Introduction
The preamble of our Constitution secures to its citizens social, economic, and political justice. Article 14 of the Constitution makes it clear that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.
The right to free legal aid is an essential fundamental right guaranteed by the Constitution as has been held repeatedly by the Supreme Court of India. It forms the basis of reasonable, fair, and just liberty under Article 21 of the Constitution of India, which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 39A contains the Directive Principle of “Equal Justice and Free Legal Aid.” It states, “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.
Provision under Code of Civil Procedure, 1908
Order 33 (Rules 1 to 18) of the Code of Civil Procedure, provides for filing of suits by indigent persons. Who is an indigent person is provided in explanation I of Rule 1 of this order, according to which an indigent person is a person who is not possessed of sufficient means (other than property exempted from attachment in execution of the degree) to enable him to pay prescribed fees.
It enables persons who are too poor to pay court fees and allows them to institute suits without payment of the requisite court fees. Generally, a plaintiff suing in a court of law is bound to pay court fees prescribed under the Court Fees Act at the time of presentation of the plaint. But a person may be too poor to pay the requisite court fee. This order exempts him to prosecute his suit without payment of usual court fees, provided he satisfies certain conditions laid down in this order.
Primarily, in order to sue as an indigent person, the applicant has to file an application in proper form for permission to sue as an indigent person. An inquiry into the means of the applicant is made by the Chief Ministerial Officer of the court. The court may adopt the report submitted by such an officer or may itself make an inquiry.
Where the application submitted by the applicant is in proper form and is duly represented, the court may examine the applicant regarding the merits of the claim and the property of the applicant. The court shall then issue a notice to the opposite party and to the Government Pleader and fix a day for receiving evidence as the applicant may adduce in proof of his indigence or in disproof thereof by the opposite party or by the Government Pleader. On the day fixed, the court shall examine the witnesses (if any), produced by either party, hear their arguments, and either allow or reject the application.
Where an application to sue as an indigent person is granted, it shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner, except that the plaintiff will not have to pay court fees or process fees. The court may assign a pleader to an indigent person if he is not represented by a pleader. The Central Government or the State Government may make provisions for rendering free legal aid and services to indigent persons to prosecute their cases. As the plaintiff can claim benefit as an indigent person, this benefit has been extended to the defendant also.
Where the court rejects an application to sue as an indigent person, it will grant time to the applicant to pay court fees. An order refusing to allow an applicant to sue as an indigent person shall also stand as a bar to a subsequent similar application. However, this does not debar the applicant from suing in an ordinary manner, provided he pays the costs incurred by the Government Pleader and the opposite party in opposing the application. The court has also power to revoke the permission granted to the plaintiff to sue as an indigent person, on an application made by the defendant or by the Government Pleader in the cases where:
- the plaintiff is guilty of improper conduct in the course of the suit.
- the plaintiff’s means are such that he ought not to continue to sue as an indigent person.
- the plaintiff has entered into an agreement under which another person has obtained an interest in the subject-matter of the suit.
The order passed by the court rejecting an application to sue as an indigent person is appealable. Where the person is willing to appeal as an indigent person as he is unable to pay court fees on the memorandum of appeal, the necessary inquiry as prescribed under Order 33 will be made before granting or refusing the appellant’s prayer. But where the appellant was allowed to sue as an indigent person in the trial court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.
Inadequacies of the Current System
The legal aid system in India has largely proven ineffective due to four main reasons:
- There is a general lack of awareness of the availability of legal aid.
- There is a perception that free service is incompatible with quality service.
- There are not enough lawyers delivered by the legal services authorities.
- The lawyers are uninterested in providing competent legal assistance because of financial constraints.
So, in spite of the fact that free legal aid has been held to be a necessary adjunct of the rule of law, it has not achieved its goal. Moreover, too often lawyers assigned to provide legal aid and paid with public funds, do not faithfully represent their clients, casting serious doubt on the credibility of the scheme of legal aid provided to weaker sections of society. Some lawyers engaged by legal aid committees hold their clients’ cases for ransom by employing delay tactics.
These lawyers compel their clients, many innocent, to pay additional amounts of money to them, even though they are supposed to obtain their fee from the legal aid committee. One factor that may be contributing to this is that the remuneration paid to lawyers by the legal aid committee is very low and sometimes does not even meet the lawyer’s incidental expenses. Another major obstacle to the legal aid in India is that the delivery system for legal aid is far too inefficient.
Conclusion
The assumption of our legal system is that all citizens have equal access to the means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property, or reputation, who are not able to pay for it.
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. More lawyers must be encouraged to deliver free legal aid and a campaign should be launched to inform people about the existence of free legal aid. Thus, the key to a successful free legal aid system is increased awareness among the populace and more efficient delivery processes.
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