free legal aid in India,
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.
