Anda di halaman 1dari 18

NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

(M.P)

Free legal aid


Medium of Justice

Project report on Political Science


DHANENDRA PATEL
2009 BALLB 19

Submitted to- Dr. Raka Arya

CONTENTS
Introduction..3-4
Statutory provision for free legal aid..5-7
Judicial pronouncement.8-10
Whom to approach for free legal aid and how..11-12
Objectives of state13-15
Conclusion....16
Suggestion17
Bibliography18

2|Page

Introduction
Justice has been of central importance to political philosophy for over thousand years. Justice
is the concept of moral rightness based on ethics, rationality, morality, law, natural law,
religion, fairness, or equity. No doubt justice is a moral or normative concept, that which is
just is certainly morally good. Justice in short, is about giving each person what he or she
is due. It may be either procedural or substantive.
Procedural justice refers to the idea of fairness in the processes that resolve disputes and
allocate resources. One aspect of procedural justice is related to discussions of the
administration of justice and legal proceedings. Procedural justice concerns the fairness and
the transparency of the processes by which decisions are made, and may be contrasted with
distributive justice (fairness in the distribution of rights or resources), and retributive justice
(fairness in the rectification of wrongs). Hearing all parties before a decision is made is one
step which would be considered appropriate to be taken in order that a process may then be
characterized as procedurally fair. Some theories of procedural justice hold that fair
procedure leads to equitable outcomes, even if the requirements of distributive or corrective
justice are not met, where substantive justice is provided by some rights here the role of
legislature is more important than the judiciary. Substantive Rights include, Nondiscrimination and equal protection of the law, Right to life, Prohibition of force and child
labour, Freedom of movement and residence, Right to privacy and home life, Right to
property, Freedom of religion, Right to an adequate standard of living (food, medicine,
clothing, housing, water), Cultural rights, Minority rights, Right to safe and healthy working
conditions, Freedom of assembly and expression/opinion, Right to health, Right to selfdetermination of peoples (controversial), Right to a certain quality of environment
(controversial; certain aspects of this right have a global consensus, such as safe drinking
water and nutritious food)and also Right to legal Aid.
Legal aid may be taken to mean free legal assistance to the poor persons in any judicial
proceedings before the Court, Tribunals or any authority. It intends to provide free legal
assistance to the poor persons who are not able to enforce the rights given to them by law.
The preamble of the Indian constitution aims to secure to the people of India justice socio
economic and political. Article 38 and 39A of the Indian constitution are notable. Article
38(1) states- the State shall promote the welfare of the people by securing and protecting the
3|Page

social order including justice and Article 39-A of the constitution states that the state shall in
particular, provide free legal aid, by suitable legislation or schemes, to ensure that
opportunities for securing justice are not denied to any citizen
Article 39A of the Constitution of India 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. Legal
aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal
justice is made available to the poor, downtrodden and weaker sections of the society.

4|Page

STATUTORY PROVISIONS FOR FREE LEGAL AID


Constitutional Provisions Relating To Legal Aid LEGAL AID A CONSTITUTIONAL RIGHT - ARTICLES 21 AND 39-A OF THE CONSTITUTION
ARE AS UNDER: -

21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.
39A. Equal justice and free legal aid - The 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
disabilities.1
Article 21 is a fundamental right conferred under Part III of the Constitution. Whereas Article
39-A is one of the directive principles of the State Policy under Part IV of the Constitution. It
has been held by the Constitution Bench of Supreme Court in Chandra Bhawan Boarding and
Lodging, Bangalore V. State of Mysore, AIR 1970 SC 2042 at 2050, para 13 that While
rights conferred under Part III are fundamental, the directives given under part IV are
fundamental in the governance of the country. There is no conflict on the whole between the
provisions contained in Part III and Part IV. They are complementary and supplementary to
each other.
Legal Aid under Legal Services Authority Act, 1987
According to Section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case'
which includes a suit or any proceeding before a court. Section 2(1) (a) defines the 'court' as a
civil, criminal or revenue court and includes any tribunal or any other authority constituted
under any law for the time being in force, to exercise judicial or quasi-judicial functions. As
per Section 2(1)(c) 'legal service' includes the rendering of any service in the conduct of any
case or other legal proceeding before any court or other authority or tribunal and the giving of
advice on any legal matter.

1.

467p. 3rd para Durga Das Basu, SHORTER CONSTITUTION OF INDIA, (Wadhwa and Company, 13th Edn.,
Nagpur) (2001, Reprint 2006).

5|Page

Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favor provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the
litigation once it is supported by a Legal Services Authority.
Under The Legal Services Authorities Act, 1987 every citizen whose annual income does not
exceed Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high
courts. In cases before the Supreme Court, the limit is Rs 12,000. This limit can be increased
by the state governments. Limitation as to the income does not apply in the case of persons
belonging to the scheduled castes, scheduled tribes, women, children, handicapped, etc. Thus
by this the Indian Parliament took a step forward in making the legal aid possible in the
country.

Persons Who Are Entitled To Get Free Legal Aid under the Legal
Services Authorities Act, 1987:CRITERIA FOR GIVING LEGAL SERVICE ARE PRESCRIBED UNDER THE SECTION 12 OF
THE SAID ACT. EVERY PERSON WHO HAS TO FILE OR DEFEND A CASE SHALL BE
ENTITLED TO LEGAL SERVICES UNDER THIS ACT IF THAT PERSON IS

a member of a Scheduled Caste of Scheduled Tribe;


a victim of trafficking in human beings or beggar as referred to in Article 23 of the
Constitution;

a women or a child;

a person with disability as defined in Clause (i) of Section 2 of the person with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,
1995
a person under circumstances to the underserved want such as beings victim of mass
disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial
disaster; or an industrial workman;
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 (j) 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
6|Page

in receipt of annual income less than rupees nine thousand or such other higher
amount as may be prescribed by the State Government, 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 Government, if the case is before
the Supreme Court.

ALSO, THERE ARE FACTORS FOR DISENTITLEMENT FROM GETTING LEGAL AID - AS PER
RULES, THE FOLLOWING PERSONS ARE NOT ENTITLED TO THE LEGAL AID UNLESS THE
CHAIRMAN OF THE COMMITTEE APPROVES IT AS A SPECIAL CASE-

Proceedings wholly or partly in respect of defamation or malicious prosecution or any


incidental proceedings thereto;
A person charged with contempt of court proceeding or any incidental proceedings
thereto;
A person charged with perjury;
Proceedings relating to any election.
Proceedings in respect of offences where the fine imposed is not more than Rs. 50/ Proceedings in respect of economic offences and offences against social laws, such
as, the protection of Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act,
1956 unless in shc cases the aid is sought by the victim :
The legal aid is also denied where the person seeking the legal services is concerned with the proceedings only in a representative or official capacity; or
if a formal party to the proceedings, not materially concerned in the outcome of the
proceedings and his interests are not likely to be prejudiced on account of the absence
of proper representation. In the above two circumstances even Chairman cannot
sanction legal aid as a special case.

7|Page

Judicial pronouncement
Meanwhile the judicial attitude towards legal aid was not very progressive.
In Janardhan Reddy v. State of Hyderabad2 and Tara Singh v State of Punjab3, the court,
while taking a very restrictive interpretation of statutory provisions giving a person the right
to lawyer, opined that this was, a privilege given to accused and it is his duty to ask for a
lawyer if he wants to engage one or get his relations to engage one for him. the only duty cast
on the Magistrate is to afford him the necessary opportunity (to do so). Even in capital
punishment cases the early Supreme Court seemed relentless when it declared that it cannot
be laid down in every capital case where the accused is unrepresented the trial is vitiated.
Thus it can be pointed out that newly Independent India was not clear about the broad
perspective of its legal aid programme.
The step was taken in Sunil Batra v. Delhi Administration4, where the two situations in
which a prisoner would be entitled for legal aid were given. First to seek justice from the
prison authorities and second, to challenge the decision of such authorities in the court. Thus,
the requirement of legal aid was brought about in not only judicial proceedings but also
proceedings before the prison authorities which were administrative in nature.
The court has reiterated this again in Hussainara Khatoon v. State of Bihar5 and said: it is
an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his
liberation through the courts process that he should have legal services available to him. Free
legal service to the poor and the needy is an essential element of any reasonable, fair and just
procedure.
The court invoked Article 39-A which provides for free legal aid and has interpreted Article
21 in the light of Article 39-A. The court upheld the right to free legal aid to be provided to
the poor accused persons not in the permissive sense of Article 22(1) and its wider
amplitude but in the peremptory sense of article 21 confined to prison situations.

(1978) 2 SCC465
(1951)SCR 729
4 (1978) 4 SCC 494
5 (1979) SCR (3) 1276
2
3

8|Page

Two years thereafter, in the case of Khatri v. State of Bihar6, (1981) 1SCC; 1981 SCC (Cri)
228; 1981 Cri. LJ 470)
Justice P.N. Bhagwati while referring to the Supreme Courts mandate in the aforesaid
Hossainara Khatuns case, made the following comments, in paragraph 4 of the said
judgment: It is unfortunate that though this Court declared the right to legal aid as a
fundamental right of an accused person by a process of judicial construction of Article 21,
most of the States in the country have not taken note of this decision and provided free legal
services to a person accused of an offence. The State is under a constitutional mandate to
provide free legal aid to an accused person who is unable to secure legal services on account
of indigence, and whatever is necessary for this purpose has to be done by the State.
In (Madav Hayavadanrao Hoskot Vs. State of Maharastra7 (1978)3 SCC 544) it has been
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. Section 304 of Criminal Procedure Code also provides that if
the 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. Beside this The Magistrates and
sessions judges must inform every accused who appears before them and who is not
represented by a lawyer on account of his poverty or indigence that he is entitled to free legal
services at the cost of the State.
In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh8 (1986) 2
SCC 401; 1986 SCC (Cri) 166),Justice P.N. Bhagwati, while referring to the decision of Hossainara Khatuns case and some
other cases had made the following observations in paragraph 6 of the said judgment:- Now
it is common knowledge that about 70% of the people living in rural areas are illiterate and
even more than that percentage of the people are not aware of the rights conferred upon them
by law. Even literate people do not know what are their rights and entitlements under the law.
It is this absence of legal awareness which is responsible for the deception, exploitation and
deprivation of rights and benefits from which the poor suffer in this land. Their legal needs
always stand to become crisis oriented because their ignorance prevents them from
anticipating legal troubles and approaching a lawyer for consultation and advice in time and
(1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470)
(1978)3 SCC 544)
8 (1986) 2 SCC 401; 1986 SCC (Cri) 166),6
7

9|Page

their poverty because magnifies the impact of the legal troubles and difficulties when they
come. Moreover, of their ignorance and illiteracy, they cannot become self-reliant; they
cannot even help themselves. The Law ceases to be their protector because they do not know
that they are entitled to the protection of the law and they can avail of the legal service
programs for putting an end to their exploitation and winning their rights. The result is that
poverty becomes with them a condition of total helplessness. This miserable condition in
which the poor find themselves can be alleviated to some extent by creating legal awareness
amongst the poor. That is why it has always been recognized as one of the principal items of
the program of the legal aid movement in the country to promote legal literacy. It would be in
these circumstances made a mockery of legal aid if it were to be left to a poor, ignorant and
illiterate accused to ask for free legal service, legal aid would become merely a paper promise
and it would fail of its purpose.
It was in the above backdrop that he Parliament passed the Legal Services Authorities Act,
1987, which was published in the Gazette of India Extraordinary Part II, Section I No. 55
dated 12th October, 1987. Although the Act was passed in 1987, the provisions of the Act,
except Chapter III, were enforced with effect from 9.11.1995 by the Central Government
Notification S.O.893 (E) dated 9th November 1995. Chapter III, under the heading State
Legal Services Authorities was enforced in different States under different Notifications in
the years 1995-1998.

10 | P a g e

Whom to approach for free legal aid and how


Whom to approach for free legal aid--The person who needs free legal aid can approach the Legal Services Authorityat any levelnational, state, district or taluq. The request can be made to: the Senior Civil judge nominated as the chairperson of the Mandal/Taluq Legal
Services Authority;
the Secretary, District Legal Services Authority at the district level;
the Secretary, High Court Legal Services Committee at the state level;
the Secretary, Supreme Court Legal Services Committee at the higher level;
the member secretary of the state legal services authority;
the magistrate before whom s/he is produced; or
The custodial authorities, if under detention.

How to Approach?
A written application can be made to the concerned authority
Where the person cannot read or write, the legal services authority will record his/her
statement along with thumb impression. Such a statement is treated as an application.
The person who claims legal aid has to file an affidavit of his income.
Steps involved in the process:
The eligibility criteria and the merits of the case are examined. If the application for legal aid
is rejected, reasons shall be duly recorded and also informed to the applicant. One important
condition is that both parties in dispute should agree for settlement through Lok Adalat and
abide by its decision. A Lok Adalat has the jurisdiction to settle, by way of effecting
compromise between the parties, any matter which may be pending before any court, as well
as matters at prelitigation stage i.e. disputes which have not yet been formally instituted in
any Court of Law. Such matters may be civil or criminal in nature, but any matter relating to
an offence not compoundable under any law cannot be decided by the Lok Adalat even if the
parties involved therein agree to settle the same. The award passed by the Lok Adalat is the
decision of the court itself though arrived at by the simpler method of conciliation instead of
the process of arguments in court. The most important factor to be considered while deciding
the cases at the Lok Adalat is the consent of both the parties. It cannot be forced on any party
that the matter has to be decided by the Lok Adalat. However, once the parties agree that the
11 | P a g e

matter has to be decided by the Lok Adalat, then any party cannot walk away from the
decision of the Lok Adalat.
During the last few years Lok Adalat has been found to be a successful tool of alternate
dispute resolution in India. It is most popular and effective because of its innovative nature
and inexpensive style. The system received wide acceptance not only from the litigants, but
from the public and legal functionaries in general. Therefore, it may be concluded that the
system of Lok Adalat and giving free legal aid to eligible persons is a very noble one which
has helped judiciary not only in speedy disposal of cases but has given some relief to the
litigant, particularly to them who are poor and can not afford to claim their right through
court of law.

12 | P a g e

Objectives of state
Object of the enactment of the said Act - In our democratic set-up, all laws are made for all
men - common or uncommon. By common man, in common parlance, we understand a man
on the street. A man who may not have any status, office, post or rank in society. He is only a
human being, an ordinary citizen with expectations of a just and human order. He may be a
Tom, Dick or Harry, Ram, Rahim or Shyam. The Expression includes a cobbler, sweeper,
baker, butcher, a priest, or a soldier. A person of whatever name and nomenclature known in
the society. A legal system and its effectiveness has to be gauged or measured by the extent
of its usefulness to the common man. The failure of law for common man is due to no change
of hear or outlook of other fellow beings who are privileged and have a better status in the
society. There has been no emotional integration between haves in the society and have nots.
The society cannot be improved by laws. Social reforms are done not by laws but by leaders
in the society who are virtuous, wise and of high moral character. Before making the laws or
along with them, no attempts have to be made on behalf of the State of their agencies to
spread moral education to encourage science with spirituality. The spirituality and science
alone can rule the world including the government based on democracy in the absence of any
effort in proper direction, the common man is deprived of the benefit of the laws enacted for
him which do not reach him due to inefficient bureaucracy and mal-administration.
AUTHORITY SHALL PERFORM ALL OR ANY OF THE FOLLOWING FUNCTIONS,
NAMELY:-

lay down policies and principles for making legal services available under the
provisions, of this Act;
frame the most effective and economical schemes for the purpose of making legal
services available under the provisions of this Act;
utilize the funds at its disposal and make appropriate allocations of funds to the State
Authorities and District Authorities;
take necessary steps by way of social justice litigation with regard to consumer
protection, environmental protection or any other matter of special concern to the
weaker sections, of the society and for this purpose, give training to socials workers in
legal skills;

13 | P a g e

organize legal aid camps, especially in rural areas, slums or labour colonies with the
dual purpose of educating the weaker sections of the society as to their rights as well
as encouraging the settlement of disputes though Lok Adalats;
encourage the settlement of disputes by way of negotiation, arbitration and
conciliation;
undertake and promote research in the field of legal services with the special
reference to the need for such services among the poor;
to do all things necessary for the purpose of ensuring commitment to the
fundamental duties of citizens under Part IVA of the Constitution;
monitor and evaluate implementation of the legal aid programmes at periodic
intervals and provide for independent evaluation of programmes and schemes
implemented in whole or in part by funds provided under this Act;
provide grants-in-aid for specific schemes to various voluntary social service
institutions and the State and District Authorities, from out of the amounts placed at
its disposal for the implementation of legal services schemes under the provisions of
this Act)
develop, in consultation with the Bar Council of India, programmes for clinical
legal educations and promote guidance and supervise the establishment and working
of legal services clinics in universities, law colleges and other institutions;
take appropriate measures for spreading legal literacy and legal awareness amongst
the people and, in particular, to educate weaker sections of the society about the
rights, benefits and privileges guaranteed by social welfare legislations and other
enactments as well as administrative programmes and measures;
make special efforts to enlist the support of the voluntary social welfare institution,
working at the grass-root level, particularly among the Scheduled Castes and the
Scheduled Tribes, women and rural and urban labour; and
co-ordinate and monitor the functioning of (State Authorities, District Authorities,
Supreme Court Legal Services Committee, High court Legal Services Committees,
Tuluk Legal Servives Committees and voluntary social service institutions) and other
legal

services

organizations

and give

general

directions

for the proper

implementations of the legal services programmes.

14 | P a g e

Obstacles To Legal AssistanceAt present the legal aid movement in India is unorganized, diffused and sporadic. There is
lack of co-ordination in it. The ideal of equal access and availability of legal justice has
reached almost breakdown point. There is a wide gap between the goals set and met. One law
firm recently commented in a survey, We no longer do pro bono work, we are too busy
trying to survive. Lawyers dont engage themselves in pro bono activities because of various
reasons. There is lack of financial resources. The legal education imparted earlier did not
provide social education. Therefore they do not understand or accept their obligation to do so,
also the members of the profession do not regularly come into contact with members of the
community who need legal assistance.

15 | P a g e

Conclusion
Legal-Aid plays very important role to attain justice, it shows the states concern towards the
people for providing assistance to the needy people and some time it becomes compulsion
also like, no one can be punished before heard in court of law, he/she has the right to present
him before the court of law and if he is not able to do so then state assist them even though
this assistance of the Legal-aid is given to enemy-alien also.
Legal aid may be taken to mean free legal assistance to the poor persons in any judicial
proceedings before the Court, Tribunals or any authority. It intends to provide free legal
assistance to the poor persons who are not able to enforce the rights given to them by law.
Justice P.N. Bhagwati has clearly stated that legal aid means providing an arrangement in the
society which makes the machinery of administration of Justice easily accessible and in reach
of those who have to resort to it for enforcement of rights given to them by law. He has
rightly said that the poor and the illiterate should be able to approach the courts and their
ignorance and poverty should not be an impediment in the way of obtaining justice from the
Courts. The constitution of India gives much importance to rule of law. In India, it is
regarded as a part of the basic structure of the Constitution and also of natural justice. Free
legal aid to the poor and weak persons has been held to be necessary adjunct of the rule of
law.
People are still not aware of their basic rights due to which the legal aid movement has not
achieved its goal yet. It is the absence of legal awareness which leads to exploitation and
deprivation of rights and benefits of the poor. Thus it is the need of the hour that the poor
illiterate people should be imparted with legal knowledge and should be educated on their
basic rights which should be done from the grass root level of the country. Because if the
poor persons fail to enforce their rights etc. because of poverty, etc. they may lose faith in the
administration of justice and instead of knocking the door of law and Courts to seek justice,
they may try to settle their disputes on the streets or to protect their rights through muscle
power and in such condition there will be anarchy and complete dearth of the rule of law.
Thus legal aid to the poor and weak person is necessary for the preservation of rule of law
which is necessary for the existence of the orderly society. Until and unless poor illiterate
man is not legally assisted, he is denied equality in the opportunity to seek justice.

16 | P a g e

Suggestion
It is the duty of the State to see that the legal system promotes justice on the basis of equal
opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who
cannot access justice due to economic and other disabilities.
Legal aid is required in many forms and at various stages, for obtaining guidance, for
resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The
explosion in population, the vast changes brought about by scientific, technological and other
developments, and the all round enlarged field of human activity reflected in modern society,
and the consequent increase in litigation in Courts and other forums demand that the service
of competent persons with expertise in law is required in many stages and at different forums
or levels and should be made available.
Measures For Effective Legal Aid. 1. The legal aid movement has to go to the grass root level and help to discover,
identify and solve the problems and difficulties of the poor.
2. The participation not only of the practicing lawyers but also of the courts, the law,
teachers, senior law students, trained social workers, public at large is also needed.
3. It should also include activities like spreading legal awareness and educating
people on their basic rights with the help of NGOs.
4. Promote more informal paralegal services in places where basic access to justice
opportunities and infrastructures are absent.
5. Promote a pro bono service culture and tradition within the legal profession.
6. Offer comparative models of legal aid to government in reforming the movement.
7. Support the development of demonstration legal aid/public defender offices in
cooperation with governments.
8. Lok Adalats should be promoted in the right direction as they settle the disputes
quickly by counseling and discussions, etc. Its basis is to provide quick justice with
the mutual consent of the parties. Their object is to reduce burden on the Courts so
that the problem of laws delay may be solved and people may get justice within due
time. The machinery of the Government engaged in the execution of this movement in
the state must be geared from bottom to top.

17 | P a g e

Bibliography
1. Allan Horwitz and Michael Wasserman, Law and Human Behavior, Volume 4, Number
103

2. http://en.wikipedia.org/w/index.php?title=Special%3ASearch&search=substantive+ju
stice&button=
3. Durga Das Basu, SHORTER CONSTITUTION OF INDIA, (Wadhwa and Company, 13th
Edn., Nagpur) (2001, Reprint 2006).
4. Jagdish Swarup, CONSTITUTION OF INDIA ,Vol-2 Ed L M Singvi, (Modern Law
Publication.2nd Edn.) (Reprint 2007).

18 | P a g e

Anda mungkin juga menyukai