Legal Aid

By
Kavita Singh
Associate Professor
NLIU - Bhopal
 Legal Aid

• Free legal aid is provided to ensure that opportunities for justice

are not denied to any citizen by reason of economic or other disabilities.

• Legal Aid means giving free legal services to the poor and weaker section of society who
cannot afford to take the service of advocate to conduct a case or any legal proceeding in the
court of law, any judicial authority or before any judicial tribunal

• Legal services includes rendering of any service in the conduct of any case or other legal

proceedings before any court and giving of advice on any legal matter.
• The preamble of the Indian constitution basically aims to secure to the people of India justice -
socio economic and political.

• Justice P.N. Bhagwati as Chairman of the the Legal Aid Committee formed in 1979 stated –
“The legal aid means providing an arrangement in the society so that the mission of
administration of justice becomes easily accessible .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.”

• With a view to provide free legal aid to the deserving sections of the society, the Parliament of
India has incorporated a specific Directive Principle viz., Article 39-A by the 42nd Amendment
of the Constitution in 1976.
 Constitutional and Legal Basis of Legal Aid in India –

• Free legal aid is one of the fundamental rights guaranteed to all

the citizens of the country.

• Article 21 states - “No person shall be deprived of his life or personal liberty except according to
procedure established by law”. Hence ensuring legal aid to everyone is necessary for ensuring
substantive equality.

• Article 38 (1) gives that the State shall undertake endeavours to advance the welfare of the people
by securing and protecting as viable as it can a social order in which equity, social, monetary or
political, should illuminate every one of the institutions of the national life.

• Article 39A provides for free legal aid to the poor and weaker sections of the society, to promote
justice on the basis of equal opportunity.
• Articles 14 provides that - the State shall not deny to any person equality before law or the
equal protection of the laws within the territory of India.

• It 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 all. 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.

• Art 22 - Protection against arrest and detention in certain cases -

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice .
• In pursuance of this in 1987, the ‘Legal Services Authorities Act’ was enacted by
Parliament, which came into force on 9 November, 1995 to establish a nationwide
uniform network for providing free and competent legal services to the weaker
sections of the society.

• The National Legal Services Authority (NALSA) has been constituted under the
Legal Services Authorities Act, 1987 to provide free legal services to weaker
sections of the society and to organize Lok Adalats for amicable settlement of
disputes .
• In every State, State Legal Services Authority (SLSA)has been constituted to
give effect to the policies and directions of the NALSA and to give free legal
services to the people and conduct Lok Adalats in the State. The SLSA is headed
by Hon’ble the Chief Justice of the respective High Court who is the Patron-in-
Chief of the State Legal Services Authority.

• In every District, District Legal Services Authority (DLSA) has been

constituted to implement Legal Services Programmes in the District. The District
Legal Services Authority is situated in the District Courts Complex in every
District and chaired by the District Judge of the respective district.
 S.304 Cr. P.C. 1973 - If the accused does not have sufficient means to engage a lawyer, the court must
provide one for the defense of the accused at the expense of the state.

• Order 33 Rule 1 - Suits may be instituted by indigent person -The object of Order XXXIII is to
secure the bonafide cases of poverty stricken people and to empower them who are excessively poor,
making it impossible to pay court charge to initiate a suit without instalment it.

 Important International Instruments on Fair Trial –

1. Universal Declaration of Human Rights, 1948 –

2. International Covenant on Civil and Political Rights, 1966 (ICCPR)

3. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950

• All these rights mentioned in all this supremely important international documents related to fair trial will
be of no use if a person is not given proper scope to represent himself.
 Landmark Cases on Legal Aid –

• M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 -

Justice Krishna Iyer observed 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”.
• Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369 -

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.
The court emphasized upon that Article 39-A entails 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.
• Khatri (II) v. State of Bihar, (1981) 1 SCC 635 -

Speaking on the right to free legal aid to poor or indigent accused who are incapable of engaging
lawyers, the Court 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 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.
• Sheela Barse v. UOI (1983) 2 SCC 378.
• Sukh Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991 –

The Court emphasized upon the need of the creating legal awareness amongst the poor as they do
not know about their rights more particularly right to free legal aid . In India, most of the people are
living in rural areas and 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 for this
absence of legal awareness that people do not approach lawyer for consultation and advise. 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 steps of the people would remain an
illusion.
• State of Haryana v. Darshana Devi AIR 1972 SC 855 –

The court observed that - “Though the law has been enacted to protect the poor the governments
are lazy to implement the enacted law . 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. 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”.
• S.12 of The LSA,1987 - 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 poor person as alluded to in Article

23 of the Constitution;

(c) a woman or a minor;

(d) a mentally ill or a person with inability as characterized in Section 2(i) of the
Persons With Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995;
(e) a person under circumstances of under served want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; seismic tremor or

(f) an industrial workman; or

(g) A man in custody, incorporating authority in a defensive home (Section 2(g) of the Immoral
Traffic (Prevention) Act, 1956), or in an juvenile home (Section 2 (j) of the Juvenile Justice Act,
1986), or in a mental doctor’s facility or mental nursing home (Section 2(g) of the Mental Health
Act, 1987) ; or

(h) A person whose annual income less than Rupees nine thousand or such other higher amount
as may be prescribed by the State Government if the case is before the court other then SC.
 Provision of free legal aid may include -:

• Payment of court fee, process fees and all other charges payable or incurred in connection with any
legal proceedings;

• Providing Advocate in a legal proceedings;

• Obtaining and supply of certified copies of orders and other documents in legal proceedings.

• Preparation of appeal, paper work including printing and translation of documents in legal
proceedings.

• Rendering of any service in the conduct of any case or other legal proceeding before any court or
other Authority or tribunal.

• Giving of advice on any legal matter.

 Legal Services Authority Act,1987 - LSAA came into force on 9 November, 1995

• Objective of the Act - The objective of the Act is to -

• constitute legal services authorities to provide free and competent legal services to the weaker
sections of the society and to ensure that opportunities for securing justice are not denied to
any citizen by reason of any economic or other disabilities.

• Provide for organization of Lok Adalat to secure that the operation of the legal system
promotes justice on basis of equal opportunities.
 Authorities under the Act –
1. NALSA – (S.3) - A Central Authority constituted under central government.

CJI – Patron in Chief

A Serving or Retired SC Judge - Executive Chairman –

nominated by President in consultation with CJI

Other members whose qualifications as prescribed by

Central Government.

Central Government appoints member secretary and

other required number of officers and employees
 Supreme Court Legal Services Committee – The Central Authority shall constitute a
Committee to be called as Supreme Court Legal Services Committee consisting of -

• A sitting judge of Supreme Court who shall be the Chairman.

• Such member of other members possessing such experience and qualifications as maybe
prescribed by the Central Government

• The Chief Justice of India shall appoint a Secretary to the Committee.

• The Committee may appoint such member of officers and other employees as prescribed by the
Central Government .
 Functions of NALSA –
1. Making Legal Services Available – It lays down the policies, principles, frames effective and
economic schemes for the purpose of making legal services available.

2. Promotion of Justice – The Act requires the authorities to take necessary steps by way of
social justice litigation with regard to consumer protection or any other matter of special concern
to the weaker sections. There is a need for training the social workers in legal skills.

3. Spreading Legal Literacy and Awareness - The Act requires the Authority to take appropriate
measures for spreading legal literacy and legal awareness among the people and more so among
the weaker sections about their rights, entitlements, defences and privileges guaranteed by various
laws and schemes. The central authority must organize legal aid camps for people in villages and
labour colonies.
4. Encouraging Settlement of Disputes by Way of Negotiation, Arbitration and Conciliation
and Lok Adalat – The very purpose of this law is to provide legal status to the institution of Lok
Adalat - to secure speedier remedy to poor people.

5. Promoting Research in the Field of Legal Services – To make the institutions legal aid and
lok adalat more effective in facilitating access to justice to poor and marginalised. Simplification
of law, , easy spread of legal awareness, translating law into regional languages, using
information technology to not only spread legal literacy but also to render legal assistance,
introduce court annexed dispute resolution process, plea bargaining, assisting parties to
compound and settle certain criminal offences which are compoundable in nature etc are the areas
where the focus of study should be.
6. Funding Specific Schemes to various voluntary Social Service Institutions - to provide
grant in aid for specific schemes to various voluntary organizations in the field of social service
and provide funds to the state and district level authorities.

7. Enlisting the Support of Voluntary Social Welfare Institutions - Without people’s

participation the efforts for access to justice can not succeed . Therefore enlisting the support of
NGOs and other voluntary social welfare institutions become very important.

8. Formulating Norms to Guide the States in encouraging Voluntary Organizations – So far

the courts laid down certain norms for legal aid programmes, the authority has to work on
evolving the rules and norms to guide the state in encouraging voluntary organizations.
 9. Doing Everything Necessary for Ensuring Commitment to Fundamental duties of
Citizens – The LSAA enjoins a duty on the Central authority to do necessary things to enforce
Fundamental Duties .

10. Utilization of Funds – The Authority has to supervise the proper utility of the funds for given
purposes through State and district Authorities.

11. Coordination and Monitoring Functions - the central Authority has to coordinate and
monitor functions of the state and district authorities. SCLSC, HCLSC, TC and voluntary social
service agencies.
 Following schemes and measures have been envisaged and implemented by NALSA:-

(a) Establishing Permanent and Continuous Lok Adalats in all the Districts in the country for
disposal of pending matters as well as disputes at pre-litigative stage;

(b) Establishing separate Permanent & Continuous Lok Adalats for Govt. Departments, Statutory
Authorities and Public Sector Undertakings for disposal of pending cases as well as disputes at
pre-litigative stage;

(c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign;

(d) Appointment of "Legal Aid Counsel" in all the Courts of Magistrates in the country;

(e) Disposal of cases through Lok Adalats on old pattern;

f) Publicity to Legal Aid Schemes and programmes to make people aware about legal aid facilities;

(g) Emphasis on competent and quality legal services to the aided persons;

(h) Legal aid facilities in jails;

(i) Setting up of Counseling and Conciliation Centers in all the Districts in the country;

(j) Sensitization of Judicial Officers in regard to Legal Services Schemes and programmes;

(k) Publication of “Nyaya Deep”, the official newsletter of NALSA;

(l) Enhancement of Income Ceiling to Rs.1,25,000/- p.a. for legal aid before Supreme Court of India
and to Rs.1,00,000/- p.a. for legal aid upto High Courts; and

(m) Steps for framing rules for refund of court fees and execution of Awards passed by Lok Adalats.
 2. State Legal Services Authority (S. 6) –

Patron-in-Chief -CJ of the HC

Executive Chairman - A serving or retired Judge of the

HC, nominated by the Governor in consultation with the
CJ of the HC
-
Such number of other Members, possessing such experience and
qualifications, as may be prescribed by the State Government -
nominated by that Government in consultation with the CJ of
the HC.

The State Government in consultation with the CJ of the HC , appoint

a person belonging to the HJS not lower in rank than District Judge, as
the Member-Secretary of the State Authority.
 Functions of the State Authority – (S.7) -

(1) It shall be the duty of the State Authority to give effect to the policy and directions of the
Central Authority.

(2) Without prejudice to the generality of the functions referred to in sub-section (1), the State
Authority shall perform all or any of the following functions, namely:-

(a) Give legal service to persons who satisfy the criteria laid down under this Act.

(b) Conduct Lok Adalats, including Lok Adalats for High Court cases.

(c) Undertake preventive and strategic legal aid programmes; and

(d) Perform such other functions as the State Authority may, in consultation with the Central
Authority, fix by regulations.
• S.8 - State Authority to act in coordination with other governmental agencies, non-
governmental voluntary social service institutions, universities and other bodies engaged in the
work of promoting the cause of legal services to the poor , and shall also be subject to
directions given by Central Authority.

• HC Legal Services Committee (S.8A) – constituted by SLSA .

• HCLSC exercises such powers and performs such functions as may be determined by
regulations made by the State Authority.

• Composition of HCLSC - Such number of other members

possessing such experience and
Chairman –
qualifications as may be
A sitting Judge of the High determined by regulations
Court . made by the
State Authority to be
nominated by CJ of HC .
 No Legal Services in Certain Cases – Regulation 14 of SCLSC Regulation,1996 -
1. Proceedings wholly or partly in respect of

a) defamation

b) malicious prosecution

c) a person charged with contempt of court proceedings or

d) perjury

2. Proceedings relating to any election.

3. Proceedings incidental to any proceedings referred to sub regulation (1) and (2).

4. Proceedings in respect of offences where the fine imposed is not more than Rs. 50.00
5. Proceedings in respect of economic offences and offences against social laws e.g. Protection of
Civil Rights Act 1955, Immoral Traffic (Prevention) Act, 1956, unless in such cases the aid is
sought by the victim and the chairman grants permission in appropriate cases.

6. Where a person seeking legal services is-

a) concerned with the proceedings only in representative or official capacity.

b) formal party to the proceedings and his interests are not likely to be prejudiced on account of
absence of proper representation.
 Withdrawal of Legal Services (Regulation 18 of SCLSC 1996) –

The Committee may either on its own motion or otherwise withdraw legal services granted to
any aided person in the following circumstances, namely:-

(a) in the event of it being found that the aided person was possessed of sufficient means or that
he obtained legal service by misrepresentation or fraud;

(b) in the event of any material change in the circumstances of the aided person;

(c) in the event of any misconduct, misdemeanor or negligence on the part of the aided person in
the course of receiving legal service;

(d) in the event of the aided person not co-operating with the Committee or with the legal service
advocate assigned by the Committee;
 e) in the event of the aided person engaging a legal practitioner other than the one assigned by
the Committee;

(f) in the event of death of the aided person, except in the case of civil proceedings where the
right or liability survives;

(g) in the event of the application for legal service or the matter in question is found to be an
abuse of the process of law or of legal services:

Provided that legal service shall not be withdrawn without giving due notice thereof to the aided
person or to his legal representatives in the event of his death, to show causes as to why the legal
service should not be withdrawn.
 Constitution of DLSA (S.9) – Composition –

(a) the district Judge who shall be its Chairman; and

(b) such number of other members, possessing such experience and qualifications, as may be prescribed by
the State Government, to be nominated by that Government in consultation with the Chief Justice of the High
Court.

c) Secretary - appointed by the State Authority in consultation with the Chairman of the District Authority.

d) Secretary - from the State Judicial Service not lower in rank than that of a Subordinate Judge or Civil
Judge posted at the seat of the District Judiciary .

e) Secretary exercises such powers and perform such duties under the Chairman of that Committee as may be
assigned to him by such Chairman.
THANK - YOU