Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. The earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, the history of the organized efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee to enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make recommendations as appear to be desirable for ensuring that persons in need of legal advice are provided the same by the State. The colonial hangover of the Indian legal system has prevented it from realising its true potential and extent. Much of our law was created by the British to suit their convenience and as a result of this it is mostly insensitive to the socio-economic problems of the masses it set out to govern and regulate. Article 39A of the Constitution of India provides that 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 disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. Sec. 304, Criminal Procedure Code: The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand. Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmer throughout the country under the Chairmanship of Hon Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country. The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmer throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994.9th of November is celebrated as the” national Legal Services Day”. A special mention and recommendation is given regarding the Bail System. The bail system caused discrimination against the poor since the poor would not be able to furnish bail, while wealthier persons otherwise similarly situate would be able to furnish bail. The poor accused had often to fall back on touts and professional sureties for providing bail to suffer pre-trial detention the committee stated that the bail system was extremely unsatisfactory as and required reform so that it should be possible for the poor, as easily as for the rich, to obtain pre-trial release without jeopardizing the interests of justice. The magistrate should be given power to order payment of costs of adjournment to the accused where the prosecution has not taken reasonable steps to secure the presence of any witness and the case has to be adjourned on that account. The 1977 report first focused on the infrastructure of the legal services of the organization and clearly stated that it was not to be a department of the government but an autonomous institution headed by the Judge of the Supreme Court. The body would have representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that there would be a multi tier set up for the legal aid organization. The 1977 report envisaged several modes of delivery of legal services. The primary mode would be the providing of legal advice through various legal aid offices having both salaried lawyers and assigned lawyers The 1977 report favored the setting up of Nagrik Salah Kendra at each legal aid office to provide counseling service and also act as a referral body for all kinds of problems for which assistance may be needed.It was suggested that the Advocated Act, 1961 be amended to recognize and permit provision of legal aid by law teachers and students According to section 2(1) (a) of the Act, legal aid can be provided to a person for a ‘case’ which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the ‘court’ as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. As per section 2(1)(c) ‘legal service’ includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter. The linkage between Article 21 and the right to free legal aid was forged in the decision in Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that “there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.” The court pointed out that Article 39-A emphasised that free legal service was an inalienable element of ‘reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21. In his inimitable style Justice Bhagwati declared: Legal Services Authorities Act, 1987’s Criterion for Providing Legal Aid is as per the Section 12 which states that Every person who has to file or defend a case shall be entitled to free legal services under this Act if that person is-(a) a member of a Scheduled Caste or Scheduled Tribe;(b) a victim of trafficking in human beings or begar 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 (h) 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 (i) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., 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 Govt., if the case is before the Supreme Court.These Rules have already been amended to enhance this income ceiling so that people with economic backwardness are also included. Further in the case of Hussainara Khatoon & Ors. (V) v. Home Secretary, State of Bihar, Patna Justice Bhagwati held that: “it’s the 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 or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a free lawyer………….. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated…………..” In Indira Gandhi v. Raj Narain the Court said:“Rule Of Law is basic structure of constitution of India. Every individual is guaranteed the its give to him under the constitution……………..In absence of legal aid, trial is vitiated.” In, State of Haryana v. Darshana Devi, the Court said that:“the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC. The state of Haryana, mindless of the mandate of equal justice to the indigent under the magna carta of republic, expressed in article 14 and stressed in article 39A of the constitution, has sought leave to appeal against the order of the high court which has rightly extended the ‘pauper’ provisions to auto-accident claims. Order XXXIII will apply to tribunals, which have the trappings of the civil court. In conclusion, it is made clear that Indian constitution has made considerable development in ensuring free legal aid for the poor and the backward, the problem lies in ensuring the implementation of these laws and sensitizing the lawyers on how such cases are to be dealt with because free Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice.
In recent years, judicial intervention has occurred in more number of
cases of parliamentary affairs, and this has irked panic in
politicians that, The judiciary is prevailing its limitations and
shadowing over there fields of legislation. In last few months LS
speaker Somanath Chatarji is constantly, progressively putting this
point more and more aggressively and in louder voice, on every
possible stage he is offered. In his recent speeches he has accused
the judiciary, that when emergency was imposed, they (supreme court)
left people on mercy of Executives. This is completely falls
statement, because power of judicial review on any law, passed by the
government was suspended, and CAFEPOSA, MISA were the major laws,
where no judicature was given jurisdiction to admit or hear any plea
for relief or challenge. In other words judiciary itself was suspend.
How it could entertain any application, which could not mention relief
under specific provision. Somanathda is making mendacious statement.
And it must be true!
When issue has to be created or, needs a support; in politics it is a
kind of strategy that, one leader keeps it discussing and on the
background, other pleads for support. This is a common practice in
politics.
The same way Somnathda is aggressively accusing Judiciary for
intervening in “Parliamentarians Affairs”, while others like
Karunanidhi CM Tamilnadu, should be busy convincing other politicians
to support the issue. One can remind that, the very same way “Mr.
Election Commissioner” T.N. Sheshan was criticized, accused and
latter, constitution was amended and, two parallel commissioners were
appointed to control Mr. Sheshan. In judicial language it is a case
law. ( read this the way we understand ‘cultural police’ this is in
relation with something like political judges;) ground for the case
was ‘functioning against interests of politicians’. The charge was
‘overcoming from the limits as politicians think’. And so the
acquisition, Judgment is guilty and sentence is constitution should be
amended! This was the case, and this is the law of politicians; as far
as our country is concerned.
Now it’s the day for the Judiciary itself. It is facing same type of
acquisitions, and; for the country in the name of public interest;
same sentence, and lastly the constitutional amendment to control it.
This is what is expected to work in coming feature.
Mr. Somanath Chatarji is working for a major group of
parliamentarians, and the politicians of this country. It seems that
he has worked out a plan for a kind censorship. And in feature,
specifically this is going to effect media. Judiciary is a major block
in making laws to overrule article 14 and 18 of the constitution hence
the block, which is judiciary; must be the first kill. Next should be
the right of expression.
If one thinks as, Politicians might be thinking that, Amending
Judicial powers can control media resulting the absolute control over
public sentiment. Then it’s not just possibility but it has a strong
reason.
To understand this one has to analyze statistical figures of
Constitutional Court. In conclusive manner one can easily notice, that
number of cases challenging Constitutional Amendment or any
Notification, Regulation or a Bill passed by parliament; first these
were criticized by Media itself and then either by public interest
litigation for judicial review or Judiciaries power to take cognizance
and make review of concerned law, the case may be, those
notifications, regulations or laws were held as against constitutional
provisions.
This reminds the days when the Parliament was made kitchen for cocking
amendments and insertions in different provisions of Constitutional
law; that was Indira Era. 42nd Amendment was a major punch, to the
makers of the Constitution. The judicial review was provoked by this
amendment; heart of the constitution was removed. It was first of its
kind of attack on our constitution, to change its face ‘from we the
People; to we the Executives’. Then after it is a regular play of
succeeding governments. Casually, they replace provisions, of
different sections and articles of the constitution. Nevertheless the
foundation pillars of the constitution were left safe.
Under Indian Constitution, Parliament, Judiciary, Comptroller and
Auditor General, Election Commission, are having equal and specific
role in control and distribution of equity itself.
Representatives of people that is house of law, which can be in a
state or at center; which is Assembly or the Parliament. Political
parties in the country are not recognized under our constitution; In
house it is treated as group of representatives of people. From
constitutional view, neither they are expected nor they are powered to
run the country, ‘they are watchdogs; elected by countrymen to see
that the bureaucracy that is system, is functioning in national
interest. And they can not interfere in day to day function of system
that is bureaucracy.’(Supreme Court Judgment repeated and referred in
number of cases.)
Next is Election Commission. In Mr. T.N. Sheshan Era we observed that,
constitution has powered this autonomous body even not only control
over the parliamentarians but ministers, the Cabinet functions are
also under its scanner. Legally! Since then, each and every election,
our representatives are bound to stay out of government cars and
government guesthouses.
And now The Comptroller and Auditor General; every year we read from
news papers, that this and that government expense was challenged,
ministerial decision was challenged, or comptroller cancelled certain
expense or procedure as the rules and norms were not followed, and
ordered for enquiry in that specific matter, may be defense deal, or
Passport procedure, It is Auditor Comptroller who is first taken in to
account by bureaucracy, when a minister asks his executives for a
particular ‘out of way’ expense.
Lastly The Election Commission, when a representative moves around in
an electoral area, or a party when making manifesto, or governing
party making a decision while election are declared, every party and
politician first studies what is against ACHAR SANHITA.
and the Judiciary, every time making a constitutional provision or
amending any of it, government has to consider, the point of judicial
review. That is the power given under our constitution to Judiciary,
to review any law or provision made; dose not deem the other provision
and fits to basic concepts of our constitution.
It is really heard to believe that a leading politician, senior, and
experienced parliamentarian Somnathda do not know all these facts and
power distribution by makers of our constitution with different
systems. We can guess that he knows much more then what we think we
know. Still he is accusing judiciary for intervention in
‘parliamentarians business’ and over ruling its limits.
Somnathda is politician he can enjoy the right of speech and
expression. But Judges and other Executives are bound by rules and
norms, acts and regulations. They cannot make any statement in this
regard, nor can comment on it. And Samanthda and the like hood
politicians are taking advantage of this situation, or there limits.
Which should be called; as an undue advantage!
The operandi looks very simple; Somanathda is raising voice on
judicial intervention, his friends must be advocating the issue. Other
political leaders are in ‘stop and watch’ mode. Once every political
party feels it safe to amend the constitution and control judicial
review and other powers vested by constitution, Then once for all, A
real nightmare will prevail and everything shall be under control! as,
once this was done successfully! Obvious first and mostly the only
kill of this juncture has to be the media. Because every political
party is in desperate need to eliminate the media, as there is strong
feel that, media is a bigger obstacle for the government and the
parties itself.
In this modern world, total elimination of media is simply impossible,
but it can be left in a situation, where there is no legal provision
to challenge any government order; this is easier task, if the
politicians get unite. And as like always, “we the people” will be
praying for a Shaktiman to come to fight with these evils.
Sudarshan Harshe
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Isen
Dear Sirs,
It is true that almost all corrupt politicians in India trying to unite together to bring our Indian Judiciary under their control to escape from their criminal activities which is going on for long time without any check.Hope,God would do some thing to this criminal activities.