Legal Aid in India

Introduction:

“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has”.[1] Since the ancient times, aiding the poor was considered to be a good deed. As time progressed our legislature also brought in many laws and regulations for the betterment of the poor. It is not easy to survive today’s world with insufficient monetary resources. It is especially difficult to get justice owing to increasing corruption and high legal expenses. Thus, the concept of legal aid was born.

Legal aid per se means to provide legal assistance or any kind of legal help to the people who are in need of it. According to Justice P.N. Bhagwati[2], legal aid can be considered as an arrangement or tool that helps in the working of the justice administration more accessible for the ones who are need of a legal remedy for obtaining their rights. It is generally a case that a person’s poverty and their illiteracy becomes a blockage between them and the justice that they rightly deserve. Legal aid comes in as boon in such cases.

History and Development

The pre-litigation legal aid in India be traced since the Vedic times. However, one of the first few regimes of legal aid was during the British reign in India. During this phase, the Bombay Legal Aid Society was formed in the year 1924. It was formed with the objective of making law and justice accessible to the poor of the society. It also strived towards reducing the cost of litigation and legal processes. For qualification under legal aid, an applicant had to satisfy the means test and had to have a bonafide case.[3]  Earlier than the Bombay Legal Aid Society, the Code of Civil Procedure (C.P.C) was established in the year 1908. The C.P.C provided for legal aid and assistance.

Post-independence a report by Justice Bhagwati Committee was submitted on 31^st October 1949 with several recommendations for legal aid in India. Further, in the year 1973, the Code of Criminal Procedure (Cr. P. C) was framed. This code regulated legal aid under criminal cases.  

Legal Aid Under Various Statutes in India

Independent India was under the dilemma of whether to make legal aid a constitutional force or not. A committee under Shri Swaran Singh was set up. The committee strongly expressed to assertiveness towards including legal aid in the Constitution of India. Subsequently, the Indian parliament inserted the concept of “Free Legal Aid” in the 42^nd amendment of the constitution. It was included in Part IV of the same. Legal aid also became a part of the Concurrent List under the entry number 11 A. The Central and State Government both were given the power to make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons under the Rule 18 of Order XXXIII.

The Constitution of India also has several provisions regarding legal aid. The preamble was regarded as one of the basic features of the Indian Constitution in the landmark judgment of Keshavananda Bharati v. State of Kerala[4]. The Preamble clearly mentions that the justice shall be provided to all the economic, political and social facets. It further provides for equality of status and of opportunity. The Constitution also states that no person shall be denied the right to counsel, and to be defended by a legal practitioner of his choice[5]. The Indian Constitution follows the rule of Natural Justice. Audi Alteram Partem is one such rule. It means no one shall be condemned unheard or everyone has the right to be heard. According to Article 39A of the Indian Constitution, it is the responsibility of the State to overlook that the working of the legal system shall stimulate justice, on fundamentals of equal opportunity to every citizen. The state shall also and shall, issue free legal aid through needful laws and regulations. Justice must not be denied to any citizen only because of their monetary disabilities. Thus, legal aid can be rightly claimed as a Constitutional mandate.

The Code of Criminal Procedure also deals with legal aid extensively. Section 303 of the said Code provides that any person who is accused under any offense before a criminal court or against whom any criminal proceeding is instituted under the Act shall have a right of choosing the pleader. Section 304 of Cr.P.C mentions that if the Court assumes that the person who is accused may not have enough monetary means to hire a pleader, in such cases, the Court has an authority to appoint a pleader for the defense of the accused. It is further stated in the section that the cost and expenses of the hired pleader shall be borne by the State.

Establishments for Legal Aid

It is first important to know the institutions that have been established to render legal aid to the needful.

1. National Legal Services Authority (NALSA): The NALSA is a body that was established by the Central Government. This is considered to be the most powerful body to facilitate the legal aid. It was laid down in the Legal Services Authorities Act, 1987 under Section 3.
2. State Legal Services Authority: It is established under Section 6 of the LSA Act. Section provides the power to the State Government to constitute a body to be called the State Legal Services Authority. This body was designed to work as per the roles that were bestowed upon the body by the said Act.
3. District Legal Services Authority: The District Authority is formed by the State Government after consulting and discussing with the Chief Justice of that particular state’s High Court. The Authority shall now be responsible for undertaking the functions as prescribed by the given Act. The District Judge shall sit as the ex-officio Chairman of the said district.
4. Supreme Court Legal Services Committee: It is framed under Section 3A of the Act. It comes under the working of the Central Authority. The head of such Committee shall be Judge of Supreme Court and he shall work with a panel which is elected by the Chief Justice of India.
5. High Court Legal Services Committee: It works in accordance with Section 8A of the Act. It is under the framework of the State Authority.

Procedure

A person wanting to take the benefits of legal aid must fill a form that is made available at all District headquarters and sub-divisional headquarters. These forms are free of cost. Alternatively, a person can send an online application or a written letter for pleading legal aid. Requisites for such an application are:

• Income Proof
• Identity Proof
• An affidavit as prescribed.

A person who is approved of legal aid shall be entitled to payment of court fee, process fees, and all other charges payable or incurred in connection with any legal proceedings.

Case Laws

1. Hussainara Khatoon vs. State of Bihar[6] the court affirmed the concept of legal aid by mentioning it as a way for redressal in case the plaintiff is unable to hire an advocate.
2. Khatri v. State of Bihar[7] the court in this case explained that legal aid shall include every step of legislation including the first appearance before the magistrate. It was further added that financial constrain shall not obstruct the pleader to getting justice.

Conclusion

Providing legal representation is a vital concept in our legislature. A concept like legal aid must not be considered as charity. Legal aid is a necessity and an obligation for overlooking equal justice of every single citizen of India. Litigation costs may get very exorbitant and the majority may not be capable to bear such cost. Legal aid comes as a boon for such people.  Citizens have stronger faith in law because of such people-friendly legislatures. It works to ensure that the constitutional mandate is fulfilled in its letter and spirit. Legal aid provides the much needed equal justice and representation to the weaker sections of the society.

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References:

[1] Justice Hugo L. Black in Griffin v. Illinois; 351 U.S. 12 (more) 76 S. Ct. 585; 100 L. Ed. 2d 891

[2] Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College, Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice between the rich and the poor.

[3] 14^th Report of the Law Commission of India, Reforms in the Administration of Justice (1958, Appendix iv) 621

[4] (1973) 4 SCC 225)

[5] Article 22, The Constitution of India.

[6] 1979 AIR 1369, 1979 SCR (3) 532

[7] AIR 1981 SC 262. 6 AIR 1986 SC 991. 2013