Right to Free Legal Aid and Its Practical Implementation
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Transcript of Right to Free Legal Aid and Its Practical Implementation
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INTRODUCTION
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal
representation and access to the court system. Legal aid is regarded as central in providing
access to justice by ensuring equality before the law, the right to counsel and the right to a
fair trial.
A number of delivery models for legal aid have emerged, including duty lawyers, community
legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to
legal aid.
Free or inexpensive legal advice, assistance, or representation provided to those who, because
to their financial condition, otherwise would not be able to get. Legal aid schemes usually
require that the matter for which aid is requested must have at least a 5 percent chance of
succeeding in the court. !ommonly, legal aid cannot be availed"of where #$% alternative
funding is available to the party requesting it, #&% the case is li'ely to be heard by the small
claims court, #(% the case involves corporate matters, or #)% involves administration of trusts,
inheritance and wills, and*or land ownership.
Legal Aid implies giving free legal services 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. Legal Aid is the method adopted to ensure that no one is deprived of
professional advice and help because of lac' of funds. +herefore, the main object is to
provide equal justice is to be made available to the poor, down trodden and wea'er section of
society.
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Legal Aid A Part Of Legal Services
Legal service in its literal sense means help, assistance, or free service in the field of law.
reviously the word legal" aid was used in place of legal" service but the Apex !ourt of -ndia
has time and again asserted that legal aid is not a charity but a paramount duty of a welfare
tate. /ow legal assistance from tate can be claimed as a matter of right, therefore, the word
legal" service is being used in place of legal"aid.
Legal service are of two types:
A% re"litigation Legal ervice and
0% ost"litigation Legal ervices
Pre-litigatio Legal Services
-t is rightly said that, prevention is better than cure. -n these days, the number of litigation is
increasing day by day, which is very dangerous for smooth administration of justice. o far,
emphasis was given only on post"litigation 1 assistance or help but now it is being realised
that pre"litigation legal services are more useful than post"litigation legal services. re"
litigation legal services include2
i% Legal education
ii% Legal advice
iii% Legal Awareness
iv% re"litigation settlement etc.
-n order to provide pre"litigation services, the voluntary organisations have been encouraged
and boosted by financial support from the tate. -n law colleges and law faculties in the
3niversities, Legal aid clinics have to be established. +hese clinics would be of immense help
in promoting legal awareness as most of the litigation is often due to ignorance of the people
about their legal rights and duties.
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Post-Litigatio Legal Services
+raditionally legal aid has been provided at post"litigation stage. ost litigation legal services
include 4 appointment of lawyer for indigent, reimbursement of process fee, witnesses
expenditure, court fee etc. by the tate.
!istory Of Legal Aid
Legal aid has a close relationship with the welfare state, and the provision of legal aid by a
state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state
to people who could otherwise not afford counsel from the legal system. Legal aid also helps
to ensure that welfare provisions are enforced by providing people entitled to welfareprovisions, such as social housing, with access to legal advice and the courts.
6istorically legal aid has played a strong role in ensuring respect for economic, social and
cultural rights which are engaged in relation to social security, housing, social care, health
and education service provision, which may be provided publicly or privately, as well as
employment law and anti"discrimination legislation. 7urists such as 8auro !appelletti argue
that legal aid is essential in providing individuals with access to justice, by allowing the
individual legal enforcement of economic, social and cultural rights. 6is views developed in
the second half of the &th century, when democracies with capitalist economies established
liberal welfare states that focused on the individual. tates acted as contractors and service
providers within a mar'et"based philosophy that emphasised the citi9en as consumer. +his led
to an emphasis on individual enforcement to achieve the realisation of rights for all.
rior to the mid &th"century, literature on legal aid emphasised collective enforcement of
economic, social and cultural rights. As classic welfare states were built in the $:)s andfollowing ;orld ;ar --, an underlying principle was that citi9ens had collective responsibility
for economic, social and cultural rights< and the state assumed responsibility for those unable
to provide for themselves through illness and unemployment. +he enforcement of economic,
social and cultural rights was to be collective, through policies rather than individual legal
action. Laws were enacted to support welfare provisions, though these were regarded as laws
for planners, not lawyers. Legal aid schemes were established, as it was assumed that the
state had a responsibility to assist those engaged in legal disputes, but they initially focused
primarily on family law and divorce.
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-n the $:5s and $:=s, the role of the welfare state changed, and social goals were no longer
assumed to be common goals. -ndividuals were free to pursue their own goals. +he welfare
state in this time expanded, along with legal aid provisions, as concerns emerged over the
power of welfare providers and professionals. -n the $:=s and $:>s, demand rose for the
right of individuals to legally enforce economic, social and cultural rights and the welfare
provisions they as individuals were entitled to. 8echanisms emerged through which citi9ens
could legally enforce their economic, social and cultural rights, and welfare lawyers used
legal aid to advise those on low income when dealing with state officials. Legal aid was
extended from family law to a wide range of economic, social and cultural rights.
-n the $:?s, the role of the classic welfare state was no longer regarded as necessarily
positive, and welfare was increasingly provided by private entities. Legal aid was
increasingly provided through private providers, but they remained focused on providing
assistance in court cases. !iti9ens were increasingly regarded as consumers, who should be
able to choose among services. ;here it was not possible to provide such a choice, citi9ens
were given the right to voice their dissatisfaction through administrative complaints
processes. +his resulted in tension, as legal aid was not designed to offer advice to those
see'ing redress through administrative complaints processes. +ensions also began to emerge
as states which emphasised individual enforcement of economic, social and cultural rights,
rather than collective enforcement through polices, reduced funding for legal aid as a welfare
state provision. -ndividual enforcement of welfare entitlement requires the 'ind of legal aid
funding states emphasising collective enforcement were more li'ely to provide.
Legal Aid I Idia:-
Article (:A of the !onstitution of -ndia, provides for equal justice and free legal aid " +he
tate shall secure that the operation of the 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 opportunities for securing justice are not denied to any
citi9en by reason of economic or other disabilities. +his Article also emphasi9es that free
legal service is an inalienable element of reasonable, fair and just procedure for without it a
person suffering from economic or other disabilities would be deprived of the opportunity for
securing justice. +he right to free legal services is, therefore, clearly an essential ingredient of
reasonable, fair and just, procedure for a person accused of an offence and it must be held
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implicit in the guarantee of Article &$ of the !onstitution. +his is a 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 and the tate is under a
mandate to provide a lawyer to an accused person if the circumstances of the case and the
needs of justice so required, provided of course the accused person does not object to the
provision of such lawyer. @n the other hand, in the civil side, @rder of the !ode of !ivil
rocedure $:? provided that the state and central governments may ma'e supplementary
provisions at it thin's fit for providing free legal services to those who have been permitted to
sue as an indigent person. +he Legal ervices Authorities Act, $:?> made drastic changes in
the field of legal services. -t is an Act to constitute legal services authorities to provide free
and competent legal services to the wea'er sections of the society to ensure that opportunities
for securing justice are not denied to any citi9en by reason of economic or other disabilities,
and to organi9e Lo' Adalats to secure that the operation of the legal system promotes justice
on a basis of equal opportunity.
+he movement for free legal aid to the poor in -ndia is not a sudden fanciful idea of few
utopian philosophers. ;e can trace the legal aid hilosophy even in ancient -ndian ociety,
which is 'nown to have systematically commenced with edic age. +herefore, this !hapter
discusses legal aid movement in -ndia from edic period to 8odem period. -t includes the
following subdivisions2
e% ost" independence period
f% ost "!onstitution period
h% )&nd Amendment to the !onstitution, $:>= and
i% !riminal rocedure Amendment Act, &5
Post-Idepedece
@n &( 8arch $:):, Bovernment of 0ombay appointed a committee under chairmanship of
7ustice /.6. 0hagwati. -n its report submitted on ($st @ctober $:):, the !ommittee made the
following recommendations2
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a. Administrative machinery of legal aid should be constituted at four levels namely,
$% tate level &% 6igh !ourt level (% Cistrict level and )% +alu'a level
b. +he !ommittee suggested two tests for determining eligibility for legal aid, namely i%
8eans test and ii% rima facie test
c. -t was further proposed that no aid should be provided in trivial and trifling cases
d. +here should be a declaration on oath about DCisposable -ncomeD and DCisposable !apitalD
e. +here should be a certificate from a respectable citi9en or responsible officers regarding his
means
f. A bond should be executed by the party that there is no champerty and he will not ma'e
compromise without consent of Legal Aid !ommittee
g. +here may be cancellation of Legal Aid certificate in certain cases. Finally, the !ommittee
recommended for2
a% Assignment of lawyers, i.e., every member of 0ar should handle at least six cases per year.
b% +he lawyer is entitled to get remuneration only after six cases.
c% ;hen assisted party is successful then cost should be credited in Legal Aid Fund and in
case of his failure, cost should be paid out of Legal Aid Fund. +he !ommittee recommended
for Dartial Legal Aid as suggested in the Eeport of Eushcliffe !ommittee in ngland. -t had
also mentioned the scope and extent of Legal Aid. Legal Aid may be given to plaintiff and
defendant, complainants, petitioners etc. Legal Aid may be provided in all courts.
Legal Aid icl"des
a% !ourt fees b% rocess fees c% Ciets of witnesses, d% cost of certified copies e% leaders fee
etc.
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Post-Costit"tio Period
-ndian !onstitution which came into force in $:5 sets out social justice, liberty and equality
of status as its main aim. +he Fundamental Eights along with the Cirective rinciples of tate
olicy aims to create an egalitarian social order where justice dwells in all wal's of life be it,social, political or economic.
#ree Legal Aid i Idia: T$e positive Cotri%"tio of &"diciary
+he upreme !ourt of -ndia got a major opportunity to ma'e an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of !"ssaiara '$atoo vs state of
(i$arwhere the petitioner brought to the notice of upreme !ourt that most of the under
trails have already under gone the punishment much more than what they would have got had
they been convicted without any delay. +he delay was caused due to inability of the persons
involved to engage a legal counsel to defend them in the court and the main reason behind
their inability was their poverty. +hus, in this case the court pointed out that Article (:"
Aemphasi9ed that free legal service was an inalienable element of Greasonable, fair and justH
procedure and that the right to free legal services was implicit in the guarantee of Article &$.
+wo years later, in the case of '$atri v) State of (i$ar, the court answered the question the
right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. -t
held that the state is constitutionally bound to provide such aid not only at the stage of trial
but also when they are first produced before the magistrate or remanded from time to time
and that such a right cannot be denied on the ground of financial constraints or administrative
inability or that the accused did not as' for it. 8agistrates and essions 7udges must inform
the accused of such rights. +he right to free legal services is an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article &$ and the tate is under a constitutional mandate to
provide a lawyer to an accused person if the circumstances of the case and the needs of
justice so require. +he tate cannot avoid this obligation by pleading financial or
administrative inability or that none of the aggrieved prisoners as'ed for any legal aid.
-n S"* Das v) Uio Territory of Ar"ac$al Prades$, 7ustice ./. 0hagwati, emphasi9ed
the need of the creating the legal awareness( Articles $) and &$% of the -ndian !onstitution.
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3niversities, -ntellectual roperty Eights and pinoffs2 A !ritical valuation &(> to the poor
as they do not 'now the their rights more particularly right to free legal aid and further
observed that in -ndia most of the people are living in rural areas are illiterates and are not
aware of the rights conferred upon them by law. ven literate people do not 'now what are
their rights and entitlements under the law. -t is this absence of legal awareness they are not
approaching a lawyer for consultation and advise. 8oreover, because of their ignorance and
illiteracy, they cannot become self"reliant and they cannot even help themselves. +hat is why
promotion of legal literacy has always been recogni9ed as one of the principal items of the
program of the legal aid movement in the country. - would say that even right to education
would not fulfill its real objective if education about legal entitlements is not made accessible
to people and our constitutional promise of bringing justice to the door stepsof the people
would remain an illusion.
7ustice Irishna -yer, who is crusader of social justice in -ndia, had rightly said that if a
prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and
statutory right of appeal inclusive of special leave to the upreme !ourt for want of legal
assistance, there is implicit in the !ourt under Article $)& read with Articles &$ and (:"A of
the !onstitution, the power to assign counsel for such imprisoned individual Gfor doing
complete justiceH. -t is a statutorily recogni9ed public duty of each great branch of
government to obey the rule of law and uphold the tryst with the constitution by ma'ing rules
to effectuate legislation meant to help the poor. +hough the law has been enacted to protect
the poor the governments are la9y to implement the enacted law. +he same was observed by
upreme !ourt in tate of 6aryana v. Carshana Cevi, that Dthe poor shall not be priced out of
the justice mar'et by insistence on court"fee and refusal to apply the exemptive provisions of
order, !!. +he state of 6aryana, mindless of the mandate of equal justice to the indigent
under the magna carta of republic, expressed in article $) and stressed in article (:A of the
constitution, has sought leave to appeal against the order of the high court which has rightly
extended the pauper provisions to auto"accident claims. @rder will apply to tribunals, which
have the trappings of the civil court even court also 8.6. 6os'ot v. tate of 8aharashtra
#$:>?% ( !! expressed its poignant feeling that Jno state has, as yet, framed rules to give
effect to the benignant provision of legal aid to the poor in order xxxiii, rule :A, civil
procedure code, although several years have passed since the enactment. arliament is
stultified and the people are frustrated. ven after a law has been enacted for the benefit of
the poor, the state does not bring it into force by willful default.
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Legal Aid i Idia: Stat"tory Recogitio
+hough there was a statutory procedure providing free legal aid by appointing the advocate
for defending criminal case and by exempting court fees in civil cases, it was not really
ma'ing any significant impact on the ability of the underprivileged people to get the judicial
redressal for their grievances. 6ence under tremendous constitutional persuasion from the
upreme !ourt the Legal ervices Authorities Act, $:?> was passed by the parliament of
-ndia. +he Act prescribes the criteria for giving legal services to the eligible persons. -t ma'es
a person eligible for assistance under the act if he is2"
#a% a member of a cheduled !aste or cheduled +ribe