Concept of Legal Aid:

India is a modern state that has accepted the concept of 'welfare state'. Hence it has to work for the welfare of the general public. It is the function of the State to establish a just social order by enacting just laws and by providing equal opportunity to all to grow. Every Government is constituted to respond to the needs and aspirations of the people and to remove social inequalities among its citizens. This promotes social justice among poor and the downtrodden. The concept of social justice must be the underlying principle in the administration of justice in the country.

Today with the plethora of legislative enactments, statutory rules and regulations, and judicial precedents, Courts are a maze not only to the poor but also to a large number of persons who may not be poor financially but so intellectually on account of the lack of knowledge of the relevant laws and of the procedure for obtaining benefit thereof. They have to get out of the maze by engaging lawyers and paying their fees. This “getting out of the maze” pass is honestly perpetually not available to the have-nots, who may be termed as poor or indigent.

Resultantly, to make available the law channels of justice to the poor, free legal services have been incorporated in the legal system. The concept of legal aid to the indigent has its roots in the well-settled principle of natural justice: 'Audi Alteram Partem'.

Therefore 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.

Lord Denning while observing that Legal Aid is a system of government funding for those who cannot afford to pay for advice, assistance and representation said: “The greatest revolution in the law since the post-second World has been the evolution of the mechanism of the system for legal aid. It means that in many cases the lawyers’ fees and expenses are paid for by the state: and not by the party concerned. It is a subject of such importance that I venture to look at the law about costs-as it was-as such it is-and as it should be.”

By the constitutional 42nd Amendment Act of 1976, a new provision was included in the Constitution under Article 39A, for dispensing free Legal Aid. To uphold the democratic values and attain social justice Article 39A which was included under Directive Principles of State Policy (Part IV) reads as under:-

"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".

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.

Thus the concept of Legal aid in India has slowly but steadily acquired a solid footing in the Indian legal system and this extraordinary concept of free legal aid boils down to proving the following services to the indigent litigants:

1. Providing:

• free legal advice;
• lawyers for litigation in courts;
• knowledge on legal rights and remedies.

2. Payment of :

• court and other processing fees;
• charges for preparing, drafting and filing of any legal proceedings;
• charges of a legal practitioner or legal advisor;
• costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
• costs of paper work, including printing, translation etc.

Evolution and emergence of Legal Aid in India:

The concept of equal justice was not unknown in ancient India. Manusmriti casts a duty on king to administer justice ignoring his whims emphasizing on the religion, Manu states that it includes administration of justice in social, economic and political aspects, whose sanctity has to be preserved and developed.

In the medieval period, though the king was required to administer Islamic law in deciding all cases irrespective of religion of the parties to the suit. Yet Hindus were administered by Hindu Law in deciding civil and religious of which the parties were Hindus. It was Jahangir who took the credit for dispensing even-handed justice to all irrespective of birth, rank of the official position. He used to say that God forbid to favour nobles or even princes in that matter of dispensation of justice. Because of his fair hearing, the justice was known as "Jahangiri Nyaya".

Even the seven hundred years old clarion call of Magna Carta “To no one will we sell, to no one will we refuse or delay the right to justice” very pertinently embodies the principle of legal aid. In the modern period, the earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, the history of the organised efforts on the part of the State to provide legal services to the poor and needy dates back to 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 as appear to be desirable for ensuring that persons in need of legal advice are provided the same by the State. The Committee also recommended four-tier machinery [i.e. (i) at Taluka (tehsil) level, (ii) at district level, (iii) at greater Bombay level and (iv) at State level.] for giving legal aid although the same could not be implemented due to certain reasons. In the same year, another Committee on "Legal Aid and Legal Advice" was appointed under the Chairmanship of Justice Arthur Trevor Harries, the then Chief Justice of Calcutta High Court. This Committee recommended giving legal assistance to the poor.

Since the fifties the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In the sixties, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country.

But significant change came in the late seventies. After Maneka Gandhi v. UOI, AIR 1978 SC 597, courts in India widened their perspective with respect to the civil liberties. While disclosing shocking state of affairs and callousness of our legal and judicial system causing enormous misery and sufferings to the poor and illiterate citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati, made following observations:-

"This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programmes, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them."

CONSTITUTIONAL COMMITMENT TO LEGAL AID

Article 14 guarantees equality before law and equal protection of laws. Equality before law necessarily involves the concept that all the parties to a legal proceeding must have an equal opportunity of access to the court and of presenting their cases to the court. For the indigent, who are unable to meet their economic needs, the justice access to the court would remain a myth because their inability to pay court fee and lawyer's fees etc. would also deny him access to the court. Therefore, under Article 14, rendering legal services to the poor litigant is not just a problem of procedural law but a question of a fundamental character. A person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.

Article 21 asserts the right to life and personal liberty. This right cannot be taken away except by procedure established by law. A procedure is fair and just only when it follows the principles of natural justice. Right to hearing is an integral part of natural justice. If the right to counsel is essential to fair trial then it is equally important to see that the accused has sufficient means to defend themselves. It has been observed and re-observed by the Apex Court of the Country that an accused person at least where the charge is of an offence punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Further counsel for the accused must be given time and facility for preparing the defense. Breach of these safeguards of fair trial would invalidate the trial and conviction, even if the accused did not ask for legal aid.

Article 22(1) provides that a person arrested should not be detained in custody without being informed of the grounds for such arrest and should not be denied the right to consult and be defended by a legal practitioner of his choice.

Article 38 urges that the State should strive to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice: social, economic and political shall inform all the institutions of national life.

Article 39A of the Constitution, inserted by 42nd Amendment of the Constitution in 1976, provides for equal justice and free legal aid. It commands the state to secure that the operation of 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 the opportunities for securing justice are not denied to any citizen by reason economic or other disabilities. Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity.

The Constitution provides for the post of an Attorney General of India to offer legal advice to the Union Government. He is appointed and can be dismissed by the President alone. Likewise provisions are made in the Constitution for the appointment of the Advocate General of a State. He is entitled to attend all legislative sessions and take part in discussions on matters in which expert legal knowledge is required. His duty includes advising Government on legal matters pertaining to his state. These provisions do accord the due status to the legal aid and ample scope for developing legal aid jurisprudence through which human rights culture can be created and social justice can be assured as envisioned by founding fathers of the Constitution.

OTHER PROVISIONS IN SUPPORT OF PROVIDING FREE LEGAL SERVICE:

1. Criminal Procedure Code, 1973: Section 304 provides that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State; and the section further empowers the State Government to extend the application of the above provision in relation to any class or trials before other courts in the State.

2. Order 33, Rule 17 of the Civil Procedure Code, 1908 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court-fees and allows them to institute suits without payment of requisite court fees.

3. As per The Government of India (Allocation of Business) Rules, 1961, the Ministry of Law and Justice (Vidhi Aur Nyaya Mantralaya) and its Department of Legal Affairs (Vidhi Karya Vibhag) has been assigned various numbers of responsibilities and/or functions, one of which is to provide “Legal aid to the poor”.

4. Article 8 of the Universal Declaration of Human Rights: Everyone has the right or an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.

4. Article 14(3) of the International Covenant on Civil and Political Right guarantees to everyone: The right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him any such case if he does not have sufficient means to pay for it.

JUDICIAL DECISIONS RELATING TO FREE LEGAL AID IN INDIA:

Although legal aid was recognized by the Courts as a fundamental right under Article 21 reversing their earlier stance, the scope and ambit of the right was not clear till this time. The step was taken in Sunil Batra v. Delhi Administration (1978) 4 SCC 494 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

In the case of Hossainara Khatun v. State of Bihar AIR 1979 S.C. page 1371 in, the Supreme Court held that the 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 to be implicit in the guarantee of Article 21. This was a case where it was found by Mr. Justice P.N. Bhagwati and Justice D.A. Desai that many under-trail prisoners in different jails in the State of Bihar had been in jail for period longer than the maximum terms for which they would have been sentenced, if convicted, and that their retention in jails was totally unjustified and in violation of the fundamental rights to personal liberty under Article 21 of the Constitution. While disclosing shocking state of affairs and callousness of our legal and judicial system causing enormous misery and sufferings to the poor and illiterate citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati, made following observations in paragraph 6 of the judgment, which are thought provoking:-

“This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programs, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service program to provide free legal services to them. We would strongly recommend to the Government of India and the State Government that it is high time that a comprehensive legal service program is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and to right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.”

Two years thereafter, in the case of Khatri v. State of Bihar AIR 1981 S.C. at page 926, Justice P.N. Bhagwati while referring to the Supreme Court’s mandate in the aforesaid Hossainara Khatun’s 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. The State may have its financial constraints and its priorities in expenditure but the law does not permit any Government to deprive its priorities in expenditure but the law does not permit any Government to deprive its citizens of constitutional rights on the plea of poverty.”

In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh AIR 1986 S.C. at page 991, Justice P.N. Bhagwati, while referring to the decision of Hossainara Khatun’s 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 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.

In Hayavadanrao Hoskot Vs. State of Maharashtra (1978)3 SCC 544, the Supreme Court laid down some banning prescription for free legal aid to prisoners which are to be followed by all the courts of India, such as furnishing of free transcript of judgment in time, to the sentences; where the prisoner seeks to file an appeal for revision, every facility for exercising such right shall be made available by the jail administration and if a prisoner is unable to exercise his statutory and constitutional right of appeal including special leave to appeal for want of legal assistance, there is implicit in the court under Article 142, read along with Article 21 and 39-A of the Constitution, the power to assign counsel to the prisoner provided he does not object to the lawyer named by the court.

In Sukhdas v. Union Territory of Arunachal Pradesh AIR 1986 S.C. at page 991, Justice P.N. Bhagwati, while referring to the decision of Hossainara Khatun’s case affirmed that if the learned Additional Deputy Commissioner did not inform the appellants that they were entitled to free legal assistance and inquire from them whether they wanted a Lawyer to be provided to them at State cost. And the result was that the appellants remained unrepresented by a lawyer and the trial ultimately resulted in their conviction it was clearly a violation of the fundamental right of the appellants under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellants must be set aside.

In Sanjay Suri vs. Delhi Administration;1989-(SU2)-SCC -0511 –SC, the Supreme Court on a petition that juvenile prisoners are kept along with the adult prisoners in Tihar Jail, Delhi ordered the District Judge, Delhi, to visit Tihar Jail and to determine whether the juvenile prisoners are being housed in that part of the jail which is said to have been reserved for them or whether they are to be found in the other two parts of the jail also which house adult prisoners.

Thus we find that the bold and welfare idea of providing free legal aid to the financially needy sections has not only found its footing in popular support and been envisaged by various enactments but has also been endorsed by the apex court of the country over the decades in a number of cases.

Working of Government and NGOs for providing free legal aid in India:

In 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November, 1995 with an object to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal services available under the Act.

In every State, a State Legal Services Authority and in every High Court, a High Court Legal Services Committee has been constituted. District Legal Services Authorities and Taluka Legal Services Committees have been constituted in the Districts and most of the Talukas in order to give effect to the policies and directions of the NALSA and to provide free legal services to the people and conduct Lok Adalats in the State. The State Legal Services Authorities are chaired by Hon'ble Chief Justice of the respective Districts and the Taluka Legal Services Committees are chaired by the Judicial Officers at the Taluka Level.

Supreme Court Legal Services Committee has been constituted to administer and implement the legal services programme in so far as it relates to the Supreme Court of India.

Some of the Services offered by the Legal Services Authority:

1. Payment of court and other process fee;
2. Charges for preparing, drafting and filing of any legal proceedings;
3. Charges of a legal practitioner or legal advisor;
4. Costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
5. Costs of paper work, including printing, translation etc.

Apart from the Government providing the numerous free legal aid service, of late, the numerous Non-Governmental Organisations (NGOs) have also started providing for free legal services and have soon become bodies through which legal aid is extensively catered to the poor class. The NGOs perform the following functions:

1. Providing:

• free legal advice;
• lawyers for litigation in courts;
• knowledge on legal rights and remedies.

2. Payment of :

• court and other processing fees;
• charges for preparing, drafting and filing of any legal proceedings;
• charges of a legal practitioner or legal advisor;
• costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
• costs of paper work, including printing, translation etc.

The NGOs, thus, have been performing a vital role in providing free legal aid and making sure that justice is delivered to even the poorest of litigants and thus protecting their legal right.

Conclusion:

Thus we can find a paradigm shift in the approach of the Supreme Court towards the concept of legal aid from a ‘duty of the accused to ask for a lawyer’ to a ‘fundamental right of an accused to seek free legal aid’. But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law,  (Khatri v. State of Bihar, A.I.R. 1981 SC 928)  the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. 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.

Hence in this area we have a huge number of laws in the form of judgements as well as legislations but they have just proven to be a myth for the masses due to their ineffective implementation. Thus the need of the hour is that we need to focus on effective and proper implementation of the laws which we already possess instead of passing new legislations to make legal aid in the country a reality instead of just a myth in the minds of the countrymen.

Stabilizing the Scales for Poor—Suggestive Measures:

As contemplated by Justice Iyer and Bhagwati that the vast millions of Indians, steeped in ancient injustice and modern misery have little to hope for from the law, they have much to shoot against it. In such state of affairs it is imperative for state to take steps to keep the confidence of masses in the justice system breathing. Though the execution of the legal aid programme has been yielding favorable results but much more needs to be reformed. Our compilations of the suggestive measures in this area are:

Exploring ADRs:

 Using the various forms of ADRs like Arbitration, Conciliation, Negotiation and Mediation in the settling of disputes especially those involving matrimonial problems can prove to be an effective legal aid tool providing quick and inexpensive justice to the masses Focus on Lok Adalats in its true spirit: Lok Adalats, a permanent feature of the functioning of legal services authorities is largely being used as a tool of case management to help the over burdened judiciary and not so much as a instrument of the justice delivery to the litigant. If the `success’ of the lok adalat stems from negative reasons attributable to the failures of the formal legal system, the utility of this mechanism may also be short-lived.

Adequate Financial Support:

A master plan for juridicare cannot succeed without sufficient financial resource. An annual amount of Rs. 6 crore is being allocated to NALSA for the execution of its policies. The Committee is of the opinion that this amount is inadequate for such an important scheme and strongly recommends that substantial allocation should be made at Revised Estimate stage to make the functioning of NALSA more effective.

No compromise on Quality:

Free legal aid must not be read to imply poor or inferior legal services. The lawyers in the panel should be experienced. The law ministry should ensure the senior lawyers do at least ten cases a year free of charge in the courts.

Inform people:

Lack of awareness is the main impendent in effective ‘legal aid’. Efforts should be made to inform the public of the existence of these services by using electronic media and aggressive campaigns.

Sensitization of the judiciary:

Awareness of schemes and programs to be able to guide the poor litigants in this regard.

Performance appraisal by all legal aid authorities:

 Where each district legal aid service authority should be evaluated and compared with other district legal service authority inter as well as intra states to encourage legal aid.

Law schools:

Are the blossoming gardens of fresh, young talent. We suggest not only the inclusion of law students but also insertion of the legal academicians, who with their deepened knowledge and experience can be an active part in the implementation of the legal aid programme.

Thus, the legal aid programme, if implemented will go a long way towards wiping the tears from the eyes of the teeming millions of our countrymen, by advancing social justice and providing them equal access to the law and justice institutions of the country. The question that whether it is a myth or reality, can be interpreted that the vision of the pioneers of the legal world is certainly turning into reality the myth is only of its implementation which will also take a real shape once certain minor reforms executed.

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Soumyadeb Sinha (5th year)
Calcutta University, 
Department of Law