AUTHOR : HASHIM AK , BBA LLB( Hons) Student at Government Law College Kozhikode
Abstract
This article examines the free legal aid system in India.Gone through the constitution of India and several legislations to understand it’s legal perspective.This article contains historical background,legal frameworks,free legal aid details and judicial view.Also point out the significance and challenges of free legal aid in India and how to overcome it.This is a detailed analysis of free legal aid in India by different aspects and means.A quick snapshot of free legal aid can be derived from this article.This article is ordered in such manner that the reader can understand from head to tail.
Introduction
India is one among the major countries in the world to provide free legal aid to its people.India is a country where majority of the people are poor and underprivileged.Justice and equality are the solid foundations of a fair judicial system.Free legal aid is a remedy for it by giving free legal services to the needy and poor who is unable to afford the services of a lawyer to conduct a legal proceedings.In India, free legal aid is incorporated in the Indian constitution under fundamental rights as right to free legal aid.The major objective of free legal aid system is upholding fair trail, justice,rule of law, equality before law, and access to judiciary.Through free legal aid, people in India had the opportunity to avail justice even they are poor and underprivileged.Free legal aid is observed as an essential element in forming the Indian judicial system as fair and equal to all.
Historical Background
- Bombay Committee on Legal Aid and Advice established in 1949 by the Bombay government.This committee proposed that legal aid was a state obligation, and that it should be given to both parties in a legal proceeding
- The 14th Law Commission of India stated in its report on “Reform of Judicial Administration,” published in 1958, that providing legal assistance to destitute litigants is a fundamental issue, not a minor procedural issue.
- The Government plans for legal aid schemes in 1960.
- In1976, Constitution (42th Amendment) amended to incorporated Article 39-A.
- Committee for Implementing Legal Aid Schemes was formed in 1980 headed by Justice P.N. Bhagwati to study legal aid programs.
- The Legal Services Authorities Act was established in 1987 to provide a formal framework and standardized structure for legal aid schemes across the country.
- National Legal Services Authority was established on 1995 December 5 as a statutory body to formulate policies and guidelines for providing free legal aid.
- State and district legal services authority were formed.
Legal Framework
The constitution of India and many other legal statutes put forward frameworks for free legal aid in India. They are –
Indian Constitution
Article 39A – guarantees equal access to justice and free legal aid to all citizens.
Article 14 – guarantees equal protection and equality before law.
Article 22(1) – guarantees the right to consult and to be defended by a legal practitioner of his/her choice.
Article 21 – guarantees that no person can be deprived of their life or personal liberty unless it is in accordance with the procedure established by law.
Article 38(1) –state is responsible for promoting the welfare of the people, which includes the right to legal aid.
The Legal Services Authorities Act, 1987
Established National Legal Services Authority on 9 November 1995 to give free legal aid to eligible people.Provides free legal services available throughout India to people who are socially and economically poor.Provide equal access to justice for all, mandates pro bono advocates to give free service to those who cannot afford it.
The Advocates Act,1961
Under this act, advocates are required to provide free legal aid to the needy and poor people.
The Bar Council of India’s Legal Aid Rules,1983
Under this,Bar council of India can establish legal aid clinics for the people who cannot afford to pay for legal representation.
The Bharatiya Nagarik Suraksha Sanhita,2023
Section 341 provides free legal aid to the accused in a case if there is no legal representative or any means to get it.
The Code of Civil Procedure,1908
Order 33 provides a way for people who are unable to pay court fees to file lawsuits and seek legal remedies.Order 33 exempts indigent persons from paying court fees.
Bar Council of India Rules,1975
Rule 46 states that advocates should provide legal assistance to anyone in need, even if they can’t pay for it.
Eligibility
Even though the legal aid is free but it is limited to some sections of society enlisted under section 12 of the legal services authority Act,1987.The eligible people under the list are :
a)A member of scheduled tribe or scheduled caste.
b)A woman or a child(till 18)
c)A mentally ill person.
d)A disabled person.
e)A victim of human trafficking or beggar.
f)A victim of mass disaster, ethnic violence,caste atrocities.
g)A industrial workman.
h)A under trail prisoner.
i)A person in custody of a protective home,juvenile home,psychiatric hospital or psychiatric nursing home .
l)A person having annual income less than the amount mentioned in the Act for any court other than supreme court.For supreme court the annual income should be less than 5 lakhs.
The income celling prescribed under section 12(h) of the legal services authority Act,1987 is different for different states.They are :
Andhra Pradesh – Rs. 3,00,000
Arunachal Pradesh – Rs. 1,00,000
Assam – Rs. 3,00,000
Bihar – Rs. 1,50,000
Chhattisgarh – Rs. 1,50,000
Goa – Rs. 3,00,000
Gujarat – Rs. 1,00,000
Haryana – Rs. 3,00,000
Himachal Pradesh – Rs. 3,00,000
Jammu and Kashmir – Rs. 3,00,000
Jharkhand – Rs. 3,00,000
Karnataka – Rs. 3,00,000
Kerala – Rs. 3,00,000
Madhya Pradesh – Rs. 2,00,000
Maharashtra – Rs. 3,00,000
Manipur – Rs. 3,00,000
Meghalaya – Rs. 3,00,000
Mizoram – Rs. 25,000
Nagaland – Rs. 1,00,000
Odisha – Rs. 3,00,000
Punjab – Rs. 3,00,000
Rajasthan – Rs. 3,00,000
Sikkim – Rs. 3,00,000
Telangana – Rs. 3,00,000
Tamilnadu – Rs. 3,00,000
Tripura – Rs. 1,50,000
Uttar Pradesh – Rs. 3,00,000
Uttarakhand – Rs. 3,00,000
West Bengal – Rs. 1,00,000
Andaman & Nicobar Islands – Rs. 3,00,000
Chandigarh – Rs. 3,00,000
Dadra & Nagar Haveli – Rs. 15,000
Daman & Diu – Rs. 1,00,000
Delhi – Rs. 3,00,000
Ladakh – Rs. 1,00,000
Lakshadweep – Rs. 3,00,000
Puducherry – Rs. 1,00,000
Free legal Aid service
Free legal aid service is the management of cases of poor and underprivileged people who cannot afford to do so by means of aid,advice, allocation of advocate and fund for legal proceedings.The free legal aid services are governed by national legal services authority by the provisions of legal services authorities Act(1987).
Provision of free legal aid include:
1.Representation by an Advocate in legal proceeding.
2.Payment of all expenses related to the case.
3.Preparation of pleadings,appeal memo and other documents.
4.Drafting of legal documents, special leave petition etc.
5. Provides certified copies of judgments, orders and other documents.
6.Aid and advice to the beneficiaries of government welfare schemes.
Free Legal Aid is provided to the needy from the lowest Court to the Supreme Court of India.At any stage of a case,a person can avail the free legal aid.Even if a person need a lawyer under free legal aid only at the stage of appeal.A person can get a lawyer of his/her choice under free legal services.
Unavailable free legal aid cases
- Defamatory or malicious prosecution, contempt of court cases.
- Procedures dealing with politics (elections).
- Where the fine constraint is below 50 rupees.
- Socio-Economic offences.
- In cases wherein a person is independent with the lawsuit while seeking the legal guidance his/her interest remained unaffected.
How to get
1.Visiting offices of institutions like–
National legal services authority
State legal services authority
District legal services authority
Taluk legal services committee
2.Filling online application at the online portal of national legal services authority (https://nalsa.gov.in/) or website of state legal services authorities.
3.Send email at nalsadla@nic.in or email address of state legal services authority.
4.Send post to the office address of legal services authorities.
Judicial View
The Indian judicial plays a major role in advocating for free legal aid to the needy people.Through many judgments Indian judiciary made guidelines and precedents related to free legal aid.Supreme court upholded the concept of right to free legal aid as fundamental rights under Indian constitution.
In Sheela Barse vs. State of Maharashtra, It was noticed that providing legal aid to a poor accused who has been detained and placed in danger of losing his life or personal liberty is a fundamental right by article 39A , 21 and 14 of Indian constitution.
In M. H. Hoskot v. State of Maharashtra, (1978) supreme court established the right of prisoners to free legal assistance under Article 21.
Khatri & Others v. State of Bihar (1981) supreme court pointed the importance of free legal aid in protecting the prisoners rights.
Supreme court held that free legal aid is a fundamental right under Article 21 of Constitution in the case, State of Maharashtra v. Manubhai Pragaji Vashi (1995).
In State of Andhra Pradesh V. Challa Ramkrishna Reddy (2000) supreme court reiterates the importance of the right to free legal aid in ensuring a fair trial and justice for all, irrespective of their financial capacity.
Significance
- Increase trust in judiciary and fair justice.
- Made the judiciary accessible to all.
- Efficiency in judicial system.
- Fair justice to poor and underprivileged.
- Strengthening Rule of law.
- Justice for needy people.
- Right to free legal aid protected.
- Reduce case burden of courts.
- Protection of Human rights.
Challenges
Lack of knowledge
People are still unaware of their rights.Poor people are abused and deprived of their rights and benefits.People are unaware of the free legal aid system.
Insufficient financial support
Only 0.1 per cent of the GDP is spent on the administration of law and justice in our country.Only some of it is allotted for free legal aid This amount is grossly inadequate and insufficient.
Social Stigma and Discrimination
Victims of domestic violence or LGBTQ+ individuals may face social stigma, creating reluctance in approaching legal authorities for free legal aid.
Underutilization of Alternate Dispute Resolution Mechanisms
Due to underutilization of alternate dispute resolution mechanisms,cases become lengthy and costly.Effective use of alternate dispute resolution mechanisms can resolve cases swiftly and cost effectively.
Perception of ineffective legal aid
People may develop the assumption that free legal aid is ineffective and lack quality because it is free. The legal service authorities do not have enough advocates and the appointed cannot afford to prove the other.
Lack of coordination
The legal aid movement in India is now in a state of inactivity and inefficient. There is a lack of coordination.There is a significant difference between the goals established and the achievements achieved.Funds are used for other things other than free legal aid.
Suggestion to overcome the challenges.
- Educate people about their legal rights.Especially free legal aid as a fundamental right under Indian constitution.
- Promote a pro bono culture.Social education should be provided to law students.
- Increase financial aid for free legal aid system.
- Implementation of Legal Aid Defence Council.
- Increase efficiency through technological advancement.
- Implementation of alternate dispute resolution mechanisms as a part of free legal aid,to reduce backlog and cost.
- Reasonable and timely payment for advocates.
- Simplification of process can increase the efficiency of service.
Conclusion
Free legal aid is very important for equality and fair justice.It helps in strengthening Rule of law and ensuring justice for all.It is really helpful in protecting the rights of people especially the poor and underprivileged.Free legal aid is the obligation of state and right of people.Even there is many provisions in constitution and legal frameworks dealing with free legal aid,the effectiveness of it is still a question.There are many challenges in implementing the free legal aid system.Overcoming it will be a crucial steps for the Indian judiciary as the Indian judiciary is blamed for its ineffectiveness in executing justice to the poor and underprivileged people.
FAQ
1.Wheather right to free legal aid is a fundamental right under Indian constitution?
A. Yes, Supreme court held that right to free legal aid is a fundamental right in the case State of Maharashtra v. Manubhai Pragaji Vashi (1995).
2.Who are eligible for free legal aid in India?
A . Section 12 of legal services authorities Act 1987 deals with the eligibility criteria of free legal aid services.Some of the eligible person are woman, children, Person from SC/ST community, person with annual income less than prescribed amount in the legal service authorities Act 1987 etc…
3.What benefits will get through free legal aid?
A. Free legal aid services includes aid,legal advice, payment of court fees, representation by advocate, drafting of court documents,copy of order and judgments.
4.For which courts,the free legal aid can be availed?
A. Free legal aid can be availed for any courts ranging from lower courts to supreme court of India.
5.Wheather one need to pay money for the services of free legal aid?
A. No,legal services provided under free legal aid is completely free and no eligible person is required to pay any money for it.
6.Wheather one can avail free legal aid by his/her desired advocate?
A. Yes, through an application if accepted,one can avail free legal aid by the desired advocate from the panel lawyers.
7.Wheather one can get free consultation even if one didn’t want to pursue a proper case in the court?
A. Yes,one can approach legal services authorities to get advice through free legal aid.
8.Till what age a child can seek free legal aid?
A. A child can seek free legal aid till 18 or 21 age if under custody of a legal guardian.Also a child can seek free legal aid if eligible under sec 12 of legal services authorities Act 1987.
9.Are senior citizens eligible for free legal aid?
A. The eligibility of senior citizens for free legal aid depends upon the rules framed by respective State legal services authority.Foe example, in Delhi senior citizen are eligible for free legal aid with an annual income ceiling of Rs. 4,00,000.
10.Wheather legal services authorities available at different levels?
A. Yes,Legal services authorities are available at national, state, district and taluk level.Also there is legal services committee in High courts and supreme court of India.
11.How can one apply for a free legal aid service?
A . There are multiple ways a person can request for a free legal aid from legal services authorities.Either visit the legal service authorities office and fill a application form or write a letter seeking free legal aid to the office address of the legal service authorities.One can also fill the online form available at the online portal of national legal services authority or can email it to the email address of legal services authorities.
12.Is there any cases in which free legal aid is not available?
A. Yes, There are some cases in which one cannot seek free legal aid from the legal service authorities.It includes socio- economical cases, contempt of court cases, defamatory cases,cases in which fine is below 50 rupees,cases related to malicious prosecution etc..
Reference
1.Indian Constitution
2.14th law commission report,1958
3.Khatri v. State of Bihar, AIR[ 1981] SC 262
4.Bharatiya Nagarik Suraksha Sanhita,2023
5.Civil procedure code ,1908
6.Legal services authorities Act,1987
7.https://nalsa.gov.in/
