Concept of legal aid and poor

Appendix ‘A’- Front page and Cover

CONCEPT OF LEGAL AID AND POOR

LAW AND POVERTY

Submitted by
GAUTAM RAJ
--------------------------------------------
Roll No 23
Regular Class 4th semester

Faculty of Law
Jamia Millia Islamia.
In
23rd march 2019
 Concept of legal aid and poor

Appendix ‘B’- Certificate

CERTIFICATE

The project entitled “ Concept of legal aid and poor “ submitted to the Faculty of Law, Jamia
Millia Islamia for Law and poverty as part of Internal Assessment is based on my original
work . The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate : Gautam raj

Date: 23 March , 2019

 Concept of legal aid and poor

SYNOPSIS

CONCEPT OF LEGAL AID AND POOR

1. Legal aid – a historical background

2. LEGAL AID and the INDIAN CONSTITUTION
3. LANDMARK JUDGMENTS
4. LEGAL AID IN INDIA: Statutory Recognition
5. Practical experience during internship with BSLSA
6. CONCLUSION AND SUGGESTIONS
 Concept of legal aid and poor

CONCEPT OF LEGAL AID AND THE POOR

Law is the means and justice is the end and to achieve that end the law must have legal system
accessible to all. Access to justice gives life and meaning to law. 'If the end of justice is justice
and the spirit of justice is fairness', observed Fawcett J, 'then each side should have equal
opportunity to prepare its own case and to lay its evidence fully, freely, and fairly, before the
court.’

The prime obligation of the State is to provide free legal aid to the poor, indigent and
marginalized and it is their right guaranteed under the Constitution of India to demand and avail.
As envisaged under Article 15 of the Constitution of India, the State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Based on this principle, no citizen shall on the grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability.
Article 14 of the Constitution of India provides that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.

The philosophy of legal aid as an inalienable element of fairness is evident from Mr. Justice
BRENNAN'S (Legal Aid and Legal Education, p.94) well known words:

"Nothing rankless more in the human heart than a brooding sense of injustice. Illness we can put up with. But
injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the
poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued
existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the
machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.”

In a participatory democracy, it is essential that citizens have faith in their institution. A judiciary
that is seen as fair and independent is an important component in sustaining their trust and
confidence. An impartial independent judiciary is the guardian of individual rights in a
democratic society. In order for citizens to have faith in their Court system, all people must have
access to the Courts when necessary.
The Courts in criminal and civil functioning in our Nation must see, how the legal profession
contributes to making 'equal justice for all' a reality. Citizens agree to limitation on their
freedom in exchange for peaceful coexistence, and they expect that when conflicts between
citizens or between the state and citizens arise, there is a place that is independent from undue
influence, that is trustworthy, and that has authority over all the parties to solve the disputes
peacefully.
.
The last decades have witnessed fundamental changes in the philosophy underlying programmes
for providing legal aid to those who cannot afford a lawyer, the attitudes of the government and
the legal profession towards legal assistance to the poor, the availability of funds to finance
programmes for legal aid, and in the techniques by which it is administered.

The concept of legal aid is not new in India. The legal profession has long appreciated that it is
necessary in a democracy to develop a legal system in which inequalities in economic status
would not preclude the attainment of equal justice for the poor as well as the rich.
 Concept of legal aid and poor

Legal aid – A historical background

The concept of legal aid can be witnessed in the 40th paragraph of the Magna carta which is
stated as under;

“To no one will we sell, to no one will we deny or delay right or justice”

While writing Foreword in 1919, to Reginald Heber Smith's, "Justice and the Poor", Elihu Root
has observed that;

"Legal aid work essentially is a state of the individual lay mind, an individual professional point of view, and the
answer of the organized bar to a public demand for a means for implementing some of the basic legal principles
under girding the American way of life. This activity is carried on generally in a material framework of law office,
bricks, mortar, desks, filing cabinets, and books. But at the center of the concept there are always a client asking
help and a lawyer giving it. functionally always a client asking help and a lawyer giving it. Functionally there is a
meeting of their minds, an exchange of ideas, the transfer of a professional commodity.”

The widespread insistence on free legal assistance, where liberty is in jeopardy, is obvious from
the Universal Declaration of Human Rights:
'Article 8: Everyone has the right to an effective remedy by the competent national tribunal for
acts violating the fundamental rights granted by the Constitution or by law.'

Article 14 (3) of the International Covenant on Civil and Political Rights 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 in any such case if he does not have sufficient means to
pay for it."

Free legal aid to the poor is an essential element of fair trial procedure for securing justice to all
on the basis of equal opportunity for defence. By the mid-twentieth century the above principle
was realised all over the world. In England, it was started by the Legal Aid Act, 1949, in civil
cases and it extended to criminal cases in 1967. The Courts in Britain have established the
concept of legal aid that, if the party has cause of action but has no money to pay for the fee of
lawyers, he is entitled to get legal assistance from the Government Exchequer.

Ancient India was not aware of the concept of equal justice. It is revealed from the history that
the King was empowered by Manusmriti to administer justice without minding his wimps
emphasizing on the religion. Manusmriti says that the sanctity of administration of justice in
social, economic and political aspects has to be preserved and developed.

In ancient period, Hindus were administered by Hindu Law in deciding civil and religious of
which the parties were Hindus.

In the medieval period, the King was required to administer Islamic Law in deciding all cases
irrespective of religion of the parties to the suit. It was Jahangir, who took the credit for
dispensing even-handed justice to all irrespective of birth, rank of the official position. Infact, he
 Concept of legal aid and poor

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.

In the modern period, as stated in the fore-going paragraphs, the earliest Legal Aid movement
appears to have been emerged in the year 1851, where some enactment was introduced in France
for providing legal assistance to the indigent.

LEGAL AID and the INDIAN CONSTITUTION

The right to legal aid receives greater protection in the Indian legal system, but in practice the
funds and assistance made available to civil litigants is paltry. The Indian Constitution is a
shining example to lawyers around the world who argue that there can be no rule of law without
access to legal assistance, and therefore it is incumbent on the state to provide legal assistance to
those who cannot afford it. The concept of legal aid, which plays a significant role in the
administration of justice, is not charity, but a constitutional obligation on the part of the state by
virtue of article 39A of the Constitution of India, which came into force with the 42nd
Amendment. Article 39A of the Constitution, which is headed Equal justice and free legal aid
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.

These noble principles are enshrined in Article 14 and Article 21 of our Constitution which read
thus:

Article 14: "Equality before law.--The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India".

Article 21: "Protection of life and Personal liberty.--No person shall be deprived of his life or
personal liberty except according to procedure established by law".

Along with the Constitution, the Code of Criminal Procedure and the Code of Civil Procedure
have also made its amendments so as to provide free legal aid to its citizens. The Parliament has
also enacted the Legal Services Authorities Act, 1987 which came into force on November 9,
1995 for the same cause.

LANDMARK JUDGMENTS
Legal Aid is the method adopted to ensure that no one is debarred from professional advice and
help because of lack of funds. Thus, the provisions of legal aid to the poor are based on
humanitarian considerations and the main aim of these provisions is to help the poverty-stricken
people who are socially and economically backward.
 Concept of legal aid and poor

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."

In Bihar Legal Support Society v. The Chief Justice of India and Anothe1r, Hon'ble Mr. Justice P.N.
BHAGWATI, Chief Justice of India (as he then was) has observed that;
"In fact, this Court has always regarded the poor and the disadvantaged as entitled to
preferential consideration than the rich and the affluent, the businessmen and the industrialists.
The reason is that the weaker sections of Indian humanity have been deprived of justice for
long, long years: they have had no access to justice on account of their poverty, ignorance and
illiteracy. They are not aware of the fights and benefits conferred upon them by the Constitution
and the law. On account of their socially and economically disadvantaged position they lack the
capacity to assert their fights and they do not have the material resources with which to enforce
their social and economic entitlements and combat exploitation and injustice. The majority of the
people of our country are subjected to this denial of access to justice and, overtaken by despair
and helplessness, they continue to remain victims of an exploitative society where economic
power is concentrated in the hands of a few and it is used for perpetuation of domination over
large masses of human beings. This Court has always, therefore, regarded it as its duty to come
to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them
realise their economic and social entitlements and to bring to an end their oppression and
exploitation."

The right to legal aid was examined by the Supreme Court in detail in Hussainara Khaton v.
State of Bihar2, where prisoners were kept in Bihar jails without a trial for a longer period than
that to which they would have been sentenced, if convicted. P.N. BHAGWATI, J., in this case
opined that a procedure which did not make available the legal services to an accused, who was
too poor to afford a lawyer, could not be regarded as 'reasonable, fair and just.' Thus, the
fundamental right of legal aid was held to be implicit in the procedural requirement of Article 21
of the Constitution.

P.N. BHAGWATI, J, has further held that:

"The 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 implicit in the
guarantee of Article 21. This 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 State is under a mandate to provide a lawyer to an accused
person if the circumstances of the case and the needs of justice so require provided of course
the accused person does not object to the provision of such lawyer."

1
AIR 1987 SC 38
2
AIR 1979 SC 1360
 Concept of legal aid and poor

LEGAL AID IN INDIA: Statutory Recognition

Though there was a statutory procedure providing free legal aid 3 by appointing the advocate for
defending criminal case and by exempting court fees in civil cases, it was not really making any
significant impact on the ability of the underprivileged people to get the judicial redressal for
their grievances. Hence under tremendous constitutional persuasion from the Supreme Court the
act was passed by the parliament.

An Act to constitute legal services authorities to provide free and competent legal service to the
weaker sections of the society to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to
secure that the operation of the legal system promotes justice on a basis of equal opportunity.

The Act prescribes the criteria for giving legal services to the eligible persons. It makes a person
eligible for assistance under the act if he is –

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) 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

(f) an industrial workman; or

(g) in custody, including custody in a protective home or in a juvenile home

(h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of
section 2 of the Mental Health Act, 1987; or

(i) A person whose annual income less than rupees fifty thousand or such other higher amount as
may be prescribed by the State Government4.

This limit on income can be increased by the state governments. Limitation as to the income
does not apply in the case of persons belonging to the scheduled castes, scheduled tribes, women,
children, handicapped, etc. Thus by this the Indian Parliament took a step forward in making the
legal aid possible in the country.

3
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure
4 Section 12 of the Legal Services Authorities Act, 1987
 Concept of legal aid and poor

According to the Act the 'court' is a civil, criminal or revenue court and includes any tribunal or
any other authority constituted under any law for the time being in force, to exercise judicial or
quasi-judicial functions5. Under the Act 'legal service' includes the rendering of any service in
the conduct of any case or other legal proceeding before any court or other authority or tribunal
and the giving of advice on any legal matter6 .

Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the litigation
once it is supported by a Legal Services Authority.

Bodies under the Act and Their Hierarchy

A nationwide network has been envisaged under the Act for providing legal aid and assistance.
National Legal Services Authority is the apex body constituted to lay down policies and
principles for making legal services available under the provisions of the Act and to frame most
effective and economical schemes for legal services.

In every State a State Legal Services Authority is constituted to give effect to the policies and
directions of the Central Authority (NALSA) and to give legal services to the people and conduct
Lok Adalats in the State. State Legal Services Authority is headed by the Chief Justice of the
State High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is
nominated as its Executive Chairman.

District Legal Services Authority is constituted in every District to implement Legal Aid
Programmes and Schemes in the District. The District Judge of the District is its ex-officio
Chairman.

Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for
group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to
organize Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge
operating within the jurisdiction of the Committee who is its ex-officio Chairman.

Chapter-VI deals with the Lok Adalats. This chapter encompasses Sections 19 to 22. Nowadays,
in proportion to the escalation of the population, filing rate of cases has also been rapidly
increasing, which causes grave concern to the administration of justice and it also portrays as a
prime challenge to the Indian Judiciary. In this regard, it is presumed that Sections 19 to 22 of
the Act are the enabling Sections and for rendering a helping hand to the Courts in dilution
pendencirate.

5
Section 2(1) (a) of the Legal Service Authority Act,1987
6 Section 2(1) (c) of the Legal Service Authority Act,1987
 Concept of legal aid and poor

As per sub-section (2) to Section 21 of the Act, every Award made by a Lok Adalat shall be final
and binding on all the parties to the dispute, and no appeal shall lie to any Court against the
Award.

In order to provide free and competent legal service, the NALSA has framed the National Legal
Service Authority (Free and competent Legal service) Regulations, 2010. The salient feature of
Regulation is engaging senior competent lawyers on payment of regular fees in special cases like
where the life and liberty of a person are in jeopardy.

Supreme Court of India has also set up Supreme Court Legal Services Committee (SCLSC) to
ensure free legal aid to poor and under privileged under the Legal Services Authorities Act. It is
headed by a judge of Supreme Court of India and has distinguished members nominated by
Chief justice of India. The SCLSC has a panel of competent Advocates on record with certain
minimum number of years of experience who handle the cases in the Supreme Court. Apart from
that the SCLSC has full time Legal Consultant who provides legal advise to poor litigants either
on personal visit or through the post.

Practical experience during internship with BSLSA

It was my 1st Internship so I was very much exited to work with them.
After basic formalities and introductions about the authority, different legal topics for project
write up were assigned among us which were very much necessary to be submitted at the last of
the internship.
The main work assigned to the interns were to attend the lectures by different eminent
personalities on various relevant legal topics.

The lectures were in impressive way by Judges, state heads of different NGOs, Legal
Professionals as well as experts of legal field.

Moreover we were send for jail visit, lok adalat visit, child home visit, court visits and legal
awareness program.

Moreover interns were given different schemes of National Legal Services Authority (NALSA)
to work on and present.

The working environment was awesome and Judges and staff wanted to give us the maximum
exposure as I worked on NALSA’s scheme and also participated in legal awareness skit.

The best thing you can find while interning at BSLSA is different experts under one roof for
practical exposures. The authority always took us for any visits via their own vehicles. Got to
know much about LGBT rights, plea bargaining, child rights, prisoner’s rights, mediations, like
adalats etc.
 Concept of legal aid and poor

CONCLUSION AND SUGGESTIONS

In a Democratic country like our Nation, in the course of administration of justice both the
victims of crime as well as it's perpetrators are required free legal aid. In order to improve this
mechanism we have to create faith in the minds of needy people to have free and costless access
to justice and for which the lawyers community at large must be prepared to do more pro bono
service and if they are nominated to handle the cases through legal aid system, their
remuneration may sizeably be increased.
Below is a list of potential reforms, including those that have been tried with some success, and
those that more radical.

 Procedural reform, including simplified pleading rules, liberalized standing

requirements and effective collective redress rules.
 More de-regulation of legal services to reduce the cost of legal assistance.
 Regulation of lawyers' fees and/or lawyers' time through mandatory participation in
pro bono or fixed fee schemes targeted at indigent litigants.
 Judicial specialization, more legal aid lawyers in court, and more use of technology.
 Better civic legal education.
 Concept of legal aid and poor

BIBLIOGRAPHY

1. The Legal Aid and Advice Society, West Bengal, Work and Progress of the Legal Aid
and Advice Society, West Bengal (1959).
2. Report of the Committee on Legal and Legal Advice in the State of Bombay (1950).
3. S Muralidhar, Law, Poverty and Legal Aid : Access to Criminal Justice
4. http://lawmin.nic.in/ncrwc/ncrwcreport.html
5. M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81
6. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.