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.
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.
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.
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