The article has been written by Subodh Asthana, currently studying in the second year of Hidayatullah National Law University. The author in this article discusses mechanisms of giving the free legal aid, its eligibility and problems faced in giving it to the poor and marginalised class of the society.

Introduction

According to Government data and figures of various authoritative agencies total poverty of country stood at 21.9% of the total population, which actually brings us to a very important point that a person who is not able to afford his 3 times meal a day, could the same person be expected to take legal aid for any injustice done to him/her. According to a report poor people often face injustice every day of their life. Who will come to their rescue? How can they approach the court if they don’t have a lawyer? Who will represent this marginalised class of society? Well, the answer to this question will be article 39(A) of the Indian Constitution which puts an obligation on the state to give legal aid to the marginalised class of the society.

Courts have also ensured that a person is properly represented by a lawyer and if he/she is unrepresented then courts have in their various judicial pronouncements have stated that “Right to Legal Aid” is a legal aid and any contravention to this rule would constitute as an infringement to one’s legal right. Thus it provides free and competent legal aid to the weaker section of the society so that the legal system produces justice on the basis of equal opportunity.

Right to Free Legal Aid

Each and every citizen who cannot afford legal representation is eligible for a free and fair legal aid under article 39(A) of Indian Constitution in which state is obliged to give free legal aid to the weaker section of society and also according to article 14 and article 22, state is obliged to promote equality for all and also promotes and propagate justice on the basis of equal opportunity for all person to the gates of justice. Well, there were constant movements for legal aid when India became independent but the problems at that time other than justice were so inherent that government was not able to look at these problems seriously and therefore was unable to channelize it in a proper format.

History

As we go deeper into roots of history when the demand for legal aid was started in 1952, it was the time when the law ministers in their speech always addressed the poor class but emphasis was not given to this section of the society. No favourable regulations were made for the marginalised section of the society. Some even say that it started when Justice VR Krishna Iyer started making the demand for the Development of Free Legal aid. In 1972, a committee was constituted under his chairmanship after which in 1973 he submitted a report claiming urgent demand of legal aid for people of poor class and criticised government’s stand for not taking into consideration the problem of a socio-economic class of the society. In 1980 another committee was constituted under the chairmanship of Justice PN Bhagwati. The committee worked considerably well in order to enact a bill and also on several other schemes of the legal aid services. Thus, in 1987 government passed and enacted Legal Service Authorities Act and after various amendments in 1994 act, a proper legislation was passed, which led to the establishment of the National Legal Services Authority (hereinafter referred to as NALSA) at the national level, State Legal Services Authority at the state level and District Legal Services Authority at the district level, also it led to establishment of such authorities at the Taluka Level also.

Eligibility Criteria for Free Legal Aid

The committee headed by Justice even mentioned the eligibility criteria for the people to be eligible for free legal aid. The provision has also been mentioned in the Code of Criminal Procedure under section 304 to provide free and competent legal aid at the expense of state to a marginalised person of the society. It was also ruled in Hussainara khatoon vs. State of Bihar to provide legal aid to the marginalised class of the society at the cost and expense of the state and it shall be the duty of the state to provide such legal aid to the accused.

In similar grounds, it was also ruled in Suk Das vs. Union Territory of Arunachal Pradesh wherein the apex court ruled that failure to provide legal aid to the accused who can’t afford because of socio-economic problems could lead to set aside of conviction or sentence of the accused.

As per the directives are given in Legal Services Authority Act, 1987 following are the people eligible for free legal aid:

• To any Member of Scheduled Caste and Tribe.
• A person who has suffered from natural calamity, industrial worker, children, lunatic and a person not in his senses, physically handicapped, persons in the custody of the police.
• People who are having an annual income of less than 1 lakhs.
• Mentally disturbed
• A woman and child
• a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, industrial
  disaster and other cases of undeserved want;
• If a person is unable to take legal aid because of prevalent poverty and an adverse situation.
• In cases of the order by a competent court
• In cases of greater public importance
• Victims of Human Trafficking

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Services Rendered and Exceptions

Following are the services which are rendered by the particular Legal Services Authority:

• Payment of the entire requisite court proceedings fee and any other charges payable.
• Providing free and competent Advocate to the people who fall in the eligibility criteria.
• Assisting in the legal appeal and preparing for a legal appeal if something is ordered by the court
• Also preparing charges for proceedings, drafting etc.

Also, there might be instances and cases wherein legal aid of one person may be terminated on the following grounds:

• If a person has sufficient means to complement the expenses of the trial
• When no merits in the case are found
• When the case is related to malicious prosecution.
• When defamation suit is filed against a person
• When the proceedings of the case are related to election

Thus, in the above cases, the services could be withdrawn by the particular Legal Service Authority.

Regulatory Body

The Legal Services Authority Act led to the establishment of a statutory body NALSA (National Legal Services Authority) to give free Legal Services to the more fragile areas of the general public and to arrange Lok Adalats for amicable settlement of disputes.

To offer impacts to the approaches and headings of the NALSA and to give free legal service to the general population and lead Lok Adalat in each State, State Legal Services Authority has been formed.

Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge their respective functions and these functions are regulated, supervised and administered by NALSA.

All the schemes drafted by NALSA have to be followed by the respective legal services authorities and thus NALSA also asks for reports from each and every respective State Legal Services Authority so as to check the functioning of each and every state authority.

Each and every High Court also have their respective Legal Services committee through which they can coordinate with the action of a particular state legal service authority.

The Supreme Court also has it’s Legal Services Committee (SCLSC), which has launched it’s Middle Income Group Legal Aid Society Scheme (MIG). This scheme gives legal services to the middle-class natives for example residents whose gross pay isn’t surpassing Rs.60,000/ – p.m. or on the other hand Rs. 7,50,000/ – per annum.

Problems in providing Legal Aid

There is a lack of legal aid provided to the prisoners or the jail inmates as there exists a communication gap between them and their lawyers as to when their trials are or when they have to appear before court etc. Thus, a person is not informed and date of hearing goes on ad infinitum which per se is an injustice towards them. Lack of communication between lawyers and inmates posed to be a greater threat, the inmates also complained that some of the lawyers asked them to pay money if they wanted the case to be disposed of readily. In this sector, legal aid needs to be improved but most importantly that first of all the inmates must be told about their respective rights so that they may enforce them.

It is a very big problem that a major crunch of the population is not at all aware of their legal rights, so how can one be expected to enforce his/her right, if a person is not aware of his rights. Although NALSA and State Legal Services Authority have appointed Paralegals at village levels to address that strata of the population which have been facing injustice but the results of this have been very disappointing. In this sector, the government must look for any other alternative measures, because there are a significant number of people in the country who don’t know that they are prone to injustice every day. So, it becomes the duty of government to safeguard their legal rights, as it has been rightly remarked by Martin Luther King “Injustice anywhere is a threat to justice everywhere”.

Also if we see the scope of legal rights, all the legal services authority are entrusted with the work to take care of Juvenile Justice Board and Rights for the welfare of child, but here also there have been multiple complaints that even after appointing an advocate to a particular ward, that advocate doesn’t turn up for the proceedings and therefore the purpose of establishing is frustrated.

NALSA has enacted many schemes for the welfare of each and every class of the society but there is a glitch on the implementation part because there are many District Legal Services Authority and State Legal Services Authority which are not working to its full capacity. Some of them don’t have the funds and grants to run a particular Legal Service Authority.

It is because of maladministration on the part of the authorities to look into the matter whether an advocate assigned to a victim and what is the present position of the proceedings. However, all the other departments’ that have been set up in the respective DLSA by the Legal Services Authority Act like Mediation and Lok Adalat have  been working perfectly fine but the primary function to provide free and fair legal aid for which it was established, it has somewhat failed to perform those function and address marginalised crunch of population. Immediate steps must be taken in order to ensure free and speedy disposal of pending cases and also a check must be kept on the allotted advocates.

Conclusion

A significant crunch of the total population is eligible for free and competent legal aid, where according to Legal Services Authority Act 1987 ensures the establishment of NALSA, SLSA, and DLSA’s in order to ensure that the marginalized section of the society is given access to justice. The scope of legal aid is very wide as any misconduct or mishap towards any citizen of the country infringes his/her legal right. If people are given access to competent legal aid and the schemes drafted and enacted by the National Legal Services Authority are properly implemented by the respective State Legal Services Authority and the District Legal Services Authority, the major problem will be solved and this 21% of the poor population could not feel aggrieved to justice. However, to achieve this target more legal services authorities must be set up at the village levels and at the backward areas as well.

The basic aim of the scheme is to secure justice to the weaker sections of the society, particularly to the poor, downtrodden, socially backwards, women, children, handicapped etc. but steps are needed to be taken to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge.

Therefore there are the shortcomings and as to what more could be done in order to rectify some of the problems. The primary purpose of NALSA is to provide Legal Services Authorities with directions to promote “Acess to the legal Justice”, which have been constituted at the District and village level to give effect to the policies and directions of the NALSA in order to provide free legal services to the people who are not competent to help themselves in this regard, because “Legal aid is fundamental to giving everybody in the country equal access to Justice” as it is the least which could be done by the state to combat the injustice which is faced by the poor population every day and night and in order to protect their legal interests.