Legal Aid System in India: An Overview

Legal aid suggests or indicates giving free legitimate administrations to poor people and destitute who can’t bear the cost of the administrations of a legal advisor, lawyers for the lead of a case or a lawful proceeding in any court or Tribunal or before any authority. Legal aid is a technique which is adopted to guarantee that nobody is denied of expert guidance and help, due to absence of financial resources. Therefore, the principal object is to give equivalent equity which is to be made accessible to the poor and fragile segment of the society.

Free legal aid services have a strong relationship with the welfare state and the arrangements of legal aid are fully affected by outlook and perspective of the state towards security of people. It is the system of providing assistance by the state to the individuals who could some way or another cannot bear the cost of access to the legitimate framework. Legal aid additionally guarantees that every person is qualified for protection for instance social lodging, access to legal counsel, and courts. Legal aid has assumed a solid job in guaranteeing regard for monetary, social, ethnic rights which are connected to social security, lodging, social consideration, well-being, and education arrangements which might be given openly or privately.

It was expected that citizens had aggregate duty regarding monetary, social and ethnic rights and the state accept accountability for those incapable to accommodate themselves through sickness or joblessness. Legal aid schemes were built up as it was expected that the state had an obligation to help those occupied with lawful disputes, however they at first centered essentially around family laws and divorce. In this way, legal aid administrations endeavor to guarantee that the constitutional vow is satisfied in its letter & soul and equivalent equity is made accessible to the more fragile area of the general public.

It is the obligation of the state to see that the legitimate framework advances equity based on equivalent chances for all the citizens. It should accordingly organize to give free legal aid to the individuals who cannot get equity because of monetary and other different inabilities. Social Justice as a key idea in legislative approach and its organization of equity is of moderately starting point. Equality not only in structure however in substance is today the origin of social moments and establishment of political associations all over the place. To the extent that an individual can’t get access to the official courtroom for having his/her wrongs changed or for safeguarding himself against the criminal allegation, equity gets inconsistent and the laws which are intended for his assurance have no significance and to that degree fall flat in their motivation.

Unless some arrangements or laws are formulated for helping the helpless man for the installment of court expenses and legal advisor’s charges and other coincidental expenses of case, he is denied equal chance to seek justice. Subsequently, as a stage towards making the legal assistance serve poor people and the denied, the judiciary has looked into giving legal aid to penniless in the ongoing past.

Constitution of India accommodates a free and unprejudicial judiciary and the courts are offered capacity to ensure the Indian Constitution and protect the privileges of the individuals independent of their financial status. The Constitution directs that judiciary has an obligation to secure rights of the poor and society altogether. Judiciary through its notable legal interferences has obliged as well as directed the law making body to formulate such legal provisions so as to carry equity to the doorstep of the most fragile segments of the general public.

FREE LEGAL AID IN INDIA: THE POSITIVE CONTRIBUTION OF JUDICIARY

In case of “Hussainara Khatoon[1] Supreme court of India got a significant chance to decide upon the privileges of poor and destitute people. In this case the focus was on the under trails, who have gone through the punishment substantially more than what they would have had they been indicted immediately. The deferral was caused because of failure of people to involve an advocate to safeguard them in the court of law and principal reason behind such failure was their poverty. The court in this case called attention to Article39A which underline the free legal assistance was an unavoidable component of ‘reasonable, fair and just’ procedure and that the option to free legal aid administrations was certain in the assurance of Article 21.”

Another case is regarding the rights of free legal aid to an accused person. In case of “Khatri vs State of Bihar[2] the court provided answers to the right to free legal aid to poor and destitute accused who cannot involve an advocate to defend themselves. It was held that the State  is intrinsically bound to help the accused by providing them free legal aid not only at the preliminary stage but also when they are delivered before the Magistrate or remanded and financial imperatives or administrative failure or accused didn’t requested it shall not be the reason for denying such right. Also such rights shall be communicated to the accused by the Magistrate or Session Judges. Right to free legal aid is implied under article 21 and also if the case so requires, it is compulsory for the state to arrange a lawyer for an accused person.”

Suk Das vs Union Territory of Arunachal Pradesh[3] focuses on generating legal awareness to the destitute and needy people as they don’t have a clue about their rights and especially the option to free legal aid and further noticed that in India a large portion of the individuals are living in the rustic zones are unskilled and don’t know about their rights provided to them by the law. Even proficient people don’t have the foggiest idea what are their privileges and entitlements under the law. Lack of legal awareness is the basic reason that these people are unable to engage an advocate for advise. Additionally, their obliviousness and illiteracy is also the reason that they can’t become independent and they can’t even help themselves. That is the reason that advancement of lawful education has consistently been perceived as one of the primary things of the program. Right to education also involve educating about legal rights, so that justice is served equally to all the citizens of our nation.”

LEGAL AID IN INDIA: STATUTORY RECOGNITION

Despite the fact that there was a legal procedure giving the free legal aid, in criminal cases by providing an advocate for defending the case and in civil cases by absolving the court fees, still it was not so much having any critical effect on the ability of the oppressed individuals to get legal redressal for their problems. Consequently, the Legal Services Authorities Act, 1987 was passed by the Parliament of India under gigantic constitutional persuasion from Supreme Court. The Act recommends the rules and criteria for giving legitimate administration to the eligible people. “It makes a person eligible for help under the act if he is :

  1. A  member of a Scheduled Caste or Scheduled Tribe;
  2. A victim of human trafficking or beggar as per Article 23 of Indian Constitution;
  3. A woman or a child;
  4. A mentally ill or otherwise disabled person;
  5. A person under circumstances of undeserved want such as being a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
  6. An industrial workman;
  7. In custody, including custody in a protective home or in a juvenile home; or in a psychiatric hospital or psychiatric nursing home according to section 2 clause 9(g) of the Mental Health Act, 1987;
  8. A person whose annual income less than rupees fifty thousand or such other higher amount as may be prescribed by the State Government.[4]””

AMPLITUDE OF FREE LEGAL AID SERVICES

Lawful aid services have been given to qualified individuals in different modes under the pertinent enactment in India. Legal aid services under the plan might be as installment of court expenses, process expenses and all different charges which might be brought about regarding any lawful procedures and charges for drafting, planning, and recording of any lawful procedures and representation by a lawful expert in lawful procedures. The administrations additionally incorporate the expenses of inquiry and providing certified duplicates of judgment, orders and different archives in lawful procedures and also the paper book preparation cost in lawful procedures.[5]

There are certain offences, in the happening of which the legal aid services are not granted. Legal aid services shall not be provided to the accused, in cases such as defamation, malicious prosecution, contempt of court proceedings, election related issues, cases which involves the fine not more than fifty rupees, economic offences, lying under oath, perjury, acts against social laws, etc. a victim is not excluded from availing the free legal aid services.[6]

Lawful services provided under the regulations, may be withdrawn in some contingencies. Lawful aid might be ended in situations where an individual has adequate means, gotten administration by misrepresentation or extortion, material change in the conditions of the aided person, misconduct or carelessness on the part of aided person throughout getting lawful assistance, if aided person does not cooperate with the advocate, employing a legal practitioner other than the one allotted by the advisory group and if there is any occurrence of maltreatment of lawful administration under legal aid schemes.[7]

Illiteracy, absence of money related assets, social backwardness and lack of dedicated and competent lawful expert are the central point that hinder individuals from gaining admittance to free legal aid administrations which at last results into denying admittance to judicial authorities for seeking justice. Disadvantageous strata of society need mental fortitude to practice their legitimate rights because of shortage of assets and other social and lawful reasons which uncover these weak individuals to all kind of abuse on account of exploiters.

THE CONSTITUTIONAL PROVISIONS ON THE LEGAL AID SERVICES

Free legal aid is a fundamental aspect of our Indian Constitution which gives a chance to the destitute resident to admittance to the court. It is considered as a right of each person who is unable to engage a lawyer because of his financial crisis. Indian Constitution comprises of many articles which ensure free legal aid services to all the needy and destitute people of our nation.

Article 14[8] of Indian Constitution ensures uniformity and equivalent insurance of laws. It basically indicates that each person shall have equal opportunities and which includes equal chance to approach to the court. But for the people who because of lack of financial resources cannot afford payment of court fees or engage a lawyer, equity and access to the court would always remain a myth for them. Also the complex process and enactments have made the circumstances significantly more hard for the ordinary citizens to realize what their rights are except if they have adequate methods for legitimate representation in the court. The disparity therefore, has not reduced instead it has hugely expanded in a welfare state. Under article 14 Right to free legal aid services is a fundamental right.”

Article 21[9] of Indian Constitution explains that every citizen has a right to live with full dignity and individual freedom but in accordance with the provisions formulated by the law. Procedure must be ‘just, reasonable and fair’. Right to hearing, right to hire an advocate, right to legal aid all are essential to commence just and fair trial. All these right shall be provided to the accused, even if he did not ask for it.”

Article 22(1)[10] of Indian Constitution aims to secure the rights of an arrested person. Without giving proper justification of arrest the person shall not be detained, he shall have the right to consult, and also be protected by an advocate of his own choice.”

Article 38[11] of Indian Constitution urges that the State should endeavor to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice: social, economic and political shall inform all the institutions of national life.”

Article 39-A[12] of Indian Constitution provides equity and free legal aid. The State has been ordained to secure a legal system which promotes justice on the basis of equal opportunities.”

THE STATUTORY PARAMETERS OF THE FREE LEGAL AID SERVICES IN INDIA

The Criminal Procedure Code,1973

According to Section 304[13] of  the CrPC, a prosecute individual must be given legitimate administrations of a legal profession at the expenses of the State. The State is under the compulsion to guarantee the obedience of the provisions during pendency of the cases before the Court of Session. Applicability of these provisions can be extended to any class or trials before any other court at the option of the State. The decision furnished by the court of law shall be considered as null and void if the provisions of Section 304 are violated.

The Code of Civil Procedure,1908

Order 33 of CPC authorize a needy person to file a case, before a civil court, without the payment of court fees[14]. Also if a person do not have sufficient means to hire an advocate, civil court has an obligation to appoint a lawyer for such person.[15]

PROBLEMS

  1. Senior lawyers do not take up the cases and most of the time they delegate it to their juniors, may be because of low remuneration which is given to them by their client or from the legal aid cell, so this may be the reason for lack of senior lawyers.
  2. Another problem is that legal aid protection is not available right from the starting like during police investigation, or when a person is detained. Also, judiciary should look after the rights of the accused.
  3. Mostly urban areas or big towns constitute legal aid centers. So there is a need of liberal free legal aid regime.
  4. Indigent people complains that the scheme of legal aid ensures the appointment of counsel but other expenses like typing charges, expenses of witnesses, process fees are not provided to them.

SUGGESTIONS

  1. Every legal firm and counsel shall take minimum number of cases as certified by Government legal aid panel as their social responsibility.
  2. Local bodies like Gram Panchayat can be involved in creating legal awareness among the people, as they rely and believe these bodies.
  3. Indigent illiterate people should be disseminated with legal knowledge and they should be made aware about their legal rights and for that legal literacy programme should be conducted.
  4. There should be proper and effective implementation of legislations formulated for providing legal aid services. So proper implementation is required, instead of passing new laws.

CONCLUSION

Summarizing the overall significance of legal services in the advance societies, it may be securely that the goodness of equity would now be able to dispense justice only when the executives, dispensers and specialists of justice keep their eyes fully open and the fragile section our society are being assisted to stand equal. All this can be guaranteed by executing the provisions of legal aid effectively. Providing legal aid services to the weaker section of the society is the duty of the state. But still the object of legal aid movement is not accomplished because of lack of legal knowledge. People are not aware of their rights, and this ultimately leads to ruining and depriving the privileges of the poor. The aim of free legal aid is achieved when equal opportunities are provided to weaker section of the society.  


[1] Hussainara Khatoon v. State of Bihar,(1980) 1 SCC 98.

[2] Khatri v. State of Bihar, AIR 1981 SC 262.

[3] AIR 1986 SC 991.

[4] Section 12 of the Legal Services Authorities Act,1987.

[5] SCLSC Regulations, 1996, Regulation 13.

[6] SCLSC Regulations, 1996, Regulation 14.

[7] SCLSC Regulations, 1996, Regulation 18.

[8] The Constitution of India, Article 14.

[9] The Constitution of India, Article 21.

[10] The Constitution of India, Article 22(1).

[11] The Constitution of India, Article 38.

[12] The Constitution of India, Article 39-A.

[13] The Code of Criminal Procedure,1908  Section 304.

[14] The Code of Civil Procedure,1908, Order 33 Rule 17.

[15] The Code of Civil Procedure, 1908, Rule 9A.


Author: Prashasti Maheshwari from Amity University, Noida.


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