LEGAL AID IN INDIA

Author- Abirami Mohan, B.M.S. College of Law, Bengaluru

ABSTRACT

The constitution of India gives importance to rule of law. In India, it is regarded as a part of the basic structure of the Constitution and also of natural justice. Free legal aid to the poor and weak persons has been held to be necessary adjunct of the rule of law. Free legal services are provided in matters before Civil, Criminal and Revenue Courts, Tribunals or any other authority exercising judicial or quasi judicial functions. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

Keywords– Legal aid, Constitution, People, Poor, Justice.

INTRODUCTION

Legal aid provides free legal assistance to people who are not able to afford legal representation and access to the court, Tribunals or any other authority. Justice should be guaranteed to all without any discrimination. Legal aid has developed with the progressive society. The administration of justice has to be easily accessible to the poor people. Article 38(1) of the Indian Constitution states that the state shall promote the welfare of the people by securing and protecting the social order including justice and Article 39 A states that the state shall in particular, provide free legal aid, by suitable legislation or schemes, to ensure that oppurtunities for securing justice are not denied to any citizen. Article 21 of the constitution states that every person has an equal right to life and liberty.

PROVISIONS OF LEGAL AID

The preamble of the Indian constitution aims to secure to the people of India justice – socio economic and political. Article 38 and 39A of the Indian constitution are notable. Article 38(1) states- the State shall promote the welfare of the people by securing and protecting the social order including justice and Article 39-A of the constitution states that the state shall in particular, provide free legal aid, by suitable legislation or schemes, to ensure that opportunities for securing justice are not denied to any citizen.

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 Framework

Provision

Article 14

Article 21

Article 22(1)

Article 39-A, The Constitution of India

Equality before the law

Protection of Life and Personal Liberty

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.

The obligation of the State to see that the legal system advances justice based on equal opportunity for its entire citizen. It should therefore give free legal aid to the individuals who can’t get to justice because of financial and other disabilities.

Rule 46 of Bar Council of India

Rules in part-VI

Duty to Render Legal Aid:

Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.

Order 33 of Civil Procedure Code, 1908

Deals with the suits filed by indigent persons.

Section 304, Code of Criminal Procedure, 1973

If the accused is unable to get a legal advisor, the court must give one at the expense for the state.

LEGAL SERVICE AUTHORITY ACT, 1987

The objective of the act is to provide equal justice to all and not getting affected by economic or any other disabilities. This act has constituted the National Legal Service Authority (NALSA) to monitor and evaluate services accessible under the act. According to section 12 of the Legal Services Authority Act, 1987 free legal aid is provided to the weaker sections of the society.

Objectives of legal service authorities are providing free legal aid and advice, spread legal awareness, organize lok adalats. promote settlements of disputes through Alternative Dispute Resolution (ADR) Mechanisms. Various kinds of ADP are Arbitration, Conciliation, Judicial settlement including settlement through Lok Adalat, or Mediation and provide compensation to victims of crime.

Legal services can be divided into two types; pre-litigation services and post-litigation services. With each passing day, the number of lawsuits is on the rise, which poses a risk to the smooth administration of justice. Before now, the emphasis has been on post-litigation assistance or help. However, this focus is changing as it becomes apparent that pre-litigation legal services are of greater value than post-litigation legal services.

Pre-litigation services include:

Legal education
Legal advice
Legal awareness
Pre-litigation settlement

The incorporation of legal aid puts forth challenges and opportunities to the legal community. Let’s review these in detail.

The person to whom legal aid is provided need not have to pay any money for the following:

Court fees or any other legal costs related to litigation
Documentation fees (drafting of documents, getting copies, etc.)
Fees of the lawyer

APPLICATION

An application is to be filed by the applicant and shall be preferably presented in the FORM-I present at the end of the Regulations (download by clicking here). Such an application shall be filed along with the summary of the grievances for which the applicant seeks legal aid. The form may be filled in the local language or English. Oral requests may also be entertained similar to an application under FORM-I. The applicant shall attach an affidavit stating that the applicant qualifies the eligibility criteria as specified under Section 12 of the LSA Act. Application forms are additionally present at all the said bodies free of expense. After receipt of the application, the board of trustees set up by the foundation where such application has been recorded will investigate the application to set up whether the candidate is qualified for free legal aid and shall revert within eight weeks from the date of receipt of such application.

INSTITUTIONS FOR PROVIDING FREE LEGAL SERVICES

1. National Level: National Legal Services Authority (NALSA). It was constituted under the Legal Services Authorities Act, 1987. The Chief Justice of India is the Patron-in-Chief.

2. State Level: State Legal Services Authority. It is headed by the Chief Justice of the State High Court who is its Patron-in-Chief.

3. District Level: District Legal Services Authority. The District Judge of the District is its ex-officio Chairman. All District Legal Services Authorities are required to establish legal aid clinics in villages or clusters of villages depending upon the size of the village to provide legal aid to individuals, particularly where there is land, social and different boundaries to access to the legal services institutions. However, it is subjected to the financial resource accessible to the districts.

4. Taluk/Sub-Division Level: Taluk/Sub-Divisional Legal Services Committee. It is headed by a senior Civil Judge.

5. High Court: High Court Legal Services Committee

6. Supreme Court: Supreme Court Legal Services Committee.

ELIGIBILITY FOR GETTING FREE LEGAL SERVICES

Women and children
Members of SC/ST
Industrial workmen
Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster.
Disabled persons
Persons in custody
Those persons who have annual income of less than the amount prescribed by the respective State Government, if the case is before any court other than the Supreme Court, and less than Rs. 5 Lakhs, if the case is before the Supreme Court.
Victims of Trafficking in Human beings or begar.

CONCLUSION

Free legal aid services has to be accessible to all the people. The accused person has the right to ask for legal aid if he is unable to afford it. It is observed to make the citizens of the country aware of the various provisions under the Legal Services Authorities Act and the rights of the litigants. On this day, each jurisdiction organizes legal aid camps, Lok adalats, and legal aid programmes.