INDIAN LEGAL SYSTEM AND LEGAL AID TO POOR – A CRITIQUE

Sasi K.G.

01. Introduction

Advocacy in the adversary system is nothing but providing legal aid to the needy. It is costly and the majority of the poor people of a democracy like India cannot afford its expenses. Hence legal system and rule of law as far as judicial and quasi-judicial proceedings in their broad sense of equality are concerned, opens a door to competition of parties wherein the rich ultimately defeats the poor. Thus judiciary takes up sides indirectly and the politics of the legal system turns against the weak and downtrodden defeating the values written in the Constitution.

02. A History of Free Legal Services to the poor

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.

1. Early History of legal aid to the poor

The earliest Legal Aid movement is in 1851 when an enactment was introduced in France for providing legal assistance to the indigent. In Britain, State considered legal services to the poor and needy in 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.

The post-independence legal aid development in India was initiated by formation of Bombay Committee in 1949 under the chairmanship of Mr. NH Bhagwati. Trevor Harries Committee in West Bengal, 1949, The Legal aid formed in 1952 in UP, The Legal Aid Committee in Madras in 1954, Kerala Legal Aid (to the poor) Rules, 1957, 14th Report of the Law Commission of India, Central Government Scheme 1960, National Conference on Legal Aid, 1970, etc are some milestones in legal aid to the poor.

2. Constitution, Statutes and Reports on legal aid in India

Article 39A of the Constitution of India which is non-justiciable provides that State 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 citizen by reason of economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Section 304 of Criminal Procedure Code provides that 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.

In a report on Free Legal Aid in 1971 Justice Bhagwati observed " even while retaining the adversary system, some changes may be effected whereby the judge is given greater participatory role in the trail so as to place poor, as far as possible, on a footing of equality with the rich in the administration of justice." The report titled Processual justice to the people by justice Krishna Iyer of May 1973 enabled the recognition of the poor for the purpose of giving legal aid.  

National Juridicare Report by Justice Krishna Iyer and justice Bhagwati in August 1977 and published in 1978 emphasized that legal service programme must be framed in the light of socio-economic conditions prevailing in the Country.

The 14th Law Commission Report stated that unless some arrangement is made for providing a poor man the means to pay Court fee’s, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice.

The expert committee appointed under the chairmanship of justice Krishna Iyer adopted the three fold test laid down for determining eligibility:

1. Means test- to determine people entitled to legal aid

2. Prima facie test- to determine whether there was a prima facie case to give legal aid or not

3. Reasonableness test- to see whether the defence sought by a person is ethical and moral.

03. Legal Services Authorities Act, 1987

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. It reads:-

Every person who has to file or defend a case shall be entitled to legal services under this 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 within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause (h) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or 

(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court.

(Rules have already been amended to enhance this income ceiling).

1. Bodies Created Under the Legal Services Authorities Act, 1987

National Legal Services Authority is the apex body constituted 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. It also disburses funds and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes and programmes.

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.

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.
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.

2. Supreme Court Legal Services Committee

The Central Authority shall constitute a Committee to be called the Supreme Court Legal Services Committee for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the Central Authority.

A sitting judge of the Supreme Court shall be the Chairman of the Committee. It is governed by the Supreme Court Legal Services Committee Rules 2000.

3. High Court Legal Services Committee

The State Authority shall constitute a Committee to be called the High Court Legal Services Committee for every High Court, for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority. A sitting Judge of the High Court shall be its Chairman.

04. Supreme Court on Legal Aid

The linkage between Article 21 and the right to free legal aid was forged in the decision in Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that "there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." The court pointed out that Article 39-A emphasised that free legal service was an inalienable element of ‘reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21.

In the case of Khatri & Ors. (II) v. State of Bihar & Ors. , the court 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 ask for it. Magistrates and Sessions Judges must inform the accused of such rights.

In Suk Das v. Union Territory of Arunachal Pradesh Court held that it is settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.

In M.H. Hoskot v. State of Maharashtra , 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, State of Haryana v. Darshana Devi, the Court said that the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC.

In the case of Kara Aphasia v. State of Bihar, where the petitioners were young boys of 12-13 years when arrested, and were held in jail for over 8 years and were forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21.

In Centre for Legal Research & Anr. v. State of Kerala , Chief Justice Bhagwati laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lok adalats or niti melas.

05. Legal Aid under C.P.C and Cr.P.C

S. 304(1) Cr.P.C. lays down that when accused facing a trial, the Court shall assign a pleader for his defence at the expense of the State and authorizes the High Courts to make rules in this regard with the previous approval of the State Governements.

In Matloob v. State (Delhi Admn.) (1997) 3 Crimes 989 (Del) it was held that the entitlement to free legal aid is not dependent on the accused making an application to that effect and the Court is obliged to inform the accused of his right to obtain free legal aid.

According to Order 33, rule 17, CPC, in a suit by or against an indigent person, when a plaint along with a petition that the person is unable to avail services of an lawyer, then court exempts him from court fees.

06. Recent Amendments to the Legal Services Authorities Act, 1987

The salient features of the amendment are as follows:

1) to provide for the establishment of Permanent Lok Adalats.

2) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries; and insurance services;

3) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have no jurisdiction in respect of any matter relating to an offence not compoundable under any law;

4) before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute;

5) where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits; and
6) every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and shall be by a majority of the persons constituting the Permanent Lok Adalat.

07. Bar Council of India Rules, 1975

Chapter – II Standards of Professional Conduct and Etiquette Section VI-Duty to Render Legal Aid of the Bar Council of India Rules, 1975 Rule 46 stipulates that every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.

08. Conclusion

Indian Legal System, due to its huge size, establishment and complexity is not an organ of the State which is easily accessible to the poor and downtrodden. Even though our constitution ensures fundamental rights, and we have statutory rights, the service of the court is always available with direct fees and indirect expenses. The concept of free legal aid to the poor and downtrodden and the other backward classes including the schedule castes and scheduled tribes are capable of showing a distant lamp to address their grievances, they are far from achieving true justice to them.

It is the parallel mechanisms such as adalats etc that give these vulnerable groups better relief. However the mindset of the presiding officers are not so evolved as to address the problem in terms of true justice in contradiction to the evils resulting out of the equanimity and impartiality of the judiciary wherein the able and the deprived are allowed to compete in the same race.