LEGAL AID SYSTEM OF INDIA

Reading time : 12 minutes

INTRODUCTION

It is the law which governs the religious, moral or social stand of an individual, it also provides him with the rights & duties towards the other members of the community. And this law is the complex set of principles & rules which would often require the help of an expert to recognize, identify & define them[1]. The Encyclopaedia Britannica defines legal aid as “giving to a person of limited means grants or for nominal fees, advice or council to represent them in court in civil & criminal matters[2]. Inability to get this consultation or to represent these people would be same as depriving them of justice. Rawls first principle lays that each person is to have equal rights, equal basic liberties & should be judged under equal system of justice[3]. Legal aid is the method that ensures that no one is deprived of professional advice or council because of lack of fund. This provision is based on humanitarian values & aims to help the poverty-stricken people who are socially & economically backward. As is rightly summarise by Lord Denning “The greatest revolution in the law since the post Second World War has been the evolution of the mechanism of system of legal aid[4].

To no one will we sell, to no one will we deny or delay right or justice” Para. 40th of Magna Carta.

But merely providing people with the support to access & exercise their rights as provided by Law, is not enough, it is also important that they are aware of these rights. As knowledge of law is power & helps in self-realization. Yet it is with a great irony that a law student pays a lot of money to learn what everyone should have the right to know for free. Especially in India, the largest democracy in the world, it is important that its citizens are well verse with their rights so that they can live in consonance with the true dictates of democracy & rule of law, they should at least be literate about the primary level of law. In absence of this many a time we see a peculiar situation in which the alleged offender comes to know about the law only after he has committed the offence. This raises the question that if people are completely unaware about the law, how will these laws regulate their conduct in society? But the fault for this cannot entirely be placed on government, as people are also equally responsible for their perception that the law is too complex to even attempt to understand it.[5] This leaves them vulnerable to court summons & notices. All of these including lack of resources & knowledge leads to a sad reality of a legally illiterate India or an India which cannot afford justice.

Law is a powerful tool – but only if it is understood well[6].

ROLE OF LEGAL AID

India is a developing country. Considerable development is seen in recent years in industrial sector, marketing, finance etc. But this development cannot hide the indispensable drawbacks of our country like population explosion & illiteracy. Furthermore, the fruits of this development are being encashed by the upper half of society or the HAVES & the poor or the HAVENOTS continue to live in darkness due to their ignorance. While both the sections continue to live their lives, they end up overlooking a lot of facts, intentionally or unintentionally & because of which a lot of wrongs are done against them. This can be due to lack of knowledge about this facts, while the HAVES can avail this knowledge by spending their resources, the HAVENOTS on the other hand due to their lack of resources continue to suffer from this scenario, sometime even though they have knowledge about these facts, they can’t exercise remedies & continue to abate the wrong. Keeping these facts in mind govt. takes up various policies & programmes to spread awareness to the common mass, so that the one who is wronged can himself realize that he has been wronged. Govt. also helps in availing redress by holding various legal aid clinics & lokadalats, legal assistance is provided by appointing advocates for the poor.

EVOLUTION OF LEGAL AID IN INDIA

The advent of legal aid in India traces its roots to the medieval era India. Under the then reign of Shah Jahan and Aurangzeb, the state lawyers then known as Vakil-e-Sarkar or Sharai were appointed to assist poor litigants in legal matter for free.[7] The modern day scheme of legal aid was developed under the aegis of Justice N.H. Bhagwati & Justice Harris. Then the matter of legal aid was referred to then law commission to make recommendations, so that legal aid can serve as an instrument for rendering social justice. Coming up with the recommendations in its 14th report, under the leadership of M.C. Setalvad, the commission opined that free legal aid should be provided to poor & the state must bear all the associated cost. It was also provided for in the report that the Bar association should also take a step forward by rendering legal aid voluntarily. Acting on these recommendations, the Govt. of India in 1960 prepared a national scheme for providing legal aid by envisaging committees at state, district & central level, but the scheme did not survive due to lack of fund. While on the other hand judiciary was not very progressive for providing legal aid as can be learn in Janardhan Reddy v. State of Hyderabad & Tara Singh v. State of Punjab the court opined that “it was a privilege given to the accused & it is his duty to ask for a lawyer & Magistrates are only responsible to afford him the necessary opportunity[8][9]. Later govt. formed a committee under Krishna Iyer in 1973, to see how states can go about designing legal aid scheme. The committee came up with elaborate scheme of setting aid committees at district, state & central level, to setup autonomous corporation, law clinics, etc. A committee on judicature was formed headed by P.N. Bhagwati to effectively implement the scheme. In 1976, through 42nd amendment, Art. 36A was introduced in DPSPs & in 1980 the committee for implementing legal aid schemes (CILAS) was formed for uniformly implementing the scheme in states & UT. Courts later recognised legal aid as part of Art. 21 of the Const. & held that a prisoner has right to seek justice through legal aid against judicial proceedings of courts as well as prison authorities[10]. The courts also held that it is an essential ingredient of reasonable, fair, & just procedure to a prisoner who is to seek his liberation through court proceedings that he should have legal services available to him[11]. Justice Bhagwati while delivering judgment in the case of Khatri v. State of Bihar said that “it is unfortunate that even though legal aid is part of Art. 21 of the Const., most of the state have not taken decision to provide free legal aid & that is duty of the state to provide it to an accused person on account of indigence[12]. There was the abject need for a law on legal aid as 70% of rural population was illiterate & was not aware about the rights conferred upon them by law because of which they were subjected to deception & exploitation.[13] Finally in 1987, Parliament passed the Legal Service Authorities Act which provided for eligibility criteria for applying for various types of legal aid.

LEGAL AID UNDER LEGAL SERVICES AUTHORITY ACT, 1987

According to Sec.2 (1) (a) of the act, legal aid can be provided to a person for a case which can include suit or any other legal proceeding before a court[14]. As per Sec. 2(1) (c) legal service includes rendering of any service in the conduct of any case or proceeding before a court or tribunal & the giving of advice on any legal matter[15]. Under this act legal aid is provided after checking the eligibility of an applicant & ensuring that prima facie case is in his favour. Also council is provided to applicant at state expense, required court fees is paid & all other incidental expenses are also bared by state. To be eligible for legal aid under this act the person should have annual income of equal to or below Rs 9000 in case of subordinate & High court & equal to or below Rs 12000 in case of Supreme Court. This limitation do not apply to a person belonging to SC, ST, woman, children, handicapped, etc.

Provision for legal aid is also enjoined in DPSPs, which states that “state has to ensure justice on the basis of equal opportunity by providing free legal aid[16].

The act assumes that access to inexpensive & expeditious justice is a basic human right[17]. But, all kinds of legal services are secured by highest bidders, wealthy person & large corporations. Equal access to law must be maintained for every citizen for ensuring rule of law. But as is the case with many other initiatives of govt., legal aid also reeks of corruption. It is understood that once a lawyer is engaged through legal aid, he then later can try to fish out more money, reason for this can be the paltry sum provided by the legal aid committee to the lawyers for their services. It is also seen in many instances that cases for legal aid are being entrusted based upon the largesse amongst the favourites. These practices can lead to compromising the quality of aid provided, thus defeating the whole purpose of this initiative.

Person who are entitled to get free Legal Aid under the act:-

  • A member of SC/ ST
  • A victim of human trafficking as referred in Art. 23 of Const.
  • A woman or a child
  • A person with disability
  • A victim of mass disaster, ethnic violence, caste atrocity, natural disasters, industrial workman, person in juvenile home & mental patient.

Legal aid cannot be provided in cases related to defamation, contempt of court, perjury, election, for trifling offence & of economic offence.

CONSTITUTIONAL PROVISIONS RELATED TO LEGAL AID

Legal aid Const. right is provided under Art. 21 & 39A. Art. 21 is a fundamental right conferred in part III of the Const. & entails “Protection of Life & Personal Liberty, whereas Art. 39A is one of the DPSPs under part IV of the Const. & provides for “Equal Justice & Legal Aid”. SC held that “While rights conferred in part III are fundamental, the directives under part IV are fundamental in governance of country & they are both supplementary to each other[18]

ROLE OF LEGAL LITERACY

But before actually aiding the deprived people to knock on the doors of justice it is important that that they are aware about their legal rights because in absence of such awareness they would not even know that there exist such a mechanism which would provide them justice, they will not even know that their rights have been infringed much less seeking legal aid against it. This could be achieved through the process of legal literacy. Legal literacy means making people aware about the laws. The myth surrounding the law that it is complex & hard to understand is perhaps one of the biggest reasons for pending cases in our courts, especially in rural areas. Legal literacy includes deriving primary knowledge of law & when a marginalized & underprivileged is successful in getting to know what the law is they can face injustices more forcefully. The need for legal literacy is starkly felt in India as 35% of our population is illiterate & majority of them live in rural areas. While literacy is indispensable for an individual’s effective social & economic participation, to contribute more to the growth of oneself & to one’s country & those who are illiterate will only get confused & will feel helpless when their rights are infringed. While Govt. have constantly tried to spread legal literacy amongst the underprivileged strata of society with the help of various programmes & initiatives, this alone may not be able to break the barrier of illiteracy in rural areas. Art. 2 of the Const. of India lays that state has to ensure that “the legal system operates on the basis of equal opportunity”. It directs the state to provide free legal aid & to ensure that justice is not denied on the economics grounds & disabilities.[19] If majority of people are aware about their rights & duties, delivery of justice & maintenance of rule of law would become much easier. This can also result in a transparent & accountable govt., early dispensation of justice & decrease the exploitation of marginalised.

Ignorance of Law is no Excuse

LEGAL LITERARY PROGRAMS

These includes literary programs like Legal Literacy for Students (LLS), Legal Literacy Mission for Empowerment of Underprivileged (LLUP), etc initiated by India Legal Services Authority.

  1. Mission Jananeethi: It was initiated with the purpose to help people resolve their problems by accessing justice. It aims at enabling the individuals & society to become aware of their inherent rights, so that they can live with dignity & freedom, free from fear. It is a voluntary, non-profit, non-political & secular programme intended for defence of life, dignity, liberty & other rights of the defenceless. The services of this mission are primarily intended to target victims of violence, corruption & discrimination. Recipients can include women, children, peasants, unions, unorganized workers, groups like Kudumbasree[20], SHGs, NGOs, etc. Members of the mission includes retired judges, eminent jurists, legal practitioners, teachers, researchers, activists, authors, journalists, etc. Work undertaken by the mission includes providing basic courses in elementary law to young men & women to train them as bare-foot lawyers, so that they are capable of identifying the violation of individual or community rights. Sometime even the professional practitioners are not conversant with some laws like a newly passed legislation, workshops are organized to sensitize them about such legislation. Various other stakeholders like NGOs. Police personals, elected representatives are also greatly aided by this mission.
  2. Panchayat Shivir: These are Interactive legal literacy camp undertaken to aid people in rural & tribal areas. Camps are hold in villages to familiarize indigenous people of that area with the various complex laws, generally in vernacular language. Generally undertaken in coordination with local panchayat members as they are much more familiarize with the concerned area & its people.

WOMAN’S ACCESS TO LEGAL INFORMATION

Various govt. across the world continue to slowly march towards legislating gender equality but there still exist certain groups who lacks access to information & among them women are first one to lose out their legal rights. In fact, UN has declared “Lack of access of information” as the 3rd major challenge confronting women in developing countries. Gaps in literacy & gender discrimination proves to be the most pervasive barriers preventing women from accessing legal information. Current situation is very deplorable as only 88 adult women are considered literate for every 100 men & this ratio is even more skewed in countries like Bangladesh (62 to 100) & in Pakistan (57 to 100), also woman belonging to tribal areas & vernacular groups are even more vulnerable to legal illiteracy. While many countries are emphasizing on gender neutrality in legislation but still gender biases may continue to play a discriminatory role in adjudication of cases. Instances of such discrimination can be seen when we interpret family laws, laws relating to marriage & divorce, inheritance, etc., which are closely tied to a woman’s wellbeing.

PROBLEMS WITH SYSTEM OF LEGAL AID IN INDIA

India’s legal aid system is not much different from the legal aid systems of US and UK, the motto of all these systems is to provide justice to the oppressed sections of the society but not all of the 3 systems achieve this equally. For e.g. the biggest problem for the legal aid system of India is the lack of funds allocated to it which in turn give rise to many other associated problems and ultimately the whole legal aid system fails to achieve its goals. According to a UNDP study, state like Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odisha, Rajasthan and Chhattisgarh are allocated a total of 132.37 crore on average for the block of 5 years. The same study also reveals that on an average, 18.91 crore are allocated per state per year which sums up to 548.39 crore for 5 years or 109.678 crore for 1 year for the whole country. In contrast, Britain spends 2 billion pounds per year on legal aid, that amount which is equal to 20000 crore in Indian rupees is almost 200 times more than the amount India is spending, USA also spends on average $400 million on legal aid every year.[21]The population of India is 20 times that of Britain and also the number of deprived people is more, most of these people are deprived of justice and many are rotting in jails for the want of legal aid. In India 29.5% of population is below poverty line and 35% of it is illiterate because of which they either don’t know about the legal aid or they don’t have access to it.[22] The lack of funding also causes other associated problems like for the Legal aid councils who volunteer for the legal aid programmes by the government are often paid less and exploited because of which they lose their altruistic stand and either starts charging money from poor or leave the programme all together and turns to private counselling. The failure to provide adequate legal aid takes an enormous toll not only on the poor but also on the public as a whole. The absence of adequate representation and the subsequent denial of access to public resources impose significant social and economic costs on society. Denying a poor family counsel in an eviction proceeding, for example, greatly increases the likelihood that the family will become homeless, thereby increasing the cost to society in dealing with homelessness.[23]

RECOMMENDATION

  • It is suggested that the poor illiterate people should be imparted with required legal knowledge more effectively and should be educated on their basic rights and duties from the grass root level of the country. For that judiciary needs the support from state administration to conduct legal literacy programme.
  • Judiciary should also focus more on effective implementation of legal aid and legal awareness schemes.
  • Government should also invest more funds in legal aid system proportionate to the growing population of India. 

[1] Mathews and Outton, Legal Aid and Advice (Butterworths 1971)

[2] Alka Shrivastava, Legal Aid Programme in India- A Constitutional Guarantee 871 (Encyclopaedia Britannica 2008)

[3] John Rawls, A Theory of Justice (Universal Law Publishing Co. Pvt. Ltd. 2000)

[4] Lord Denning, What Next in Law (London Butterworths 1982)

[5] The Hindu, Towards complete legal literacy – The Hindu, (Last visited Mar. 15, 2021)

[6] Academia, (DOC) Importance of Legal Literacy In Growth and Development of India | Bhavana Barbudhe – Academia.edu, (Last visited Mar. 17, 2021)

[7] Ministry of Law, Justice and Company Affairs (1973): “Processual Justice To The People: Report of Expert Committee on Legal Aid,” May, 1973, Department of Legal Affairs, Government of India, http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20e xpert%20committee%20in%20legal%20aid,%201973.pdf. (Last visited Mar. 17, 2021)

[8] Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217(India)

[9] Tara Singh v. State of Punjab, AIR 1951 SC 411(India)

[10] Sunil Batra v. Delhi Administration, (1978) 4 SCC 494(India)

[11] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98(India)

[12] Khatri v. State of Bihar, AIR 1981 SC 926(India)

[13] Sukhdas v. UT. Of Arunachal Pradesh, AIR 1986 SC 991(India)

[14] Legal Services Authority Acct, 1987, §2(1)(a), No. 39, Acts of Parliament, 1987(India)

[15] Id. At 2(1)(c)

[16] India Const. art. 39-A

[17] Legal Service India, Legal Aid in India (legalserviceindia.com, (Last visited Mar. 20 2021)

[18] Chandra Bhawan Boarding & Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2050

[19] Indian Const. art. 2

[20] The State Poverty eradication mission launched by Govt. of Kerala in 1998

[21] Houseman AW, Civil Legal Aid in the United States, Washing DC (The National Equal Justice Library 2015)

[22] The Times of India, New poverty line: Rs 32 in villages, Rs 47 in cities | India News – Times of India (indiatimes.com)

[23] Young, M. W., the Need for Legal Aid Reform: A Comparison of English and American Legal Aid. Cornell International Law Journal, 379-405 (1991).

Author: TRILOK CHOUDHARY

Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s