FREE LEGAL-AID IN INDIA
Updated: Jul 15, 2020
Logo- NALSA( National Legal Services Authority)
By Akash kumar garg
(Student of Faculty of Law, D.U.)
In the case of Hussainara Khatoon v. State of Bihar [AIR 1979 SC 1369, 1375], the Supreme Court observed that it was not possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there was a nationwide legal service programme to provide free legal services to them. The Hon’ble Supreme Court recommended to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the Constitutional Directive embodied in Article 39-A.
On September, 1980, the Government of India, with the object of providing free legal aid, by a resolution dated 26th September, 1980, appointed “Committee for Implementing Legal Aid Schemes” (CILAS) with Justice P.N. Bhagwati as the Chairman to monitor and implement legal aid programs on a uniform basis in all the States and union territories. But on a review of the working of the CILAS, certain deficiencies were found. It was; therefore, felt that it would be desirable to constitute statutory legal service authorities at the national, State and District levels so as to provide for the effective monitoring of legal aid programmes. Therefore, the Legal Services Authorities act, 1987 (Act No.39 of 1987) was enacted with a view to constitute Legal Services Authorities at National, State and District Levels. However, the Act came into force with effect from 9-11-1995, almost eight years after its enactment.
Constitutional/Legal Validity of Free Legal Aid:-
Yes, free legal aid is constitutionally valid, rather it’s a part of constitution of India, Various provisions which makes free legal aid constitutionally valid are:-
Article 14-Provides for equality before the law or equal protection of the laws within the territory of India.
Article 21-No person shall be deprived of his life or personal liberty except according to a procedure established by law.
Article 22(1)- No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Article 39A: Equal justice and free legal aid-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.
Section 304 of the Code Of Criminal Procedure, 1973- Legal aid to accused at State expense in certain cases:-
1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.
2) The High Court may, with the previous approval of the State Government, make rules providing for-
a) the mode of selecting pleaders for defense under sub- section (1);
b) the facilities to be allowed to such pleaders by the Courts;
c) The fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1).
3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.
Order 33 of CPC 1908-Provides for filing of suits by indigent persons. It enables persons who are too poor to pay court fees and allow them to institute suits without payment of requisite court fees.
Landmark Cases on Free Legal Aid:-
In the case of Maneka Gandhi v. Union of India, [AIR 1978 SC 597] it was held by the court that the procedure under which a person may be deprived of his life or liberty should be ‘reasonable’, fair and just. Now, a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable, fair and just.’ It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him.
In the case of Hussainara khatoon vs. State of Bihar [AIR 1979 SC 1369, 1375], need for free legal aid is felt the Hon’ble Supreme Court of India for the first time.
In the case of Khatri vs. state of Bihar [AIR 1981 SC 928] the Apex court went a step further and held that the constitutional obligation of the state to provide free legal services to an indigent accused person extends not only at the stage of trial but also at the stage when he is first produced before the magistrate. It also ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
In the case of Suk Das v. Union Territory of Arunachal Pradesh [AIR 1986 SC 991, 993] the Supreme Court, further observed that, “of course, it must be recognized that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social Justice may require that legal service may not be provided by the State.
Scope of Free Legal Aid (Services):-
According to Section 2(c) of the Legal Services Authorities Act, 1987, “legal services” includes 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. Free legal aid is the provision of free legal services in civil as well as criminal matters for the poor and marginalized people, who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any Court, Tribunal or Authority. These services are governed by Legal Services Authorities Act, 1987 and headed by the National Legal Services Authority (NALSA). Legal Aid is provided to the needy from the lowest Court to the Supreme Court of India. A person, if desires can choose a lawyer of his/her choice from the panel of lawyers providing free legal services.
Provision of free legal aid may include:-
1) Representation by an Advocate in legal proceedings.
2) Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases;
3) Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;
4) Drafting of legal documents, special leave petition etc.
5) Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceedings.
6) Provision of aid and advice to the beneficiaries to access the benefits under the welfare statutes and schemes framed by the C.G. or the S.G. and to ensure access to justice in any other manner.
Eligibility For Free Legal Services:-
Every person in the society is not entitled to get a free legal aid, as per sec. 12 of the Legal Services Authorities Act, 1987, following sections of the society are eligible to get free legal services:-
1) A member of a Scheduled Caste or Scheduled Tribe;
2) A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
3) A woman( a woman is entitled for free legal aid irrespective of her income or financial status) or a child(a child is eligible for free legal aid till the age of majority i.e. 18 years);
4) A mentally ill or otherwise disabled person;
5) 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
6) An industrial workman; or
7) 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
8) a person in receipt of annual income with a Ceiling Limit prescribed u/S 12(h) of the Act for availing free legal services in different States (varies from state to state) or any 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 Rs 5 Lakh, if the case is before the Supreme Court.
However, Senior citizens’ eligibility for free legal aid depends on the Rules framed by the respective State Governments in this regard.
How To Apply For Free Legal Services:-
A person can apply for free legal aid either offline or online. He\she can fill up the ready-made form/application form that is available at nearest Legal Services Authority and submit the same either at the Authority physically, or post the application to the Authority.
He or she can even make an application in writing on a simple piece of paper with the necessary details such as the name, gender, residential address, employment status, nationality, whether SC/ST (with proof in support), income per month (with affidavit), the case for which legal aid is required, reason for seeking legal aid, etc. and submit it physically or send by post.
Another option is to send the application online i.e. by email to NALSA or through the online application form available online at NALSA’s website by going on the ‘Online Application’ Link on the Home Page, along with uploading necessary documents.
It is also possible to make the application orally - a paralegal volunteer or an officer of the concerned Legal Services Authority will assist the person in such cases. There is neither any charge for getting an application form for free legal aid nor for submission of the application. Expenses like Process Fees, Drafting Fees, Typing Fees, Clerkage as well as Fees of panel lawyers (during or after the case is completed) are borne by the legal service institutions.
Post Application Procedure:-
Legal aid is provided to the entitled persons through legal services authorities existing from the National to Taluka levels including the NALSA, State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, Supreme Court Legal Services Committee and High Court Legal Services Committees. If, however, an application or request for legal aid is received by NALSA, it is forwarded to the concerned authority.
Once the application is submitted with the proper authority, it would be perused by the concerned Legal Services Institution as to what action is needed upon the same. The information about the next step on the application would then be sent to the parties concerned.
The action taken on an application received would vary from providing counseling/advice to the parties, providing a lawyer to represent them in the court, etc.
At the early stages indigent persons were unable to fight legal cases of various natures, due to shortage of means and as a result of which they had to forgo their rights and claims. This was latter recognized by the judiciary and they made an attempt to safeguard the rights and claims of the indigent persons, so as to provide equal protection and justice to all. The legal services authorities act, 1987 was thus enacted. It laid down various guidelines to ensure justice is served to the indigent persons and are not deprived of their rights and claims. “Advocates”, “PLV’S”, “Social Workers” and various other groups of people are associated with this initiative to serve the poor and weaker sections of the society. This could be said to be a revolution in the field of law which aims to provide proper justice to all.
· Delhi University (Faculty of law), jurisprudence-1, case material.
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].