Right to Free Legal Aid and Its Practical Implementation

7/23/2019 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

Right to Free Legal Aid and Its Practical Implementation

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