• Ms. Jyoti sharma

Concept of 'Legal Aid' In India

Introduction

Legal Aid stands for providing free legal services to the needy and marginalized section of our society who can’t afford to engage a legal representative for themselves for the conduct of legal proceeding. There are many people in our country which don’t even know about their legal rights and haven’t enough money to hire an advocate for themselves. The preamble of our constitution speaks of justice- socio-economic and political and equality of status and of opportunity.


Our Constitution provides for equality before law and equal protection of laws under Art 14. Equality in administration of justice forms the very basis of all modern systems of jurisprudence. This equality necessarily involves the concept that all parties to a proceeding in which justice is sought, must have an equal opportunity of asserting their rights. If a person is unable to obtain such assess to the court of law for having his wrong redressed, and for defending himself against a criminal charge, justice become uneven and laws unjust. Therefore, unless some provisions are made for assisting the needy men for payments of court fees and lawyer’s fees and other incidental cost of litigation, equality before law and equal protection of law and opportunity of status would have no meaning. Thus, rendering the legal aid to the needy people is very fundamental to our Constitution.


It aims to establish a welfare state. Thus, it focuses to ensure equality of justice to every indigent. Legal aid is available to every needy and poor person who can’t afford for money for all the litigation expenses. That’s why Justice Blackmun in Jackson v. Bishop emphasized, “The concept of seeking justice can’t be equated with the value of dollars. Money plays no role in seeking justice”. Article 39 A of our Constitution 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 the reason of economic or other disability. Art 21(1) also make it obligatory on the part of State to ensure equality before law and a legal system which provide justice on basis of equal opportunity to all. So, this concept of legal aid ensures to maintain the spirit of our constitution. It works as per the Legal Services Authorities Act, 1987 which goes about as the rule of the rendering of free justice. The prime object of the state ought to be “equivalent justice for all”.


Legal Aid is a development that envisages that the poor have simple access to courts and other government organizations. It infers that the choices rendered are reasonable and simply assessing the rights and disabilities of parties. The focus point of legal aid is on distributive justice, viable execution of welfare advantages and elimination of social structural discrimination against the poor. It was taking these mandatory provisions of the Constitution of India at the top of the priority list that the Parliament passed The Legal Services Authorities Act, 1987.


Right to free legal aid:

In Hussainara Khatoon vs. State of Bihar case, the court held that the accused has the right to free legal aid at the expense of state if he is not able to afford legal service for himself. Thus, it shall be the task of State to ensure everyone free legal aid. Article 39A provide that it is the duty of State to see that the legal system promotes justice on the basis of equal opportunity for all its citizen. It must therefore, arrange to provide free legal aid to those who can’t access justice due to economic and other disabilities.


Not only free but State shall also ensure speedy disposition of cases. As pointed out by the court in Rhem v. Malclm, 1955, the State cam’t be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur necessary expenditure needed for improving administrative and judicial apparatus with a view to ensure speedy trial. The State may have its financial constraint and its priorities in expenditure, but the law doesn’t permit any govt to deprive its citizen of constitutional rights on plea of poverty.


Not only our Constitution, but also our CrPC provide for free legal aid to the accused to defend himself. Under section 304 it says that if the accused doesn’t have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state.


In Khatri v. State of Bihar, it was held that the constitutional duty to provide legal aid arises from the time the accused is produced before Magistrate for the first time and continues whenever he is produced for remand.


National Legal Service Authority

NALSA was constituted on December 5, 1995. Justice A.S. Anand took over as the executive Chairman of it on July 17, 1998. The office of National legal Service Authority become functional for the first time. It has been constituted under the Section 3(1) of Legal Services Authorities Act, 1987 to monitor and evaluate the implementation of legal services accessible under the Act. The NALSA issues rules for the State Legal Services Authorities to actualize the Legal Aid Programs and plans all through the nation.


It performs two main functions:

  1. To Provide Free Legal Services to the qualified people,

  2. To organize Lok Adalats for amicable settlement of disputes.

In every State, there is State Legal Service Authority and in each high court, a High Court Legal Services committee has been constituted which is led by the Chief Justice of that concerned High Court. District Legal Service Authority and Taluka Legal Service Authority has been established in every district and taluka respectively. Taluka Legal Service Authority led by the Judicial officer of that Taluka.


Who are entitled to get legal aid under LSA, 1980

Section 2(1)(a) of the Act provide that legal aid can be provided to a person for a ‘case’ which include suit or proceeding before a court. Furthermore, section 2(1)(aaa) also states court as a civil, criminal and revenue court and any other tribunal and other authority constituted under any law for time being in force, to perform judicial or quasi-judicial functions. Section 12 of Legal service authority, 1980 provide for the criteria on fulfilling of which a person will get legal aid. Every person who has to file or defend a case shall be entitled to legal services under this Act if that person, is

  1. a member of a Scheduled Caste or Scheduled Tribe;

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

  3. a woman or a child;

  4. a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);

  5. 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

  6. an industrial workman; or

  7. 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,

  8. 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.

It is not that every person who fulfil the above-mentioned requirement will het free legal aid. Some of cases have been exempted from providing legal aid. It may be defined as below:

  1. Proceeding wholly or partly in respect of defamation or malicious prosecution or any other proceeding thereto,

  2. A person charged with contempt of court proceeding or any other proceeding thereto,

  3. Proceeding in respect of election,

  4. Person charged with perjury,

  5. Proceeding in respect of offence where fine imposed is not more than Rs. 50,

  6. Proceeding against state laws, such as, The Protection of Civil Rights Act, 1955 etc.,


Functions of National Legal Service Authority

Section 4 of the Act define the function of Legal service authorities.

  1. To lay down policies and principles for making Legal Services available under the provisions of the Act.

  2. To frame the most effective and economical schemes for the purpose of making the legal services available under this act.

  3. To utilise the funds at its disposal and make appropriate allocations of funds to the State authorities and District authorities

  4. To 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 special training to legal workers

  5. To organise legal aid camps specially on rural areas, slums or labour colonies with the dual purpose of educating weaker sections of society as to their rights as well as encouraging of settling their disputes through Lok Adalats.

  6. To encourage the settlement of Disputes by ways of negotiation, conciliation and arbitration

  7. To undertake and promote research in the field of legal services with special references to need for such services among poor.

  8. To do all things necessary for the purpose of ensuring commitment to the fundamental duties of the citizens.

  9. To monitor and evaluate the implementation of the legal aid problems at specific periodical intervals for independent evaluation of programmes and schemes implemented.

  10. To provide grants in aid for specific schemes to various voluntary social services institutes working at grass root level specially amongst SC and ST, women and rural and urban labour.

  11. To develop programmes for clinical legal education and promote guidance and supervise the establishment and working of legal services clinics in universities, law colleges, etc.

According to Section 5, “in the discharge of its functions under this act, the Central Authority shall, wherever appropriate, act in coordinating with other governmental and non-governmental agencies, universities and others engaged in the work of promoting the cause of legal services to the poor”.


Functions of state legal service authority

Section 6 provide for establishing State legal service authority in every state. It has following functions to perform:

  1. To give legal services to person who deserve it.

  2. To conduct Lok Adalats

  3. To undertake preventive and strategic legal aid programmes.

  4. To work to give effect to the policies and directions of central authority.

Functions of district legal service authority

  1. To co-ordinate the activities of Taluk Legal Services Committee and other legal services in the district.

  2. To conduct Lok Adalats in the district.

Section 10 describes the function that the District Legal Service Authority has to perform. In the discharge of its functions under this Act, the District Authority act in co-ordination with other governmental and non-governmental institutions, universities and others engaged in the work of promoting the cause of legal services to the poor and shall also be guided by such directions as the Central Authority or the State Authority may give to it in writing.


Concept of Lok Adalat

Section 19 of the said act deals with the concept of Lok Adalat. It is one of the Alternative dispute resolution mechanisms in India, it is a forum where cases pending or at pre litigation stage in a court of law are settled. They have been given statutory status under the Legal Services Authorities Act, 1987.


Under this Act, the award (decision) made by the Lok Adalat is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law. If the parties are not satisfied with the award of the Lok Adalat (though there is no provision for an appeal against such an award), they are free to initiate litigation by approaching the court of appropriate jurisdiction. Central, State, District and Taluk Legal Services Authority has been created who are responsible for organizing Lok Adalats at such intervals and place. Any pending case Any matter which is falling within the jurisdiction of, and is not brought before any court in which Lok Adalat is being organised, could be taken in the Lok Adalat.


  • Concept of Award in Lok Adalat:

  1. Every award of Lok Adalat shall be deemed as decree of Civil Court,

  2. Every award made by the Lok Adalat shall be final and binding on all the parties of dispute.

  3. No appeal shall lie from the award of the Lok Adalat.

  • Powers:

  1. To summon and enforce the attendance of any witness and examining him on oath,

  2. To discover and produce any document

  3. The reception of evidence on affidavits

  4. The requisitioning of any public record or document or copy of such record or document from any court or office.

  5. Lok adalat shall have requisite power to specify its own procedure for the determination of any dispute coming before it.


Permanent lok adalat

Permanent Adalats are very identical with traditional Lok Adalat. The fact which differ it from traditional Lok Adalat is that traditional Lok Adalat can be summoned occasionally but not on regular basis and the permanent Lok Adalat can be summoned like any other Tribunal or Court.


The Legal services Authorities Act, 1987, which had established Lok Adalats, did not, at first, establish permanent Lok Adalat. It was the Amendment Act of 2002 that enabled the establishment of the first permanent Lok Adalat.


Conclusion:

The aim of legal aid is that every man who is deprived of legal advice from a lawyer and necessary legal representation before the court of law because of his lack of means should be able to go to proper agency and obtain the necessary aid. Legal aid to the poor is fundamental for the protection of guideline of law which is important for the presence of the orderly society.


The focus point of Legal Aid is on distributive justice, effective implementation of welfare benefits and disposal of social and basic oppression of poor people. It works as per the Legal Services Authorities Act, 1987 which goes about as the rule of the rendering of free equity. As stated by Mr. M.C. Setalvad, “the rendering of legal aid to needy litigants is thus not a matter of charity but a measure which involves the very fundamentals of our Constitution.

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