12 Access to Justice and Legal Aid in India (Statutory and Case Laws)

Dr Sarabjit Kaur

1.  INTRODUCTION: LEGAL AID AS A FUNDAMENTAL ELEMENT OF ACCESS TO JUSTICE

‘Justice’ means to treat each individual fairly, reasonably and equitably. ‘Access to justice’ means to provide an effective mechanism to the aggrieved person for redressal of his grievances. Access to justice exists if people who are poor, ignorant, vulnerable, whose fundamental rights are violated or who are victims of exploitation get equal opportunity for the enforcement of their rights. Access to justice has some fundamental elements such as right to move the court, legal assistance and free legal aid to ensure that even the weakest among the weak does not suffer injustice arising out of any arbitrary action on the part of the State or a private individual.

‘Legal aid’ implies providing an arrangement in the society so that the machinery of administration of justice becomes easily accessible to all for enforcement of their lawful rights. The Constitution of India lays emphasis on the equality of justice. The object of legal aid is to ensure equal justice and to ensure that no one shall be deprived of his right to access to the court because of poverty or any other social or economic disability. Free legal aid to the poor and down trodden is an essential element of any ‘fair, just and reasonable’ procedure. It is necessary for preservation of rule of law in an orderly society. PN Bhagwati J in Hussainara Khatoon v State of Bihar,1 underlining the significance of free legal aid in administration of justice stated:

It’s the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under the constitutional mandate to provide a free lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and it is hoped that every State Government would try to avoid such a possible eventuality.

Therefore, free legal aid is to be made available to those who cannot afford the cost of litigation in any judicial proceeding before the court, tribunal or an authority, by providing a system of government funding.

LEARNING OUTCOME

• Understanding the concept of legal aid as an essential element of ‘fair, just and reasonable’ procedure,
• Knowledge of historical background of the legal aid movement in India,
• Appreciating the role of the judiciary towards recognition of ‘right to free legal aid’ as a fundamental right,
• Knowledge of objectives and the salient features of the Legal Services
• Authorities Act 1987, and
• Awareness of Legal Services Authorities working under the 1987 Act

2. ORIGIN OF LEGAL AID MOVEMENT

The origin of the concept of legal aid can be traced to the historic Magna Carta of 1215. The 40th paragraph of the Magna Carta provides, “To no one will we sell, to no one will we deny or delay right or justice”.

The international concern for human rights found expression, after First World War in Covenant of the League of Nations2 and further in the Universal Declaration of Human Rights.3 The Conventions which followed specifically incorporated the concept of legal aid.

Article 8 of the Universal Declaration of Human Rights 1948 provides that, “everyone has the right or an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.”

Article 14(3) of the International Covenant on Civil and Political Rights 1966,4 guarantees to everyone, “the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing, to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

The Resolution was passed by the Human Rights Conference held in Tehran in 1968 under the auspices of the United Nations which emphasised the need for free legal aid to poor and indigent for protection of their human rights and safeguarding their fundamental freedoms.5

3. LEGAL AID IN INDIA 3.1 Historical Background

In India, the need to have an active and widespread legal aid system that enables the law to reach the people, rather than requiring people to reach the law, was felt for long. Since 1952, the Government of India started addressing to the question of legal aid for the poor and indigent in various Law Conferences and by appointing Commissions and expert Committees to examine the feasibility of providing free legal aid to the needy.

In 1958, the Law Commission of India in its 14th Report on “Reform of Judicial Administration”, prepared under the leadership of leading jurist MC Setalvad, emphasized the need for setting up of legal aid agencies all over the country to redress the economic inequalities and provide assistance to indigent litigants. 6 It further opined that the State must, while accepting the obligation, make provision for funds to provide legal aid. The legal community must play a pivotal role in accepting the responsibility for the administration and working of the legal aid scheme. It owes a moral and social obligation and therefore the Bar Association should take a step forward in rendering legal aid voluntarily. These would include representation by lawyers at government expenses of accused persons in criminal proceedings, in jails, and appeals.

Acting on the recommendations of the Law Commission, the Government of India in 1960 prepared a national scheme of legal aid providing for legal aid in all courts including tribunals. It envisaged the establishment of committees at the State, District and Tehsil level. Again in 1969, in its 41st Report on “the Code of Criminal Procedure 1898”, the Law Commission strongly recommended that representation by a lawyer should be made available at Government expenses to accused persons in all cases tried by a Court of Sessions.7

In 1973, the Government of India formed an expert committee under the Chairmanship of Justice VR Krishna Iyer to see as to how the States should go about devising and elaborating the legal aid scheme. The Committee recommended establishment of legal aid committees in each District, at State level and at the Centre. It was also suggested that an autonomous corporation be set up, law clinics be established in Universities and lawyers be urged to help.8 The Government of India also appointed a two member Committee, known as ‘Judicature Committee’, consisting of Justice PN Bhagwati as the Chairman and Justice V.R. Krishna Iyer as member in 1976 to effectively implement the legal aid schemes. The Committee in its Report submitted in 1977 encouraged the concept of legal aid camps and Nyayalayas in rural areas. It also recommended the introduction of concept of legal aid in the Constitution of India.9

In 1980, again a Committee at the national level was constituted under the Chairmanship of the then Chief Justice PN Bhagwati to oversee and supervise legal aid programmes throughout the country. This Committee came to be known as ‘Committee for Implementing Legal Aid Schemes’ (CILAS). The Committee evolved a model scheme for legal aid programmes applicable throughout the country by which several legal aid and advice Boards were set up in the States and Union Territories.10

3.2 Constitutional and Statutory Provisions relating to Legal Aid

3.2.1 Constitutional provisions relating to legal aid

Our Constitution provides for free legal aid to every individual who due to poverty or any other social disability cannot afford the services of a lawyer. The Preamble of the Constitution secures to all its citizens, social, economic and political justice. Apart from the Preamble, the right to equal access to justice also flows from articles 14, 21, 22(1), 39A, etc.

Article 14 guarantees equality before the law and equal protection of the laws. Equality before the law necessarily involves the concept that all the parties to a legal proceeding must have an equal opportunity of access to the court and of presenting their cases to the court. The aim of article 14 is to ensure equal justice. For a man, who is unable to meet his daily needs, the access to the court for enforcement of his rights would be meaningless unless he gets free legal assistance to present his case.

Article 21 guarantees the right to life and personal liberty to every person. This right cannot be taken away except by procedure established by law. Such procedure should be fair, just and reasonable. Free legal aid to a person who is too poor to afford counsel is an essential element of fair, just and reasonable procedure.

Article 22(1) provides that a person arrested should not be detained in custody without being informed of the grounds for such arrest and should not be denied the right to consult and be defended by a legal practitioner of his choice.

Article 39-A was inserted in Directive Principles of State Policy by the 42nd amendment of the Constitution in 1976, to provide for equal justice and free legal aid. Article 39A stipulates that, “The State shall secure that the operation of legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that the opportunities for securing justice are not denied to any citizen by reason economic or other disabilities.”Thus, the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity.

3.2.2 Other statutory provisions relating to legal aid

Section 304 of the Code of Criminal Procedure, 1973 provides that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. Under this section, the State Government is empowered to extend the application of the above provision in relation to any class of trials before other courts in the State.

Order XXXIII of the Code of Civil Procedure, 1908 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court-fees to institute suits by exempting them from court fee. Hence, legal assistance to poor or needy is sine qua non of equal justice under our legal system.

4. RIGHT TO FREE LEGAL AID: JUDICIAL APPROACH

The Supreme Court has taken a big innovative step forward in humanising the administration of criminal justice by suggesting that free legal aid be provided by the State to poor prisoners facing a prison sentence.11

In MH Hoskot v State of Maharashtra,12 the Supreme Court laid down that right to free legal aid at the cost of the State to an accused, who cannot afford legal services for reasons of poverty or indigence is part of fair, just and reasonable procedure implicit in article 21. Free legal aid to the indigent has been declared to be “a State’s duty and not government charity”.

The Court has reiterated this view again in Hussainara Khatoon v State of Bihar 13 by interpreting article 21 in the light of article 39A which provides for equal justice and free legal aid. Two years thereafter, in Khatri v State of Bihar,14 the Supreme Court again emphasised that the State Government cannot avoid their constitutional obligation to provide free legal service to poor accused by pleading financial or administrative inability. The Court laid down that the obligation to provide free legal aid to a poor accused arises not only when the trial begins but also when he is for the first time produced before the Magistrate. That is the stage at which an accused needs competent legal advice and representation. The Court further emphasised that the Magistrate or the Sessions Judge, before whom the accused appears, is under an obligation to inform the accused that if he is unable to engage a lawyer, he is entitled to obtain free legal services at the cost of the State.

In Sheela Barse v State of Maharashtra,15 it was held that legal assistance to a poor accused, who is arrested and put in jeopardy of his life or personal liberty, is constitutional imperative mandated not only by article 39-A but also by articles 21 and 14 of the Constitution.

In Janardhan Reddy v State of Hyderabad,16 the Supreme Court held that it is the duty of the court to provide counsel at the State expense to the ignorant and illiterate accused, only when legal assistance is requested by him. However, in subsequent cases, the Supreme Court gave a wide interpretation to article 22(1), which extended the ambit and scope of right to legal aid. In Suk Das v Union Territory of Arunachal Pradesh,17 the Court held that the right to free legal aid is available to the accused even if he had made no request for it. The Court observed that it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. In these circumstances, it would be made a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service.

It was in the above backdrop, the Parliament enacted Legal Services Authorities Act 1987,18 to effectuate the constitutional mandate of providing access to justice to all. The Act was brought into force with effect from 9 November 1995, almost eight years after its enactment.

5. LEGAL SERVICES AUTHORITIES ACT 1987

Legal Services Authorities Act 1987 provides for constitution of legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organise Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. 19

According to section 2(1)(a) of the Act, legal aid can be provided to a person for a ‘case’ which includes a suit or any proceeding before a court. Section 2(1)(aaa) defines the ‘court’ as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. 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.

The Act prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act makes a person eligible for assistance under the Act if that person is:

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in article 23 of the Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home or in a juvenile home; or

(h) in a psychiatric hospital or psychiatric nursing home; or

(i) A person whose annual income is less than rupees fifty thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.20

Legal Services Authorities, constituted under the Act, 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.

5.1 Legal Services Authorities under the 1987 Act and their Hierarchy

For effective implementation of the Act and to achieve the desired objective of providing free legal services to poor legal service authorities were constituted at Central, State, District and Taluk levels.

5.1.1 National Legal Services Authority (NALSA)

A nationwide network has been envisaged under the Act for providing legal aid and assistance. National Legal Services Authority is the apex body constituted on 5 December 1995 to lay down policies and principles for making legal services available under the provisions of the Act and to frame most effective and economical schemes for legal services.21 It also disburses funds and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes and programmes.22 It provides for setting up of legal aid clinics in universities and law colleges, training of paralegals and holding of legal aid camps and Lok Adalats.Section 3, sub-section (2) of the 1987 Act provides that the National Legal Services Authority shall consist of:

(a) the Chief Justice of India who shall be the Patron-in-Chief;

(b) a serving or retired Judge of the Supreme Court to be nominated by the President, in consultation with the Chief Justice of India, who shall be the Executive Chairman; and

(c) such number of other members, possessing such experience and qualifications, as may be prescribed by the Central Government, to be nominated by that government in consultation with the Chief Justice of India.

In order to provide free and competent legal service, the NALSA has framed the National Legal Service Authority (Free and Competent Legal service) Regulations, 2010. The salient feature of Regulation is engaging senior competent lawyers on payment of regular fees in special cases like where the life and liberty of a person are in jeopardy.

5.1.2 Legal Aid Clinics

Legal Aid Clinics have been established in all Gram Panchayats by engaging competent lawyers as legal consultants in the clinics.23 A number of Colleges and Universities having law as a department have clinics to provide legal assistance to the needy. They are aided and assisted by the concerned legal services authorities.

5.1. Para-legal Volunteers

Para-legal Volunteers means a group of volunteers to act as intermediates between the common people and legal services institutions at Central, State, District and Taluka levels. They are trained by any of such institutions.24

Lok Adalats are judicial bodies set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. Sections 19 to 22 of the Legal Services Authorities Act, 1987 deal with Lok Adalats. They have the powers of an ordinary civil court, like summoning, examining evidence etc.25 Their orders are like any court orders, but the parties cannot appeal against such orders.26 Lok Adalats can resolve all matters, except criminal cases that are non-compoundable. Either one or both the parties to litigation can make an application to the court for transferring the case to a Lok Adalat.27 Where no compromise or settlement is made by the Lok Adalat, such a case is transferred to the court and that court deals with the litigation from the stage the Lok Adalat had reached.28

5.2 State Legal Services Authority

In every State, a State Legal Services Authority is constituted to give effect to the policies and directions of the Central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats in the State. State Legal Services Authority is headed by the Chief Justice of the State High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated as its Executive Chairman.29

5.3 District Legal Services Authority

District Legal Services Authority is constituted in every District to implement Legal Aid Programmes and Schemes in the District. The District Judge of the District is its ex-officio Chairman.

5.4 Taluk Legal Services Committees

Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organise Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman.

LEGAL LITERACY PROGRAMME

In order to enable the citizens to avail the opportunities under the Act in respect of grant of free legal aid, it is necessary that they are made aware of their rights. 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.

NALSA has been organising the Legal Aid Camps through State Legal Services Authorities, Taluka Legal Services Committees, NGOs, etc in the rural and slum areas for educating the weaker sections as to their rights and for encouraging them to settle their disputes through Alternative Dispute Resolution (ADR) Mechanism. The people are educated, made aware of their rights, benefits and privileges guaranteed by social welfare legislations, administration programmes and measures etc.

The NALSA has been organising meetings, seminars and workshops connected with legal services programmes in different parts of the country. The NALSA has developed audio visual spots and publicity material to make the common man aware of the various aspects of the legal services programmes. Documentary films have also been prepared and are being screened in the different parts of the country through Directorate of Field Publicity, Government of India.

‘Nyaya Deep’, the official newsletter of NALSA is promoting a healthy working relationship between legal services functionaries throughout the country and is proving immensely useful for exchange of views and sharing of ideas. Statistical information in regard to legal aid schemes and programmes is also included in this newsletter which is printed on quarterly basis.

SUPREME COURT LEGAL SERVICES COMMITTEE

Supreme Court Legal Services Committee has been constituted under section 3A of the Legal Services Authorities Act 1987 to administer and implement the legal services programme in the Apex Court. If a person belongs to the poor section of the society having annual income of less than Rs 50,000 or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural calamity, is a woman or a child or a mentally ill or otherwise disabled person or an industrial workman, or is in custody including custody in protective home, he/she is entitled to get free legal aid from the Supreme Court Legal Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter and all applications connected therewith, in addition to providing an Advocate for preparing and arguing the case.

Section 3A, sub-section (2) of the 1987 Act provides that the Supreme Court Legal Services Committee shall consist of –

(a) a sitting judge of the Supreme Court who shall be the Chairman; and

(b) such number of other members possessing such experience and qualifications as may be prescribed by the Central Government to be nominated by the Chief Justice of India.

Any person desirous of availing legal service may make an application to the concerned ‘Legal Services Institution’36 in the local language or English.37 The applicant may furnish a summary of his grievances for which he seeks legal services, in a separate sheet along with the application.38 Oral requests for legal services may also be entertained.39 The Committee after ascertaining the eligibility of the person provides necessary legal aid to him.40

8. SUMMARY

The basic objective of law and the judicial institutions is to secure equal justice to all individuals in a democratic polity. Equal access to justice is not only one of the preamble promises to all Indian citizens but also forms part of equality clause of article 14 and fair procedure under article 21 of the Constitution. Legal aid as an element of access to justice strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.

Legal aid implies giving free legal assistance to poor and needy person, who cannot afford the services of a lawyer of his own for the conduct of his case or a legal proceeding in any court, tribunal or an authority. 41 The focus of Legal Aid is on distributive justice, effective implementation of welfare benefits and elimination of social and structural discrimination against the poor. Article 39A providing for equal justice and free legal aid, was inserted in the Constitution by 42nd Amendment in 1976 as a principle of policy to be followed by the State. Legal aid, therefore, is not a charity but it is a constitutional obligation of the State and right of the people.

The contributions made by the Committees appointed by the Government of India under the chairmanship of Justice Krishna Iyer and Justice Bhagwati were significant in shaping the contours of the legal aid programmes in India.

The Indian Judiciary has also played a pro-active role in the development of the concept of legal aid and various instruments for the promotion of the welfare of the people. Public Interest Litigation is landmark innovation of the Indian Judiciary to safeguard the rights of the weaker section of the society. It encourages the public spirited people to seek justice for the poor.

The Legal Services Authorities Act 1987, was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organise Lok Adalats to ensure justice on the basis of equal opportunity. The system of Lok Adalat, as an alternate dispute resolution mechanism is an effective innovation for resolving disputes in a spirit of conciliation outside the courts.

The constitution of legal services authorities under the Act has helped the marginalised sections of citizens and poverty ridden people in a significant manner. National Legal Services Authority is laying great deal of emphasis on legal literacy and legal awareness campaign. NALSA is keen to develop and promote a culture of conciliation instead of litigation in the country so that the citizens of this country prefer to resolve their disputes and differences across the table in a spirit of goodwill and brotherhood.42 The attempt will be helpful to decongest the courts of heavy burden of cases.

In Baliram Madhukar Dalvi v State of Maharashtra 43 the High Court of Mumbai unconditionally acquitted the accused on the ground that he was denied free legal aid throughout the proceedings. He was not legally represented in the Sessions Court. On appeal, the legal aid panel lawyer did not appear. The case reflects lack of internalization of legal aid as a service to the society and that the legal aid programme will have to go a long way towards wiping the tears from the eyes of the millions of Indians, by advancing social justice and providing them equal access to the law and justice institutions of the country.

Weblinks

• http://nalsa.gov.in/
• http://www.legalserviceindia.com/article/l361-Legal-Aid-Movement.html
• http://www.archive.india.gov.in/citizen/lawnorder.php?id=10