Free Legal Aid in India- An Analysis

Author- Vishal Patidar

Introduction

The Indian Judicial System has always worked on the principle of providing justice to everyone also the Preamble of the Indian Constitution aims to provide its citizen with social, economic, and political justice. However, India being a country where a lot of people are striving to earn a two-piece meal for their family, it becomes difficult for them to get proper legal assistance when there is an infringement of their rights or present their case before the court.

The economic condition of the people acts as a barrier to accessing justice. For addressing this issue our legislature had focused on the concept of providing legal aid for any person who cannot bear the expenses of legal proceedings which do require a considerable amount of finance. The concept of “Free Legal Aid” acts as a torchbearer in the countries agenda of working as a welfare state. The idea is necessary to make sure that the wealthy should not have a benefit in dispute due to economic resources, but rather are treated equally to anyone else.

The Concept of Legal Aid

The need for a proper system of Free Legal Aid was felt at a very early stage after the independence of India. The 14th Law Commission headed by M.C. Setalvad was the first one to talk about the need for a proper system for providing legal aid in the country. The commission observed in their report that the service for free legal assistance is something which the state must ensure to its people being a welfare state. While suggesting the same the commission supported the plan of action laid down by the “Commission on Legal Aid and Advice” formed under the Bombay Government in the year 1949 headed by Justice N.H. Bhagwati. The Law Commission backed the scheme after making a few modifications in the plan of action. As a result of this report, there were a few states who started this policy and provided legal assistance to the downtrodden.

Later in the year 1972, the Indian government formed the committee under the chairmanship of Justice V.R. Krishna Iyer one of the pioneers of social justice in India which provided a report named Processual Justice to the People. The report talked in detail about the structure of the system that needed to be established for introducing legal aid. The main highlight of this report was the formation of a legal aid clinic in the institutions which imparted legal studies in the country.

The major development that took place was in the year 1976 when free legal aid was incorporated in the Indian Constitution under Article 39A with the help of the 42nd constitutional amendment. This provision came under the Directive Principles of the State Policy provide that “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 because of economic or other disabilities.”

A Committee for Implementation of Legal Aid Scheme (CILAS) again under the supervision of Justice P.N. Bhagwati was set up to look after the scheme of legal assistance and this committee brought a program called the “Lok Adalat” to provide speedy relief by mediating between the two-party and showing a middle path for the disputes.

The government then worked in the area of providing a statutory framework for a better implementation of free legal aid throughout the country. For the same reason, The Legal Service Authority Act was enacted in the year 1987. However, the act came into force on 9th November 1995 and this was marked as the establishment of the National Legal Services Authority. The journey of legal aid in India has been full of exciting events which more or less have proved instrumental in ensuring improvement in the legal aid scheme.

Legal Services Authority Act, 1987

To provide statutory backing to the legal aid services the legislature came up with the Legal Services Authority Act, 1987. Justice R.N. Mishra, the then CJI of India played a very important role in the enactment of the act. To provide legal aid and support, the Legislation envisions a national program comprising of national and state-level bodies looking after the proper functioning of the legal aid program. Section 12 of the act talks about the person who can be eligible for getting free legal aid under this act. The act also clearly specifies the term court to avoid misinterpretation. The ‘court,’ according to the Act, is a general, criminal, or income court that includes any council or other specially constituted court under any statute for the time being in the mandate, to exercise legal or semi-legal capacities. Now let us see which are the authorities established under the act and their functions: –

  1. National Legal Service Authority: – It is the apex institution charged with establishing policies and guidelines for making legal aid accessible under the Legislation’s rules and framing the most efficient and cost-effective legal assistance systems. It also distributes finances and grants to state legal services authorities and non-governmental organizations (NGOs) to help them establish legal assistance policies.
  1. State Legal Service Authority: – Every state has its own State Legal Service Authority to assist the NALSA in carrying out the policies at the state level and arranging the Lok Adalat in the state. The Chief Justice of the high court of the state is the ex-officio Patron in Chief of the authority. The Authority also comprises an executive chairman who is either the sitting judge or the retired judge of the high court.
  1. District Legal Service Authority: – At every district there is a District Legal Service Authority to act as a link between the superior authorities and the “Taluk Legal Service Committee”. All local authorities are required to carry out the instructions provided by the superior authority, as well as to make note of the guidelines provided by the state authority. The District Judge is the head of this authority.
  1. Taluk Legal Service Committee: – The State Legal Service Authority is given the power to form the Taluk Legal Service Committee at the Taluk level. The NALSA act has provided a provision for such committee U/s 11A and 11B. This committee looks after the free legal aid program at the lowest level and also organizes the Lok Adalat at the Taluk level.

Besides these organizations, the Supreme Court and the High Courts have their committees that are appointed to provide legal aid to the people who are approaching the Supreme Court or the various High Courts. The Supreme Court Legal Service Committee has been established for the Supreme Court which assists the downtrodden and underprivileged person to appear in the apex court. The Committee comprises of judge of the Supreme Court, a team of experienced Advocate on Record (AOR), and a permanent advisor to provide legal advice to the poor when approached. A similar committee is set up for the high court under Section 8A of the NALSA act.

Contribution of Judiciary

The judiciary has also played an important role in the development of the concept of free legal aid. The courts have time and again provided their valuable inputs and made various attempts to ensure that everyone who needs proper legal assistance can avail of it. When we talk about the judiciary’s contribution the first case which comes to our mind is the famous case of Hussainara Khatoon Vs. The state of Bihar. In this many people were languishing in jails in the state of Bihar. The cases of these prisoners were under trial and they were in the prison for a long period even for the bailable offenses. The reason behind this was the lack of awareness of their rights and also because of poverty many were not able to appoint any legal practitioner to defend themselves.

In many instances, they were imprisoned for a period more than the maximum punishment one can be awarded in that offense. The issue before the court was whether the free legal aid available under Article 39A of the Indian Constitution is enforceable by law or not. While addressing the issue P.N. Bhagwati quoted former U.S. President Mr Lyndon B. Johnson who says that He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed. he does not stay in jail because he is no more like to flee before trial. He stays in jail for one reason only because he is poor.” With these views, the apex court noted that Article 39-A stressed that free legal assistance was an inherent component of a rational, equitable, and just process and that the right to free legal assistance was implied in Article 21. This case marked the beginning of what we can say movement from where the judiciary also started to actively provide required support for the legal aid provision.

After a couple of years another case named Khatri Singh Vs. The state of Bihar was heard by the court in this case the court clearly stated that the state is legally obligated to offer legal assistance not just during the trial, but also when the accused has been brought before the court or held in custody throughout the trial, and this privilege cannot be withheld based on economic limitations, organizational failure, or the fact that the accused did not request it. The court in the case especially talked about Section 304 of the Code of Criminal Procedure, 1973 which focuses on providing legal assistance to the person who is not adequately represented in the court totally on the expenditure of the government.

Further, the judges and magistrate must inform the accused of their right to avail free legal aid. Later on in the case of Suk das Vs. Union Territory of Arunachal Pradesh, the aggrieved party was accused of frightening the assistant engineering to cancel his transfer orders. Due to his financial circumstances, the claimant was unable to obtain legal counsel. As a result of the claimant’s lack of legal counsel, the Apex Court overturned his sentence. It went on to say that obtaining free legal aid at the expense of the state is a basic right of an individual accused of a crime that could jeopardize his life or personal liberty and that this right is implied in Article 21 which implicitly talks about the requirement of a “reasonable, fair, and just procedure”. Justice P.N. Bhagwati emphasized the need of providing awareness among the underprivileged section about their right to free legal assistance. This was important because even though the rights are conferred upon it will be of no use until they have a piece of proper knowledge about their rights and in our country, we have a lot of people in rural areas as well as in cities who do not have proper knowledge about the law and legal system.

Conclusion

For decades, legal aid has worked as a pillar of justice, assisting in the realization of the concept of equal justice, regardless of a person’s economic capacity. The proper implementation of all the free legal aid schemes can only be successful when the people for whom it is meant to be aware of the same. The state needs to take an extra step to provide the required education to the beneficiary of these schemes about their rights and the privileges provided to them. The benefit of free legal aid has been reaching many people but there are also individuals for whom it has become a distant dream.

The India Justice Report 2019 says that since 1995 around 1.5 crore individuals have received legal aid out of 100 crore individuals who were eligible for the getting the benefit. This data shows that India has a long way to go in terms of providing access to justice to all its citizens. There must be a joint effort made by the government as well as the people who are a part of our legal system: – the Judiciary, the paralegal volunteers, etc. The lawyers also have a very role to play in India’s quest to provide justice available to all without any prejudices. What can be a better way to give back something to the fraternity by providing a pro-bono service in bringing justice to someone who is not that privileged.


Vishal Patidar is a first-year law student at Narsee Monjee Institute of Management    Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL. B (Hons).