

A second strategy was adopted to carry legal services to the doorstep of the

people by organizing legal aid camp in selected rural areas. Thousands of people

attended those camps. The legal problems of the people were used to be answered by a

lawyer and the financial problems were answered by various revenue authorities who

also attended such camps. People‟s courts were set up where retired judges, socially

committed lawyers and social activists were involved to mediate the pending cases .59

This system gradually deep rooted in our national soil and has become very

popular. The third strategy was organization of legal aid clinics in selected Universities

and Law Colleges. A course on „Law and Poverty‟ was introduced in the final year of

law courses. Legal Aid Clinics were opened in Universities where the students would

attend clients and give them advice under the guidance of a teacher. Also, under this

scheme, students were sent to the rural areas for the purpose of carrying out socio-legal

surveys.60

The fourth strategy that was adopted was a little bit conventional. In the words

of Justice Bhagwati, it can be put verbatim as: -

“We felt that if we really wanted to reach the people then we had to work

through social action groups. We have a large number of young men and women, full of

idealism and enthusiasm, who have given up a life of comfort and luxury in order to go

59 Ibid
60 Supra Foot Note Number 17.

79
to the rural areas to work among the poor at the grass root level. We found they were

scattered, isolated and one group did not know what the other was doing. We started

forming centers where social action groups operating within a geographical area would

come together. My organization, the Committee for Implementing Legal Aid Schemes,

would find them and provide them with a lawyer. They carry out social-legal surveys

and we started holding camps for training of social workers as para-legals.” The strategy

adopted as such, became highly fruitful.61

The right to counsel is recognized because of the fact that ordinarily an accused

person does not have the knowledge of law and the professional skill to defend him

before the court of law wherein competent and experienced prosecutor conducts the

prosecution.62

A person arrested on accusation of a crime becomes entitled to be defended by a

counsel at the trial and this right is not lost even if he is released on bail or is tried by a

court.63

The court has considered fair hearing as constitutional requirement under

Articles 21 and 22 of the Constitution. Accordingly, where any accused is unable to

afford expenses for trial of the case then the High Court is empowered to appoint

amicus curiae for criminal cases.

61 Paragraph 3 of Resolution dated 22. 06 .1970.

62 The members were Dr. L.M. Singhvishri. Jaisudh Lalhathi, Shri M.K. Ramamurathi , Shri D.P.
Singh, Shri Harish Chandra , Mrs Lakshmi Ragramaiya, Shri Gopinath Dixit, Dr. N.R. Madhaba
Menon , Shri P.B. Venkatasubramanian .
63 Government of India Report of the Expert Committee on Legal Aid Processual Justice to the
People, (May,1993) p.8

80
 Extending the concept of legal aid, Supreme Court held that the accused has a

right to legal counsel at the time of “custodial interrogation” as a part of the right to

counsel and as a right against self-incrimination in Articles 22(1) and 20 (3).64

When the counsel for accused is absent on the date of hearing, another counsel

to defend the accused has to be appointed or the case has to be adjourned. When neither

of the two courses is adopted, and prosecution witnesses are examined, here the

contravention of the provisions of Sec.304 of Criminal Procedure Code arises.65

3.22 REPORTS OF VARIOUS COMMITTEES ON LEGAL AID

3.22.1 FIRST REPORT OF LAW COMMISSION OF INDEPENDENT INDIA

The First Law Commission was established during the British Raj era in 1834 by

the Charter Act of 1833.After that, three more Commissions were established in pre-

independent India.The First Law Commission of independent India was established in

1955 for a three- year term.66

The First Law Commission of independent India under the Chairmanship of Mr.

M.C. Setalvad addressed more enthusiastically to the question of access to justice in the

context of constitutional background. The Committee devoted a chapter on Legal Aid

stressing that rendering of legal aid to the poor litigants is not a minor problem of

procedural law but a question of fundamental character. The governments of the states

have not been enthusiastic about proposals calculated to expand the scope of legal aid.67

64 Supra Foot Note Number 63, p.28

65 Mukharjee ,D.V., “Legal Education for Service to the Poor”, AIR 1982 Jour 27.
66 https://en.m.wikipedia.org,visited on 19-03-2014
67 Paragraph 3 of Resolution dated 22.06.1970.

81
 Mr. M.C. Setalvad made the following recommendations on legal aid-

“Free legal aid to the poor people of limited means is a

service which modern state and in particular a welfare state

owes to its citizens. The state must, therefore, accept this

obligation and make funds available for providing such

legal aid to poor persons of limited means."

The legal profession must at its core, accept the responsibility for the

administration and working of schemes of legal aid. This responsibility should be

divulged by the profession by organizing and by assisting the bodies which will render

legal aid, and by representing in courts poor people of limited means on the payment of

only a proportion of the fees.68

The legal profession owes a moral and social obligation to the weaker and

inferior sections of the society, which must be discharged by every member of the

profession doing a certain amount of legal work free for economically weaker section of

the society.

The scheme for legal aid to poor persons and persons of limited means outlined

by the Committee on Legal Aid and Advice appointed by the Government of Bombay in

1949 and the scheme outlined by the West Bengal Committee should, with suitable

modifications made in the light of local needs and conditions, be adopted by all states as

soon as financial conditions permit.69

68 Supra Note 17, pp. 126-127

69 Ibid

82
 Measures in furtherance of legal aid should be adopted immediately. Bar

Associations should take immediate measures to render legal aid on a voluntary basis.70

The Law Commission therefore envisaged the need for legal aid when it stated

that-

“…equality is the basis of all modern system of

jurisprudence and administration of justice… 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, which are meant for his protection, have no meaning

and to the extent fail in their purpose.”

3.22.2 THIRD ALL INDIA LAWYERS CONFERENCE71

The provision of legal aid was considered jointly by lawyers in Third All India

Lawyers Conference (1962) and they recommended the measures enlisted below-

a. An indigent accused should be represented by counsel at government

expenses in all cases including proceeding under Section 488 of the Criminal

Procedure Code and jail appeals.

b. No court fee, authentication of copying fee or any other fee be levied upon

an accused.

c. The expression “Pauper” used in Order XXXIII of the C.P.C should be

replaced by the expression “poor person” or “assisted person”.

70 Rule 4 of the Bar Council of India Legal Aid Rules 1983.

71 S.S. Sharma, Legal Services, Public Interest Litigation and Para-Legal Services, Central Law
Agency, Allahabad, 2nd edition, 2007, p. 323

83
d. The Explanation to Rule 1, Order XXXIII of the code of civil Procedure

should be amended to entitle a person who has no property worth Rs.100 to

sue as pauper.

e. Order XXXIII of the Code of Civil Procedure should be amended so as to

enable a person not only to sue as pauper but also to defend suit or

proceeding as pauper.

f. Order XXXIII of the Code of Civil Procedure should be further amended so

that an assisted person is exempted not only from the payment of court fee

but also from the payment of process fee, witnesses diet money and

travelling allowance fee for obtaining copies of judgments, order or

documents.

g. Rules of Supreme Court and High Courts should be amended so as to

provide counsel to the poor persons in these courts and other subordinate

courts at Government expense.

h. Various Bar Associations in the country should organize legal aid committee

forthwith at the Taluk, District, High Court and Supreme Court levels to

provide free legal aid to poor persons.

i. Bar Association of India should formulate the manner in which various Bar

Associations may provide both free and partial legal aid.

j. A comprehensive scheme, taking into account the Scheme already

formulated by the Government, of India and the state Governments

recommend the same to the Central and State Governments.

84
3.22.3 GUJARAT COMMITTEE REPORT

A resolution was passed by the government of Gujarat on 22nd June, 1970 to

appoint a 4-member committee under the chairmanship of Hon‟ble Chief Justice,

P.N.Bhagwati and the terms of reference of the Gujrat Committee was to consider the

question of grant of legal aid civil ,criminal, revenue, labour and other proceedings to

poor people, to persons of limited means and to persons belonging to backward classes

and to make such recommendations as may be desirable so as to render legal advice

more easily accessible to such people, including recommendations on the needs of

encouragement and financial assistance to institutions engaged in the work of such legal

aid.72

The Gujarat Report, running into 271 pages and presented in 14 parts, dealt with

the subject of legal aid in all of its possible and conceivable lengths and breadths.

3.22.4 EXPERT COMMITTEE ON LEGAL AID73

The Gujarat Report proved to be a milestone in the legal aid movement of the

country. After perusal of the report, the State of Gujarat initiated a programme for legal

aid to the poor and a pilot project was initiated in the state from 5th November, 1972.

Since then legal aid and advice schemes have been extended to the whole of the State of

Gujarat. The recommendations of this report not only stimulated the Government of

India to appoint an expert committee on legal aid in October, 1972 but also the Gujarat

Report proved to be a stepping stone for the Expert Committee which submitted its

Report in 1973.

72 Paragraph 3 of Resolution Dated 22.06.1970

73 Government of India Report of Expert Committee on Legal Aid, Processual Justice to the People,
May 1993,p.8

85
 th
Dated 27 October, 1972, the Government of India appointed an eleven

members Expert Committee with Justice V.R. Krishna Iyer as the Chairman.

3.22.5 RECOMMENDATIONS OF THE EXPERT COMMITTEE

In the report submitted to the Government of India on 27th May, 1973, it is

important to note that it set to rest the controversy of liability of the government, which

hindered the implementation of legal aid services in India74. The Committee agreed with

the Gujarat Report on the involvement of Nyaya Panchayat, need for qualifying the

means test and the prima-facie case test before getting the benefit of legal aid during

trials as well as appellate stages of both civil and criminal cases and seeking legal

advice.75

The Report laid special emphasis on the requirements of legal aid for women,

workers and the dwellers of tribal areas.76 The Report suggested for the establishment of

the legal aid Centre‟s, employing lawyers for legal advice and to extend legal guidance

to villages among several other measures. In the opinion of the Expert Committee, such

advice may prevent litigation, local fights, family discords and even worse evils.

Justice Krishna Iyer Committee had shown special concern for legal aid

movement for remedying the agonies of the unorganized and agricultural works who are

exploitable in the absence of morale-boosting legal aid and advice.

The Gujarat Report suggested for a legal aid fund to meet the expenditure of

legal aid scheme. It recommended that the legal aid fund, created by a statute, would

74 Hussainara Khatoon and Others (iv) vs Home Secretary, State of Bihar, 1979 SCC 1819.
75 Supra note 17, p. 137
76 The Members were Dr L.M.Singhvi, Shri Jaisudh Lal Hathi, Shri M.K. Ramamurthi, Shri D.P.Singh,
Shri Harish Chandra, Mrs Lakshmi Raghuramaiya, Shri Gopi Nath Dixit, Dr N.R.Madhava Manon,
Shri Kanwar Lal Sharma and Shri P.B.Venkatasubramanian.

86
consist of money received from different sources for the legal service programme. The

sources suggested by the report were-

 Donations from individuals, associations of merchants etc.

 Money collected by organizing entertainment programmes

 Revenue from the legal aid stamps

 Collection by legal aid fees

 Membership collection of the State Legal Aid Committee

 The costs in litigation awarded to the assisted person

 Contributions from the local self-government bodies

3.23 THE NATIONAL FORUM FOR LAWYERS AND ITS

RECOMMENDATIONS

The National Forum for Lawyers was established in 1975. It was a national

organization with its branches in each State and the Union Territory of India. The basic

objective of this forum was to provide infrastructural support for the implementation of

20 Point Economic Programme of Mrs. Indira Gandhi to ameliorate the lot of the

poorest of the poor in the country. Legal aid was a part of this programme.77

The forum, headed by a legal luminary, Mr. Rajni Patel, set up its branches at

state, district and tehsil levels. The forum organized state level conferences of lawyers

to involve them in legal aid programmes. Such conferences were held in Maharashtra,

Assam, Karnataka, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Orissa, Bihar, West

Bengal, Gujarat and Punjab. Through these conferences, the Forum recommended for

77 Supra note 17, p. 140

87
providing a constitutional status to legal aid. This recommendation was further

discussed and deliberated upon by the Swaran Singh Committee.78

3.24 SWARAN SINGH COMMITTEE RECOMMENDATIONS

The Government of India appointed a Committee in 1975 involving some

members from the National Forum for Lawyers, under the chairmanship of Mr. Swaran

Singh, a former Union Minister. This Committee made exhaustive recommendations for

amending the Constitution, which were incorporated by way of the 42nd Amendment to

the Constitution. The Amendment with its wide amplitude, also inserted legal aid in the

Indian Constitution.79

3.25 THE FOURTEENTH REPORT OF THE LAW COMMISSION

OF INDIA

The Fourteenth Report of the Law Commission of India submitted two-volume

report on Reforms in the Administration of Justice. Some of the observations of the

Commission are mentioned below-

i. Law Commission observed-

“Unless some provision is made for assisting the poor man

for the payment of court fees and lawyer‟s fee and other

incidental costs for litigation, he is denied equality in the

opportunity to seek Justice”

78 Dhyani, S.N., ''Law, Morality and Justice : Indian Development'', Metropolitan Book Co.Ltd, New
Delhi,1st Edition,1984, p.125
79 Supra Foot Note Number 78

88
 The rendering of Legal Aid to the poor litigant is, therefore not a minor

problem of procedural law but a question of fundamental character.80

ii. The Law Commission accepted partly the reports of both the Bombay

Committee and Trevor Harries Committee.

iii. It recommended that the legal aid be first extended to person accused of

crimes of serious nature, preference be given to persons belonging to

S.C, S.T and legal aid should be given to really poor persons first and

then those of moderate means.

The other recommendations made by the Law Commission were that there

should be representation by the lawyer at the State‟s expense for all accused persons

without means in cases coming before Session‟s Courts, to applicants for maintenance

under Section 488 of the Code of Criminal Procedure, and to convicts who had sent jail

appeals. The word pauper was recommended to be replaced by the words „poor person‟

or „assisted person‟.81

3.26 ROLE OF BAR COUNCIL OF INDIA IN LEGAL AID

MOVEMENT82

The Bar Council of India is a statutory body established under Section 4 of the

Advocates Act, 1961 to regulate legal education and legal practice in India.83 The Bar

Council of India has recommended for setting up a Committee for organizing legal aid

under Section 9A of the Advocates Act, 1961 which provides as under-

80 Mukharjee, D.V., Legal Eduation For Service To The Poor,AIR 1982,Jour 27

81 Paragraph 3 of Resolution dated 22-06-1970
82 Supra Foot Note Number, 17, p.146
83 https://en.m.wikipedia.org,visited on 29-06-2014

89
 A Bar Council may constitute one or more Legal Aid Committees, each of

which shall consist of such number of members, not exceeding nine but not less than

five, as may be prescribed.84

The qualifications, the method of selection and the term of office of the

members of legal aid Committee shall be such as may be prescribed.85

The Bar Council of India which prescribes standards on professional conduct,

also provides, that all the advocates will discharge their social responsibilities.

Rule 46 provides that every advocate shall in the practice of the profession of

law, bear in mind that any one genuinely in need of a lawyer, is entitled to legal

assistance even though he cannot pay for it fully or adequately and that within the limits

of an advocate‟s economic condition, free legal assistance to the indigent may be

provided. Indeed, it is the highest obligation an advocate owes to the society.

3.27 ADVOCATES (AMENDMENT) BILL86

Advocates (Amendment) Bill was introduced in the Rajya Sabha on August 18,

1970, which made provisions for full responsibility for legal aid on the Bar Council but

made no provision for government funds. Instead, it sought to create a fund by raising

the enrolment fee of Rs.100/- paid by lawyers entering the legal profession and crediting

that sum to legal aid programmes.

A Select Committee of the Parliament obtained testimony on the Bill through

mid-1972. Broadly speaking, representatives of the National Legal Aid Association and

other witnesses urged for more extensive funding, wider membership on the governing

84 Section 9A (1) of the Advocates Act, 1961.

85 Section 9A (2) of the Advocates Act, 1962.
86 Supra note 17, pp.146-147

90
panels, and inclusion of law schools. There was a widespread feeling that the Bar

Councils were not the most appropriate institutional instruments for legal aid and hence

more comprehensive machinery should be designed.

Two years after the Bill had been introduced, the Law Minister announced the

government‟s intention to go more deeply into the matter of legal services for the poor.

He stated that he would like to bring before the House a comprehensive scheme of legal

aid, not particularly by the High Courts or the Supreme Court alone. Because the real

platform where legal aid was necessary was the stage where the litigation started which

was at the Taluk level; the bottom level where the people were helpless and were at the

mercy of some unscrupulous lawyers or people with self-interest who would benefit

from forcing litigation on them. Therefore, there could be no other opinions that it was

the duty of the government to go into this matter very carefully.

3.28 THE FUNCTIONS OF THE LEGAL AID COMMITTEE 87

The following are the main functions of the Legal Aid Committee-

 To formulate policies for implementing the legal aid and advice scheme

and to see that formulated policies are properly followed by the State Bar

Council Legal Aid Committee, District and Tehsil Legal Aid Bodies and

also to exercise effective supervision and control over those bodies;

 To arrange Legal Aid Workshops for lawyers ;

 To arrange training programmes for lawyers, para-legal volunteers and

law students ;

 To prepare Legal Aid Literature ;

87 Rule 4 of the Bar Council of India, Legal Aid Rules, 1983.

91
  To arrange for protection of indigents in all cases of aggression ;

 To accelerate Public Interest Litigation ;

 To take appropriate effective measures to locate and assist bonded

labourers;

 To arrange for prosecution or defense to safeguard the interest of women;

 To take all steps to make legal aid to poor masses meaningful and

 To use the Fund i.e. “Bar Council of India Legal Aid Fund”. 88

3.29 COMMITTEE FOR IMPLEMENTING LEGAL AID SCHEMES

(CILAS) 89

The Justice Bhagwati and Justice Krishna Iyer‟s reports on Legal Aid were

revolutionary to protect rights of indigent poor people to be represented before the

court. To build up the justice delivery mechanism, the Central Government on 26th

September, 1980 constituted another high-powered Committee for implementing legal

aid schemes, to monitor and implement comprehensive legal aid programme and to

work out mechanism which could operate at district, state and national level on uniform

basis.The said Committee was known as Committee for Implementing Legal Aid

Schemes (CILAS). This Committee was headed by Justice P.N. Bhagawati, the then

Chief Justice of Supreme Court of India. Justice Bhagwati stated that in view of “the

socio-economic conditions” prevailing in the Country, a court-orientated or litigation

88 Rule 7 of the Bar Council of India, Legal Aid Rules 1983

89 Supra note 17, pp. 150-151

92
oriented programmes is wholly inadequate90. He then enumerated the following tasks of

legal aid programmes-

 Promotion of legal literacy;

 Creation of legal awareness among the weaker sections of the

community;

 Organization of legal aid camps by the State Legal Aid Boards for

carrying legal services to the doorsteps of the people;

 Training of Para-legal persons for the purpose of providing support to

the legal aid programmes;

 Setting up legal aid clinics in Universities and Law Colleges with a

view to utilize the untapped resources of the student community in

constructive channels for providing legal aid to the poor;

 Introduction of the subject, „Law and Poverty‟ in LL.B. curriculam

with the active support and co-operation of the Bar Council of India;

 Exposure of students to the socio-economic realities of Indian life

and of the use of law for the improvement of the lot of the common

man and as “an instrument of socio-economic change” and

 Use of law for public interest litigation through class actions

Thus the report concentrated more on promotion of legal literacy, legal

awareness programme at grass root level, organization of legal aid camps to carry legal

services to the doorsteps of people, training of para-legal volunteer to support legal aid

90 The Lex-Warrier ,Online Law Journal available at lex-warrier.in visited on 19-09-2016

93
programmes, establishing legal aid clinics in different Law Colleges and Universities,

and bringing the common man to participate by means of public interest litigation.

Further, the Chairman of CILAS accepted the significance of the educational

process in its task by observing-

„Educational efforts must become a significant factor contributing to the social

development of the poor‟.

3.30 CONCLUSION

Thus, the study on origin and development of legal aid system in India from Vedic

Period to the present time has shown a gradual development of legal aid system in India.

It is a fact that present legal aid system is the cumulative result of past activities to

protect the rights of needy, poor, illiterate persons facing injustice in the justice delivery

system.

In fact, provisions of Criminal Procedure Code and Civil Procedure Code play an

important role in the practical applicability of legal aid in India till Legal Services

Authorities Act, 1987 came into force. The path for legal aid became more convenient

after the passing of various statutory laws which directly or indirectly dealing with free

legal aid.

Thus, this chapter helps to understand the past system of legal aid to predict the

present and helps in creating a system where everybody can secure justice irrespective

of his financial status.

94