International Journal of Law

International Journal of Law

ISSN: 2455-2194; Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 2; Issue 5; September 2016; Page No. 77-83

Access to justice: Role of legal aid in its complete realization

Gurmeet Nehra
LLM, Department of Law, Indian Law Institute, New Delhi, India

Abstract
For a democracy to function equal access to justice is sine qua non. For the delivery of equal justice the provision of legal aid
is very necessary and prime. It becomes more important in today’s time where legal process is very cumbersome and costly.
In such situation Legal aid act as a great assistance to the poor deprived and so called unequal member of our society.

Keywords: justice, legal, laws, constitutional, provisions, act

1. Introduction under international obligation to provide free legal

For a democracy to function equal access to justice is sine assistance to people who are in need.
qua non. For the delivery of equal justice the provision of The European Convention of Human Rights, 1953 in its
legal aid is very necessary and prime. It becomes more Article 6 (3) extends the right to legal aid to a person
important in today’s time where legal process is very charged with criminal offence to defend himself [3].
cumbersome and costly. In such situation Legal aid act as a
great assistance to the poor deprived and so called unequal 3. Constitutional and Legislative Frame Work
member of our society. To get justice is not the propriety of As we already discussed that after India got independence
the one who is rich but everyone irrespective of his social various schemes of legal aid were developed under the
status equally deserves it. For a weak poor person it acts as aegis of Justice N.H. Bhagwati, then of Bombay High Court
a tool to bridge the gap of socio-economic inequality and and Justice Trevore Harris of Calcutta High Court. After
enables him to get justice. It also improves the rule of law that the matter of legal aid was also referred to the Law
in a particular society as the efficiency and adequacy of Commission to make recommendations for making the
legal institutions and instruments demands so. The legal aid program an effective instrument for rendering
provisions of legal aid guarantee the equal status and equal social justice. As a result of which under the leadership of
access to justice. Legal Aid also help in fulfilling the leading jurist M.C. Setalvad it came up with
constitutional goal set up by every modern constitution recommendation in its 14th report, where it was opined that
wherein equal laws or equality before law is guaranteed and free legal aid is a service should be provided by the State to
this can only be ensured by means of the providing the the poor and while accepting the obligation, state must
equal opportunities for availing the benefits of such laws. make provision for funds to provide legal aid. Also, the
By providing legal aid to the poorest of poor, we pull these legal community must play a pivotal role in accepting the
people to the level of a democratic living which further responsibility for the administration and working of the
strengthens our democracy. This present system of legal aid legal aid scheme. It was further mentioned that it owes a
is not a newly born concept but it is the product attained moral and social obligation and therefore the Bar
after long care and rear and it has now become a feature of Association should take a step forward in rendering legal
welfare state. If we closely look then this principle is grown aid voluntarily. These would include representation by
on the bed rock of very important concepts, equality and lawyers at government expenses to accused persons in
equal protection of laws. Poverty is not limited to criminal proceedings who are in jails and also for appeals
[4]
developing countries only but the developed countries also .
do have people who are poor and socially unequal. Acting on the recommendations of the Law Commission,
The Encyclopedia Britannica defines legal aid as “the the Government of India in 1960 prepared a national
professional legal assistance given, either free or for a scheme of legal aid providing for legal aid in all courts
nominal fee, to some indigent persons in need of such help including tribunals. It envisaged the establishment of
[1]
.” This is also called as Pro Bono Verito Services [2]. committees at the State, District and Tehsil level. However
due to the inability of States to implement the scheme
2. Legal Aid under Various International Instruments because of lack of finances the scheme did not survive.
The Universal Declaration of Human rights in Article 8 If we look to the provisions of our constitution then art
provides that 22(1) provides for the legal representation in the following
“Everyone has the right to an effective remedy by the manner:
competent national tribunals for acts violating the Article 22 (1), Constitution of India.
fundamental rights granted by the constitution or the law”.
An explicit provision for the legal aid is made under the Protection against arrest and detention in certain cases
most important instrument of international law, “No person who is arrested shall be detained in custody
International Covenant on Civil and Political Rights without being informed, as soon as may be, of the grounds
(ICCPR), 1966, Article 14 (3) (d), for such arrest nor shall he be denied the right to consult,
India has ratified this convention in 1976 and therefore it is and to be defended by, a legal practitioner of his choice”

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This article provide for right to have legal representation by Legislative Provisions
a lawyer of his own choice. It provides a right to any person Section 304, Code of Criminal Procedure, (Cr.P.C), 1973:
whether a citizen of India or an alien. This was put under
part three of the Constitution of India as a fundamental right Legal aid to accused at State expense in certain cases
and was an inalienable right, which could be exercised by 1. Where, in a trial before the Court of Session, the
any person. accused is not represented by a pleader, and where it
Coming to its interpretation this right was given a limited appears to the Court that the accused has not sufficient
interpretation and it was held not to be a guarantee of legal means to engage a pleader, the Court shall assign a
representation so that state would provide legal aid if such a pleader for his defense at the expense of the State.
needy person is not able to arrange a lawyer for him. 2. The High Court may, with the previous approval of the
With the growing legal aid movement in India as we State Government, make rules providing for-
already discussed that this led to a 42nd amendment and a. The mode of selecting pleaders for defence under
article 39A introduced as Directive principle of State policy sub- section (1).
(DPSP). These principles are enshrined in the part IV of the b. The facilities to be allowed to such pleaders by the
constitution of India and they casts a duty on the state to Courts;
apply these principles in making laws and these principles c. The fees payable to such pleaders by the
are fundamental in the governance of the country [5]. One of Government, and generally, for carrying out the
the major problem regarding the subject matter is solved by purposes of sub-section (1).
the 42nd amendment in which ‘administration of justice’ is 3. The State Government may, by notification, direct that,
shifted from the state list to the concurrent list i.e list III as as from such date as may be specified in the
entry number 11-A. This is considered as a major notification, the provisions of sub-sections (1) and (2)
breakthrough because the real problem earlier is solved now shall apply in relation to any class of trials before other
both the state and central government can put their might to Courts in the State as they apply in relation to trials
strengthen the legal aid machinery. It is important to note before Courts of Session.
here that the entry ‘legal profession’ also falls under the
concurrrent list. So as is clear from the above mentioned provisions that
It reads. provides for legal services to be provided to the accused at
state expenses. It also provides in sub-section (3) that the
Article 39A, The Constitution of India: Equal justice State Government may, by notification, direct that these
and free legal aid provisions shall apply to any class of trials before other
“The State shall secure that the operation of the legal courts in the State as they apply before the Court of
system promotes justice, on a basis of equal opportunity, Sessions.
and shall, in particular, provide free legal aid, by suitable If we look on the Civil side then Order XXXIII Rule 9A
legislation or schemes or in any other way, to ensure that and Rule 18 of the Code of Civil Procedure, 1908 provide
opportunities for securing justice are not denied to any for the duty of the court and the power of the government to
citizen by reason of economic or other disabilities.” provide legal services to the indigent person respectively.
It is important to note that Justice Krishna Iyer described it Rule 9A provides that the Court may if the circumstances of
as most ‘fundamental directive’ [6]. the case so require, assign a pleader to the indigent person
If we go through the constitutional provisions of article 14 and also provides for rules to be made for facilities to be
and 21, then these articles along with article 22(1) make it provided for such pleader. Rule 18 on the other hand
obligatory for the State to ensure equality before law and a provides for a power to the Central and the State
legal system, which would promote justice on a basis of governments to make provisions for providing legal aid to
equal opportunity to all. the indigent persons. Rule 41, under section VI casts a duty
on every advocate of the country to render legal aid and it
Article 14 reads: Equality before law mandates that free legal assistance to the indigent and
“The State shall not deny to any person equality before the oppressed is considered as one of the highest obligation of
law or the equal protection of the laws within the territory an advocate towards the society.
of India”.
Equality before the law implies the absence of any special The National Legal Services Authorities Act, 1987
privilege in favor of individuals and equal subject of all It came into force on 9.11. 1995. This legislation is
classes to ordinary law. If we look, then this concept of particularly aimed at providing constituting legal services
equality is not absolute but it involves making conscious authority in order to provide free and competent legal
efforts to heighten the lowliest. Therefore we can say that services to the weaker sections of the society and to
legal aid further christens the concept of ‘equality before organize lok adalats to secure and promote justice on a
law’. Article 21 is further such article which provides basis of equal opportunity. It consists of 30 sections. It
support and strives to ensure that constitutional vision and contains seven chapters dealing with the national legal
pledge to equal justice is fulfilled in its letter and spirit and service authority, the state legal service authority,
equal justice is made available to the poor, downtrodden entitlement criterion for legal services, financial aspect, lok
and weaker sections of the society. adalat, and the miscellaneous provisions. The institution of
Dr. Upendra Baxi in his Article “Taking suffering lok adalat is aimed at providing the speedier, cheaper and
seriously: Social Action litigation in the Supreme Court of an effective justice at the door step of the litigants and it is
India [7]” discusses that the article 32 and 226 carry the one of the key features of this legislation. This legislation
benefit of legal aid for the destitute and deprived sons of the also recognizes the role of voluntary organizations in legal
India and he said that legal aid does find a connection with aid.
these instrumental articles of the constitution. The Act provides, inter alia for the constitution of a

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National Legal Services Authority [8], it consists of Chief Services Committee provides legal assistance to eligible
justice of India as patron in chief, a serving or retired judge persons in this Court. This makes it abundantly clear that
of Supreme Court as its executive chairman and other legal services shall be provided to an eligible person at all
members possessing experience as may be prescribed and stages of the proceedings, trial as well as appellate.
nominated by the Central government and an officer of the Also the Rule 46 of the Bar Council of India Rules in part –
rank of special secretary shall be appointed as member VI relating to a standard professional conduct and etiquette
secretary [9]. And Supreme Court Legal Services Committe reminds advocates of the obligation they owe to provide
e [10], the State Legal Services Authorities [11] and the free legal aid to the needy [19].
provisions in this regard is mutatis mutandis with the
provision of the national legal service Authority. The Legal Services Amendment Act, 2002
In the district level [12] the district judge shall be the A new amendment has been brought out in 2002 and it
chairman and the other members shall be nominated by the established the permanent lok adalats in which dispute
government and one of the members of the district authority against the public Utility services can be settled at pre-
shall be appointed as the secretary [13]. litigation stage. In this section 22 has been amended and the
In Taluk or Mandal level Taluk Legal services Committee word “Permanent Lok Adalat” is introduced in place of
provides legal aid to the needy and poor people. It derives “Lok Adalat”. All these provisions concerning pre litigation
its authority from the section 11-A and B [14] of the Act. The conciliation and settlement as above mentioned has been
senior civil Judge of that jurisdiction is the ex-officio introduced by the way of introducing a new chapter VI-A.
chairman. And the members are appointed by the state
government with the consultation of the High Court. 4. Role of Judiciary in Interpreting Legal Aid
The step was first taken in Sunil Batra v. Delhi
Functions Administration [20] where the two situations in which a
The National legal Services Authority also encourages the prisoner would be entitled for legal aid were given. First, is
settlement of dispute through negotiation, arbitration and to seek justice from the prison authorities and second, to
conciliation and it also monitors and evaluates the challenge the decision of such authorities in the court. Thus,
implementation of the legal aid programme at periodic the requirement of legal aid was brought about in not only
intervals. It in consultation with bar council of India judicial proceedings but also proceedings before the prison
develops the programmes for clinical legal education and authorities, which were administrative in nature.
supervises the establishment and working of legal services In a later case M.H Hoskot v. State of Maharastra [21], court
clinics in law colleges and universities. It is specifically set free the accused persons on the ground that there was no
mandated under section 4 to spread legal literacy and legal provision for making available legal services to an accused
awareness among the weaker sections. In terms of finance if that was poor to afford a lawyer and as a reason of which he
we see then it is the central authority who allocates the had to go through the trial without legal assistance. If we
funds to the state and district authorities and it also directs, see then in this case court speaking through Justice Krishna
coordinates and monitors the functioning of state and Iyer held that state is under a duty to provide legal services
district authorities [15]. So, if we see then the grants to the accused persons and article 39 A is declared as
approved by the parliament percolates down to the district fundamental constitutional directive and as an
and state authority and also these have been permitted to be interpretative tool for article 21. It was further held that the
supplemented by way of grants or donations and the constitutional and statutory right to legal assistance is very
amounts received by orders of the court i.e from costs or much available in the cases under appeal and it is very
from any other source [16]. much implicit under article 142 read with article 21 and 39
If we go through the provisions of the Act then we find that A. so in this case it was clearly defined as state’s duty but
this act prescribes both of the means or class test as well as not as state’s charity. Clearing the legal position in this case
prima facie test [17]. The condition mentioned in section 12 it was held that in a situation where the prisoner is unable to
constitute the class or means test. So, it provides for legal engage a lawyer then court can assign a competent counsel
aid to certain category in this which are that if a person is for the prisoner’s defense, if the interest of justice so
woman or a child, a member of a scheduled class or tribe, demands and in such situation state shall pay to the
victim of human trafficking or beggar, mentally ill or assigned counsel such sum as the court may equitably fix.
otherwise disabled person, an industrial workman, a person The meaning and objects of the Legal Aid has been clearly
victim of flood, drought etc., or a person in custody or in a explained by Justice P.N. Bhagwati in Hussain Ara
juvenile home or in a psychiatric hospital. But if any person Khatoon v. Home Sec., State of Bihar [22] it was held that the
does not fall in any of the above mentioned categories than right to free legal services is clearly as essential ingredient
he must attract the qualification of economic poverty to be of reasonable, Fair and just procedure for a person accused
eligible for legal aid and for this his annual income should of an offence and it was held implicit in the guarantee of
be less than nine thousand rupees and if the case is before Article 21 of the constitution and the State is under a
the Supreme Court then this threshold is twelve thousand constitutional mandate to provide lawyer to an accused
rupees [18]. After satisfying this criterion under section 12 person if the circumstances of the case and the needs of
such person has to satisfy the concerned authority that he justice so require provided that the accused person does not
has a prima facie case to prosecute or defend. This is called object to the provision of such lawyer. further in this case
as prima facie test. court recommended to the government to introduce a
It is important to note in this context that Sections 12 and comprehensive legal services programme and this was
13 of the Act do not make any distinction between the trial described as a mandate under article 14 and article 21 and a
stage and the appellate stage for providing legal services. In compulsion under article 39-A. Justice P. N Bhagwati
other words, an eligible person is entitled to legal services described the importance of legal aid as that legal aid means
at any stage of the proceedings, which he or she is providing an arrangement in the society so that the
prosecuting or defending. In fact the Supreme Court Legal machinery of administration of justice becomes easily
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accessible and is not out of reach of those who have to provided a decent legal aid system but there are certain
resort to it for enforcement of rights given to them by law. shortcomings to this we are discussed in this section and
Poor and the illiterate should be able to approach the courts certain suggestions are made to meet plug those loop holes.
and their ignorance and poverty should not be an  Lack of senior Lawyers: Lawyers are usually not ready
impediment in the way of their obtaining justice from the to leave his lucrative practice. They may delegate the
courts. job to their juniors but it is a rare case that they take up
In a later case, In Khatri v. State of Bihar [23] the Supreme such cases. It is the apprehension of the lawyers whose
Court after quoting Hussainara’s case again reiterated, right practice is still in the nascent stage, who take up such
to legal aid as a part of article 21 and noted its displeasure cases just for the sake of having more cases so that they
that it is unfortunate that though this court declared the right can have more cases in future.
to legal aid as a fundamental right an accused person by a  Poor remuneration: one of the reason for above
process of judicial construction of Article 21, most of the mentioned problem is low remuneration, which they get
states in the country have not taken note of this decision from either the client himself or the legal aid cell
and provided free legal services to a person accused of an concerned. This act as deterrent to many of the lawyers
offence. It held that the provision of legal aid is mandatory to take up such cases, though the incentive is the large
obligation of the government and the financial, number of cases but when such cases don’t fetch the
administrative inability cannot be pleaded by the state. least of money so, they are reluctant to deal with them.
Legal literacy is held to be an important constituent of legal  Cheap popularity: Public has low confidence on the
aid. A duty was also carved on the magistrate to inform the system of the legal services provided by the legal
accused about the right of legal aid. And the cost of such services authorities, because they are under the
legal aid is to be borne by the state. But this provision of impression that if an individual does not pay to a legal
legal aid is limited to the cases where imprisonment is the practitioner, then how will they help him? The main
penalty. problem of this dissatisfaction of the beneficiary is
In a Land-mark and latest case on the subject Mohammed inexperienced quality of the counsels and
Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of disinterestedness of these advocates.
Maharashtra [24] Supreme Court after discussing various  In India under the Criminal Procedure Code it is a sort
important cases on the legal aid, imputed a duty on the of right under section 304. But in other statutes it is
magistrates to inform the accused about this legal and based on the discretion of the authorities as in various
constitutional right and it further moved on to say that if the statutes the word ‘may’ is used. Another problem is that
magistrate fails is his duty then a disciplinary action would in India that the ‘income’ (disposable) is the only yard
be taken against him. In para. 474 court held it in following stick used to determine the beneficiary where as in other
words: developed countries the ‘means test’ which is used,
“We, therefore, have no hesitation in holding that the right includes the property of the person along with the
to access to legal aid, to consult and to be defended by a income, which is more progressive test because by this
legal practitioner, arises when a person arrested in way the person who is real need of Legal Aid can be
connection with a cognizable offence is first produced identified.
before a magistrate. We, accordingly, hold that it is the duty  In India the legal Aid protection is not available during
and obligation of the magistrate before whom a person police investigations or when a person is arrested and
accused of committing a cognizable offence is first these are the conditions where a person is in most need
produced to make him fully aware that it is his right to of legal help. Legal aid should be made available right
consult and be defended by a legal practitioner and, in case from the very beginning that is at the time of the
he has no means to engage a lawyer of his choice, that one investigation and the bail stages. There is also need to
would be provided to him from legal aid at the expense of make lower judiciary more sensitive towards the
the State. The right flows from Articles 21 and 22(1) of the accused right to legal aid.
Constitution and needs to be strictly enforced. We,  Another problem in India is that the most of schemes
accordingly, direct all the magistrates in the country to relies on the government finances and public control
faithfully discharge the aforesaid duty and obligation and whereas the community association and participation is
further make it clear that any failure to fully discharge the very much missing from our system of legal aid.
duty would amount to dereliction in duty and would make  The legal aid centers are mainly located in the cities and
the concerned magistrate liable to departmental big towns. So there is a need of liberal free legal aid
proceedings”. regime.
So with this analysis of judicial trend we find that in the  Though our legal aid scheme provides for the donations
beginning judiciary stand on the point of providing the legal and contribution but still state is the only main
aid was not that firm enough but with the subsequent contributor in this field. So there is dire need to
judgments it realized the importance of it and focused its popularize this aspect as well.
approach to protect the interest of needy and poor people  The beneficiaries of the legal aid in the states usually
and it gave wide interpretation to article 21 and complains that in the scheme they are only provided
incorporated legal aid into it and a status of constitutional with the service of the counsel but the incidental
right was given to it. In the absence of complete statutory expenses like expenses of witnesses, typing charges and
measures like the 1987 act which was later on enacted, processing fee to which these people are entitled is not
these decisions hold a very significance and show the provided to them.
foresight and wisdom of our country’s learned judicial  Though the legal aid clinics are opened by various
fraternity. colleges and universities but the real problem still is that
since regular law teacher cannot practice in the courts so
5. Problems and Some Suggestions they have a very less practical experience. Whereas the
As we have discussed above that our legal system has part time law teachers who has more practical
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experience, they find it very less interesting reason of marginalized in their locality. Such needs include
being less remuneration attached to the work. But there assistance to secure legal rights, benefits and actionable
are some noted exceptions to this like Dr. Lotika Sarkar, entitlements under different government schemes that are
Upendera Baxi, where these academicians played a very denied to them. Coming, as they do, from the same locality,
important role in doing critical writing on the higher they are in a better position to identify those who need
courts judgments and supporting of the newly evolved assistance and bring them to the nearest legal services
concept of the social action or public interest litigation. institutions to solve their problems within the framework of
the law.
6. Suggestions The training would equip them to identify the law-related
The legal aid movement can be made more vibrant and needs of marginalized in their locality. Such needs include
popular by the increased participation of law students and assistance to secure legal rights, benefits and actionable
teachers. Law students offer a ready pool of workers at entitlements under different government schemes that are
relatively little cost. Therefore the law students can denied to them.
contribute a lot in this field under the able supervision of Coming, as they do, from the same locality, they are in a
their teachers. This would help the students in two ways. better position to identify those who need assistance and
First, it would help them in sharpening their skills and they bring them to the nearest legal services institutions to solve
could positively contribute their time and energy in this their problems within the framework of the law. They can
great noble cause. Secondly, this would develop a culture assist disempowered people to get their entitlements from
and habit in them of helping poor, needy and vulnerable government offices where ordinary people often face
section of society. In India where most of the population is hassles on account of bureaucratic lethargy and apathy.
rural and illiterate which result into the ignorance, therefore Sensitization of lower judiciary towards legal aid, the
spreading of the legal awareness is the most important task. course of legal aid should be included in the judicial
And this can be very well done by the law students. This officers training and time to time refreshers course and
would also help in developing a social responsibility factor seminars should be conducted for them.
along with the spirit of service to the society. It will also
further cater the need of community education in selected Separate cadre: there should be a separate recruitment for
legal issues and is attempt to institutionalize informal, the cadre of legal aid lawyers with in every state as is done
alternative dispute resolution techniques in selected types of for the prosecution lawyers and they should be provided
cases through Lok Adalats or “legal aid camps.” These with good salary, training and promotion schemes.
types of legal aid activity also open the mind of law Scheme of Legal Insurance a provision for the legal
students through direct client representation. insurance should be made available to member of
organizations and unions and also to other individual
Alternate dispute resolution: In India courts are already members at very reasonable costs.
overburdened with the litigations. So, conciliation and
mediation should be given a primary role as a grievance Promotion of Legal advice: under this a legally informed
redressal mechanism. Law clinics in colleges, bar, Village person who may be law student, teacher or advocate listens
panchayat can play a very important role in this regard. to the problem faced by the person and then advices him
Therefore, it can be said that preventive role is to be more that how to tackle such a problem. One of the main benefits
emphasized than remedial role. of this that pre-litigation advice helps in avoiding
unnecessary litigation and it also counsels a person to take
Promotion of Legal Aid: as an instrument of Social service proper course of action like drafting of application or telling
should be there so that more and more people contribute about the proper forum to file a case. We can summarize
monetarily as well as intellectually in the legal aid scheme. this as that a competent legal advice saves uncalled for
litigation.
Social responsibility: it should be recognized as a part of
mandatory social service for every legal firm and legal Adoption of a local area for legal Aid: It is suggested by
practitioner and it should be made mandatory for them to the researcher that a particular area should be adopted by a
take minimum number of such cases as recognized by the particular law school or university. So that legal aid and
government legal aid panel. advice can be provided to these people. It is providing
Training One of the problems faced by the legal services justice to their doorstep and it will make people more
institutions is their inability to reach out to the common confident and conscious about their rights and will
people. This hiatus between them and the common people ultimately guaranty them access to justice in a real sense.
was perceived as indirectly defeating the objectives of law. We can see it as a social duty of every person having
It is in this context that the National Legal Services knowledge to enlighten and help other downtrodden people
Authority (NALSA) has come up with the idea of para- to whatever extent he can. So, providing legal aid is a step
legal volunteers to bridge the gap between the common towards realization of this social duty.
people and the legal services institution. Apart from the
paralegal staff there should be involvement of other Involvement of NGO’s: There are various organizations
government servants in the like police personals, Village which can help in this regard in spreading legal awareness.
revenue staff, Panchayat’s officials, gram sewaks etc. By These organizations have a very good penetration in the
this way our work force to spread legal awareness could be society and they really know the usual problem faced by the
increased. It will also help in building up of informed people so these organizations can also play a very good role
citizenry and society. There are certain law schools like in the conciliatory process. Usually some of the public
National law school, Beguluru, other law colleges in spirited lawyers are attached to these organization and they
Karnataka and Haryana are doing good work in this field. use their rich legal experience in order to help the society.
The training equips them to identify the law-related needs ‘Naaz foundation’ and ‘Lawyers collective’ are some of the
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noted examples of such organization. These organization 7. Conclusion

works in a particular field like woman rights or child rights If we analyze then we find that there is no real equality in
and they are doing really excellent job. any political society or system of governance. People differ
in money power and various other resources. In the modern
Lok Adalat: these acts as perfect forum for the speedy society the system of justice in itself is very costly, complex
disposal of the cases and the judge of the particular area and cumbersome. In such system legal representation is the
where it is organized act as the presiding officer of the lok first need of a person whose name, fame and liberty is at
adalat there are certain other non-judicial members. In this stake in this process of justice. The difference in between
researcher suggest that there should be active participation the economic status of opposite parties is nothing but a
of the law teachers as the nonjudicial members because reality of life. The remedy of this as we discussed in this
these people have a very good knowledge of law and can paper lies in the legal aid. The preamble of our constitution
really help in the process of lok adalat. Lok adalat should aims at securing social, economic and political justice to all
function as permanent body at each district and sub- citizens. This scheme encapables and creates a sense of
divisional level and the jurisdiction of the lok adalat should confidence in the mind of the week and the lost and it
be clearly defined and in criminal cases it should extent to encapables him to stand in front of his adversary with
all compoundable offences. A lok adalat should be made confidence and can match him. In India, it also acts like a
competent to take cognizance of a case where even one of step towards the fulfillment our constitutional obligation to
the two opposing parties facing a court trial opts for a cater the special needs and to provide the protection to
decision through lok adalat. weaker sex and low caste. Since the statutory recognition of
the legal aid has been provided from the very beginning in
Involvement of Local Bodies: Bodies like gram panchayat the case of criminal trial but with the development of a
are at the grass root level of our democratic set up and strong legal aid movement in the country this concept got a
people are very much attached to these bodies. So these constitutional recognition and this change is very well
bodies should be engaged in spreading the legal awareness. appreciated by our judiciary also. Keeping in mind the
These bodies can act a very good platform to impart abject poverty and illiteracy in our country both the
conciliatory justice and also in easy verification of the remedial and the preventive model has been adopted in the
means test. This can be done by providing various study legal aid scheme. But looking towards the huge back log in
material and pamphlets to the village panchayats. Further the courts it is suggested that preventive aspect should be
the panchayats officers like BDO and the village headman given a lee way and alternate dispute resolution mechanism
should be made member of the District legal aid committee. should be strengthened up in the country. On this we can
These people should be trained as paralegals and they say that the introduction of the concept of lok adalats is a
should also be associated in the lok-adalats. Even the law very welcome step in this direction. Further, our scheme
commission of India stressed on the role played by them in requires more community-based volunteer’s participation
the administration of justice [25]. that is selected from villages and other localities to provide
basic legal services to the common people. In the end it
Contribution: There should be a provision made for the worth to mention the words of J. Brennan where he
contribution of money in the legal aid fund and such mentioned the importance of the legal aid as
contributions should be given some tax exemption. Law “When only the rich can enjoy the law, as a doubtful luxury
teachers and advocates contributing their service in the and the poor, who need it most, cannot have it because of
legal aid programme should be given some tax exemption the expense puts it beyond their reach, the threat to the
in the tune as is given to the women. continued existence of free democracy is very real because
democracy’s very life depends upon making the machinery
Change in curriculum: Legal aid should be included as of justice so effective that every citizen shall believe it and
compulsory topic in the syllabus of every law school. And benefit by its impartiality and fairness” [30].
there should be mandatory participation or visit of law
students to a lok adalat and legal aid clinic. In every law 8. References
college and school there should be a mandatory legal aid 1. Jacob E. Safra (ed.) XXII The New Encyclopaedia
clinic. And academic credit must be given to the students Britannica (Encyclopaedia Britannica Inc., Chicago,
for doing such legal aid service. This point has already been edn., 2007.
mooted by the Expert Committee Report [26] and Juridicare 2. Nipun Saxena. Critical Appraisal of Pro Bono Verito
Report. In both of these above mentioned committee the services at the Global Panorama” in Raman Mittal,
point of enabling student to practice in court has been put K.V Sreemithun et.al. (eds.), Legal Aid: catalyst for
forth but till date no action is taken in this regard. For every Social Change 3 (Satyam Law International, New
senior advocate there should be some minimum number of Delhi, 1st edn, 2012.
legal aid cases should be attached. These services in legal 3. Article 3, European Convention on Human Rights
aid should be given additional weight age for the promotion Everyone charged with a criminal offence has the
in bar or in judicial services. On this point it is important to following minimum rights….
note that in seven states [27] of USA law students are even (c) to defend himself in person or through legal
allowed to practice so that they can represent the indigent assistance of his own choosing or, if has not sufficient
person whom they are helping [28]. There are legal aid means to pay for the legal assistance to be given it free
clinics settled up in the University of Maryland and of cost when the interests of justice so require”.
University of Minnesota which are very good example of 4. Law Commission of India, 14th Report on Reforms of
this concept in which students are given cases by the legal Judicial Administration (Vol. 1) (September, 1958).
aid society and in this way they are very much involved in 5. See The Constitution of India, Article 37.
this process of learning and doing human service [29].

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International Journal of Law

6. V.R Krishna Iyer J., Law and Urban Poor in India, 36

(B.R Publishing corporation, 1988, Delhi).
7. Taking suffering seriously: Social Action litigation in
the Supreme Court of India, The Review, Dec. 1982.
8. See The Legal Services Authorities Act, 1987, Sec 3.
9. Id.
10. See the Legal Services Authorities Act, 1987, Sec. 3 A.
11. See the Legal Services Authority Act, 1987, Sec 6.
12. Introduced by way of amendment in 1994.
13. See the Legal Services Authority Act, 1987, Sec 9.
14. See The Legal Services Authority Act, 1987.
15. See The Legal Services Authority Act, Sec 40 (c).
16. See The Legal Services Authority Act Sec. 15, 16, 17.
17. See The Legal Services Authority Act Sec 12, 13.
18. Id.
19. R. 46 of the Bar Council of India Rules:
“Every Advocate shall in the practice of the profession
of law bear in mind that anyone genuinely in need of a
lawyer is entitled to legal assistance even though he
cannot pay for it fully or adequately and that within the
limits of an advocate’s economic condition, free legal
assistance to the indigent and oppressed is one of the
highest obligations an advocate owes to the society”.
20. (1978) 4 SCC 494.
21. AIR 1978 SC 1548.
22. AIR 1979 SC 1360.
23. AIR 1981 SC 928.
24. (2012) 2 SCC 186.
25. Supra note 36.
26. Expert Committee Report at pg no.164.
27. Florida, New Jersey, Connecticut, Texas, Wyoming,
Massachusetts and Colorado.
28. Supra note 2 at 23.
29. Id.
30. Available at: http://www.brennancenter.org/justice-
brennan-quotations (visited on 20.10.2013).

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