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Constitution of every democratic country is enshrined with the concept of ‘audi alter partem’, which means that both the parties in a case should be heard before arriving to a conclusion. However, sometimes a party is unable to procure a legal representative to represent his/her case in the Court of law which is why a provision of Legal aid was introduced in order to assist the helpless.
Legal Aid essentially refers to the process of providing free legal services to those sections of society which are not self sustainable in obtaining services of an advocate in order to conduct a case in front of court, hence denying them justice. The importance of this concept can be understood by the fact that even Magna Carta acknowledged this, where it was written that,“ to no one will we sell, to no one will we deny or delay right or justice.”
This concept is essential to ensure that the rich do not get an upper hand in the court of Law due to their financial advantage but are on the same terms as any other person. Various Jurists and Judges like Justice P.N. Bhagwati have advocated for the proper implementation of proper legal aid cells by the government to make the machine of justice easily accessible to everyone
Evolution of Legal Service Authority Act, 1987
In India, the need to have legal aid was recognized before Independence and various committees have been formed since to shape the legal aid machinery of the Legal Service Authority Act, 1987. Here are the reports from some of the committees formed to look over at the Legal Aid Programs in the Country:
14th Law Commission Report (1958)
This report focused on the reforms in judicial administration. The report emphasized on the importance of Free Legal Aid and suggested the setting up of Legal Aid clinics in all High Court Bars.
P N Bhagwati Committee Report (1971)
The Commission stated that the imbalance between the rich and the poor in administration of the justice can be uprooted by building up and creating viable effective system of the legal aid program.
Krishna Iyer Committee Report (1972)
This was another committee headed by Justice Iyer which emphasized on characterizing the people who need Legal Aid and also on spreading a system through which the Legal Aid reaches public instead of Public reaching out for Legal Aid.
After this, a combined committee of Justice Bhagwati and Justice Iyer, called the Judicature Committee, was constituted in the year 1977.
The Central Government in 1980 formed another committee known as the Committee for Implementing Legal Aid Schemes (CILAS), under the chairmanship of Justice Bhagwati. The main motive of this committee was to monitor the implementation of Legal Aid programs and to bring all the ongoing Legal Aid programmes of the country under a single umbrella.
In the year 1987, Union Government enacted the Legal Service Authority Act, 1987 and gave the Legal Aid programmes a statutory recognition.
Why is free legal aid necessary?
There are various reasons why legal aid is needed in India:
Maintaining Rule of Law: Rule of Law and equality before law are the cornerstones of democracy. It is necessary to maintain order among chaos by keeping law above every individual. However, there would be no Rule of law unless the common man, irrespective of the financial capacity, is able to assert and vindicate the rights given to him by law, which is why the provision of Legal aid is necessary to maintain equality before law.
Following audi alter partem: In a free and fair trial, both the parties in a case are heard in order to decide the guilty in a case. Legal aid makes sure that every person in the Country gets a Legal representative to voice his/her case in the Court.
Removing the inequality: Inequalities are there in almost all the aspects of the society whether financial, social or cultural. However to remove this barrier in the legal aspect, provision of free legal aid is necessary so that every person belonging to any caste, religion or place can get justice.
Ethical duty: It is the ethical duty of a lawyer to make sure that Money is not a barrier in the way of perceiving Justice.
Legal aid mechanism in India
Any person who wants to seek Legal aid can address the complain in the main office of Legal Service authority either in writing, orally or through e-mail, along with an application to show that he/she is eligible to attain the same. There has been fixation of criteria on which people can avail the benefits of Legal Aid.
Section 12 of the Legal Service Act provides for the criteria under which the people can get free legal aid. The following people are in that category:
- a member of a SC or ST;
- a victim of trafficking in human ;
- a woman or child;
- disabled person, including mental disability;
- a victim of mass disaster;
- an industrial workman;
- a person in custody;
- person whose annual income is 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;
- unable to engage a lawyer and secure legal service on account of reasons such as poverty, indigence situation etc.,
Various Statutory and Judicial bodies have been established in order to provide quick redressal-
(a) National Legal Service Authority(NALSA)
Constituted in the year 1995, NALSA is a statutory body having the motive of implementing and monitoring the ongoing Legal aid programs in the Country. NALSA issues guidelines to be followed by State Legal Service Authority and District Legal Service Authority to implement the Legal aid programs and to organize Legal Aid Camps in every district in order to spread awareness among people regarding the authority. It also organizes Lok Adalats for speedy disposal of cases.
(b)Supreme Court Legal Service Committee
It is another statutory body working to provide legal aid to people falling in the category as mentioned in Section 12. Apart from that, LSA Act, 1987 also directs this authority to perform functions as may be determined by the Central Authority and State Authority respectively.
(c)Taluka Legal Service Authority
As per Section 11, Taluka Legal Services were established which work under the rules made by the different States.
(d)Lok Adalats [Judicial body]
Lok Adalat is one of the alternate dispute resolution mechanisms, it is a forum where disputes pending in the court of law or at pre-litigation stage are settled amicably. It is a judicial body possessing the powers of a civil court.
(e)Apart from these Governmental Bodies, many NGOs and Law firms doing Pro Bono cases also provide free Legal Aid. Nowadays, many law schools have started a Legal Aid cell in order to raise awareness regarding the availing facilities that can be taken by them. In 2017, the Ministry of law also launched an online platform known as “Pro-Bono Legal Service” where interested lawyers can register themselves to volunteer for pro-bono services for the people out of reach of the court.
Legal /constitutional validity of legal aid
Another question which arises is the constitutional/legal validity of the provision of Free Legal aid. To answer this question, we need to refer to the following points:
- Article 39A: This article clearly mentions that, “It is the obligation of the State to see that the legal system advances justice based on equal opportunity for its entire citizen. It should therefore give free legal aid to the individuals who can’t get justice because of financial and other disabilities.”
- Article 14: This article demands for equality before law and Legal aid aims to remove the inequality between various segments by providing equal opportunity to represent their case, whatever the situation may be.
- Article 21: The article provides the fundamental rights like Protection of Life and Liberty and provisions of Free Legal aid is an essential part of it.
- Section 304 of CrPC: This section states that if the accused is unable to procure a legal advisor, the court must provide one to represent the accused on the bearing of the State.
- Order 33 rule 17 of CPC: This section states that if an indigent person is not able to avail legal services, then the court shall exempt him from paying court fees.
Supreme Court in various cases has also asserted on the Importance of Free Legal Aid:
- Hussainara Khatoon v. State of Bihar: The Court in this case held that if any accused in unable to afford a legal representative then he/she will be able to avail free legal aid on the cost of State.
- Khatri v. State of Bihar: The Court in this case said that the duty to provide legal aid to an accused arises from the moment he/she is produced before the Magistrate for the first time and continues whenever he is produced for remand.
In a country where the majority of people are unaware of the legal remedies available to them, even the thought that they can bear the cost of legal process is vague, which is why Free Legal aid is essential for our country.
Various Committees and Authorities are working towards providing Free Legal aid, but the quality of Legal Aid provided is sometimes not up to the mark. One of the reasons may be the enormous amount of cases; sometimes the lawyers overlook many facts in a case, which is why more lawyers are required to be under the authority. It has also been reported that sometimes the lawyers who should have been working for free, charge an amount to represent the case, which is ethically and legally wrong.
Another issue is the lack of awareness among people regarding Free Legal Aid and other schemes introduced by the Government. These days, Many Universities and Law Colleges have also formed Legal Aid Cells in order to spread awareness through mediums such as Nukkad Naatak etc.
Lok Adalat seems to be more effective as it disposes cases at a faster rate. However sometimes, there is a lot of pressure on Judges, as they have to dispose of a given number of cases set by the High Court, due to which the Judgments are given in a hastened manner.
Free Legal Aid is essential for a democratic country, as it upholds various basic principles like the Rule of Law and also follows the concept of Natural Justice. The preamble of our Constitution is focused on the fact that the Constitution must provide Justice in all forms particularly “social, economic and political; liberty of thought expression, belief faith and opportunity” and Legal aid is the method of doing that.
According to NALSA, around 8.2 Lakh people benefited from the Free Legal aid in the year 2017-18, which is appreciable, but the quality of the services provided is still under doubt. It is the duty of every lawyer to make sure that every client is aptly represented without caring for the money. Hence, more and more lawyers should come forward to register for the Pro Bono services to ensure that the quality of the Legal Aid provided is up to mark and people can trust the services without worries.
Author: Shyam Ji Mishra from Amity University, Lucknow.
Editor: Avani Laad from Symbiosis Law School, Pune.