This article has been written by Samarth Suri, from Symbiosis Law School, NOIDA and modified by Abanti Bose, pursuing from Amity University Kolkata, India. The article briefly discusses the evolution of legal services around the world. It further notes the existence and importance of it with Indian content subsequently explaining its different functions. It also explains the functions of each of such authority.
The concept of legal aid has spanned across centuries, going back to the year 1919, when Reginald Heber Smith, in his book Justice and Poor, promoted the concept of legal aid and disparaged the legal profession saying that access to justice should be open to all without any obligation to pay. Without equal access to law, he wrote, the system robs the poor not only of their only protection but places it in the hands of the oppressors, the most powerful weapon ever invented.
Even the code of Hammurabi attempts to limit the charges paid for services to poor men. The code described three processes, by way of which the society can move towards social engineering through free legal aid.
The first step of free legal aid was to grant assistance to the vulnerable communities, the second was to put restrictions upon the exercise of privileges accorded by law to those who are well off, and the third was to strip the rich of their amenities and put the rich and poor on the same footing.
Mosaic Law gave to the poor many privileges, for he was poor. For example, if the creditors took a poor man’s cloak as a pledge, then he must return it by nightfall otherwise he wouldn’t have anywhere to sleep. Prompt payment of wages to the poor was also seen as essential.
History of Legal Aid in India
The adversarial system that came in India, with the advent of the British ended the informal dispute resolution system. This new system was more complex and required prior knowledge to be used.
In M.H Hoskot v. State of Maharashtra, the Supreme Court held that our legal system that has been mounted by the Anglo-American models which heavily uses legal technology, compel the collaboration of lawyer power or steering the wheels of equal justice under law. The adversarial model has been characterized by the technical nature of law, because of proper proceedings in court and the prevalence of lawyers and subsequent fee, hence it became imperative for the proper and fair adjudication of justice that Legal Aid be incorporated into the Constitution.
The 42nd Amendment Act inserted Article 39-A to the Constitution, hence making equal justice and free legal aid a directive principle of state policy. As pointed out by Granville Austin, the portions dealing with Fundamental Rights and Directive Principles of State Policy are meant for social revolution.
The working of Article 39-A reiterates that kind of social justice being prevalent in society.
How free legal aid was introduced in India
The 14th Report of the Law Commission of India mooted the idea of providing free legal aid to the poor by the State. The Report highlighted the responsibility of the legal community to administer the legal aid scheme and the State to fund legal representation 174 to the accused in criminal proceedings, appeals, and jails. In 1960, the Union Government initiated the national legal aid scheme which faced financial shortages and died a natural death. In 1973, in the second phase, the Union Government constituted a committee under the chairmanship of Justice Krishna Iyer to develop a legal aid scheme for states. The Committee devised a strategy in a decentralized mode with legal aid committees in every district, state, and center. A committee on judicature was set up under the chairmanship of Justice P N Bhagwati to implement the legal aid scheme.
This Committee suggested legal aid camps and nyayalayas in rural areas and recommended the inclusion of free legal aid provision in the Constitution. In 1980, the Committee on National Implementation of Legal Aid was constituted with Justice Bhagwati as its head. Subsequently, the Parliament enacted the Legal Services Authorities Act, 1987.
Legal provisions providing for legal aid
Section 340(1) of the Code of Criminal Procedure, 1898, provided that when a man was charged with an offence punishable with death, the court could provide him with counsel upon his request.
This was subject to twisted interpretation by the court, as the court regarded this as a privilege rather than a right in Tara Singh v. State of Maharashtra. However in the Code of Criminal Procedure of 1973, this was made a statutory rule and it was provided that in a trial before a session Judge if the accused does not have sufficient means to employ pleaders, the court shall do so at its own expense.
Legal services authority in India
In India, legal services exist at three levels i.e.- The center, state and, the district level. The central government establishes the National Legal Services Authority (NALSA) and the Supreme Court Legal Services Committee (SCLSC).
The State Government establishes the State Legal Services Authority (SLSA) and the High Court Legal Services Committee (HCLSC). The State government also establishes the District Legal Services Authority (DLSA).
Some functions are common to all authorities. These can be classified into two types i.e.- Pre-litigation and post-litigation services. The authorities intend to follow the principle that prevention is better than cure, hence a large emphasis has been paid to pre-litigation services through legal awareness, legal camps, legal advice, and legal education.
It is also the duty of all of these authorities to provide for post-litigation services in the form of free of charge representation in court and aid in other court related expenditure.
National Legal Services Authority
Members of NALSA
Members of SCLSC
Functions of the Central Authority
- Lay down policies and principles for fulfilling the provisions of the Legal Services Act.
- Frame the most economic schemes for providing legal aid to the poor.
- Utilize funds at their disposal to be given to the State and District authorities.
- Organize Legal Aid camps in rural and slum areas.
- Undertake and promote research in the field of Legal aid, with special emphasis on providing legal aid to the poor.
- To do all things necessary for the fulfillment of fundamental duties given under Part IV-A of the Constitution.
- Develop in consultation with the Bar Council of India, programs for clinical legal education.
- Take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of society.
- Make special efforts to enlist the support of voluntary social welfare institutions working at the grass-root level.
- Coordinate and monitor the functions of State Authorities, District Authorities, Supreme Court Legal Services Committee, High Court Legal Services Committees, Taluk Legal Services Committees and voluntary social service Institutions and other legal services organizations and give general directions for the proper implementation of the program.
- Provide grants and aids for various schemes and social service institutions.
State Legal Services Authority
Members of SLSA
Members of HCLSC
The state authority has the responsibility to give effect to the directions issued by the Central authority. It provides legal services like the central authority and also conducts Lok Adalats. Besides this the authority also has other functions as follow:
- Give legal services to persons who satisfy the criteria under the act.
- Conduct Lok Adalats for all types of cases
- Undertake preventive and strategic Legal Aid programs.
- Perform other functions as notified by the central authority to the state authority from time to time.
District Legal Services Authority
Member of the DLSA- District Judge as its chairman, other members nominated by the state government in consultation with the Chief Justice of High court. Every district authority has to give effect to such directions that are issued to it by the State authority, it also has to take cognizance of the directions that are given by the state authority.
The district authority has the following functions that it needs to perform
- Coordinate the activities of the Taluk Legal Services Committee and other legal services in the District.
- Organized Lok Adalats within the District.
- Perform such other functions as the State Authority may fix by regulations.
Taluk Legal services committee
Section 11A and 11B of the Legal services authorities act deals with the Taluk Legal services committee. The state authority shall constitute a committee for every Taluk which may be referred to as the Taluk Legal services committee.
The committee shall consist of a Senior Civil Judge operating within the limits as an ex-officio Chairman, and other such members prescribed and nominated by the state government in consultation with the chief justice of High Court.
Power to constitute Lok Adalats
Every central, state, district, or taluk committee may organize Lok Adalats from time to time. A case may be referred to the Lok Adalat if any of the parties thereof makes an application to the court for referring the case to a Lok Adalat.
Powers of the Lok Adalat
The Lok Adalat for determination of any matter under this Act will have the same powers, that of a civil court that has been granted to it under the Code of Civil Procedure 1908. The powers of the Lok Adalat are as follows:
- The summoning and enforcing the attendance of any witness and examining him on oath.
- The discovery and production of any document.
- The reception of evidence on affidavits.
- The requisitioning of any public record or document or copy of such record or document from any court or office.
- Such other matters as may be prescribed.
Legal Aid under the Indian Penal Code
Section 340(1) of the Code of Criminal Procedure, 1898, provided that if a man was charged with an offence punishable with death, the court could provide him with counsel upon his request. This was subjected to a twisted interpretation by the Supreme Court by classifying it as a privilege rather than the duty of the magistrate in Tara Singh v. State (1951 AIR 441). However, India in the Code of Criminal Procedure, 1973, facilitated the statutory implementation of free legal aid subsequently. Section 304(1) provides that: In a trial before the sessions judge, if the accused has not sufficient means to engage a pleader, the court should assign a pleader for his defense at the expense of the State.
Legal Services have been the cornerstone of justice for centuries, they help in fulfilling the ideal of equal justice, irrespective of the financial ability of an individual. Their existence is also a testament to the working of a socialist structure in a country, and also shows the various benefits of a socialist structure. The abscess of legal services may lead to misuse of the law that was created to protect the underprivileged and wronged in the first place.
Legal services can be in different forms, in India they have taken the form of authorities at the central and state level. We also see the presence of legal services under the Directive principles of state policy in the constitution.
Hence their optimum usage and implementation are essential for the proper working of the Justice system in any country.
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