LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

Project proposed by Sahil Suman Project presented to Prof. Mr. Hrishikesh Manu
Roll.no: 1849
Semester: 6th

SUBJECT:- ALTERNATIVE DISPUTE

A Final Draft submitted in fulfilment of the course ALTERNATE DISPUTE

DECLARATION

I hereby declare that the work reported in the B.B.A., LL.B (Hons.) Project Report entitled “LEGAL
AID UNDER CRIMINAL JUSTICE SYSTEM” submitted at Chanakya National Law University
is an authentic record of my work carried out under the supervision of Prof. Mr. Hrishikesh Manu. I
have not submitted this work elsewhere for any other degree or diploma. I am fully responsible for
the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: SAHIL SUMAN
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

Table of Contents
LEGAL AID IN INDIA AND THE JUDICIAL CONTRIBUTION...................................2

INTRODUCTION....................................................................................................................2

LIMITATION:.........................................................................................................................3

REVIEW OF LITERATURE:................................................................................................3

RESEARCH METHODOLOGY:..........................................................................................3

CHAPTER - 1...........................................................................................................................4

LEGAL AID: THE CONCEPT..............................................................................................4

CHAPTER - 2...........................................................................................................................5

FREE LEGAL AID IN INDIA : THE POSITIVE CONTRIBUTION OF JUDICIARY. 5

CHAPTER - 3...........................................................................................................................7

LEGAL AID IN INDIA: STATUTORY RECOGNITION..................................................7

CHAPTER - 4...........................................................................................................................9

BODIES UNDER THE ACT AND THEIR HIERARCHY.................................................9

CHAPTER - 5.........................................................................................................................10

CONCLUSION AND SUGGESTIONS................................................................................10

SUGGESTIONS.....................................................................................................................10

BIBLIOGRAPHY..................................................................................................................11
 LEGAL AID IN INDIA AND THE JUDICIAL CONTRIBUTION

The concept of seeking justice cannot be equated with the value of

dollars. Money plays no role in seeking justice1.

INTRODUCTION

Legal aid to the poor and weak is necessary for the preservation of rule of law

which is necessary for the existence of the orderly society. Until and unless poor

illiterate man is not legally assisted, he is denied equality in the opportunity to seek

justice. Therefore as a step towards making the legal service serve the poor and the

deprived; the judiciary has taken active interest in providing legal aid to the needy in

the recent past. The Indian Constitution provides for an independent and impartial

judiciary and the courts are given power to protect the constitution and safeguard the

rights of people irrespective of their financial status. Since the aim of the constitution

is to provide justice to all and the directive principles are in its integral part of the

constitution, the constitution dictates that judiciary has duty to protect rights of the

poor as also society as a whole. The judiciary through its significant judicial

interventions has compelled as well as guided the legislature to come up with the

suitable legislations to bring justice to the doorsteps of the weakest sections of the

society. Public Interest Litigation is one shining example of how Indian judiciary has

played the role of the vanguard of the rights of Indian citizens especially the poor. It

encouraged the public spirited people to seek justice for the poor. For that Supreme

1
1. Justice Blackmun in Jackson v Bish
Court relaxed procedure substantially. Apart from Public Interest Litigation and

judicial activism, there are reforms in the judicial process, where it aims to make

justice cheap and easy by introducing Lok Adalat system as a one of the methods to

provide free legal aid and speedy justice at the door steps of the poor. In this article

the author highlights the importance of free legal aid in a constitutional democracy

like India where a significant section of the population has still not seen the

constitutional promises of even the very basic fundamental rights being fulfilled for

them.

OBJECTIVE OF RESEARCH

To highlight the importance of free legal aid in a constitutional democracy like India

where a significant section of the population has still not seen the constitutional

promises of even the very basic fundamental rights being fulfilled for them.

HYPOTHESIS

The essence of free legal aid has not yet successfully reached out to the masses.

LIMITATION:

This research paper is done relying on articles and essays published by authors

online and books written on the law relating to the subject matter. Though such books

are referred they do not contribute to the bulk of the research and my research is
mostly confined with the online sources. The area of research is restrained only to the

concept of legal aid and its present day challenges.

REVIEW OF LITERATURE:

The existing literature on this research work mainly revolves around the

published works of foreign as well as Indian authors pertaining to the subject matter,

well decided cases cited in Indian journals and cases cited from other countries, and

the articles published in the websites.

RESEARCH METHODOLOGY:

The research methodology adopted for the purpose of this project is the

doctrinal method of research. The various library and Internet facilities available for

Law have been utilized for this purpose. Most of the information is, however, from the

Internet.
CHAPTER - 1

LEGAL AID: THE CONCEPT

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 lack of funds.

Therefore, the main object is to provide equal justice is to be made available to the

poor, down trodden and weaker section of society. In this regard Justice

P.N. Bhagwati rightly observed that:2

The legal aid means providing an arrangement in the society so that the missionary of

administration of justice becomes easily accessible and is not out of reach of those

who have to resort to it for enforcement of its given to them by law, the poor and

illiterate should be able to approach the courts and their ignorance and poverty

should not be an impediment in the way of their obtaining justice from the courts.

Legal aid should be available to the poor and illiterate, who don't have access to

courts. One need not be a litigant to seek aid by means of legal aid.

Therefore, legal aid is to be made available to the poor and needy by providing

a system of government funding for those who cannot afford the cost of litigation.

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. 2 Article 39A
of the Indian Constitution
 Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and

spirit and equal justice is made available to the poor, downtrodden and weaker

sections of the society. It is worthy to mention that the Constitution of India provides 2

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 reason of economic or other disability.

Constitution of India also makes it obligatory for the State to ensure equality before

law and a legal system which promotes justice on a basis of equal opportunity to all3.

CHAPTER - 2

FREE LEGAL AID IN INDIA : THE POSITIVE CONTRIBUTION OF

JUDICIARY

The Supreme Court of India got a major opportunity to make an emphatic

pronouncement regarding the rights of the poor and indigent in judgment of

3
Articles 14 and 22(1) of the Indian Constitution.
Hussainara Khatoon4 where the petitioner brought to the notice of Supreme Court

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. The 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. Thus, in

this case the court pointed out that Article 39-Aemphasized that free legal service was

an inalienable element of reasonable, fair and just procedure and that the right to free

legal services was implicit in the guarantee of Article 21.

Two years later, in the case of Khatri v. State of Bihar5, the court answered the

question the right to free legal aid to poor or indigent accused who are incapable of

engaging lawyers. It 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 ask for it. Magistrates and Sessions Judges must inform the accused of such rights.

The 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 21 and the State is under a constitutional mandate to provide a

lawyer to an accused person if the circumstances of the case and the needs of justice

4
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
5
Khatri v. State of Bihar, AIR
1981 SC 262. 6 AIR 1986 SC 991.
so require…The State cannot avoid this obligation by pleading financial or

administrative inability or that none of the aggrieved prisoners asked for any legal aid.

In Suk Das v. Union Territory of Arunachal Pradesh6, Justice P.N. Bhagwati,

emphasized the need of the creating the legal awareness to the poor as they do not

know the their rights more particularly right to free legal aid and further observed that

in India most of the people are living in rural areas are illiterates and are not aware of

the rights conferred upon them by law. Even literate people do not know what are

their rights and entitlements under the law. It is this absence of legal awareness they

are not approaching a lawyer for consultation and advise. Moreover, because of their

ignorance and illiteracy, they cannot become self-reliant and they cannot even help

themselves. That is why promotion of legal literacy has always been recognized as

one of the principal items of the program of the legal aid movement in the country. I

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.

Justice Krishna Iyer, who is crusader of social justice in India, 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 Supreme

Court for want of legal assistance, there is implicit in the Court under Article 142 read

with Articles 21 and 39-A of the Constitution, the power to assign counsel for such

imprisoned individual ‗for doing complete justice‘.6

6
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
 It is a statutorily recognized public duty of each great branch of government to

obey the rule of law and uphold the tryst with the constitution by making rules to
7
effectuate legislation meant to help the poor. Though the law has been enacted to

protect the poor the governments are lazy to implement the enacted law. The same

was observed by Supreme Courtin State of Haryana v. Darshana Devi9, that "the poor

shall not be priced out of the justice market by insistence on court-fee and refusal to

apply the exemptive provisions of order XXXIII, CPC. The state of Haryana, mindless

of the mandate of equal justice to the indigent under the magna carta of republic,

expressed in article 14 and stressed in article 39A 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. Order XXXIII will apply to tribunals, which have

the trappings of the civil court‖…even court also expressed its poignant feeling that

―no state has, as yet, framed rules to give effect to the benignant provision of legal

aid to the poor in order xxxiii, rule 9A, civil procedure code, although several years

have passed since the enactment. Parliament is stultified and the people are frustrated.

Even after a law has been enacted for the benefit of the poor, the state does not bring it

into force by willful default.

7
Order 33, Rule 9A,Code Civil
Procedure,1908. 9 AIR 1972 SC 855.
CHAPTER - 3

LEGAL AID IN INDIA: STATUTORY RECOGNITION

Though there was a statutory procedure providing free legal aid 8 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 Legal Services Authorities Act,

1987 was passed by the parliament of India. 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

8
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of
Code of Civil Procedure. 11 Section 12 of the Legal Services Authorities
Act, 1987.
 (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 Government11.

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.

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 functions 9. 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 matter13.

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.

9
Section 2(1) (a) of the Legal Service
Authority Act,1987. 13 Section 2(1)(c) of the
Legal Service Authority Act,1987.
CHAPTER - 4

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.

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.

CONCLUSION AND SUGGESTIONS

Legal aid is not a charity or bounty, but is an obligation of the state and right of

the citizens. The prime object of the state should be ―equal justice for all‖. Thus,

legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and

spirit and equal justice is made available to the downtrodden and weaker sections of

the society. But in spite of the fact that free legal aid has been held to be necessary

adjunct of the rule of law10, the legal aid movement has not achieved its goal. There is

a wide gap between the goals set and met. 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.

SUGGESTIONS

 It is suggested that it is the need of the hour that the poor illiterate people

should be imparted with legal knowledge and should be educated on their basic

rights which should be done from the grass root level of the country. For that

judiciary needs the support from state administration to conduct legal literacy

programme.

10
See note 6.
  The judiciary should focus more on Legal Aid because it is essential in this

present scenario where gulf between haves and have-nots is increasing day by

day. And elimination of social and structural discrimination against the poor

will be achieved when free Legal Aid is used as an important tool in bringing

about distributive justice.

 There are number of precedents as well as legislations to up hold the right to

free legal aid but they have just proven to be a myth for the masses due to their

ineffective implementation. Thus the need of the hour is that one should need to

focus on effective and proper implementation of the laws which are already in

place instead of passing new legislations to make legal aid in the country a

reality instead of just a myth in the minds of the countrymen.

 In providing Legal Aid, the Legal Aid institutions at all level should use proper

ADR methods so as to speed up the process of compromise between parties to

the case and with that matter will be settled without further appeal.

Free Legal Services Authorities must be provided with sufficient funds by the

State because no one should be deprived of professional advice and advice due to lack

of funds.
BIBLIOGRAPHY

1. http://indiancorruptjudges.com/Plot4Plot/fromweb/www.kar.nic.in/fnjpc/h-

mahrs.html

2. http://janhitlaw.in/K-%20113%20LEGAL%20HISTORY%20by%20Mr.

%20Zeshaan%20Sir.pdf

3. http://lawmin.nic.in/doj/justice/judicialimpactassessmentreportvol1.pdf

4. http://mohdyasinblsllb.blogspot.in/2014/10/history-of-courts-part-i-notes-

chapter.html

5. http://www.encyclopedia.com/doc/1G2-3045000626.html

6. http://www.legalservicesindia.com/article/article/development-of-adalat-

system-during-the-time-of-warren-hastings-252-1.html

7. http://www.legalservicesindia.com/article/article/judicial-system-before-1947-

1138-1.html

8. http://www.realityviews.in/2010/03/administration-of-bombay-legal-

system.html

9. http://www.realityviews.in/2010/04/part-9-indian-legal-history-judicial.html

10.http://www.slideshare.net/suvamsinha91/charter-of-1726

11.https://www.scribd.com/doc/74363948/Judicial-Set-in-Madras-Bombay