INTRODUCTION:
Legal Aid implies giving free legal service to
the poor and needy who cannot afford the services of a lawyer for the
conduct of a case or a legal proceeding in any court, tribunal or before an
authority. The concept of legal aid in the form of Article 39A into our
constitutional framework. Hence, legal aid is not a charity or bounty, but is a
constitutional obligation of the state and right of the citizens. The problems
of human law and justice, guided by the constitutional goals to the solution of
disparities, agonies, despairs, and handicaps of the weaker, yet larger
brackets of Bharat’s humanity is the prime object of the dogma of “equal
justice for all”. Thus, legal aid strives to ensure that the constitutional
pledge is fulfilled in its letter and spirit and equal justice is made
available to the downtrodden and weaker sections of the society. It is the
duty of the State to see that the legal system promotes justice on the basis of
equal opportunity for all its citizens. It must therefore arrange to provide
free legal aid to those who cannot access justice due to economic and other
disabilities.
HISTORY OF LEGAL AID:
The earliest Legal Aid movement appears to be
of the year 1851 when some enactment was introduced in France for providing
legal assistance to the indigent. In Britain, the history of the 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
Rushcliffe Committee to enquire about the facilities existing in England and
Wales for giving legal advice to the poor and to make recommendations as appear
to be desirable for ensuring that persons in need of legal advice are provided
the same by the State.
Since 1952, the Govt. of India also started
addressing to the question of legal aid for the poor in various conferences of
Law Ministers and Law Commissions. In 1960, some guidelines were drawn by the
Govt. for legal aid schemes. In different states legal aid schemes were floated
through Legal Aid Boards, Societies and Law Departments
Legal Aid Schemes were floated through Legal
Aid Boards, Societies and Law departments in various states in the Country. In
1980, a national committee was constituted, under the chairmanship of Honorable
Mr. Justice P.N bhagwati then a judge of the Supreme Court of India to oversee
and supervise legal Aid programs throughout the country. This committee came to
be known as CILAS (Committee for Implementing Legal Aid schemes) and started
monitoring legal Aid activities throughout the country. The introduction of Lok
Adalats added a new chapter to the Justice Dispensation system of this country
and succeeds in providing Supplementary forum to the litigants for conciliatory
settlement of their disputes. The year 1987, proved to be very significant in
Legal Aid History as the “Legal services Authorities Act” was enacted to give a
statutory base to the legal system programs throughout the country and bring
about a uniform pattern. This Act was finally enforced on the 9th of
November, 1995 after certain amendments were introduced therein by the
Amendment Act of 1994. .
Right to Legal Aid:
It is the duty of the State to see that the
legal system promotes justice on the basis of equal opportunity for all its
citizens. It must therefore arrange to provide free legal aid to those who
cannot access justice due to economic and other disabilities. — (Art.39 A of
the Constitution of India)
If the accused does not have sufficient means
to engage a lawyer, the court must provide one for the defense of the accused
at the expense of the state. — (Sec. 304, Criminal Procedure Code)
The Constitutional duty to provide legal aid
arises from the time the accused is produced before the Magistrate for the
first time and continues whenever he is produced for remand. — (Khatri II Vs.
State of Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470)
l A person entitled to appeal against his/her
sentence has the right to ask for a counsel, to prepare and argue the appeal. —
(Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544) (Art. 142
of the Constitution r/w 21 and 39A)
Legal Aid under Legal
Services Authority Act, 1987:
According to Section
2(1) (a) of the Act, legal aid can be provided to a person for a 'case' which
includes a suit or any proceeding before a court. Section 2(1) (a) defines the
'court' as a civil, criminal or revenue court and includes any tribunal or any
other authority constituted under any law for the time being in force, to
exercise judicial or quasi-judicial functions. As per Section 2(1)(c) 'legal
service' includes the rendering of any service in the conduct of any case or
other legal proceeding before any court or other authority or tribunal and the
giving of advice on any legal matter.
Legal Services
Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State
expense, pay the required Court Fee in the matter and bear all incidental
expenses in connection with the case. The person to whom legal aid is provided
is not called upon to spend anything on the litigation once it is supported by
a Legal Services Authority.
Under The Legal
Services Authorities Act, 1987 every citizen whose annual income does not
exceed Rs 9,000 is eligible for free legal aid in cases before subordinate
courts and high courts. In cases before the Supreme Court, the limit is Rs
12,000. This limit can be increased by the state governments. Limitation as to
the income does not apply in the case of persons belonging to the scheduled
castes, scheduled tribes, women, children, handicapped, etc. Thus by this the
Indian Parliament took a step forward in making the legal aid possible in the
country.
Duties of the Police and the Courts:
·
The police must inform
the nearest Legal Aid Committee about the arrest of a person immediately after
such arrest. —(Sheela Barse, V. State of Maharashtra)
·
The Magistrates and
sessions judges must inform every accused who appears before them and who is
not represented by a lawyer on account of his poverty or indigence that he is
entitled to free legal services at the cost of the State.
·
Failure to provide
legal aid to an indigent accused, unless it was refused, would vitiate the
trial. It might even result in setting aside a conviction and sentence. —(Suk
Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401; 1986 SCC (Cri)
166)
Services offered by the Legal
Services Authority:
·
Payment of court and other
process fee;
·
Charges for preparing,
drafting and filing of any legal proceedings;
·
Charges of a legal
practitioner or legal advisor;
·
Costs of obtaining
decrees, judgments, orders or any other documents in a legal proceeding;
·
Costs of paper work,
including printing, translation etc.
When can Legal services be
rejected? If the applicant
·
Has adequate means to
access justice;
·
Does not fulfill the
eligibility criteria;
·
Have no merits in his
application requiring legal action
When can the legal services be withdrawn?
·
The legal services
committee can with draw the services if,
·
The aid is obtained
through misrepresentation or fraud;
·
Any material change
occurs in the circumstances of the aided person;
·
There is misconduct, misbehavior
or negligence on the part of the aided person;
·
The aided person does
not cooperate with the allotted advocate;
·
The aided persons
appoint another legal practitioner;
·
The aided person dies,
except in civil cases;
·
The proceedings amount
to misusing the process of law or of legal service.
Cases for which legal aid is not available
·
Cases in respect of
defamation, malicious prosecution, contempt of court, perjury etc.
·
Proceedings relating
to election;
·
Cases where the fine
imposed is not more than Rs.50/-;
·
Economic offences and
offences against social laws;
·
Cases where the person
seeking legal aid is not directly concerned with the proceedings and whose
interests will not be affected, if not represented properly.
CASES UNDER FREE LEGAL AID
Hussainara Khatoon (IV) v Home Secretary,
State of Bihar [(1980) 1 SCC 98]
In this case in the state of Bihar, a very
large number of men and women, children including, were behind prison bars for
years awaiting trial in courts of law. The offences with which some of them
were charged were trivial, which even if proved, would not warrant punishment
for more that a few months, perhaps a year or two, and yet they remained in
jail, deprived of their freedom, for periods ranging from three to ten years without
even as much as their trial having commenced. Hence, The Court ordered
immediate release of these under trials many of whom were kept in jail
without trial or even without a charge.
It was held that equality under Article 21 is
impaired where procedural law does not provide speedy trial of accused; does
not provide for his pre-trial release on bail on his personal bond, when he is
impoverished and there is no substantial risk of his absconding; if an
under-trial prisoner is kept in jail for a period longer than the maximum term
of imprisonment which could have been awarded on his conviction and if he is
not offered free legal aid, where he is too poor to engage a lawyer, provided
the lawyer engaged by the State is not objected to by the accused.
Where the petitioner succeeds in establishing
his case, the Court would grant him any relief which is necessary to afford
proper justice, or to prevent manifest injustice regardless of technicalities
such as to issue directions to the Government and other appropriate
authorities, as may be necessary, to secure to a prisoner his constitutional
rights.
The Supreme Court held that the state cannot
be permitted to deny the constitutional right of speedy trial to the accused on
the ground that the State has no adequate financial resources to incur the
necessary expenditure needed for improving the administrative and judicial
apparatus with a view to improving speedy trial.
In M.H. Hoskot v. State of Maharashtra
(AIR 1978, 3 SCC 81)
The Honorable court declared that "If a
prisoner sentenced to imprisonment is virtually unable to exercise his
constitutional and statutory right of appeal inclusive of special leave to
appeal (to the Supreme Court) for want of legal assistance, there is implicit
in the Court under Article 142 read with Articles 21 and 39-A of the
Constitution, power to assign counsel for such imprisoned individual 'for doing
complete justice".
In this case, it was held that an accused is
expected to get free legal aid under article 39A. However, it doesn’t mean that
he can move Supreme Court for a writ of mandamus compelling the state to give
financial assistance to engage a counsel of his choice.
In Khatri & Others v. St. Of Bihar &
others
(AIR 1981 SC 262) It was held in this case
that “Right to free legal aid, just, fail and reasonable procedures is a
fundamental right. It is elementary that the jeopardy to his personal liberty
arises as soon as the person is arrested and is produced before a magistrate
for it is at this stage that he gets the 1st opportunity to apply for bail and
obtain his release as also to resist remain to police or jail custody. This is
the stage at which and accused person needs competent legal advice and
representation. No procedure can be said to be just, fair and reasonable which
denies legal advice representation to the accused at this stage. Thus,
state is under a constitutional obligation to provide free to aid to the
accused not only at the stage of every individual of the society are entitled
as a matter of prerogative."
In this case, the court declared the right to
legal aid as a fundamental right of an accused person by a process of judicial
construction of Article 21; most of the States in the country have not taken
note of this decision and provided free legal services to a person accused of
an offence. It is mandatory to the State to provide free legal aid to an
accused person who is unable to secure legal services on account of indigence,
and whatever is necessary for this purpose has to be done by the State as per
the constitution. The State may have its financial constraints and its
priorities in expenditure but the law does not permit any Government to deprive
its priorities in expenditure but the law does not permit any Government to
deprive its citizens of constitutional rights on the plea of poverty.”
In Indira Gandhi v. Raj Narain (AIR 1977 SC
69)
"Rule of Law is basic structure of
constitution of India. Every individual is guaranteed the it’s rights give
to him under the constitution. No one so condemn unheard. Equality of justice
should be given to everyone. There ought to be a violation to the fundamental
right or prerogatives, or privileges, only then remedy goes to Court of Law.
But also at the stage when he first is produced before the magistrate. In
absence of legal aid, trial is vitiated."
In State of Maharashtra v.
Manubhai Pragaji Vashi (AIR 1995, 5 SCC 730)
The court widened the scope of the right to
free legal aid. The right to free legal aid is guaranteed fundamental right
under Art 21 and 39A provides “equal justice” and “free legal aid”.
Centre for Legal Research V. State of Kerala: AIR
1986 SC 1322
In order to achieve the objective of article
39A, the state must encourage and support the participation of voluntary
organizations and social action groups in operating the legal aid programme.
The governments setup a “suitors fund” to meet the cost of defending a poor or
indigent. The Court held that although the mandate in article 39A is addressed
to the legislature and executive, yet the courts too are bound by the mandate
contained therein.
CONCLUSION AND SUGGESTION:-
1.
The focus of legal aid
is on distributive justice, effective implementation of welfare benefits and
elimination of social and structural discrimination against the poor. It works
in accordance with the Legal services Authority Act, 1987 which acts as the
guideline of the rendering of free justice.
2.
It is highly
interesting to know the problems of the rural poor and urban poor separately
and also to find out how they compare with the legal problems of the non-poor
living in rural and urban India. An efficient organization of a legal services
delivery system may have to take account of all of these differences in legal
needs of the poor and design the program accordingly.
3.
It’s a very wonderful
right incorporated in our constitution in the Article 39A to promote Justice on
equal basis. In the case of Khatri v. State of Bihar, the court held that the
right to legal aid is a fundamental right under article 21 of the Indian
constitution.
4.
NALSA has formulated a
strategy to provide basic and essential knowledge to the vulnerable groups so
that they can understand the law and know the scope of their rights under the
law and eventually assert their rights as a means to take action, uplift their
social status and being in social change.
5.
Lack of awareness is
the main impendent in effective ‘legal aid’. Efforts should be made to inform
the public of the existence of these services by using electronic media and
aggressive campaigns. Government should also target rural areas for making them
aware about this concept.
6.
Free legal aid must
not be read to imply poor or inferior legal services. The lawyers in the panel
should be experienced. The legal services which are given to the poor should be
qualitative.
7.
A master plan for
juridicare cannot succeed without sufficient financial resource. An annual
amount of only Rs. 6 crore is being allocated to NALSA for the execution of its
policies which is inadequate. So proper financial resources should be given in
order to make the effective implementation of Legal Aid.
8.
Awareness of schemes
and programs to be able to guide the poor litigants about the issue of Legal
Aid.
9.
Each district legal
aid service authority should be evaluated and compared with other district
legal service authority as well as intra states to encourage legal aid.
