Written by Vaibhav Vikram, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy offered by Lawsikho as part of his coursework. Vaibhav is currently pursuing a legal career in Criminal Litigation in The Supreme Court of India and is a graduate in law from Amity Law School, Gurugram.
Background of Legal Aid in India
In ancient times, serving the poor and needy people was considered as service to God. In fact, the concept of Dharma calls for the protection of the poor and weaker section of society and to help them in every possible manner.
One can find the traces of Legal Aid in India from the Vedic Period itself. The 36th and 42nd slokas under Chapter I discusses the need to save innocent people from violent people. Also, sloka 103 of Chapter III talks about a King who gives money to such needy people becomes the winner of the opponent’s wealth and the Devtas always protect him.
After the Vedic period, the traces of free legal aid can be found in the Muslim period where Chief Qazi appointed full-time lawyers who were known as Vakil-e-sarkar or Vakil-e-sharai who were responsible to provide free legal advice to the poor masses.
During the British reign in India, the Bombay Legal Aid Society was formed in the year 1924 with the main objective to make justice accessible to the poor section of the society and to reduce the cost of litigation and legal processes. Further, even before the said Society, the Code of Civil Procedure was enacted in the year 1908 which provides for assistance and free legal aid to indigent persons which shall be discussed later in this article. Inspired by the Rushcliffe’s Committee which was set up in England with an aim to examine the facilities which then existed in England and Wales with regard to legal assistance and aid to the poor people, the Bombay Legal Aid Society brought the report of the said Committee in Government’s notice and this effort was also appreciated in the fourteenth report of the Law Commission of India. The society advised the Government to bring up a similar committee which would examine the status of legal aid in India and problems attached thereof. Responding to the said suggestion, the Government of India asked the then provincial governments if they would be able to provide more facilities to the poor people in both civil and criminal cases. But due to financial restraint, the provincial governments were not willing to provide legal aid beyond what was provided under the statute.
After India got Independence from the British rule, the Government framed a new Code of Criminal Procedure, in the year 1973 which provided for legal aid in respect of criminal matters. Section 303 provides that any person who is accused under any offense before a criminal court or against whom any criminal proceeding is instituted under Cr.P.C may of right be defended by a pleader of his choice. This section empowers the accused to be defended by a pleader of his own choice. Further, Section 304 of the said Code provides that if the Court thinks that the accused does not have sufficient means to engage a pleader, then the Court shall appoint a pleader for his defense and that the expense of the pleader shall be borne by the State. This provision ensures that notwithstanding the number of means a person has, he/she shall be defended by a pleader.
Legal Aid: A Constitutional Mandate
Legal aid per se means to provide legal assistance or any kind of legal help to the people who are in need of it. There have been several instances where we could witness that due to poverty and lack of other amenities, many people are unable to approach the court and are deprived of justice. In the modern India, where the fee of lawyers is sky-rocketing, the need for free legal aid has become very essential to establish the authority of justice and maintain the faith of the people towards law and legal machinery of the nation.
The Government of India appointed a committee which was headed by the former Minister, Shri Swaran Singh to examine and give suggestions as to make legal aid a Constitutional force or not. The committee recommended to expressly insert legal aid provision in the Constitution of India. The Parliament by 42nd Constitutional Amendment Act inserted the “Free Legal Aid” in Part IV of the Constitution. Entry number 11A was also incorporated in the Concurrent List by which both State and Central Government got the power to frame rules with respect to legal aid. Amendments were also done in the Code of Civil Procedure in the year 1976 which amended Order XXXIII and Order XLIV. Rule 17 of Order XXXIII CPC provides that any defendant, who desires to plead a set-off or counterclaim may be allowed to set up such claim as an indigent person. Also, Rule 18 of Order XXXIII which has been inserted vide said amendment act provides for the power of Central Government as well as the State Governments to make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons. Further, Article 22 of the Constitution of India states that no person shall be denied the right to counsel, and to be defended by a legal practitioner of his choice.
Therefore, free legal aid in civil as well as criminal matters is not only a legal right but also a Constitutional mandate. Article 39A of the Constitution of India which provides for Equal justice and free legal aid which states, “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.”
With reference to the above-mentioned article, it becomes pertinent to note the Preamble of the Constitution of India. The Preamble, as held in the case of Keshavananda Bharati v. State of Kerala, is one of the basic features of the Constitution. The Preamble itself provides for Justice in social, economic and political aspects. It also provides for Equality of status and of opportunity. Further Article 14 of the Constitution 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.” In light of the above-mentioned provisions, it becomes a duty of the State to provide for such measures and take such necessary steps that ensure that no citizen is deprived of justice and free legal aid is available to all irrespective of the background to which they belong.
Procedure for getting Legal Aid in Criminal Cases
As we all witness, crimes occur on a daily basis. It would not be an exaggeration if it is said that not a single day goes by without an occurrence of crime. The Law and the Judiciary are vested with the responsibility to punish the guilty and deliver justice so that the faith of the people is maintained in the justice delivery system of the nation. Article 21 of the Constitution provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The procedure established by the law should be just, fair and reasonable which implies that the rules of Natural Justice should be followed.
One of the rules of Natural justice postulates Audi Alteram Partem which means no one shall be condemned unheard or everyone has the right to be heard. Therefore, the person against whom any criminal offence has been instituted in the court of law has the right to be heard by the judge before the court pronounces its judgment and it is in the best interest of the person to represent himself in the best possible manner which requires legal expertise. But the problem these days is the expensive nature of the justice delivery system which any ordinary man will find difficult to afford. Here comes the need to provide free legal aid and assistance to the people who really need it.
The organizations
Before jumping on to the procedure, one should know about all the organizations/institutions which have been established in order to provide free legal aid to the needy people.
1. National Legal Services Authority (NALSA): The NALSA is established by the Central Government and is the supreme body to provide free legal aid. It has been established under Section 3 of the Legal Services Authorities Act, 1987 which provides that the Central Government shall constitute a body to be called the National Legal Services Authority to exercise the powers and perform the functions conferred on, or assigned to the Central Authority under the said Act.
2. State Legal Services Authority: Section 6 of the LSA Act provides for the power to State Government to constitute a body to be called the State Legal Services Authority to carry out functions assigned to the body by this Act.
3. District Legal Services Authority: The District Authority is established by the State Government in consultation with the Chief Justice of the concerned High Court of the State and that the Authority shall carry out such functions as conferred by the Act. It is established under Section 9 of the LSA Act.
4. Supreme Court Legal Services Committee: It is established under Section 3A of the LSA Act and is responsible to carry out such functions as given by the Central Authority.
5. High Court Legal Services Committee: This Committee is established under Section 8A of the LSA Act and is responsible to carry out functions as given by the State Authority.
6. Taluk Legal Services Committee: It is established under Section 11A of the LSA Act and its jurisdiction cover a Taluk/Mandal or a group of Taluks/Mandals.
The Procedure
Article 22 of the Constitution of India provides that any person who has been arrested shall not be denied the right to consult and to be defended by, a legal practitioner of his choice. This provision empowers the arrested person to get legal assistance as a matter of Fundamental Right as soon as he has been arrested. However, clause 3 of the said Article provides that this right cannot be enjoyed by a person who is an alien enemy or who has been arrested under preventive detention law.
The Legal Services Authorities Act, 1987 provides for the group of people who are eligible for the free legal aid:
(a) A member of a Scheduled Caste or Scheduled Tribe.
(b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution.
(c) A woman or a child.
(d) A mentally ill or otherwise disabled person.
(e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster or
(f) An industrial workman or
(g) In custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of 1987) or
(h) In receipt of 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 a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.(g) in custody, including custody in a protective home within the meaning of clause(g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of 1987);or (h) in receipt of 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 a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.
A person can get legal aid from the following Authorities/ Institutions:
1. Authorities as provided under the LSA Act: The concerned must file an application in the concerned authority. The application should contain all the grievance suffered by the applicant and the relief sought by him. An affidavit should also be attached to the application which should state that the applicant qualifies for the said legal aid under Section 12 of the LSA Act and is not barred by the Law. The form for such application is available free of cost in all the above-mentioned institutions.
2. Legal Aid Clinics: These clinics are set up by the District Legal Services Authority in order to provide Legal aid. These clinics are established in villages and such areas where people are not capable enough to get legal help on their own.
3. Non- Government Organizations: There are several NGOs working in different areas and arenas including Jails to provide legal assistance to the people who are incapable of affording a counsel and need legal aid.
4. Lawyers doing Pro-Bono work: Several lawyers are apart from doing conventional litigation work, are coming up and taking an initiative to provide free legal assistance and aid to the needy people or low-cost legal counseling. For this, the concerned person must have knowledge of these kinds of lawyers.
Conclusion
Almost more than half of the population in India is not capable enough to afford the high-end fee charged by the lawyers in the country. However, many of these lawyers are also involved in pro bono work. But it makes the free legal aid as guaranteed by the statutes a must for the needy people in order to keep the faith of law among these people. But no matter how many statutes and laws are enacted, these things won’t bring any substantial change until and unless legal awareness is done among these people. Legal awareness is only possible through the process of legal education which involves education the deprived people about the procedures and system of the Law and Judiciary. Then only, one can expect to see the concept of welfare state get implemented in its true sense and the term Justice as mentioned in the Preamble of the Constitution of India show its power in the territory through the people of India.
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