E N Sameer Avasarala, Shashank Kanoongo CURSE …iclrq.in/editions/jan19/Art3.pdf• EDITORIAL NOTE...

• EDITORIAL NOTE Sameer Avasarala, Shashank Kanoongo

• ADULTERY – CURSE FOR INDIAN SOCIETY Sahaj Karan Singh

• LIVE STREAMING OF COURT PROCEEDINGS: A DOOR TO OPEN JUSTICE Yash Modi

• RIGHT TO COUNSEL & LEGAL AID: COMPARISON BETWEEN INDIA, U.K. &

SCANDINAVIAN COUNTRIES Gururaj D. Devarhubli

AMIT SINGHAL

ASWINIKUMAR BAIRAGYA

AGRADOOT

Indian Constitutional Law Review [ISSN: 2456-8325] Edition VII [January 2019]

Published by Agradoot Web Technologies LLP

21

RIGHT TO COUNSEL & LEGAL AID: COMPARISON BETWEEN

INDIA, U.K & SCANDINAVIAN COUNTRIES

Gururaj D. Devarhubli

LL.M (Intellectual Property Law), Gujarat National Law University (GNLU), Gandhinagar

ABSTRACT

Legal Aid, in simple terms, is nothing more than legal representation in court. But as a

„right‟ it is limited in extent and availability. Even though most jurisdictions do not explicitly

provide for and do not recognize, in the first place, the right of legal aid and legal

representation in courts, but it has found to be implicit in various legal systems and in human

rights instruments. But in practice, the right of legal aid means much more than mere legal

representation. It is a fundamental human right, guaranteeing public access not only to legal

institutions and legal representation; but also to legal information, advice and knowledge of

rights. With this aim and background, the researcher through this research paper aims to

study the history of legal aid in India, the United Kingdom and the Scandinavian countries,

the existing scenario and the recognition of the legal aid as a fundamental right under their

jurisdictions.

INTRODUCTION

“You have a right to the presence of an attorney and if you cannot afford one, one will

be appointed for you.”

- Observation in Miranda v. Arizona48

In any welfare society, legal aid to the poor and weak is necessary for the preservation of rule

of law and for the existence of an orderly society. The concept of equality and justice are

embedded in the doctrine propounded by Aristotle:

“Equality and justice are synonymous; to be just is to be equal, to be unjust is to be

unequal.”

This doctrine propounds Justice in the sense of distributive and corrective justice. The former

requires that there has to be equal distribution among equals while the latter seeks to restore

equality or to establish equilibrium. Thus, justice should be open to all, rich or poor, men and

women, equally.

48

384 U.S 436, 470-73 (1966).



22

As per the New Encyclopedia Britannica, ―legal aid‖ means the professional legal assistance

given either, free or for a nominal sum, to indigent persons in need of such help.

Earlier, in India, the term ―Legal Aid‖ was much used. But the Supreme Court in several

cases has made it clear that legal aid is not a charity but a paramount duty of a welfare State.

Thus, it shifted the notion of equal justice from ‗aid‘ to ‗service‘. The former referred as a

help to the deprived or who could not seek it, but the latter sees it as a service, a right which

they are entitled to and can be claimed as any other right.

In its literal sense, ―legal service‖ means help, assistance, or free service in the field of law.

Legal services are of two types:

(1) Pre-litigation legal services (it includes legal education, legal advice, legal awareness,

pre-litigation services, etc.); and

(2) Post-litigation legal services (it includes payment of court fees, process fees, diets?? of

witnesses, cost of certified copies, pleaders fee, etc.).

In 2012, the United Nations General Assembly adopted the world‘s first international

instrument dedicated to the provision of legal aid. The UN Principles and Guidelines on

Access to Legal Aid in Criminal Justice Systems were approved on 20 December 2012. The

UN enacted global standards for legal aid, and invited States to adopt and strengthen

measures to ensure that effective legal aid is provided across the world.

PROVISIONS FOR LEGAL AID IN INDIA

In India, the right to counsel and legal aid is affirmed through:

(1) The Constitution ;

(2) Law Commission Reports;

(3) Statutes; and

(4) Judiciary.

The Constitution of India recognizes the significance of legal aid and right to counsel.

Accordingly, Article 39A under Part V (i.e. Directive Principles of State Policy) was inserted

by the Constitution (42nd

Amendment) Act, 1976. Under this provision, the State is obligated

to secure that ―the operation of the legal system promotes justice on the basis of equality‖ and

providing free legal aid ―to ensure that opportunities for securing justice are not denied to any

citizen by reason of economic or other disability.‖49

The object of this provision is to promote

49

INDIA CONST. art. 39A.



23

equality so that no citizen is denied the right to seek justice because of economic incapacity

to bear the cost of legal aid.50

With regard to Right to Counsel, Article 22 of the Constitution provides that ―no person who

is arrested shall be detained in custody without being informed, as soon as maybe, of the

grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a

legal practitioner of his choice.‖

Highlighting this principle, the Law Commission of India in its 48th

Report (1972) discussed

the safeguards against overuse of state power in criminal proceedings. The Commission

stated that ―the accused must be informed of his right to consult a legal practitioner of his

choice, and must also be given an opportunity to consult such a legal practitioner before

making the confession.‖51

Thus, the Commission recognized the right to counsel as a ―basic ingredient‖ of a criminal

trial, and also commented that the law should go ―as far as possible‖ in assuring that this

ingredient is not absent.

The principle has also been affirmed by the judiciary whereby the Supreme Court held that

―indigence should never be a ground for denying fair trial or equal justice. Particular attention

should be paid to appoint competent advocates to handle complex cases. Sufficient time and

complete papers should also be made available so that the advocate chosen may serve the

cause of justice.‖52

Also the accused is entitled to financial assistance to engage a counsel of

his choice and also the government is required implement legislation with appropriate

schemes for free legal aid.53

However, this right is also not absolute and can be reasonably regulated by laws.54

Thus, the

question of legal representation is to be decided in the context of the specific factual situation

in each case. The right to legal representation can also be restricted by a standing order and it

is not considered as a denial of natural justice so as to vitiate an administrative enquiry.55

50

M.P Jain Indian Constitutional Law, 2003 Vol. 2, 5th

ed. P. 1616). 51

Law Commission of India, 48th

Report: Some questions under the code of criminal procedure Bill, 1970 (July

1972). 52

R.M Wasawa v. Union of India, A.I.R 1974 SC 1134; (1974) 3 S.C.C 581. 53

Ranjan Dwiwedi v. Union of India, (1983) 3 S.C.C 307. 54

Director-General for Railway Protection Force v. K. Raghuram Babu, 2001 (6) A.L.D 18; 2001 (5) A.L.T

543. 55

Crecent Dyes and Chemical Ltd. v. Ram Naresh Tripathi, (1993) I.L.L.J. 907 S.C.; 1992 (3) S.C.A.L.E 518;

(1993) 2 S.C.C 115.



24

Thus, to what extent legal representation would be allowed in administrative proceedings

depend on the provisions of the statute. The Factories Act 1947, for example, does not permit

for legal representation whereas the Industrial Disputes Act 1948 allows it with the leave of

the tribunal. Some statutes like the Income Tax Act 1961 permit legal representation as a

matter of right.56

In cases of preventive detention, legal assistance poses a serious problem because on one

hand, preventive detention laws disallow legal representation whereas on the other hand, it

seeks to detain people for unproved crimes. On this point, the Supreme Court clarified by

allowing legal representation to the detainee through a lawyer even when Section 11 of the

Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,

1980 and Section 8(e) of the conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (COFEPOSA) denied of legal representation in express terms because

the state had been represented through a lawyer.57

Thus, even when the law does not allow

legal representation to the detenu, he is entitled to make such a request, and the advisory body

is bound to consider this request on merit. Also, if an Act disallows legal representation to a

detenu, the State also cannot take the help of a lawyer.58

Also the right of free legal aid under Article 39A is non-justifiable and cannot be claimed as a

matter of right in the courts of law. The Indian Courts through various decisions have

recognized the right to free legal aid. The ―right of legal representation‖ was first recognized

in 1981 where the court held that a person entitled to appeal against his/her sentence has the

right to ask for a counsel, to prepare and argue the appeal.59

Also it is a Constitutional duty on

part of the State to provide legal aid from the time the accused is produced before the

Magistrate for the first time and it continues whenever he is produced for remand.60

However, even before the Constitutional mandate for legal aid existed Section 304 of Code of

Criminal Procedure provides that if an 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.

Also, Order XXXIII of Code of Civil Procedure deals with suits by Indigent persons. As per

Explanation I of Order XXXIII a person is an indigent, if he is not possessed of sufficient

means to enable him to pay the fee prescribed by law for the plaint in such suit or where no

56

http://www.legalserviceindia.com/articles/laid.htm. 57

Nand Lal Bajaj v. State of Punjab, (1981) A.I.R 2041. 58

A.K Roy v. Union of India, A.I.R 1982 SC 710; (1982) 1 S.C.C 27. 59

MH Hoskot v State of Maharashtra, (1978) 3 S.C.C 544. 60

Khatri v. State of Bihar, (1981) 1 S.C.C 635.



25

such fee is prescribed, if he is not entitled to property worth one thousand rupees other than

the property exempt from attachment in execution of a decree and the subject matter of the

suit.

Rule 9A (1) of Code of Civil Procedure provides for the Court to assign a Pleader to an

unrepresented indigent person, if the circumstances of the case so require.61

Also, Rule 9A (2) of Code of Civil Procedure provides for making of rules for selecting the

pleader. The High Court may with the previous approval of the State Government, is

empowered to make rules providing for the mode of selecting pleaders which will be

assigned to an indigent person. The rules can also deal with other matters such as the

facilities to be provided to such pleader by the court, etc.

The constitutional mandate and judicial pronouncements led to the enactment of the Legal

Services Authorities Act, 1987. The Act lays down the conditions for granting legal aid, the

criteria to determine eligibility for legal aid and also establishes certain authorities at the

Central, State, District and Taluka levels.

PROVISIONS OF LEGAL AID IN U.K

Even though United Kingdom has no written Constitution, the concept of legal aid and right

to counsel was recognized since ancient times.

Presently, Article 12(2) of the Bill of Rights states that Legal Aid Schemes help people with

limited resources to meet the cost of work done by a lawyer. Further, Art.15 (2) provides that

an arrested person has the right to consult a solicitor. Thus, in England the right of access to

justice and to the courts is expressly recognized by the common law. In R (UNISON) v.

Lord Chancellor62

, the U.K Supreme Court held that ―the right of access to justice is not an

idea which is recently imported from the continent of Europe, but has long been deeply

embedded in our constitutional law.‖ The common law also recognizes a basic right to

procedural fairness. The principles of due process and access to justice can be traced back to

the Magna Carta.

The right to legal aid is recognized as a ―basic right‖ and is protected by Article 6 of ECHR.

This right is given effect under domestic law by the Human Rights Act, 1998 and other

statutes such as the Scotland (Legal Aid) Act 1998.

61

Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973 (India). 62

(2017) UKSC 51.



26

However, the earliest legislation in U.K providing for legal aid can be found in Poor

Prisoners‘ Defence Act of 1903. The Act empowers Courts to grant legal aid to a prisoner of

insufficient means where it appeared ―desirable in the interest of justice‖ and ―having regard

to the defence set up‖. Under the Act, the expenses of the defence, the fees of solicitors and

counsel, and the expenses of the witnesses were to be paid and allowed in the same way and

allowed ―in the same way as the expenses of the prosecution‖. However, the legal aid was

limited to trials on indictment. This defect was removed by the Poor Prisoners‘ Defense Act

of 1930.63

In 1944, the Government set up the Rushcliffe Committee, chaired by Lord Rushcliffe to

advise it on the way forward. In May 1945, the Committee submitted its report with the

following recommendations:

(1) Legal aid should be available in all Courts and in such manner as will enable persons in

need to have access to the professional help they require;

(2) This provision should not be limited to those who are normally classed as poor but

should include a wider income group;

(3) Those who cannot afford to pay anything for legal aid should receive this free of cost.

There should be a scale of contribution for those who can pay something towards costs;

(4) The cost of the scheme should be borne by the State, but the scheme should not be

administered either as a department of State, or by local authorities.

Based on these recommendations, on July 30 1949 two statutes received the Royal Assent in

the United Kingdom. The first was the Legal Aid and Advice Act, 1949, which applied to

England and Wales; the second was the Legal Aid and Solicitors (Scotland) Act, 1949 which

applied to Scotland.

The Acts introduced a new system of aid for civil cases. It provided for the establishment of a

network of local committees, composed of solicitors and some barristers to grant legal aid

under regulations made by the Lord Chancellor. By this Act, aid was extended to cover all

proceedings in magistrates‘ courts, except for certain types of action such as defamation and

breach of promise of marriage.

The following conditions are to be satisfied by a person receiving legal aid:

(1) That he has a probabilis causa litigandi

63

https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf.



27

(2) That his disposable income does not exceed 420 pounds a year and that his disposable

capital does not exceed 500 pounds64

However, a person may be refused legal aid, if it appears unreasonable that he should receive

it in the particular circumstances of the case.

As per Section 2(2) of the Act, legal aid is available to an accused person in criminal cases,

without inquiry into his resources, in the initial stages. Section 2 (3) provides that persons

receiving legal aid may be required to make a contribution to the legal aid fund in respect of

the sums payable on their account. However, the contribution is on a graded scale where no

contribution is payable if the disposable income does not exceed 156 pounds a year and

disposable capital does not exceed 75 pounds.

Section 18(4) and 18(5) provided that all the new criminal legal aid provisions were to apply

equally to proceedings on the questions of sentence and of guilt.

With the aim to remove the defects of the Legal Aid and Advice Act 1949, a Committee was

appointed under the Chairmanship of Mr. Justice Widgery. As per the recommendations,

the Legal Aid Act was passed in 1964. The Act provided for the payment of costs incurred by

the successful unassisted opponents out of legal aid funds. It also recommended that dealing

with legal aid should not be transferred to the legal aid of the law society but should remain

with the court. It introduced a simplified scheme of contribution in which there should be no

predetermined limits of capital or income to decide whether an applicant is financially

eligible.

On the similar lines of the 1949 Act and to provide legal aid in criminal cases, the Cost in

Criminal Cases Act was enacted in 1952. The Act empowered the courts, in the case of an

indictable offence, to order reasonable defense costs to be paid out of public funds, when the

accused was discharged or acquitted.

Also the Legal Aid Act of 1960 was enacted which related to financial conditions for legal

aid and made further provision for the remuneration of counsel and solicitors.

In view of the defects and difficulties in application of the Act, the Legal Aid and Advice Act

of 1949 was amended and is now referred as the Legal Aid Act of 1988. It includes civil legal

aid, criminal legal aid, and advice and assistance. The Act brings substantial changes into the

legal aid system. A major change was that the handling of legal cases was taken from the

64

Duncanson Ian, Legal Aid in the UK, Vol. 7 No. 1 Legal Service Bulletin (LSB) 26-32 (1982).



28

Law Society and was given to a specifically created Legal Aid Board. It consisted of 11 to 17

members appointed by the Lord Chancellor and it funded and managed the civil legal aid

scheme and legal advice. Another change was that the Act made provision for ―contracting

out‖ legal aid work. It enabled the Legal Aid Board to enter into contracts with a particular

firm or firms of solicitors to provide representation in certain types of proceedings. The

consequence of such change was that the Board, rather than the client chose which solicitor

will handle particular legal matters. However, these changes have received varied reactions

from the legal community. The most objections of the community are for the contracting out

provisions. Most of the practicing attorneys feared that contracting out could lead to a virtual

monopoly on subsidized legal assistance in some areas which could lead to corner cutting and

poor quality work. Another objection was that it denies the client the basic right to select his

or her own solicitor. As highlighted in the 38th

Legal Aid Annual Report by the Lord

Chancellor‘s Advisory Committee on legal aid, ―freedom of choice‖ is a reasonable price to

pay to secure greater coordination and efficiency of multiparty actions which in the long run

should produce better results for the client. With this feature, the legal aid system of UK

became more like USA where freedom of choice was sacrificed for greater efficiency which

in turn, increased quality of legal services.

Under the Act, legal aid and assistance (commonly referred as ―Green Form‖) intends to

cover preliminary advice and assistance from a solicitor, including writing letter, entering

into negotiations, obtaining opinions, and preparing tribunal cases. It also includes assistance

by way of representation which was introduced in 1980 to cover domestic proceedings in

Magistrates‘ Courts but has been extended to cover proceedings before a Mental Health

Review Tribunal to allow representation of a parent or guardian in certain child care

proceedings, representation where the police apply for a warrant of further detention where a

suspect is detained at a police station and representation for a prisoner before a Disciplinary

Tribunal. However, a person is not qualified for it if he or she is already receiving assistance

under the civil legal aid provisions of the Act.

Thus, both the civil legal aid and legal advice and assistance are included in the same statute.

But a person cannot receive legal services under both provisions of the Act. Depending on the

nature of the problem, a person qualifies for legal advice and assistance. It is limited to

routine problems not requiring court involvement such as giving preliminary advice. But

once the matter involves litigation, the recipient must apply for civil legal aid. Also, if after

the initial meeting with the client the solicitor determines that the case involves litigation, the



29

client may directly apply for civil legal aid. The Act specifically excludes advice on wills and

conveyancing. Moreover, the Act authorizes the Lord Chancellor to exclude certain types of

advice or assistance to prevent inefficient and unnecessary duplication of legal services.65

The Act does not set out any financial limits of eligibility but they are prescribed by

regulation. Also the legal aid and advice is not free to all clients. If a client is financially able,

he must make a co-payment directly to the solicitor.

The following 2 tests are followed to determine whether an applicant is eligible for legal aid:

(1) Means Test

It investigates whether an applicant is financially eligible to receive civil legal aid by

assessing their income and disposable capital. As per the Regulations, only those with weekly

disposable income under 114 pounds and total disposable capital of less than 800 pounds

(after taking into account certain allowances) are eligible for advice and assistance. However,

no contributions are required if the disposable income is less than or up to 2,255 pounds a

year. Also civil legal aid will not be granted, if disposable income is greater than 5,145

pounds or if total disposable capital is 4,710 pounds or more. As per Section 6 of the Act, the

Board shall establish and maintain a separate legal aid fund and any costs incurred over the

amount of the contribution are absorbed by such fund.

(2) Merits Test

In addition to the financial criteria, an applicant must also satisfy a two-fold merits test.

Firstly, a person must show ―that he has reasonable grounds for taking, defending or being a

party" to the action. Secondly, aid may be denied if "it appears unreasonable that he should

receive it in the particular circumstances." Thus, it assesses the likelihood of an applicant‘s

case being successful in the court.

The English legal aid system, particularly of England and Wales, was radically reformed in

2000. The Legal Aid Act of 1988 was replaced by the Access to Justice Act 1999. In the

current legal aid scheme, applicants have to pay a contribution when legal aid is granted.

Also the Act brought other changes such as:

Firstly, a new executive body, the Legal Services Commission (LSC) was established and it

was responsible for the development and administration of both civil and criminal legal aid

schemes. In cooperation with local authorities and legal aid suppliers, local networks are

65

https://www.lawyerscollective.org/mag/1986/11-nov-dec.pdf.



30

established through partnerships. However, the partnership members who received the LSC

‗Quality Mark‘ are qualified to offer legal aid.

Secondly, the new scheme provides for the use of contracts. Only the suppliers of legal aid

who have contracted with LSC are funded for legal aid work.

Thirdly, the civil legal aid scheme provides for ADR, especially in family cases.

Lastly, some fields of law are no longer publicly funded by LSC. However, alternative

arrangements are made for those cases.

The 1999 Act has been repealed by the Legal Aid, Sentencing and Punishment of Offenders

Act, 2012. The Act came into force from 1st April 2013 and it amended the way that civil

legal aid funding is awarded and also limited the scope of issues eligible for civil legal aid

funding. It also introduced greater ministerial control over the UK Government‘s legal aid

budget. The Act abolishes the Legal Services Commission and created the Legal Aid Agency

which is an executive agency of the Ministry of Justice, providing civil and criminal aid and

advice in England & Wales.

The Act has removed certain types of cases from the scope of legal aid funding such as:

(a) Private Family Law (eg. Divorce & Custody battles)

(b) Personal injury and some clinical negligence cases

(c) Some employment and education law

(d) Immigration where the person is not detained

(e) Some debt, housing and benefit issues

However, family law cases involving domestic violence, forced marriage or child abduction;

mental health cases; asylum cases, etc. are still covered by the Act.

PROVISIONS FOR LEGAL AID IN SCANDINAVIAN COUNTRIES

The Nordic welfare state model, common to all Nordic countries, is characterized by

universal state-regulated welfare schemes, which give all citizens the right to assistance when

they have various kinds of health or social problems. With the development of the Nordic

welfare states after World War II, the process of juridification accelerated, as legislation

ensuring people‘s rights to welfare expanded. The growing complexity of welfare rights and

regulation, as well as increasing bureaucracy, meant that ordinary people, especially poor

people, had difficulty claiming their rights, both from the public administration and in the

courts. Substantial legal aid schemes were developed to help people claim these rights, and in

the Nordic countries legal aid came to be considered as part of the universal welfare ideology.



31

The basic germ for the Nordic legal aid is the ideology of universal welfare such as health

care and social security. The Nordic legal system flourished in the 1970s with the emergence

of the new legal aid clinics in Norway and Denmark.66

(a) Provisions for legal aid in Norway

Since the Viking times i.e. 8th

to 11th

century the elements of regulation of legal assistance,

and the first formal laws of Norway had provisions for royal ombudsmen, who were entitled

to file suits on behalf of those without sufficient knowledge or power to represent themselves.

During the 1500s and 1600s, officially appointed lawyers—procurators—were obliged to

represent ‗the poor, widows, the insane, and the defenceless‘ before the 1800s. courts,

without other remuneration than a percentage of the claim received if the client won the case.

This scheme with minor adjustments, continued till 1800s. After 1893, the Ministry of Justice

took over the administration of the legal aid scheme, and had discretionary power to grant

legal representation in court cases. This was transferred to the courts in 1937.

Thus, the legal aid scheme was informal and discretionary, and only regulated by a circular

from the Ministry of Justice, until reform work began in the early 1970s. In 1980, the Legal

Aid Act was passed; it implemented the current public legal aid scheme.

The most prominent feature of the legislation was the public legal aid scheme which received

public funding for legal aid, mainly through a ‗judicare‘ scheme under which lawyers in

private practice provide legal assistance to those granted such aid and are remunerated out of

government funds. However, the conditions for granting legal aid under the scheme are

strictly regulated by law, and aid is granted by civil service institutions or the courts. The

civil legal aid scheme covers areas such as divorce, unlawful dismissal, social security, and

immigration, and in most cases financial criterion determines eligibility for aid.

The law provided for wide eligibility and it contained no restriction on the types of cases that

could be granted legal aid. However, after only a few years, the Act was amended, and

restrictions on eligibility were introduced.

Under the present public legal aid scheme, legal aid is granted only when certain eligibility

criteria are satisfied. There are both financial and material criteria for eligibility with

restrictions on subject, necessity and subsidarity.

66

Johnsen Jon T., Nordic Legal Aid, 1 MARYLAND JOURNAL OF CONTEMPORARY LEGAL ISSUES 301-

324 (1994).



32

However, as per Sections 11 & 16 of the Act, financial criterion are not required to be

fulfilled in certain particular matters such as domestic violence, the use of force in psychiatric

health care, or child welfare cases, etc.

The Act also provides that when financial eligibility is assessed, both income and assets are

taken into account, as well as whether the applicant has a spouse/co-habitant or not.

However, there is no further assessment of the applicant‘s actual ability to fund legal aid by

themselves.

As per the Sections 3 & 4, in order to be eligible for legal aid, a person must have less than

246,000 Norwegian Kroner (NOK) in gross annual income, or, if they are cohabitating the

gross annual income of the household must be below 369,000 NOK. In addition, a person

must have net assets below 100,000 NOK. Moreover, S. 4 limits the coverage of the Act only

to physical persons and commercial entities are excluded from the scheme.

However, if either of these financial eligibility criteria is not fulfilled then as per Ss. 11(3) &

16(3), legal aid can be granted under a discretionary exemption clause.

The Act contains provisions identifying those cases in which an applicant would be eligible

for legal aid. The scope of those cases has been expanded since its inception. Also the Act

distinguishes between legal aid cases involving means testing (where the financial eligibility

criteria apply) and cases without means testing. In matters deemed to be of ‗great personal or

welfare importance for a person‘ legal aid is granted without means testing.

Such matters are specified under S. 11(1) & 16(1), which are as follows:

(1) Immigration cases

(2) Child welfare cases

(3) Claims for compensation or redress for unlawful criminal prosecution

(4) Claims for compensation from the perpetrator of a criminal offence

(5) Domestic violence cases

(6) Cases regarding forced marriage

(7) Cases where coercion is involved, for instance, in psychiatric health care

(8) Cases concerning conscientious objection to military service

As per S. 11(2) & 16(2) in all other areas, legal aid is granted only if the financial criteria are

fulfilled. Such cases include:

• Marital cases



33

• Custody cases

• Personal injury cases

• Tenancy cases regarding termination of contract and eviction

• Employment cases regarding unfair dismissal

• Compensation for victims of violent crime

• Complaints/appeals concerning social security

If legal aid is granted, the applicant is entitled to either legal assistance outside court, or legal

representation in court proceedings. The legal aid will be provided by a lawyer, who will be

remunerated from state funds. Moreover, the court fees is also covered along with the costs of

interpretation and costs relating to evidentiary issues.

But if legal assistance is granted, the lawyer will be paid for the work according to set rates

for the hours needed for the case—so-called fixed fees, and the number of hours allotted for

different issues are set by the Ministry of Justice. Also the applicant will receive as much

legal aid as is necessary to conduct the case in a reasonable manner.

As per the Regulation to the Legal Aid Act 2005, the hourly fee for lawyers working under

the scheme is currently 995 NOK. Also the client has to pay a contribution which is 25% of

the cost but is cannot exceed 4975 NOK.

The Norwegian Ministry of Justice and Public Security is responsible for administering legal

aid in Norway. As most of the publicly funded legal aid scheme is regulated by the Legal Aid

Act, most changes to the scheme require an Act of Parliament.

The County Governors are the decision-making body of first instance for applications for

legal aid. Decisions can be appealed to The Civil Affairs Authority, and, in turn, be subject to

judicial review by the courts.

(b) Provisions for legal aid in Sweden

In 1919, Sweden passed the first legislation on legal aid i.e. ―Free Legal Proceedings Act‖

which provided free legal aid to poor people. But during the end of the 1960s, legal aid policy

of Sweden was influenced by Scandinavian welfare ideology, and provided both litigation aid

and legal aid assistance.

Prior to 1973, there was no statutorily unified system of legal aid in Sweden. The program

was integrated into procedural law with much of the administration entrusted to the courts. In



34

1973, the Legal Aid Act was passed and its purpose was to equalize access to legal services

by enabling everyone to obtain legal assistance in any case where legal aid was needed.

Under the present Legal Aid Act of 1996 which came into force in December 1997, a

substantial reform was introduced to the legal aid policy with an aim to cut public spending.

This was done to achieve major cost savings since Sweden was undergoing recession at that

time. Thus, the more limited resources were to be allocated to those in most need of legal aid.

According to section 6 in the Legal Aid Act, legal aid can be granted to a person whose

financial base does not exceed 260,000 SEK a year. This limit was last changed in 1999. As

per S. 38, the financial base includes annual income after allowances for maintenance

obligations, including 25,000 SEK per child, to a maximum of 75,000 SEK, assets and debts.

Generally, assets exceeding 50,000 SEK are taken into account and half of this amount will

be added to the annual income. However, the value of the residence where the claimant lives

permanently is not counted as an asset.

As per S. 7, legal aid cannot be granted if legal assistance can be obtained in another way.

S. 8 makes it clear that legal aid may be granted only when, considering the nature and

importance of the matter, the value of the dispute and other circumstances, it is reasonable

that the state should contribute to the costs.

S. 9 provides that to be granted legal aid the applicant must not have legal expenses insurance

covering the legal matter. The same applies if the applicant should have had legal expenses

insurance. However, if the applicant does not have legal expenses insurance but if, given their

insurance coverage in general, or their financial and personal circumstances, they should have

had such protection, legal aid is granted only if there are special reasons as regards the nature

of the issue or the importance of the claimant.

All legal matters qualify for legal aid, unless specifically excluded. However there are certain

limitations to the right of legal aid, as provided under S. 11:

(1) The preparation of tax returns;

(2) The writing of wills;

(3) Prenuptial agreements

(4) Estate inventories; and

(5) Cases relating to debt restructuring.



35

S. 11(2) requires special reasons in cases concerning taxation, customs fees or other similar

charges. However S. 21 treats victims of sexual harassment as an exception and no special

reasons are required in such case.

Another limitation is provided under S. 7 legal aid is not granted for hearings before the

Administrative Courts.

Applications for legal aid are decided by the Legal Aid Authority, unless the matter is already

before a court. In that case, it is the court that decides on legal aid. Section 2 of the Legal Aid

Act states that an application for legal aid must be preceded by consultation with a lawyer or

other legal practitioner. The consultation fee paid by the applicant is a set at 1628 SEK per

hour. The fee can be reduced to half if the individual‘s income is less than 75,000 SEK per

year. In the case of people under the age of 18, and those with no income or wealth, the

consultation can be waived by the Legal Aid Authority

According to S. 26 of the Legal Aid Act, the legal aid counsel appointed can be a lawyer, an

associate in a law firm, or any other appropriate person. In other words, no formal

qualifications are required. However, the Legal Aid Authority or the court assesses legal

counsels who are not lawyers or associates of a law firm for their suitability as

representatives.

(c) Provisions for legal aid in Finland

The Finnish Constitution recognizes and guarantees the right to legal aid and the Legal Aid

Act regulates its organization. Chapter 2 of the Finnish Constitution guarantees certain basic

rights and liberties. S. 21 guarantees the publicity of proceedings, the right to be heard as well

as other guarantees of a fair trial and good governance shall be laid down by an Act.

In Finland, public legal aid is governed by the Legal Aid Act, the Act on State Legal Aid

Offices, and three government decrees: one on legal aid, one on legal aid fee criteria, and one

on state legal aid offices. In Finland, legal aid is administered by the Ministry of Justice and

is granted mainly through the state legal aid offices or the decisions of the courts.

However, the origins of the Finnish legal aid scheme go back to the 1950s. In 1956, a law

ensuring free trial took effect in Finland. Its aim was to provide citizens with state-funded

legal representation in the courts by private lawyers. Matters outside such litigation were left

out of the new Act, mainly for fiscal reasons. The new law concerning free trial and the first

municipal legal aid act came into force in 1973, thereby expanding the scope of the cost-free

procedure and establishing communal legal aid offices. In the late 1980s, a revision of the



36

law expanded legal aid to cover many out-of-court civil cases (especially those related to

divorce and child custody), as well as preliminary investigations in criminal cases.

In late 1990s, public legal aid offices were transferred from the municipalities to the Finnish

state. The reform also introduced the possibility of partial payment for legal aid where the

client‘s liability was determined by means and merit testing.

In Finland, legal aid is granted to all inhabitants having a need for expert assistance in legal

matters. However, legal aid is not granted if the applicant has legal expenses insurance that

covers the matter in hand.

Legal aid eligibility is based on the applicant‘s available means. This is assessed by

calculating their net monthly income. Net income is calculated from the monthly combination

of the applicant‘s income after taxes, wealth, and expenditure. Expenditure is calculated by

deducting from disposable income, housing costs (no instalment of a mortgage), childcare

fees, alimony, recovery proceedings, and loan arrangements. Wealth is calculated after

liabilities attached to its value are reduced. Wealth that is not taken into account in

determining the supplementary excess consists of a family‘s primary residence and a car,

provided that their value is reasonable in proportion to the family‘s size and need. If the

applicant is married or cohabits, the incomes of both spouses are taken into account in the

calculation.

Finland follows generous eligibility criteria for legal aid which is evident from 75% of people

being eligible for full or partial legal aid. The following 2 tests are applied to determine legal

aid:

(1) Means Test

Under the Means test, people receive assistance on a sliding scale depending on their

level of income.

(2) Merits Test

Under the merits test, legal aid is not available for ‗simple‘ criminal cases. The Legal

Aid Office or a court decides whether a case is ‗simple‘ on a case-by-case basis.

(d) Provisions for legal aid in Denmark

There is no direct provision for legal aid under the Constitution of Denmark. But S. 71(6) of

the Constitution provides for the right to a fair trial. Since legal aid forms an essential part of

every fair trial, the Section includes the right to legal aid.



37

For centuries, there has been a strong tradition of legal aid in the Scandinavian countries,

including Denmark. The point of origin was private and voluntary legal aid. Originally, legal

aid was offered to people of limited financial means, that is, those who could not pay for the

professional legal assistance they needed.

However, it was not until the general regulation on the Administration of Justice in 1916,

that there was a law on free legal aid in regard to lawsuits. According to it, lawyers who had

beneficium were also obliged to give legal aid to people of limited financial means.

In the 1970s, various measures were taken to improve legal aid. Three of the most important

of these were: first, as part of a very ambitious new law on social welfare, local authorities

now had a general obligation to provide citizens with free advice in order to help them

overcome (social) obstacles.

S. 323 of The Administration of Justice Act stipulates that everybody has a right to basic

verbal legal advice free of charge. Also, if certain financial criteria are met, there is a right to

further legal aid.

S. 323(ff) provides that free legal aid may be given by supplying a lawyer or by covering the

costs of a trial by public funding or insurance.

S. 323(1) provides that the Minister of Justice grants legal assistance in 3 steps:

(1) From lawyers providing legal aid in the form of basic oral evidence;

(2) From lawyers providing advice beyond the basic oral advice; and

(3) Advice in connection with settlement negotiations.

As per S. 331(1), free legal aid implies:

(1) Exemption from fees under the Danish Court Fees Act

(2) Exemption of a lawyer to conduct the case against remuneration from the state treasury

(3) Compensation from the state treasury of costs which have been justly incurred in

connection with the case

(4) Exemption from compensating the counterparty the costs of the case.

S. 331(5) provides that effects of free legal aid do not cease upon a party‘s death.67

CONCLUSION

67

Barlow Anna, Administrative Law and Human Rights Standards in Legal Aid: An Overview with examples

from Finland and England & Wales, 23 EPL 165 167-194 (2017).



38

Thus, a brief overview of various countries illustrates that irrespective of the legal systems

being followed in these countries, legal aid is universally accepted as a matter of right to the

accused as well as an indigent person. The tests followed to determine the eligibility for legal

aid is somewhat similar and also legal representation has been recognized as a ―right‖ of

every accused person irrespective of the gravity of the offence.

The Indian Constitutional Law Review ISSN: 2456-8325 | Edition VII


Thanking Note

The Editorial Board, Student Coordinators and the Advisory Members of the

Indian Constitutional Law Review seek to express their gratitude to all members

and contributors who have made immensely valuable contributions to the growth

and evolution of the Constitutional law landscape of India. We express our

heartfelt gratitude to all Advisory Members who have provided their valuable

insights in the framing of this edition. The Student Editors have also played a

crucial role in the development and outcome of this publication.

AMIT SINGHAL

Editor-in-Chief

On behalf of the esteemed members of the Editorial Board, Honourable Members of the

Advisory Council & the members of the Publishing Unit

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