CHAPTER – IV

CONSTITUTIONAL DIRECTIVES AND LEGISLATIVE

MECHANISMS OF FREE LEGAL AID

Providing legal assistance to the weaker sections of the society is the

responsibility of the State towards achieving constitutional ideals mentioning in the

Preamble. This chapter seeks to evaluate the Constitutional directives and mandates and

other legislative measures available to provide free legal aid to the poor sections of the

society. Access to justice is a sine qua non for any society based on principle of ‘justice,

equality and rule of law’ and it is the prime responsibility of the state to protect the

different rights of people emanated from these principles for achieving social justice.

The essence of social and economic justice is the touchstone of the Preamble which has

to be achieved by eradicating the bane of poverty so that, people may live comfortably

with dignity and peace. Social Justice, in the words of Justice Krishna Iyer,1 is a

guarantee of fair deal to every member of the society and removes injury, injustice,

inadequacy or disability from society within its liberal connotation for its sustainability

and stability. Justice cannot be conceived by anyone if it is not fair or equal, and given

in one hand and denied to another. This ideal has always enthused in the hearts of men

since civilization and demands that justice be done alike to rich and poor. Therefore, the

machinery of justice must readily be accessible to all, according to established

principles of equality, justice and rule of law which are the spirit of all substantial socio-

economic welfare legislations. Thus, legal aid is an instrument to achieve the dogma of

equal access to justice for all. Every welfare state recognizes the right to legal aid

1
Iyer, V.R. Krishna (1980). Justice and Beyond. New Delhi: Deep and Deep Publications, pp.157-58.

127
through its different legislations to meet the demand of social justice by protecting the

new social rights of citizens to ensure them social and economic equality. Now, the

legal aid is a matter of right not charity. Earlier, it has been a subject of Governmental

policy but now it has been strengthened as a matter of right by the Constitutional Law

of India and the Legal Services Authorities Act, 1987.

The rule of law in its real spirit excludes arbitrariness and postulate that the

people are under the rule of law and not under the rule of men. In that point of view, the

Gujarat Legal Aid Committee2 rightly observed that the machinery of law is readily

accessible to all when there is rule of law and the poor must be placed in the same

position as the rich by means of adequate legal aid. Legal Aid movement has turned into

a social movement and its eventual aim is to establish social justice by justifying and

ameliorating the legal incapability and hardships of weaker sections of the society.

Legal aid is now an indispensable part of justice delivery system, through which the

system of inequality existed in a legal system can be removed and reconstructed it as a

part of programme to secure social justice to the poor3. Therefore, under the present

legislations the scope of legal aid leads to ample and absolute socialization of legal

process and to change the legal doctrine into a welfare scheme to uplift the life of poor.4

4.1 The Constitutional Framework of Legal Aid

The Constitutional Law of India is the supreme law of the land. It is made by the

people and for the people. Legal aid in India has wide-ranging constitutional status and

ambit. Its jurisprudential roots, socio-economic character and views of legal aid are

2
Government of Gujarat (1971). Report of Gujarat Legal Aid Committee. Gujarat, p. 107.
3
Singhvi, L .M. (1973). Law and Poverty. Bombay: N.M. Triparthi Pvt., p. 287.
4
Sharma, S. S. (2003). Legal Services, Public Interest Litigations & Para Legal Services. Allahabad:
Central Law Agency, p. 11.

128
evident of the deed of ‘we people of India’ who are, by and large, poor and backward

are at once the architects and beneficiaries of new order.

Although the Constitution has specifically provided the provision of access to

justice and free legal aid in Art. 39A but with the assistance of judicial interpretation of

the term ‘right to life’ (Art.21), now right to legal aid and speedy trial are guaranteed as

fundamental right under Article 21.

On the other hand, equal justice is one of the main cornerstones of democratic

system and the Preamble of the Constitution incorporates the declaration to secure to all

its citizens in respect of

Justice in social, economic and political,

Liberty in thought, expression, belief, faith and in worship;

Equality in status or in opportunity; and

to promote among them all fraternity and assuring the dignity of the individual

and the unity of the Nation.5

The Preamble invokes social, economic and political justice as a core principle.

The aims and objectives are intended to be secured are set forth in the Preamble which

inter alia provides for securing social justice. In Preamble, the seeds of legal aid and

public interest litigations are hidden in the promise of equality of status in social,

economic and political and to maintain the dignity of the individual.6Equal access to

justice to all connotes equality as means of doing justice and as an end of justice.

5
Singh, M.P. (2013). V.N. Sukla’s Constitution of India. Lucknow: Eastern Book Company, p.1.
6
Tewari, Om Prakash (2004). Public Interest Litigation, Legal Aids and Para Legal Services. Haryana:
Allahabad Law Agency, p. 70.

129
 The right to legal aid is embedded in the ‘Guarantee of a Welfare State’ as

promised by the Preamble to the Constitution. This noble ideal would remain an idle

formality until and unless each citizen of India has reasonable access to Law Courts,

which are the primary dispensers of justice. This ideal of securing equality of

opportunity, which by connotation also denotes equal opportunity for justice, can only

be realized as constitutional promise of social justice if the citizens have an assured

system of access to justice. The barriers on the way of the poor to access to justice are

illiteracy, ignorance and poverty which are to be removed from the society for

establishing social justice.7 Moreover, the preamble also talks about assuring the dignity

of the individual. The dignity is possible if the citizens can enforce their rights and

obligations by overcoming their poverty to have free access to justice as a system of

remedy to courts which basically means a free legal aid system to the poor needy

people.

Fundamental Rights and Legal Aid

Legal aid is strongly a necessary adjective of law. From the humanitarian point

of view it is the utmost principle of human rights. The right to equality inscribed in

Constitution can only be maintained if the idea of legal aid could flourish logically. Part

III of Indian Constitution from Art.14 to Art.32 guarantees Fundamental Rights to all

citizens. The mandate of legal aid emanates from Preamble which is further

strengthened by Art.14, entail an opportunity of equal access to justice and also Art. 21,

which establishes that the procedure for depriving a person from his right to life and

liberty must be fair, just and reasonable. These rights are interpreted by higher judiciary

7
Gulati, Ajoy (2009). Public Interest Lawyering, Legal Aid and Para Legal Services. Allahabad: Central
Law Publications, p.118.

130
dynamically in different times and both these rights are essential for exercising the right

to access to justice. The denial of access to justice to a person is an output of social and

economic inequalities and amount to violation of right to equality, life and liberty,

therefore, the right to legal representation at State expense in judicial proceeding is

recognized as a fundamental right.8

Right to Equality

Article 14 of the Constitution is the fundamental postulates of the Indian

democracy and speaks that the State shall not deny any person from the principles of

equality before the law or equal protection of the laws, within the territory of India.

Under this article, every person is equal before the eye of law and has the right of equal

protection of the laws, whether he may be rich or poor, high officials or a layman,

educated or uneducated and differently abled person in body or economy or otherwise

man or woman etc. Art 14 is the foundation of right to legal aid, public interest

litigation, and locus standi and with the support of these vehicles the destination of

social justice can be reached.9

Equality in administration of justice thus forms the source of all modern systems

of legal jurisprudence. The legal aid is only the practical method to guarantee that, no

person shall be denied the equal protection of the laws because of his poor socio

economic condition. In this point of view equality before the law unavoidably involves

that all the parties to a proceeding in which justice is sought must have an equal

opportunity of access to the Court of law. But, the access to the courts depends upon the

nature of case. In so far, when a person is unable to obtain access to a court of law due

8
Pakhira, Anurup (2007). Free Legal Aid –A Journey From Ancient Period to Legal Services Authorities
Act, 1987. All India High Court Journal Section. October, Vol. XIII, Issue (10), p.152.
9
Supra, n.6, p.71.

131
to his poor economic condition for defending himself against a criminal charge, justice

becomes imbalanced and the laws, which are meant for his protection, become fruitless

and to that extent of failing in their purpose. Unless some provisions are made for

assisting the poor man for the payment of lawyer’s fees and other incidental costs of

litigation, he is denied equality in the opportunity to seek justice rendering the poor

litigant; and turned into a question of fundamental character of equality.

The discrimination on the ground of poverty is considered as violative of Article

14 of the Constitution of India. When Court interprets the provisions of Article 14, it

can direct the State not to deny the principle of equality to those who have no sufficient

means of representation in the courts of law. Equal justice always requires that the legal

rights of the poor and his ability to enforce such rights should be similar to the richer

ones. However, the right to differential treatment is the basis of free legal aid since the

poor litigants are unable to approach court for the remedy of their grievances and hence

differential treatment by way of free legal aid is fully justifiable for them under Article

14 of the Constitution.

Equality before the law implies absence of any special privilege in favour of

individuals and equal subjections of all classes to the ordinary law. There is a complete

absence of any special privileges for a government official or for any other person.

Elaborating the meaning of Equality Before Law, A.V. Dicey observed,10 that no men is

above the law, every man, whatever be the rank or condition, is subject to the ordinary

law of the courts and amenable to the jurisdiction of the ordinary tribunals.

The concept of equality, however, does not mean absolute equality among

human beings which is physically not possible to achieve. If the Preambular objectives

10
Kesori, U.P.D. (2014). Administrative Law. Allahabad: Central Law Publications, p.26.

132
of the Constitution and other provisions read all along, it means treating unequal as

equals and to make aware the people about their rights and all intensive efforts are to be

given to improve the lowliest people. However, legal aid, is a catalyze representative to

the procedure that brings socio economic revolution through the instrumentality of law,

which subsequently connect with the provisions of equality. To achieve the objective of

equality before the law in the Indian society and to dispense justice properly amongst its

unequal segments, legal aid is a hope and promise to grow equally to those loafed and

luxuriated attracts and a source and substance from the point of Art. 14 of the

Constitution.11 Therefore, it is very necessary for the judicial body to interpret Art. 14 in

a liberal and progressive way that will help to convert legal equality to social equality.

Protection of life and personal liberty

Art. 21 is one of the lengthiest Article of the Indian Constitution which is

considered to be the backbone of the Constitution. The importance of this Article could

be crystallized by the rate of cases in which it is involved and its dynamic interpretation

of judiciary gives a new shape which are hidden in its language. Art. 21 explained, not

to deprive the life or personal liberty of a person except according to procedure

established by law. Article 21 also carry out a sense that no person are to be

handicapped in his life or personal liberty due to his poverty or incapability of

approaching a Court of law for protecting and defending his legal and constitutional

rights. It is a striking feature of the development of Constitutional Law in India that

after a long struggle, which have started tangibly since A. K. Gopalans case of 1971 and

11
Singh, Sujan (1996). Legal Aid Human Right to Equality. New Delhi: Deep & Deep Publications, p.
135-136.

133
finally in Maneka Gandhi’s12 case, Supreme Court of India held that right to life as

enshrined in Art. 21 means something more than survival or existence, it is a right of a

person to live with human dignity and includes all those aspects which makes a man’s

life meaningful, complete and worth living. It is also cleared that mere procedure under

Art. 21 is not enough to comply with the mandate of Art.21. Hence, the procedure must

be prescribed by law and is to be fair, just and reasonable but should not be oppressive

and arbitrary. As a result of which, Supreme Court of India has declared in Maneka

Gandhi vs. Union of India 13that right to free legal services is an essential ingredient of

reasonable, fair and just procedure for a person accused of an offence. Supreme Court

has expanded the concept of legal aid as provided by Art. 39 A through the provision of

Art 21. The founding father of the Constitution had created only the substantial frame

by including the right to life as a Fundamental Right under Art 21. But later the Hon’ble

Supreme Court of India has put the life and soul in Art. 21 by judicially expanding it to

a number of rights, which are flowing directly from the right to life and is essential for

just fair and reasonable procedure in the interest of administration of justice14. Through

the various judgments, Supreme Court has given a proper weightage and support to the

legal aid programmes and has given to a large extent for required momentum.

In Sheela Barse vs. State of Maharastra,15 Supreme Court has further

strengthened the meaning of life and liberty of Art. 21 with a view to make a channel of

justice available to the poor as well enlarged the scope of legal aid. In that case Hon’ble

Court held that the legal assistance to a poor or indigent accused is a Constitutional

directive not only by Article 39A but also a protection under Articles 14 and 21 of the

12
AIR 1978 SC, 597.
13
Id.
14
Supra, n. 7, p. 113.
15
AIR 1983 SC 378.

134
Constitution.16 Hence, Article 21, guarantees right to legal aid as a fundamental right of

an indigent accused; and provides a very potent source for the schemes and services of

legal aid at the hands of the state.

Protection against Arbitrary Arrest and Detention

Art. 22 is a significant part of the right to legal aid concept because it guarantees

the right to be represented by a legal counsel of one’s choice. Clause (2) of Art. 22 says

about the right of an arrestee and guarantees not to deny the right to consult of an

arrested person and to be defended by a legal practitioner of his choice. Thus this

provision guarantees minimum rights of an arrestee so that, arrestee can enjoy the right

to consult with a lawyer to defend himself. Clause (1) of Art. 22 makes certain to inform

the person about the grounds of his arrest as mandatory and person cannot be detained

without being informed the ground of his arrest. Under Clause (3) of Art. 22 further

cleared that the arrestee has to be presented before the nearest Magistrate within a

period of twenty four hours of such arrest excluding the time necessary for the journey

from the place of arrest to Court of the Magistrate. The detention of a person more than

three months is not permissible as defined by Clause (4) of Article 22 but beyond such

time is subject of permission of Advisory Board17, whose opinion is treated as sufficient

cause for such detention. There are two parts in Article 22: clause (1) and (2) consist of

first part which applies to the persons arrested or detained under a law otherwise than

16
Sehgal, Sangita Dhingra (2012). Commentary on the Legal Services Authorities Act, along with rules,
regulations, schemes, state laws and proformas. New Delhi: Universal Law Publishing Co. Pvt. Ltd.,
p.15.
17
Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judge
of a High Court.

135
the law of public detention and clauses (4) to (7) as second part applies to persons

arrested or detained under a law of preventive detention.18

The provisions19 of Part III of the Constitution acts as a touch-stone to test the

virus of any state legislation in its spirit, to confer upon the Indians the right to legal aid.

However, more express provision of legal aid is supported by Art. 39A as one of the

directive principle of the Constitution.

Directive Principles of State Policy and Legal Aid

India strives to be a welfare state and it is reflected in the Directive Principles of

State Policy enshrined in Part IV of the Constitution. Although these principles are not

subject to be enforceable before any court but the principles laid down therein are

fundamental in governance of the Country. These principles are some directions given

to the state to apply in making laws.20 Apart from the provisions of fundamental rights

and the Preamble, the directives principles are expressly provided under Art.38, 39A

and Arts21. 41, 42, 43 and 48 A for securing social justice in India.

Art. 38(1) of the Constitution provides for social security and directs the state to

secure all economic, political and other social orders for the promotion of welfare of the

people at large. Article 38 (2) also directs the State to attempt to minimize the

inequalities in income and make an effort to eliminate the inequalities in facilities,

opportunities, in status amongst individuals and groups of people residing in different

18
Supra, n. 6, p. 72.
19
Article 13 of the Constitution provides under clauses (1) and (2) :“13(1) All laws in force in the territory
of India immediately before the commencement of this Constitution, insofar as they are inconsistent
with the provisions of this part, shall to the extent of such inconsistent, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this part and
any law made in contravention of this clause shall, to the extent of the contravention, be void.”
20
Article 37.
21
State is obliged to make provisions for securing the right to work under Art.41, just and human
condition, Art. 42, living wage, Art.43, and protection and improvement of environment under Art.
48A.

136
areas or engaged in different vocations. Reading Arts. 21, 38, 42, 43, 46 and 48A

together, the Supreme Court has concluded in Consumer Education & Research Centre

vs. Union of India22 that right to health, medical aid to protect the health and vigour of a

worker while in service or post retirement is a fundamental right to make the life of the

workman important and persistent with dignity. Thus the retired persons are able to

maintain his life and dignity through the pension scheme and senior citizen schemes. In

this case Supreme Court opened the theme of social justice which is visualized in the

Preamble and in Article 38 of the Constitution. Social Justice is the bow of the

Constitution which ensures life to be meaningful and livable with human dignity. Social

Justice is an energetic device to remove the suffering of the poor, weak, and deprived

sections of the society. The purpose of social justice is to achieve extensive degree of

economic, social, and political equality. Article 38 is complemented by Article 39

which puts stress on certain feature of economic justice.23

Though different provisions of the Constitution do not lay emphasis on right to

legal aid directly or initially but it is Art. 39 A, inserted in the Constitution by way of

42nd amendment24 of the Constitution which directly deals with legal aid. This article

inserted with the aim for achieving equality as the product of social and economic

justice set forth in the Preamble states that the state should secure the operation of the

legal system to promote justice on the basis of equal opportunity, and should provide

free legal aid in particular, under a suitable legislation or schemes or in other way to

ensure the opportunities for securing justice are not to be denied to any citizen by reason

22
AIR 1995 SC 923.
23
Jain, M.P. (2003). Indian Constitutional Law (5th ed). Nagpur: Wadhwa and Company, p. 1607.
24
42nd Amendment Act 1976, (w.e.f. 3-1-1977).

137
of economic or other disabilities.25 The basic object behind insertion of Article 39-A is

to mitigate inequalities so that, justice reaches to the door of the poor and weaker

section of the society.

Now the rights of free legal aid and speedy trial are guaranteed as fundamental

rights under Article 21. On the other hand, Article 39–A is only a direction to the State

and the principles contained in Article 39-A are fundamental in nature and casts a duty

on the state to secure the operation of the legal system to promote justice on the basis of

equal opportunities and also directs to provide free legal aid to the downtrodden

sections of the society by legislation or otherwise. Certain basic and fundamental rights

have been provided to every citizen under Articles 14, 21, 22 (1), and at the same time,

an obligation is also put upon the state by the framer of the Constitution under Art 38

and 39-A to help the needy and poor people to avail the same. War against ‘Legal

Poverty’, has now been accepted as slogan of Welfare State.26 Article 39-A is finally

determined the constitutional status of free legal service and an interpretative tool of

Art.21.

Thus, Art. 39 A lay down the foundation for appropriate social justice in which

poor disadvantageous section of society will find its place of dignity, justice and

equality. The most comprehensive part in the context of legal aid is that for the

promotion and support of justice delivery system, legal aid is included in Concurrent

List of the Seventh Schedule of the Constitution.

25
Basu, D.D. (2006). Shorter Constitution of India (13th ed). Nagpur: Wardhwa and Company Law
Publisher, p.453.
26
Supra, n. 16, p. 4.

138
The Lists under Seventh Schedule

Legal aid is a matter of Concurrent List27 with the object to enable the union and

state to put their strength behind the benefit of legal aid. ‘Legal aid’ falls within the

legislative entry relating to ‘administration of justice’ of the Seventh Schedule of the

Constitution. The entry of ‘administration of justice’ connotes the gear and machinery

for the enforcement of legal rights and liabilities and giving justice to every man as his

due.28 On the basis of the list both Union and State Governments are responsible to

make any law for administration of legal aid, and the following items obliged them in

these prospects.

Union List, entries 77-78 speaks to allow a person to practice before the

Supreme Court and High Court,

State List, entry 3 includes the Administration of Justice and cost of the court,

The Concurrent List, entries 2 and 13 covers both Criminal and Civil Procedure,

also

entry 20 covers social and economic arrangement,

entry 23 includes all social safety measures etc.

entry 24 covers labour welfare and

entry 26 includes the legal profession.

The concept of legal aid is a part of social justice and has acquired place and

support in Preamble, Fundamental Rights, and Directive Principles of State Policy and

27
Article 246 (2) Central Legislature and State legislature have power to make laws on any matters of
List III of Seventh Schedule. Hence Constitution referred the List III as “Concurrent List” where legal
aid is incorporated as item 11-A.
28
Government of India (1973). Report of the Expert Committee on Legal Aid ‘Processual Justice to The
People. Delhi: Ministry of Law, Justice and Company Affairs. May, p. 5, para. 6.

139
in the lists of Seven Schedule. As per the wish and guidelines of the Constitution, the

State Government has enacted the different policies and schemes for administration of

legal aid as well as for achieving the goal of the Preamble.

Dispensation of justice to the poor is a rule of law. It is both a technique and a

regulation. Therefore, as a technique it has developed in the shape of Lok- Adalat which

provides justice at the door steps of the poor rather than call them to the Court for

justice29 which is a part of duty of a welfare state for securing social justice.

4.2 The Statutory Framework of Legal Aid

Criminal law is a disciplinary arm of legal order. Therefore, special interest is

given to such order at the time of administration of criminal law. Justice V. R. Krishna

Iyer precisely mentions that30apart from the pronouncement of the Hon’ble Supreme

Court on the Right to Legal Aid as a fundamental right, there are some specific

provisions in procedural laws which provide assistance to the poor. Some of the parts of

these provisions more or less remain in active. But, the judgments of apex court are

giving an innovative life to these provisions and treating them as fundamental part of

the right to legal aid.

Free legal aid is provided to an accused in certain criminal cases under Sec. 304

of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.PC.). Under Sub-sec (1)

of Sec. 304, it is provided that the Court can assign a pleader to an accused for his

defense at the cost of the State, in a trial before the Court of Session, if the court comes

into view that the accused has not sufficient means to engage a pleader. It is the power

29
Paranjape, N. V. (1996). Arbitration and Alternative Dispute Resolution in India (3rd ed.). Allahabad:
Central Law Agency, p. 284.
30
Iyer, V.R. Krishna (1979). Law and Life. New Delhi: Vikash Publishing House, p. 136.

140
of the court to provide such service in the interest of social justice which gives a new

dimension to the criminal justice system.

On the other hand Sub sec.(2) of Sec. 304 of the Cr.PC. defines that the High

Court may, with the prior consent of the Government, formulate rules for the selection

of pleaders for defense and under sub-sec. (1) the facilities are to be provided to such

pleaders by the court and determine the sum to be paid to such pleaders by the

Government for carrying out the principles of Sec 304. In this respect, Sub-sec (3) of

Sec.304 provides that it is necessary for the Government to issue the notification by

mentioning its date. Thus, the provisions of Sub-sections (1) and (2) are applied in

relation to any class of tribunals or Courts in the State.31 Finally it is clear that these

provisions help the contents of legal aid to make it stronger under Article 21.

Moreover, the High Court makes the rules for assigning a pleader to poor

indigent accused to trial before the Court of Session in some cases. The present code, in

Sec. 304 further makes a condition precedent for providing legal aid to the accused in a

trial before the Court of Session and in a trial before a Magistrate in certain cases. It also

defines that only two circumstances supports for assigning legal aid on the cost of the

State to an accused. They are —

i) When he is not represented by a pleader; and

ii) if he has not sufficient means to engage a pleader. After completion of these two

conditions the court assigns amicus curiae. The most vital point is that if the Court does

not allocate a pleader on the State cost, then the trial amounts to vitiate and if the

accused be convicted without assigning him a legal representative, then the conviction

31
Misra, S. N. (2014). The Code of Criminal Procedure, 1973 (19th ed.). Allahabad: Central Law
Publications, p. 447.

141
amounts to violation of Article 21 of the Constitution. Hence, the section gives a legal

protection to enforce his right to access to justice along with Art. 21. However, in

Sheela Barse vs. State of Maharastra,32 the Court had decided to make legal aid

available to prisoners in jail whether they are under trial or convicted prisoners and put

the prisoner to contact with a voluntary legal aid society. The Court also directed the

government to provide legal assistance to that person who seeks legal assistance and

have no opportunity of access to justice without huge cost.

In Lathunpuia vs. State of Mizoram,33 The Gauhati High Court held that when

the accused is unable to engage a lawyer due to his poor socio-economic condition, the

court shall make available a legal practitioner to the accused as considered in Sec. 304

of Cr. PC., and such legal assistance is to be provided to the accused throughout the

proceeding. The High Court with the earlier consent of the State Government can make

rules for choosing pleaders and other requisite facilities and charge for providing to

such pleader. It is found that the court has laid emphasis to protect the interest of Art.21

with the assistance of Sec. 304 of Cr.PC.

Gradually the judiciary as well as legislature began to think about the needs of

legislation which could help in the eradication of mal practices from society that

prevents the poor in getting their justice.

On the other hand, the Code of Civil Procedure, 1908 (hereinafter referred to as

the CPC or the code) also lays down the procedure of civil judicare. The equality before

the law and the principle of equal standing are the essential principles of civil

jurisprudence. CPC formulates a provision for extending the benefits of legal aid to

32
AIR, 1983 SC. 373.
33
2004 (3) RCR (Criminal) 205 Guwahati.

142
those who are incapable to avail a legal counsel in their case and incapable to pay the

substantial amounts of court fees, that makes to avail the civil rights more difficult for

the poorest of the poor of the society. To make civil justice available, CPC. provides

special provisions for suits filed by an indigent person under Order XXXIII.34 Further

Order XXXIII Rule 9-A35 allows an unrepresented person to sue and represent by a

pleader, when he has fulfilled the required circumstances of the case.

However, the High Court, after getting approval of the State Government, may

formulate rules for choice of pleader, facilities to such pleader by the Court and other

matter required to be or may be provided by the rules for giving effect to the provisions

of sub-rule (1) Order XXXIII.

Thus, it is clear that the CPC provides legal aid to an indigent person by

exclusion of payment of court-fee, process-fee and the assignment of a pleader to file a

civil suit.

Further, Order XXXIII, Rule 18 authorizes the Central Government and State

Government to make supplementary provisions for extending legal aid benefits to an

indigent person. While the High Court also may with the previous consent of State

Government makes rules for carrying out the additional provisions to the rules made by

Central and State Government. On the other hand the State Schemes as formulated by

the State Government provides broader provisions of legal services to the poorest of

the poor and the lowliest of the low of the Indian society.36

34
Suit by indigent person, Order XXXIII.
35
Inserted by way of C.P.C. (Amendment) Act, 1976.
36
Supra, n.11, p.175.

143
 Thus, it has been observed that legal aid in criminal cases is regulated under

Section 304 of Cr. P.C. which enables the Court of Session to assign a pleader for the

defense of the accused at the expense of the state under the condition that he is

unrepresented and the Court is satisfied that he has no sufficient means to engage a

pleader. Now the boom of section 304 finds place in Art. 39 A of the Constitution.

However, both the procedural codes are not intended to compromise any right of the

poor because of their poverty. On the other hand it is the rule of the court and duty of

the plaintiff to pay the court fee when sue. But Order XXXIII of CPC subject to some

conditions exempted such person from paying the fee if he is unable to pay due to his

poverty. The basic object of Order XXXIII is to protect the bonafide claim of indigent

and not to harass the defendant and to safeguard the revenue. Rule 1 Order XXXIII of

CPC provides legal aid for suits by indigent persons and through Civil Procedure

Amendment (Amendment) Act 1976, the eligibility limit for indigent increased to Rs.

1000. However, ‘Juristic Person’ is also included within that provision. But this

provision does not fall within the scope of Art.226. The facility under Rule 1 Order

XXXIII is available to those who have been permitted to sue as indigent persons by the

court. Further the code provides the facility of appeal under Order XLIV by an indigent

person. Thus it is an essential component of fair, reasonable and just procedure under

Art. 21 of the Constitution. The most advantageous point of this procedural law is that,

the benefits of free legal aid are provided to both plaintiff and defendant when the

circumstances of the case so permits.

Moreover, the protection of interest of poor person under a legal system depends

upon the facilities providing to them in a legal proceeding. In this respect, legal counsel

144
acts as a key to open the proceeding of a case and their profession regulated under the

provisions of the Indian Advocates Act, 1961.

The Advocates Act, 1961, regulates the legal profession uniformly within India.

The State Bar Council of India37and the Central Bar Council of India38 established under

the Advocates Act are enabled to make rules39 for Advocates to practice in Court of

Law.40 Both the councils, therefore, make rules for the functioning of Advocates and

cast a duty on every Advocate of the Country to render legal aid as a part of their

professional conduct. In this respect the Advocates Act provides the duty of advocates

that the lawyer by profession bear in mind that anyone genuinely in need of a lawyer is

entitled to avail legal assistance even though he cannot pay for it. Within the limits of

an Advocate’s economic condition, providing free legal assistance to the indigent and

oppressed is one of the highest obligations of Advocate that he owes to the society.41

Thus, the Act prohibits the Advocate from taking any undue advantage from the parties

due to their ignorance and illiteracy.

Therefore, it is significant that both the Acts provide a comprehensive

mechanism and tools to deal with the cases of the poor and downtrodden people of the

society and for promoting the noble profession of Advocacy to be a part of social

justice.

With a righteous object The Gram Nyalaya Act, (hereinafter referred as ‘the

Act’) has come into effect from 2nd October, 2009 for the establishment of the Gram

Nyayalayas at the grass roots level along with the purpose to provide justice to the

37
The Advocates Act, 1961, Section 3.
38
Ibid, Section 4.
39
Ibid, Section 15.
40
Ibid, Section 33.
41
Ibid, Rule 41, Section 6.

145
people at their door steps. Under the Act, the Gram Nyayalayas are to be established in

every Panchayat at intermediate level.42 The Gram Nyayalaya is a mobile Court and

decides the matters within the jurisdiction of a particular area. Thus, it is a justice

delivery system, which is working today in the Indian rural society not only with the

force of social sanctions but also under the statutory recognition acts as a part of

administration of justice. Further, the 73rd Constitution (Amendment) Act43 has made a

fresh effort for the establishment of these institutions at the grass root level of the Indian

society. The panchayat laws are enacted by the different States in different time within

the Constitutional mandate. Assam also identically enacted the Assam Gram Panchayat

Act in the year of 1994. But no notification has been made by Assam Government till

the date regarding the implementation of Gram Nyayalaya Act, 2008.

To maintain the statusquo of equality principle The Mental Health Act, 1987

(hereinafter referred as ‘the Act’) was enacted with a noble object to provide the

benefits of free legal aid to mentally ill person at the cost of the state.44 To prevent the

mentally ill person from any mal administration of justice, the Act provides them the

right to take legal assistance for their defense. When a mentally ill person does not have

sufficient means to engage a lawyer in any Court proceedings then the Court may assign

a legal practitioner for his defense. Having regards to the circumstances of the case the

court appears that such person ought to be represented by a legal practitioner.45

It is also submitted that legal aid is also available at the time of application to

release the patient from a psychiatric hospital or nursing home. The discharge process

42
The Gram Nyayalayas Act, 2008, Section 3(1) 6.
43
1992 on Gram Panchayat, provided guidelines and directives for brining uniformity in the functions of
Panchayati Raj Institution.
44
Mental Health Act, 1987, Section 91.
45
Code of Criminal Procedure, 1973, Section 304.

146
may cause complexity to the patients since they may not be aware of their rights,

procedure to seek discharge and to move with requisite materials of the application

before a Magistrate. The Act empowers the mentally ill person to make an application

to the Magistrate for his discharge.46 Therefore, the provision of legal aid covers not

only the post- application phase but also pre-application phase as well to begin the

process of release. As a result, the patient who has recovered remains incarcerated in the

hospital for many years. The Act is not in favour of the establishment of any legal aid

mechanism to ensure that the patients who have recovered should be provided legal aid

in seeking their discharge. Moreover, the Act accords a complete right47to legal aid and

a qualified right to legal representation to a mentally ill person48.

From the above list of Acts, it is seen that all the legal provisions relating to

provide legal assistance to the poor are sufficient. These provisions are included in

different legislations and the overall sides to provide free legal service to the poor

cannot be overlooked. Therefore, it would be unrealistic to expect that free legal service

can be completely and directly provided to the needy and downtrodden people until the

implementing mechanisms are adopted under an independent act.

India has an indigenous system of administration of justice which is capable of

dispensing real justice with speedy mechanism and free proceeding cost. The Legal

Services Authorities Act, 1987 is the fundamental legislation in the field of legal aid

which aims to provide free and competent legal services to the weaker sections of the

society through its different mechanisms.

46
Supra, n. 44, Section 43.
47
Ibid, Section 93.
48
Bisht, J. S. (2014). Legal Aid in India- A Critical Appraisal. Indian Bar Review. Vol. 41 (2), p. 58.

147
Legal Aid under the Legal Services Authorities Act, 1987

In order to ensure equality between the poor and rich litigant, Article 39-A of the

Constitution of India imposes duty on the state to secure the operation of legal system

and to promote justice on the basis of equal opportunity. In particular, Art. 39A defines

for providing free legal aid by suitable legislation or schemes. Though the directive

principles are not enforceable in any court, it is the duty of the state to apply the

principles in making law. Thus, for the fulfillment of constitutional obligations as well

as to implement the provisions of International Convention on Civil and Political

Rights, the Parliament of India passed the Legal Services Authorities Act in 1987

(hereinafter referred to as ‘the Act’).

The aim and objects of the Act is to provide free and competent legal services to

the weaker sections of the society and to make it sure that opportunities for securing

justice shall not to be denied to any citizen only because of economic or other

disabilities. The Act also directs the state Government and the concerned authority to

organize Lok Adalats as an alternative mode of justice delivery system to secure that the

operation of the legal system only to promote justice in all segments on the basis of

equal opportunity.49 The Act runs into 30 Sections, with 10 chapters including

implementing mechanism such as National Legal Services Authority, State Legal

Services Authority, District Legal Services Authority, Lok Adalat and other

miscellaneous provisions. The Act provides for the structure and arrangement of strong

network in between the national, state and district legal services authorities.

However the Act under Section 12 prescribes the eligibility criteria of a person

49
The Legal Services Authorities Act, 1987, Objective Clause.

148
to avail free legal services, which are also termed as the pillar of the Act. Therefore the

person must be a -

a. member who belongs to Scheduled Caste or Scheduled Tribe;

b. victim of human trafficking or beggar as defined in Article 2350 of the

Constitution;

c. vulnerable group such as woman or children,

d mentally ill or otherwise disabled person,

e victim of natural calamities such as mass disaster, ethnic hostility, flood,

drought, earthquake or industrial disaster and caste atrocity,

f. Workman of industry, person in custody, including keeping in a protective

home51 within the meaning of Clause (g) of Sec 2 of the Immoral Traffic (Prevention)

Act, 1956 or in a juvenile home within the meaning of clause (g) of Sec 2 of the

Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric

nursing home within the sense of Clause (g) of Sec 2 of the Mental Health Act, 1987

(14 of 1987); or

g. the case which is before a court not in Supreme Court and the annual income is

less than rupees nine thousand or such other higher amount as may be prescribed by the

State Govt. But it is different in case of Supreme Court i.e. rupees twelve thousand or

50
Prohibits human trafficking and other similar forms of forced labour.
51
An institution established by State Government under Section 21 of the Immoral Traffic (Prevention)
Act, 1956, in which persons may be kept, who are in need of care and protection but it does not include
a shelter where undertrials may be kept in pursuance of the Act and a corrective institution.

149
such other higher amount as may be prescribed by the Central Govt. (But these rules are

subject to changed)52

After fulfillment of required norms by an applicant as per Sec. 12 and the

existence of a prima facie case the Legal Services Authorities in his favor provides him

a counsel at state expense and pay the necessary charges of the Court and bear all

subsidiary expenses of the case. Moreover, the person to whom legal aid is provided is

not called upon to spend anything on the litigation once the person is supported by Sec.

12 he need not pay anything in Court.

Sec. 12 of the Act is truly a welcome development in the field of legal aid and

gives a different strategic statutory status to legal aid. In order to reach out to the

common people, National Legal Services Authority (hereinafter referred as NALSA)

established under Sec. 3 of the Act has come up with a mission to set up legal aid clinic

in all villages, police station, court, educational institution as well as render services to

mentally ill person and to disaster victim etc. To implement the provisions of Sec. 12 of

the Act, NALSA has been providing different facilities by introducing different schemes

and regulations since its establishment to assist and empower the people who face

barriers to access to justice.

It is seen that the Act provides for the establishment of institutional mechanism

and their structure for observation, action and enforcement of the facilities of the free

legal aid. The three hierarchical legal services authorities and three legal services

committees are created by the act in order to facilitate the service of legal aid and for

holding Lok Adalat from the Apex Court at central level to the Sub-divisional Court at

52
Supra, n.49, Section 12.

150
lowest level. NALSA53 at central level is established as the apex body and under the

direct supervision of this authority two other bodies are constituted which are termed as

Supreme Court Legal Services Committee54 and the State Legal Services Authority55

(hereinafter referred as SLSA). In every state there are two other bodies namely High

Court Legal Services Committee56 and District Legal Services Authority 57

(hereinafter

referred as DLSA) and they are obliged to perform their functions under the guidelines

and supervision of SLSA. The Taluk or Sub-Divisional Legal Services Committee58 is

constituted to work at grass root level under the direct control and the supervision of

DLSA, and subject to total control of the SLSA. The Hierarchy of the Legal Services

Authorities and the Committees are–

National Legal Services Authority (Central Authority), Sec. 3

Supreme Court Legal Services Committee, Sec.3A

State Legal Services Authority, Sec 6

High Court Legal Services Committee, Sec.8A

District Legal Services Authority, Sec. 9

Taluka or Sub-Divisional Legal Services Committee, Sec 11 A

The most advantageous position of the Act is that a countrywide networking

system is created under this Act for providing legal aid and assistance to the needy ones.

NALSA is the apex body which comprise to lay down policies and principles for

53
Ibid, Section 3.
54
Ibid, Section 3-A.
55
Ibid, Section 6.
56
Ibid, Section 8-A.
57
Ibid, Section 9.
58
Ibid, Section11-A.

151
making legal services available under the provisions of the Act and to frame most

efficient and inexpensive schemes for legal services.59 Regarding the fund, NALSA

distributes it to SLSA and Non-Governmental Organizations for implementing legal aid

schemes and programmes as directed by NALSA.

However, the Act is more comprehensive in the sense that the Act alone and

only makes the provisions for the establishment of implementing body as a

responsibility to fulfill the aim and object of the Act.

The success of the Act is more precisely dependent upon its implementing

bodies. Therefore, the Legal Services Authorities Act deals with NALSA under Sec 3-5,

as the apex body to administer and to regulate the free legal services all over India. The

Central Government empowers to establish the National Legal Services Authority60 also

known as Central Authority, consisted with Chief Justice of India acting as Patron-in-

Chief and a serving or retired Judge of the Supreme Court acting as Executive Chairman

is selected by the President in consultation with the Chief Justice of India. The other

members, having knowledge and qualifications, as may be arranged by the Central

Government,61 are selected by that government in discussion with the Chief Justice of

India. To make more stronger the central authority, the Central Government in

discussion with the Chief Justice of India, assigns a person as the Member-Secretary62

of the Central Authority, having skill, experience and qualifications as may be defined

by that Government, to exercise powers and function under the Executive Chairman of

59
Pathak, Varun. A brief historyof legal aid. Retrieved 4/11/2013 at 9 pm., from
http://www.legalserviceindia.com/articles/laid.htm.
60
Supra, n. 49, Section 3.
61
Ibid, Section 3(2).
62
Ibid, Section 3(3).

152
the Central Authority as may be arranged by that Government or as may be directed by

the Executive Chairman of that Authority.63

Moreover, the member secretary of the central authority authenticates the

decisions of the central authority or in absence of him any other officer of central

authority duly authorized by him on his behalf can verify.64 All the administrative

expenses of the Central Authority are made out of the Consolidated Fund of India. All

the schemes and measures to make legal services available are prepared by the Central

Authority. The scheme of the central authority also tries to prevent the barriers of access

to justice.

While, Central Authority under Sec. 4 is empowered to adopt and implement

different schemes and measures for making legal services available under the provisions

of the Act on such matter-

a) Separate Lok Adalats are established for quick and amicable settlement of a

large number of cases pending in Government Departments, Statutory Authorities and

Public Sector Undertakings in all Districts.

b) Providing official recognition to the Non-Government Organizations for

promotion of legal aid,

c) appointment of "Legal Aid Counsel" in all Courts for representing the poor

needy people,

d) holding Lok-Adalats for reducing the burden of regular courts and adopting

measures for publication of programmes and policies to make people aware and giving

63
Supra, n. 59.
64
Supra, n. 49, Section 3(7).

153
stress on competent and effective legal services for the aided persons and for providing

facilities in jails.

e) prepare schemes for training of judicial officers on legal services schemes and

programmes as well as giving general directions to fulfill the objects of policies and

programmes of legal services and monitoring the functions of different authorities and

committees established under the Act and communicating to all.

f) Moreover, "Nyaya Deep", an official newsletter is published by central authority

and all legal aid programmes are checked and evaluated periodically.

Thus, to overcome the problem of legal aid, NALSA, the central enforcement

mechanism under the Legal Services Authorities Act, 1987 was established on 5th

December, 1995 in New Delhi. His Lordship Hon. Justice A. S. Anand, Judge, Supreme

Court of India took over charge as the Executive Chairman of NALSA on 17th July,

1997. His Lordship started different legal aid programmes very enthusiastically for

making the functions of NALSA more effective. In December, 1997, the first Member

Secretary of the authority joined. Soon after by December, 1998 the other officers and

staff were assigned. By February, 1998 the office of NALSA became a complete

authority was able to perform its functions properly.65

The most significant function of NALSA is that it has formulated a ‘National

Action Plan’ to implement the different functions and regulations in a year. NALSA has

given more emphasis on the proliferation of legal literacy and legal awareness

programme and initiate with preventive and deliberative legal aid programmes. Thus

under the supervision of NALSA, and with the help of other implementing bodies along

65
Supra, n. 59.

154
with responsible voluntary organizations, the legal literacy movement proceeds to

backward and remote areas of the country. The purposes of these programmes are to

create awareness among the people about their rights and to facilitate them to approach

the Court to seek their remedy. State Legal Services Authorities are asked to establish

legal aid clinic in jails to make available the legal services to the prisoners. The different

rules and directions of NALSA followed by SLSA by converting it to a calendar activity

and a guide book has prepared as “State Plan of Action” for a particular year. Under the

Plan of Action, emphasis has been given on the strict and effective enforcement of the

provisions of Legal Services Authorities Act and the rules and schemes prepared by

NALSA and the State Government. NALSA has introduced different regulations,

schemes, and rules under Sec. 4 of the Act to make more effective legal services in the

interest of justice. Moreover, NALSA has performed their functions very actively along

with a monitoring body for which it can be termed as a strong implementing body of the

Act.

The monitoring body at national level known as the Supreme Court Legal

Services Committee66 comprises by Central Authority for the reason of exercising

powers and functions as may be directed by the Central Authority. The committee has

observed the functions of SLSA and makes any discussion on legal aid. Moreover the

Committee is formed67 with a Chairman, who is the sitting judge of the Supreme Court

and other members with skill and experience, as selected by the Chief Justice of India.

The Secretary to the Committee is also appointed by the Chief Justice of India

possessing with qualifications as may be prescribed by the Central Government.

66
Supra, n. 49, Section 3A.
67
Ibid, Section 3(2).

155
 With the help of Supreme Court Legal Services Committee, NALSA becomes

more active in decision making process as well as in making transparent to all the

activities of NALSA and SLSA.

Considering the importance of legal aid in state, it is necessary to implement the

Act at state level, and for the purpose, the Act under Sec. 6 to 8 speaks for the

establishment of SLSA by the concerned State Government for every state. Such

authority is consisted with the Chief Justice of the High Court who acts as the Patron-in-

Chief and a serving or retired Judge of the High Court, acts as Executive Chairman,

selected by the Governor, in consultation with the Chief Justice of the High Court and

the numbers of other members are selected by that Government in consultation with the

Chief Justice of the concerned High Court.

Under Sec. 6 (3) of the Act, State Government can, after making a discussion

with the Chief Justice of the concerned High Court, appoints a person as Member

Secretary of SLSA who is belonging to the Higher Judicial Service of State but not

subordinate in rank than that of a District Judge, to carry out the powers and functions

under the Executive Chairman of SLSA as may be set by that Government or by the

Executive Chairman of that Authority. The state government plays a vital role in this

respect and facilitates to establish social justice in society.

In addition, the administrative expenses of the SLSA are made out of the

consolidated fund of the State. So far functions are concerned, SLSA tries to make legal

services available to all and follows the policies and directions of the Central Authority

along with some functions such as free legal services are given to persons who fulfill

the norms of Sec. 12 of the Act, also form and check the functions of Lok Adalats. On

the other hand, for successful operation of legal aid programmes, SLSA adopts

156
preventive and planned legal aid programmes and perform other functions in discussion

with the Central Authority, as per ‘National Plan of Action’. Most significantly SLSA

receives monthly report on the execution of legal aid programme in district from

District Legal Services Authority.

While Sec. 8 of the Act empowers the state authorities to carry out their plan and

programme on free legal aid with assistance of other legislative agencies, non-

governmental institutions and other bodies attached with the free legal services. The

state authority is a competent authority and has given concerted efforts to give equal

protection to the underprivileged for the protection of their dignity and basic rights at

par with others. Moreover, State Authority formulates an ‘Action Plan’ to undertake

various activities and to implement the ‘National Plan of Action’ as well as ‘State Plan

of Action’ in order to protect the basic rights of the weaker and vulnerable sections of

the society. However, the state authority make a shape to implement the rules,

regulations and schemes of NALSA in terms of preparation of panel of lawyers,

appointment of mediator, establishment of monitoring committee, compensate to victim

and to facilitate the unorganized sections of society.

To make legal aid more convenient and viable to the needy one within the

territory of a State, SLSA has been able to constitute High Court Legal Services

Committee under Sec. 8A of the Act for exercising powers and functions and to monitor

the rules prescribed by SLSA itself. This Committee is formed with a Chairman who is

the sitting Judge of the High Court and other members are selected by the Chief Justice

of the concerned High Court.

Further, the Committee may assign such other officers or employees as may be

prescribed by the State Government in consultation with the Chief Justice of High Court

157
for providing aid and advice to SLSA. Therefore, the Act appropriately recommended

the SLSA under the said section to fix the composition of the High Court Legal Services

Committee.

The Act has been trying to make people aware about their rights and to provide

legal facilities at the door steps of needy people in the District level. Another

implementing body known as District Legal Services Authority (DLSA) is established

by the State Government in consultation with Chief Justice of the High Court in each

District under Sec. 9 to 11 of the Act and consists with -

A District Judge of the concerned district is to be its Chairman; and a person

who is not below the rank of judicial Magistrate appointed as Secretary by Chief Justice

of the High Court. Other Members, having such experience and qualifications, as may

be defined by the State Government, are nominated by that Government after making a

discussion with the Chief Justice of the High Court. All the administrative expenses of

District Authority are made from consolidated fund of the State.

By following the directions of SLSA, the DLSA with the purpose of achieving

the goal of the Legal Services Authorities Act is performing the functions of co-

ordination with the activities of the Taluk Legal Services Committee and other legal

services of penal Advocates. For quick and speedy disposal of cases Lok Adalats are

organized within the concerned Districts and follow up the directions of the State

Authority which are fixed by regulations or ‘State Plan of Action’.

Thus, DLSA is a stronger body within a District with power and function to

implement the provisions of legal aid. It is the duty of DLSA to follow up the ‘State

Plan of Action’ and make efforts to implement the regulations and schemes of SLSA

158
and in requisites of, preparers the list of penal lawyers, establishes the legal aid clinic,

appoints the Para Legal Volunteers, holds Lok Adalat to provide free and competent

legal services in accordance with the provisions laid down under NALSA on Free and

Competent Legal Services Regulation, 2010.

However, the Act does not specify what welfare schemes will be adopted for

balancing the interest of justice of the backward classes. But, the State Government and

NALSA have taken upon itself the task of providing necessary welfare schemes for

providing justice to the backward people. DLSA is also responsible under Sec 11 of the

Act to implement the welfare schemes of the government and NALSA.

The Act further has provided for the establishment of Taluk Legal Services

Committee at Taluk level to provide legal services at the grass root level of the rural

areas. The new Sec.11A and 11B were inserted by the Legal Services (Amendment) Act

of 199468 for Taluk Legal Service. It is called Taluka Legal Services Committee and the

Committee consists69 with a senior Civil Judge in service within the jurisdiction of the

Committee be the ex-officio Chairman and the other members of Taluka are appointed

by Government after the discussion with the Chief Justice of the High Court. It is

proved that the act prominently tried to provide legal services at every stage of the

society without keeping any lacuna in the part of implementing body.

However, the functions of Taluk Legal Services Committee are same as DLSA.

DLSA has been empowered to supervise the functions of Taluka which are assigned to

them by respective DLSA.

68
Inserted by Act No. 59, 1994 dt. 29th October, 1994.
69
Legal Services Authorities (Amendment) Act, 1994, Section 11A(2).

159
 The Legal Services Authorities Act also contains the provisions70 relating to

organization of Lok Adalat which is the most effective forum to provide legal services

under the said Act. To implement the provision of Lok Adalat every District Authority,

State Authority or Supreme Court Legal Services Committee or every High Court Legal

Services Committee are empowered to organize Lok Adalats at intervals in different

places for giving quicker and effective justice to the people. Every Lok Adalat is formed

with judicial officer or retired judicial officers, conciliator and other efficient persons

belonging to that area as may be prescribed by the appropriate authority. A Lok Adalat

have jurisdiction71 to resolve the dispute either if it comes directly to Lok Adalat or

pending before Court. But Lok Adalat has no jurisdiction to an offence which is not

compoundable under any law.72 It is important to mention that the whole proceeding of

Lok Adalat is guided by the principles of justice, equality, fair play and other legal

standards and values. Each Lok Adalat can exercise the power73 same as the power

vested to Civil Court in respect of power to summon, discovery and production and

record of any document for the purpose of determining the case. In this arrangement the

provision of Lok Adalat is enacted to settle the dispute amicably, quickly and less

expensively and also to reduce the burden of the regular court. But justifying the

importance of Lok Adalat in regular form and to reduce the workload of court the Legal

Services Authorities Act was subsequently amended.

70
Ibid, Section 19.
71
Ibid, Section 20.
72
Supra, n. 4, p. 92.
73
Supra, n. 49, Section 22.

160
Legal Services Authorities (Amendment) Act, 2002

In order to look into the problem of workload of the regular court and to settle

more cases related to public utility services74 amicably and regularly, the Legal Services

Authorities Act was amended in 2002. This Amendment was specially made for the

establishment of Permanent Lok Adalat75 (hereinafter referred as PLA) and to settle the

disputes concerning public utility services at pre-litigation stage. The Amendment Act

inserted a new concept of Pre litigation Conciliation for public utility services under

Chapter VI-A76 of the Act and helps the Court and litigating party to settle their disputes

without entering into the regular court proceeding.

While the Act enacted this provision with a purpose to achieve the resolution of

petty disputes between the parties, such as, citizen and concerned departments before

they reach the formal courts system. It is expected that it will help to reduce the

workload of petty cases in the Court. Every PLA is established for an area as notified by

concerned authority under Sub-sec (1) of Sec.22B of the Act and consist of --

a person who is or has been a District Judge or Additional District Judge become

a Chairman of the PLA and two other persons having adequate experience in public

utility service has to be nominated by Central Government or by State Government, as

the case may be. On the other hand the procedure77 of PLA provides that any party to a

dispute may bring it before the court by making an application to PLA for amicable

settlement of dispute. The awards of PLA are deemed as final and binding on all parties

74
Legal Services Authorities (Amendment) Act,2002, Sec 22A, Clause (b) Public Utility Service includes-
any transport service either by air, road, water for carriage of goods or passengers, postel, telegraph
service, supply water, power to public, system of sanitation, hospital dispensary service, insurance
service and other service related to public interest as notified by Central or State Government.
75
Ibid, Sub Sec. (1) Section 22-B.
76
Inserted by Act 37, 2002.
77
Supra, n. 74. Section 22-C.

161
and treated as a decree of civil court. Thus the Act has represented the PLA as an

effective method to provide free and competent legal services to the needy people.

From the study of the Legal Services Authorities Act, it can be understood that

the Act was framed with an intention to provide legal remedy to the poor, ignorant and

illiterate people of the society. Moreover, the Act is intending to provide quick, speedier

and less expensive justice through the forum of Lok Adalat. So, the object of the Act

appears to be more adjudicatory and effective.

Realizing that, the different statutory provisions of legal aid under the different

statutes are enough but will not be able to provide justice to the poor and downtrodden

people and to prevent them from the exploitation of the stronger. So that, to make

stronger the hand of the poor and to ensure the effective implementation of Legal

Services Authorities Act, 1987 in a proper way, NALSA and State Government

(Assam) have announced the different national and state policies on free legal services

in different years.

4.3 Schemes and Regulations under the National Legal Services

Authority

NALSA has enacted various schemes for providing free and competent legal aid

to mentally ill persons, workers in unorganized sectors, disaster victims, for legal aid

clinics. The schemes are as follows –

1. The National Legal Services Authority (Lok Adalats) Regulation, 2009

This regulation was enacted with a basic purpose to invite the parties for

amicable settlement of their disputes through conciliation process in Lok Adalat.

Further, no information will be disclosed by Lok Adalat if one of the parties needs to

162
keep it confidential. Lok Adalat is not empowered to pass any order of bail or divorce

by mutual consent. If the parties reach to the stage of compromise or settlement of the

dispute, then the Lok Adalat may assist the parties to sketch up the terms of such

compromise or settlement. While, the procedure of Lok Adalat under the National Legal

Services Authority Regulation, 2009 have the same connotation to respectively allocate

them in the Legal Services Authorities Act, 1987.Thus, the regulation is a purposeful

regulation under which the parties are called for amicable settlement of their disputes

through conciliator and this regulation will help to reduce the burden of the cases in

court.

2. National Legal Services Authority (Free and Competent Legal Services)

Regulations, 2010

NALSA has further framed the National Legal Services Authority (Free and

Competent Legal Services) Regulations, 201078in exercising the powers conferred by

Section 2979 of the Legal Services Authorities Act, 1987 to provide free and competent

legal services to the eligible legal aid client. Under the Regulation, the provision for

selection of the panel lawyers is very formal. The process of appointment of panel

lawyers is started by inviting the application along with the professional specialization

and experience. Further the regulation states that the legal practitioners having less than

three years of experience are not qualified to be appointed as a panel Advocate. Besides

payment of monthly honorarium ranging from 3000 to 10,000, the penal advocate is to

devote the time exclusively for legal aid cases. The regulation also provided for

appointment of monitoring committee and such committee has to submit its bi-monthly

78
The Regulation came into force on 9th September, 2010.
79
Central Authority by notification empowers to make regulations, rules to make effective the provisions
of Act.

163
report on the progress of case and the performance of the legal aid counsel. After

examination of the report the Legal Services Institution decides the course of action to

be taken in each case. The monitoring committee is empowered to evaluate the

functions of legal aid counsels. Therefore, it can be expected that the process of

evaluation on the reports of performance of Advocate will prevent the chance of misuse

of the regulation and open a chance for better implementation of the Act.

3. National Legal Services Authority (Legal Services to the Mentally Ill Persons

and Persons with Mental Disabilities) Scheme, 2010 (hereinafter referred to as ‘the

Scheme’)

This Scheme was adopted by NALSA80for those persons with disability,

especially those suffering from mental illness and other barriers like mental retardation

who do not get proper attention from the authorities in the matter of access to justice.

Part I and Part II of the scheme defines the matter to be considered while rendering legal

services to mentally ill persons and to mentally retarded persons. The purpose of the

scheme is a noble one and is an example of Art. 14 of the Constitution. The principle of

equality in access to justice gives a separate legal status to mentally ill person.

4. The National Legal Services Authority (Legal Services to the Workers in the

Unorganized Sector) Scheme, 2010

NALSA has adopted this scheme for the welfare of the workers of the

unorganized sectors. Therefore, under the scheme the legal services institution tries to

meet the workers in an unorganized area to make available the benefits of various

80
The Scheme was adopted in the Meeting of the Central Authority of NALSA held on 8/12/2012 at
Supreme Court of India.

164
schemes and to provide them legal protection and also to regulate the conditions of their

works.

Under the Scheme, the legal services institutions can come to help the

disadvantaged group to make available the benefits though small in quantum, to make

easy their fight against the painful life under the following manner:

a) The unorganized workers are identifying within the jurisdiction of each

legal services institution by surveys method. Such surveys can be

conducted by NGOs, law students and Para legal volunteers’.

b) Legal awareness programmes are to be organized for creating awareness

among such identified unorganized labour.

If any particular case requires legal action, the legal services institution can

provide legal assistance according to the eligibility criteria prescribed under Section 12

of the Legal Services Authorities Act, 1987.The scheme gives an opportunity to the

deprived section of the society to uplift their rights and benefits who are unaware about

the ‘right to life’ with human dignity which is our fundamental right. Moreover the

object of the scheme is found more appropriate to provide legal relief to these workers.

5. Duty Counsel Scheme

The NALSA has devised a model scheme for Legal Aid Counsels 81 which is to

be attached with all courts of Magistrates, custodial centers and police stations. Under

this scheme emphasis is given to provide legal aid to the under trial prisoners and to

those who cannot afford to engage lawyers to defend them and remain in prisoners cell.

81
Model Scheme for Legal Aid Counsel in All Courts of Magistrates (1999). Nyaya Deep. April –June,
Vol. II, p.15.

165
It also states that the counsels are in an obligation to present in the court during the

remand hours for arguing on remand applications etc.

This scheme tries to bring the legal services at the door steps of the needy

people. It helps the prisoner to avail the service of a legal representative in spot.

6. The National Legal Services Authority (Legal Aid Clinics) Regulations, 2011

In order to make legal services more effective, National Legal Services

Authority (Legal Aid Clinics) Regulation was enacted by NALSA. Section 29 of the

Legal Services Authorities Act, 1987 defines the power to make regulations for

effective legal services for the welfare of the people. Therefore, NALSA has made

regulation for establishment of legal aid clinics in all villages especially where the

people face geographical, social and other obstacles for accessing to the legal services

institutions. Under the regulation every legal aid clinic empowered to appoint two Para

Legal Volunteers and to ensure their service available during the working hours of the

legal aid clinics. On the other hand DLSA has jurisdiction to appoint panel lawyer in

that legal aid clinic. Any application for legal aid sought in the legal aid clinics has to

refer to the legal services institutions for taking further action. The legal aid clinics are

under the direct supervision of the DLSA.

Legal aid clinic is another mode of providing legal aid to illiterate, ignorant and

poor people. Further, the Regulation makes stronger the legal aid clinic to act for

weaker sections of the society.

166
7. A Scheme for Legal Services to Disaster Victims through Legal Services

Authorities, 2010

One of the most effective scheme adopted by NALSA with the objective to

provide legal services to the victims of disaster both manmade and natural who are

under circumstances of the underserved victims of mass disaster, ethnic violence, caste

atrocities, flood, drought, earth-quake or industrial disasters. Therefore SLSA and

DLSA provides helping hand to the victims of disasters under this scheme by-

1. Ensuring immediate helping hand by Government and Non-Governmental

Agencies to such victims.

2. Establishing coordination between the activities of different departments of the

Government and the NGO’s for bringing immediate relief.

3. supervising the distributions of relief materials among them

4. Constructing temporary shelter or transporting the victims to a safer place,

5. Encouraging for reunion of the families.

6. Supervising the health care and sanitation of the victims.

7. Supervising the needs of women and children.

8. Organizing legal awareness programmes in the relief camps

9. Taking steps for proper debt relief for the victims.

10. Arranging for physiatrist’s help and counseling the victims who are subjected to

psychological shock and depression on account of the disaster.

Moreover, the DLSA is empowered to establish a core group in their respective

districts under the control of the SLSA to execute the scheme for the needy people. The

167
most significant part of the scheme is that the victims are compensated and rehabilitated

under the scheme, so that, it helps them to keep their confidence on social justice

system.

8. The National Legal Services Authority (Legal Services Clinics in Universities,

Law Colleges and Other Institutions) Scheme, 2013

Under Section 4(k) of the Legal Services Authorities Act, 1987, the National

Legal Services Authority in consultation with the Bar Council of India is empowered to

arrange programmes for clinical legal services in universities, law colleges and other

institutions for the effective implementation of legal aid programmes. Whereas, the

basic objectives of this scheme helps to -

1. set up nationwide Collegiate Legal Services Clinics to make aware law students

of the country about the problems faced by the poor, ignorant people.

2. Support to attain the ideals of social economic and political justice as enshrined

in the Preamble of the Constitution and

3. directs DLSA to make available the services of Para Legal Volunteers in the

Legal Services Clinics.

The most advantageous position of this scheme is that the clinical legal

education helps the law students to make familiar the problems of disadvantageous

section of society and develop their humanistic approach.

4.4 Rules and Schemes under the Government of Assam on Legal

Aid

The directive principles of the Constitution direct and obligate the state to take

positive action in certain directions in order to promote social justice and for welfare of

168
the people to achieve social democracy. Though in violation of these principles by

Government none can go to the court for remedy but Government shows its utmost

importance for providing social- economic justice to the people and for establishment of

welfare state. Therefore the Government of Assam has introduced different Rules,

Regulation and Scheme on free legal service to make stronger and effective the

statutory provisions of free legal service to easy access to justice.

1. Assam State Legal Services Authority Rules, 1996

In exercising the powers conferred by Section 28 of the Legal Service

Authorities Act, 198782 as amended by the Legal Service Authorities (Amendment)

Act,1994,83the Governor of Assam is pleased to make rules on the formation of State

Authority ie. the State Legal Services Authority,84 High Court Legal Services

Committee,85District Authority means District Legal Services Authority, 86 Sub-

Divisional Legal Services Committee,87 Taluk or Mandal means Civil Sub-division and

includes a Sadar Sub-division and determined the number of members, qualification and

functions of these boards. Moreover the rules defines the specific positive aims to-

a) provide free legal services to the weaker section of the society and

b) frame work of the modalities of the Legal Services Schemes and programmes

approved by the State Authority and ensure their effective monitoring and execution.

However, the Government of Assam has given an impetus value to Art. 39 A of

the Constitution by introducing this regulation.

82
No 39 of 1987.
83
No 59 of 1994.
84
Supra, n. 49, Section 6.
85
Ibid, Section 8A.
86
Ibid, Section 9.
87
Ibid, Section 11A.

169
2. The Assam State Legal Services Authorities Regulations, 1998

The Government of Assam enacted this regulation for proper implementation of

the Legal Services Authorities Act and provides for the function of state authority, as

laid down by Sec. 7 of the Act, such as functions of High Court Legal Services

Committee, functions of DLSA, District Legal Aid Fund established under section 17 of

the Act, Taluk Legal Services Committee. Further, the regulation defines composition

of Lok Adalat at High Court and District level and the expenditure for Lok Adalat. The

regulation also follows the modes of legal aid in certain cases where legal aid is not

available as per provision of the Legal Services Authorities Act. This regulation

expands the scope of legal aid and covers all indigenous people who seek justice and

wait for justice.

3. The Assam State Legal Services Authority Regulation (2ndAmendment) 2011

In exercising the power conferred under Section 29A88 of the Legal Services

Authorities Act, 1987, the Assam State Legal Services Authority (hereinafter referred as

ASLSA) has prepared the regulation further to amend the Assam State Legal Services

Authorities Regulations 1998 published in Assam Gazette, Extraordinary dated 20th

August, 1998, November, 2011 namely the Assam State Legal Services Authority

Regulations (2nd amendment) 2011.

The most effective part of this regulation is that the Regulation no 40(1)

(Schedule II) of the Assam State Legal Services Authority Regulation 1998 has been

substituted as, the honorarium payable to Panel Advocates of Assam State Legal

Services Authority. Hence, the Regulation fixes the honorarium according to the

88
State Authority by notification makes regulations and rules to make effective the provisions of the Act.

170
explanation of the work of the Advocates. Finally, the regulation helps the penal

Advocate or legal aid counsel to act more preciously for establishing social justice.

4. Assam Victim Compensation Scheme, 2012

The most important scheme introduced by the Government of Assam for

balancing the interest of victim in the justice delivery system. In exercising the powers

conferred by Sec. 357-A89 of Cr.PC, 1973, the Government of Assam in co-ordination

with the Central Government has made the scheme for providing funds for the reason of

compensation to the victim or his/her dependents who have suffered loss or injury as a

result of the crime and who need to rehabilitate. Therefore, under the scheme, a fund is

constituted namely the ‘Assam Victim Compensation Fund’, operated by Member

Secretary of ASLSA and the State Government allots a separate fund for the purpose of

the implementation of the scheme every year. The fund is operated by the Member

Secretary of ASLSA and DLSA has to submit a report of utilization of funds to ASLSA

from time to time. Thus, the scheme provides a helping hand to victim of criminal act

and to protect their right to life and liberty as defined by Art. 21 of the Constitution and

encourage to live with human dignity.

Conclusion

The basic objective of social justice is to remove all inequalities and provide

equal opportunities to all citizens so that easy access to justice is made available to all

irrespective of their social and economic conditions. In absence of provision of legal aid

the whole design of the fundamental rights and other substantial and procedural rights

are meaningless until it is introduced and enforced adequately. The chapter on

89
Inserted by Act 5, 2009.

171
Fundamental Rights of the Constitution incorporates the basic rights and principles of

equality to achieve social justice. The higher judiciary is getting the light from the noble

principle of Article 39-A to give an impetus meaning to Art. 21 and to bring a radical

change in administration of justice in order to provide equal justice and access to justice

to all. Persistently, both the civil and criminal procedural law enables the court to

provide legal aid by assigning a pleader to poor indigent accused for his defense at the

cost of the State. Legal representative are also salaried for rendering their service for

which a specific regulation namely, the National Legal Services Authority (Free and

Competent Legal Services) Regulations, 2010 was introduced by NALSA. The different

statutes, Government scheme, policy and regulations of NALSA and State Government

(Assam) further makes legal aid a more effective measure to realize the constitutional

promise of social justice by providing different provisions of legal aid. In this reference

the National Legal Services Authority (Free and competent Legal Services) Regulations

2010, Scheme for Legal Services to Disaster Victims through Legal Services

Authorities, 2010, Assam Victim Compensation Scheme, 2012 are providing a new

colour to the free legal service. The enactment of Legal Services Authorities Act, 1987

signifies a major achievement for implementation of Art. 39-A and for development of

Art. 21 of the Constitution. The various implementing wings of legal aid and different

schemes of NALSA and ASLSA are formed to provide free legal assistance to the poor

and needy persons who are unable to enforce the rights given to them by law.

The Legal Services Authorities Act, 1987 gives sufficient means of opportunity

to all to have easy access to justice available at the door steps of litigants. After the

enforcement of Legal Services Authorities Act, legal aid is not only the subject of

172
administrative policy but also a legal right of the poor protected by different

legislations.

From the above it is found that the basic aim and objectives of all enactments,

rules, regulations and schemes is to provide free legal service to the poor and

downtrodden people of the society and to establish social justice in society.

173