In this blog post, Anubhav Pandey, a second year law student pursuing law from, Rajiv Gandhi National University Of Law, Punjab discusses the know-how on Legal Aid and when to apply for the same.

 

Introduction

Indian understanding of legal profession mostly dangles between two thick edges. One, a top notch lawyer, charging hefty amount per hearing and the second, an Umbrella, a typewriter and 50 Rupees for an affidavit. A case takes years to settle. Seeking justice in Indian court demands a price. It is not the court fee which causes burden on the litigants but it is the procedural intricacies, starting from hiring a lawyer up to giving Munshi’s their token for grace. On an average, Rs 519, is what a litigant spends a day while attending a single hearing. Rs 873, is the loss faced by the Litigants because of loss of work time or wages or business losses. Families which cannot even afford a 4 square meal a day are fighting cases for their land, cattle and what nots. With these facts, pops several question is one’s mind. What is Justice? What is the  relationship between justice and the price that one has to pay for it?

the answers to these question can be very subjective but one can sufficiently presume, if (say) justice demands price then poor have no use of it! Justice is based on compassion. The concept of legal aid roughly says, opportunities shall be provided for securing justice to any citizen who by reasons of economic or other disability cannot afford it. The principle of legal aid is built on the very foundation that, everyone has the right to get appropriate legal assistance. So, the Indian legal system says, relax! Even if you are poor or by any means unable to defend yourself, the Vedic philosophy of, “ justice shall triumph” shall prevail.

History of free legal aid

This very concept of “free legal aid” is not something new or utopian to the Indian society. It prevails from a time immemorial. The Vedic period, Vikrama Samvat (Vikramaditya’s era), The Muslim period, British period, Post colonial era ( 1920’s- beginning era of free legal aid societies, Justice Bhagwati Committe), Post-Constitution Period, CILAS committee ,  LSA act.

Vedic age– The 36th and 42nd slokas under Chapter I2 refer to the need for saving people from rakshas’ and violent people. Rig Veda provides for mustering strength, including monetary assistance, i.e. ‘Dann’ for extending aid and assistance to those fearing or facing the attacks. Sloka 103 of Chapter III clarifies that a king, who gives money to one in such need, is the winner of the wealth of opponents and that Devtas always protect him. We can infer that, providing social aid and also King’s ( State) assistance to poor or to persons suffering from any disability is Dharma.

 

Muslim Period– During the reign of Shahjahan and Aurangzeb, the state vakils were directed to give advice free of charge to the poor. Such state lawyer known as vakil — e -sarkar 4 or vakil —e-sharai were whole time and appointed by Chief Qazi of the province or sometimes by the Chief Justice, the Qazi-ul-Quzat.

 

British Period– During the Colonial  rule, justice was rendered freely without charging any court fee or stamp duty.  For justice to be accessible to the poor, legal aid societies like Bombay Legal aid Society was established in 1924. To qualify for legal aid the applicant had to pass a mean test.

 

Post independence– With the formation of the Indian constitution, vast varieties of legal rights were vesting with the citizens. Various committees helped in evolving the concept of free legal aid as it exists in today’s Indian legal system. Justice N.H. Bhgwati Report 1949 was one such report. It advised for, formation of a four level machinery for the administration of legal aid at the State, High court, District and Taluka level. Report recommended for assigning of free advocates to the poor. Legal aid included, court fees, process fees, diets of witness, cost of certified copies etc. Constitution scheme includes Article 14 which talks of equal protection for all. CILAS ( committee for implementation of legal aid services) under the chairmanship of Justice P.N Bhagwati was constituted which made tremendous recommendations on the field of legal aid. This eventually led to the enactment of Legal Service Authority Act, 1987.

 

LEGAL AID

Lawyers are blamed of using fancy words to get away with things. As a layman, say “A” is a poor needy guy accused of drug trafficking and has no money to defend himself in the court of law . What are the options left with A? Either to surrender or to fight his own case. An easy way out is, as per the understanding of Article 39 A, free legal aid via appointment of counsel for A. Hence, ensuring that justice is not denied to litigating parties due to financial difficulties. So court will provide A (accused) not only with a lawyer but also will waive his court fees and also provide other monetary relief accounted throughout the case. Legal aid is a noble approach to help the poor. Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of lawyer for the conduct of a case or legal proceeding in any court, tribunal or before any authority. One of the fundamental rights in the legal system is the right to counsel. This right generally provides that anyone who is accused of a crime has the right to receive legal aid from an attorney. The right to counsel may be found in various international, regional, as well as domestic legal authorities

 

Quoting Article 39A of the Indian Constitution:  

Equal justice and free legal aid: The 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 disabilities.

Twice the use of word ‘shall’ makes it clear that the article is couched in mandatory terms. Supreme Court Khatri v. State of Bihar according to which where the necessary conditions existed, free legal aid  was obligatory from the very time the accused was produced before the Magistrate, and the Magistrate himself was under duty to inform the accused that he was entitled to legal aid.

 

Universal declaration of Human Rights: Art. 8 Everyone has a right or an effective remedy by the competent national tribunals for acts violating fundamental rights granted by Constitution or by law.

International Covenant on Civil and Political Rights, 1966 – adopted by the United Nations, ICCPR, guarantees the following rights to the accused in a criminal trial—to defend himself in court or have a lawyer defend him in court; to be informed of his right to legal counsel if he does not know of that right; and to have a lawyer assigned to his case if the accused cannot otherwise afford a lawyer.

 

Legal Provisions related to Legal aid can be divided under 3 broad heads:

(i) Constitutional

(ii) Procedural

(iii) Statutory

 

Constitutional Schemes

In the Indian Legal system, the right to free legal aid for the disadvantaged is grounded in the Constitution and certain statutes. Though the express article conferring this right was inserted in the Constitution only in 1976, the intention of the Constituent Assembly was implied in the Preamble  wherein the Constituent Assembly envisaged to secure “to all its citizens: JUSTICE, social, economic and political;  liberty and equality of status and opportunity”.

By the 42nd amendment to the constitution, effected in 1977, Article 39 A was inserted. This article provides for free legal aid by suitable legislation or schemes or in any other manner to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. This article also emphasises that free legal service is an unalienable element of “reasonable, fair and just” procedure established by law. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens.”  Legal aid cannot be denied on the grounds of insufficient funds also.

Article 14 & 21- Part III of The Indian Constitution guarantees fundamental rights to all citizens and some of these rights, particularly the right to equality (Article 14) and the right to life (Article 21), to all persons. Both these articles are essential for understanding the nature and scope of the right to legal aid as access to justice. The denial of access to justice to a person on account of economic and social inequalities is a manifestation of the violation of the right to equality as forming part of the scheme of Articles 14 and 21. No true democracy can endure without the system of administration of justice of which the poorest are able to take advantage. When a person is unable to access to the court of law due to poverty for defending himself against a legal action, justice becomes unequal and laws which are meant for protection becomes meaningless. The rendering of legal aid to the poor litigants is therefore not a minor problem of procedure law but a question of a fundamental character.  Discrimination on grounds of poverty is also an infringement of Article 14, i.e., right to equality.                    

Article 21 of the Indian constitution is equivalent to the air that we breathe as it supplies life to the constitution. It covers a vast area including right to healthy environment, movement and more. Principle of Natural justice says, justice should be done in a sound and reasonable manner which includes hearing of the parties involved in the matter. Right to hearing is an integral part of natural justice. If the right to counsel is essential to fair trial it is equally important to see that the accused has the necessary means of his defence.. Right to free legal services is an essential ingredient of reasonable, fair and just procedure for an accused.            

No writ (Mandamus) can be granted to enforce Article 39A          

 

Procedural Provisions                                                                                           

 

Criminal Procedure Code provides that legal aid to accused at State expense has to be provided, it further provides that where in a trial before the court of session, the accused is not represented by a pleader and where it appears to the court that the accused has no sufficient means to engage pleader the court shall engage a pleader, the court shall assign a pleader for his defence at the expense of the State. The mandate of providing free legal aid extents to the stages when the accused is first produced before the Magistrate. But, again if A is a poor guy accused of Theft, he cannot ask for  a lawyer of his own choice to defend him at the expense of State. Code of civil procedure merely exempts an utterly poor person from the payment of court fees. Even the advocates, officers of the court have the duty to provide legal aid to poor and needy under Advocates Act 1961.

 

               

Statutory Provisions

 

LEGAL SERVICES AUTHORITY ACT, 1987

The legal services authority act has been enacted to provide legal aid services to the poor and needy people to fulfil the idea of justice and free legal aid as given in Article 39A of the Indian constitution. Legal service means, the rendering of any service in the conduct of a case or legal proceeding before any court or authority or tribunal and extending advice on a legal matter or issue. It may be in the form of providing advocates at the state expense. It may also be in the form of making payment of court fee on behalf of the persons who are eligible for legal aid. It may also be in the form of paying other expenses connected with the litigation, e.g. expenses in relation to the preparation of documents or summoning of the witness etc. It is the duty of the state to provide the poor and the needy legal aid so he can approach civil, criminal, revenue, tribunal, or other authority to exercise judicial and quasi-judicial activities. The act provides for dispute redressal agency called the Legal service authority at 4 tiers of government namely, Taluka/Mandal, District, State and National level.

 

Eligibility and Procedure for Legal Aid

 

The national Legal service scheme is framed for downtrodden masses of our country, therefore, free aid is not available to all person. There are three tests for the determination of eligibility. MEANS TEST, PRIMA FACIE TEST, and REASONABLENESS TEST. As the word suggests, means test scrutinises whether a person is eligible for legal aid by checking his capability of undertaking the cost of litigation. An income limit is prescribed as a means test. Limit is between the range of 25000 and 50000 per annum. By prima facie we mean, when,  THINGS SPEAKS FOR ITSELF.  Again pops Mr. A, this time a person accused under criminal assault. If A wears (**Reebuk **) shoes and demands for legal aid then the underlying idea behind this test that public fund should not be allowed to be misused in supporting or defending litigation where no prima facie case is made out will be defeated. Sometime it may appear that applicant’s case satisfies means test and prima facie test but it is otherwise not reasonable to provide free legal services. E.g., in case of defamation, election, immoral traffic, food adulteration etc.

 

Person Who Are Eligible For Legal Aid

 

• A member of Schedule tribe or Schedule caste or a person whose annual income is not more than 50000 for cases before Supreme court and 25000 in other courts.
• A person victim of trafficking in human beings or beggar.
• Disabled including mentally disabled.
• A woman or Child
• A victim of mass disaster, ethnic violence, caste atrocity, flood, drought earthquake
• An Industrial workman
• A person in custody including protective home, juvenile home or psychiatric hospital
• A person facing charge which might result in his imprisonment
• A person unable to engage a lawyer and secure legal services on account of reason such as poverty and indigence,

An affidavit made by the person as his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless the concerned authority has reason to disbelieve such affidavit. It is the duty of the Magistrate or the sessions judge to inform the accused who appears before them without any aid because of his poverty or indigence that he is entitled to free legal services at the cost of state.

 

How To Approach

 

The person who needs free legal aid can approach the Legal Service Authority at any level- National, state district or Taluka. A written application can be made to the concerned authority and where the person is illiterate, his application will be recorded along with his thumb impression and that will be his application. Person has to file an affidavit of his income. Then eligibility criteria and the merits of the case are examined. If the application for legal aid is rejected, reasons shall be duly recorded and also informed to the applicant. ONE CANNOT FOOL THE COURT  WHILE ASKING FOR LEGAL AID. One can even apply for legal aid On-line through: http://nalsa.gov.in/content/how-apply

 

Cases Where Legal Aid Can be Provided

 

Free legal aid can be provided in all kind of Civil and Criminal cases, Property matters and Execution of Decree, Matrimonial/Family dispute, Appeals, Cases pending in the commissions and Tribunals (E.g., Consumer Dispute Redressal Agencies).

 

Refusal Of Legal Aid

 

Legal Aid or Legal Service may be refused to a person in a case of contempt of court, To a person in a proceeding relating to any election, In a proceeding under Immoral Traffic (Prevention) Act, 1956 except to a victim of trafficking in human beings, In a proceedings under the Protection of Civil rights act, 1955 except to a person who is subject to any dispute under this act and to a person accused of an offence committed under the Schedule Castes and Scheduled tribes (Prevention and atrocities) act, 1989.

Lok Adalat

 

Every Central, State, District and Taluka Legal service authority are responsible for organising Lok Adalats . The Lok Adalat is an effective mechanism for the settlement of disputes. Prior to 1987, it had no legal structure, but was organised voluntarily, by organisations, on principles of mediation. Unlike the pre-trial processes, followed in countries like Canada or the United States, the Lok Adalat came in only when the parties wished to settle the dispute amicably, or where the court felt it necessary to refer the dispute for settlement, thereby limiting its scope of activity. The Lok Adalat, as the word suggests, is organised for the “Lok” or for the “People”, thus aiming to benefit the masses and thereby strengthening the principles of legal services.

 

So after the deadly terrorist attacks in Mumbai, an intense debate gripped the whole nation. Should such cases be given a chance to defend in the court of law? Are they entitled to legal help considering the degree of his crime? Should they be executed or hanged without any trial as it is done in countries like China, Iran, Iraq, etc.? Whether not providing any legal help will spoil India’s image as world’s largest democracy, which is built on the principle of justice and equality. Is capital punishment all that they deserve?

 However, answers to these questions require several aspects to be considered thoroughly, including India’s international obligations, the Constitutional guarantees provided to every citizen in this regard, violation of human rights, and the difference between democracy and an unjust society.

Legally speaking, there is no denying the fact the cases like Ajmal Kasab should be given legal aid, but going by the anger in the common public and popular sentiment that he should be hanged so as to send a clear message that no one should dare threaten the country’s integrity and security.

 

Legal Aid: In Cases of Prostitution

 

Is the provision of Legal aid as enshrined in the Indian constitution readily available and accessible by everyone? What is the ground reality? What happens to weaker sections of the society like transgender and prostitutes, do they get legal aid when required?

 

Madad chaahti hai ye hawa ki beti

Yahsoda ki hamjins raadha ki beti

Payambar ki ummat zulekha ki beti,

Sanaakhwaan-e-taqdees-e-mashriq  kahan hai?

Zara mulk ke rahbaron ko bulao

Ye kuche ye galiya ye manzar dikhao

Sanaakhwaan-e-taqdees-e-mashriq ko lao

Sanaakhwaan-e-taqdees-e-mashriq kahan hai?

 

Dark, damp rooms, the sound of anklets in the narrow corridors and drunken men haggling over prices. It is 9 o’clock in the evening, and as the rest of the city prepares to retire for the night, this part awakens to carry on with its profession. The profession is not difficult to guess – prostitution..

 

In BUDHADEV KARMASKAR (4) V STATE OF WB Justice Markandey Katju argues for the rights of the prostitutes and talks of condition of trafficked prostitutes. If an incident of the involvement of the family of the girl pushing her into the sex racket comes to the notice of anyone concerned including NGOs, authorities, etc. such incident be reported to the Executive Chairman/Secretary of the State Legal Services Authority. It will be open for the said Authority to take appropriate penal action against such illegality or person who may be found involved. State Legal Services Authorities should provide a helpline number to the NGOs and to the State machinery as well as to the sex workers and victims of sex trade who are in distress and who are compelled to continue with the sex trade, so that they can avail the benefit of the helpline number for providing legal assistance, to get them rescued or any other assistance which may be offered to them by way of free legal aid. The State Legal Services Authorities thereafter may direct them to the appropriate authorities concerned for taking remedial measures in that regard and also report the matter to the Panel which has been constituted by the Supreme Court.  Housing, legal aid, free counselling assistance and all other similar aids and services are meaningful measures to ensure that unfortunate fallen women do not again fall into the trap of red-light area contaminated with foul atmosphere.

 

 The assumption of our legal system is that all citizens have equal access to means of legal redress. But in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality of advice. Free legal aid is undoubtedly beneficial to the poor and has been instituted with noble purpose. Yet it has become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is engaged through legal aid, obviously the party or his men would come to the lawyer for consultation and it is then that they are asked to fish out some money which they naturally cannot refuse. One factor that largely contributes to this is that the meagre remuneration paid to the lawyers by Legal Aid Committee. 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. There needs to be a review of the working of Legal Aid system. Free Aid must not be read to imply poor or inferior legal services. Definition of what it is meant by poor and needy needs to be revised with time. Pro Bono litigation (free of cost) should be encouraged more.  Law schools are the budding garden of fresh , young talent, not only the inclusion of law students but also insertion of the legal academicians who with their deepened knowledge and experience can be an active part in the implementation of the legal aid programme. People often fall into the traps of Kangaroo court instead of availing the facility of free legal aid which further adds on to their demise.