“Nothing rankles more in the human heart than the feeling of Injustice”
R.H. Smith
Justice and the poor (1919)
Legal aid means providing an arrangement in the society so that the legal machinery of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of rights given to them by law[1]. The Constituent Assembly envisioned judiciary of free India as a true guardian of the Constitution.[2] Being accorded pivotal position in the Constitution, the judiciary was expected to supplement and strengthen welfare legislation by bridging gap between haves and have-nots. By constitutional interpretation of various constitutional provisions, it was expected to help in attaining social justice by balancing the scales of justice. It was expected to ensure equal protection of law, through reasonable, just and fair procedure, to the teeming millions who do not possess the means for their proper legal defence. The year 1976 witnessed a fundamental change in the philosophy underlying the programme for extending legal aid and legal services to the indigent. The Constitution (Forty-second Amendment) Act, 1976 inserted Article 39A in part IV of the Constitution of India (entitled Directive principles of state policy) making it a duty on the part of Federal and State governments to provide equal justice and free legal aid to the poor and weaker sections of the community. Article 39A provides that:
The state shall secure that the operation of 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.
The judicial attitude towards recognizing rights of poor litigants remained lukewarm for almost three decades till the decision of the Supreme Court in M.H Hoscot v. State of Maharashtra.[3] Before that it did not open Constitutional umbrella to give shade of legal aid to the poor. In Janardhan Reddy v. State of Hyderabad[4], the Supreme Court held that it could not be laid down as a rule of law that in every criminal case the trial would be vitiated if the accused was not represented by a counsel.[5] Janardhan Reddy was followed in Tara Singh v. State[6] but the court liberalized slightly its approach in Bashira v. State of U.P,[7] when it held that the High Court rules regarding appointment of amicus curiae in a criminal trial of serious trail was mandatory. The denial of right to legal aid to the indigent litigant led to non- implementation of the enforceable guarantees under Articles 14 and 21 which resulted in the miscarriage of justice to the poor millions who languished in distress because of absence of legal defence. The extension of the right to legal aid under section 304(3) of the code of criminal procedure, 1973 was almost put in the cold storage by the state governments.[8] Judicial Justice with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and failure of equal justice under law is on the cards where such a supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindered legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under law. Free legal service to the poor accused is an essential ingredient of any just, reasonable and fair procedure. Therefore, Article 39-A is an interpretative tool for Article 21.[9] In this case Supreme Court held that legal aid to the poor is a constitutional right that cannot be denied by the Government.
Development of the Legal Aid in India
The leaders of the judiciary and the bar in India have long recognized the need for effective legal assistance to all in the society. Indeed, the most comprehensive inquiry into the problem came just after independence, in the then State of Bombay. This inquiry, under the direction of Mr. Justice N. H. Bhagwati, remains an excellent summary both of the need for legal aid and the manner in which it might be implemented.[10]The Law Commission of India in its report on “Reform of Judicial Administration,” published in 1958,[11] reviewed fully the efforts made in India to that date. Though it found that legal aid “has unfortunately been regarded as of very minor importance,”[12] the Commission agreed that “the rendering of legal aid to the poor litigant is not a minor problem of procedural law but a question of a fundamental character.”[13] This note is an attempt to bring up to date the summary of legal aid activities found in the report[14] and to bring to the attention of the bar the need to implement the recommendations of the Commission for a comprehensive legal aid system supported by both the bar and the state. Again in 1959, a consideration of the problem of providing for “the rule of law in free society,” resulted in the recognition by the International Commission of Jurists of the need for the state to ensure legal counsel to all.[15] One of its resolutions stated:
An obligation rests on the state to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property reputation, who are not able to pay for it assert the full implications of the principle, in particular means legal advice or representation by lawyers of experience, a question which cannot be altogether question of adequate remuneration for the services rendered[16]. A full review of the means to implement this demand was made by the Committee on Legal Aid at the Third All India Law conference, held in Delhi in August 1962. Noting that despite the recommendations of the Bhagwati Committee, legal aid in India remained extremely limited, the Committee outlined a comprehensive national programme providing for the establishment of legal aid committees in all districts of the country.[17] The Committee suggested state participation in the scheme with aid in all criminal cases where the defendant could not engage counsel and gradual extension of aid in civil cases as well. The provision of legal aid was regarded by the Committee as an absolute duty of the State in India.[18] The Law Ministry, pursuant to these principles, called a meeting of the law ministers of the various states in mid 1962 to discuss the extension of legal aid services. At that time, a scheme for implementation of legal aid throughout India which had earlier been circulated to all state law ministries was discussed. At this conference, the state governments indicated their inability to bear the financial burden of legal aid on a broad scale. As a result, the Law Ministry was in the process of drawing up a scheme for central support of legal aid activities when the emergency of late 1962 intervened. Since 1962, financial limitations have been said to prevent any further effort to extend legal aid activities on the part of the Central Government.
The one court in India that has to a large extent complied with the demand for comprehensive legal aid in its rules is the Supreme Court. The Supreme Court has provided in its rules for legal aid to be provided, at the discretion of the Court, in all criminal cases coming before it.[19] This provision is supplementary to the provisions for compensated counsel in all capital cases.[20] In all criminal cases where the Court so approves counsel is appointed to represent the undefended accused who has appealed against this conviction. Such appointed is entitled to a fee of Rs. 250 for the each additional day on such reasonable fee as may be determined by the Court.[21] In addition to this scheme for appointment of counsel in criminal appeals cases the Supreme Court Bar Association has arranged for unrepresented civil litigants to be granted assistance. The Secretary of the Bar Association, on the recommendation, of the Court Registrar appoints a member of the association who agrees to take the case without fee. Through these two schemes virtually all litigants who come before the Supreme Court have the benefit of advice of counsel. The expansion of such comprehensive schemes to the lower courts, particularly the district courts, was the need of that time. A review of the provisions for legal aid in the states reveals that, with a few exceptions, the states of India have not been able to ensure legal aid to any comprehensive degree in either civil or criminal cases. The one area in which legal aid is provided uniformly throughout India is in defence of an individual accused of a capital offence. Only in this situation is there a provision that a defence must be provided.
The concept of legal aid for the poor in India was almost non-existent till the late 1940’s. The real development of legal aid in India has been influenced by the legal aid programmes provided by the development nations especially England. It was only after the publication of Rushcliffe Committee Report (England) in 1946, that the legal movement in India gathered the momentum.[22]
The legal aid development in independent India was first initiated in 1949 by the formation of Committee on Legal Aid and Legal Advice in the state of Bombay under chairmanship of Mr. N.H Bhagwati (the then judge of the Bombay High Court). The Committee proposed that administrative machinery of legal aid should be constituted at four levels:
- State level
- High Court level
- District level and,
- Taluka level.
The committee suggested two tests for determining eligibility for legal aid, (1) means test, (2) prima facia test. It also proposed that no legal aid should be provided in trivial and trifle cases. The committee recommended the assignment of lawyers. It recommended that every member of the bar should handle at least six cases per year and should be entitled to get the remunerations. Pronouncing upon the scope of legal aid the committee mentioned that the legal aid may be given to both the plaintiff and the defendant, the complainant and as well as the petitioner etc. It further provided that the legal aid may be provided in all cases and should include court fees, process fees, cost of certified copies, pleaders fees etc.
On May, 1976, the Government of India appointed a two member committee, known as “Committee on Juridicare” under the chairmanship of Justice P.N Bhagwati and Justice V.R Krishna Iyer as a member. The committee was appointed to consider the matter of legal aid to weaker sections of the community, to access the extent and nature of unmet legal needs for economically underprivileged persons, to access the value and effectiveness of the legal aid schemes in operation in the country, to make recommendations for establishing and operating dynamic legal service programme for effective implementation of socio-economic measures framed by government and to finally to draw up uniform legal services programme for all states. The committee submitted its report tilled as “Report on National Juridicare: Equal Justice – Social Justice”. Accepting this recommendations, Constitutional (Forty Second) Amendment Act, 1976 was passed and Article 39-A was added to the directive principles of state policy.
In 1980, the central government established its committee for Implementation of legal aid schemes (CILAS). It financed and supported various committees at different levels. It set up the Supreme Court legal aid committee and gives to state legal aid and advice boards and Para Legal institutions for legal aid programmes.
On account of various efforts made by the various commissions, the legal aid movement was not only constitutionalized but a special law known as Legal Services Authorities Act, 1987 was also enacted.
The Legal Services Authorities Act, 1987
Keeping in view its constitutional obligation, the parliament in 1987 passed the Legal Services Authorities Act, 1987 to provide free and competent legal services to the weaker sections of the society. The Act envisages inter alia to ensure that opportunities for securing justice are not denied to any citizen for reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of legal system promotes justice on a basis of equal opportunity to all. The Act in brief provides for constitution of the National legal services authority and the state legal services authority for proper and effective operation of the legal service throughout the country. Chapter IV of the Act lays down the criteria for providing legal service and state guidelines as to who could be eligible to secure legal services. The Act also provides for establishment of Lok Adalats and prescribes the procedure for disposal of cases by Lok Adalats at the local level by resorting to the settlement of disputes by compromise and reconciliation.[23]
Recent Development
“The Department of Justice launched the tele-law programme in 2017 to provide pre-litigation legal advice and consultation. Under this, panel lawyers can be connected to persons in need of legal aid. One of the missions in the e-committee is to provide E-Seva Kendra in every one of the 17,000 institutions of the courts across the country. Another programme of interest is Nyaya Bandhu, a pro bono legal services programme, in which advocates interested in volunteering their services are connected by a mobile application. A network of these lawyers is to be maintained by each High Court. The Department of Justice also involves law students by way of clinical legal education. Law students started actively participating in the enforcement of rights before the court like in the case of Swapnil Tripathi where the Supreme Court held for there to be live telecast of court proceedings. Hence, it is imperative to tap into this resource”.[24]
Justice Chandrachud (present CJI of India) indicated that Pro bono work is also a factor for designation as senior advocate following the decision in Indira Jaising. ‘Perhaps the Bar Council of India can consider introducing Pro bono in some capacity at the time of renewal of the certificate of practice every five years. He expressed that the development of clinical legal education is another factor to be considered- “The Bar Council of India has introduced legal clinical education in the curriculum and provided for the establishment of legal aid clinics in law schools. The department of justice has already recognized the potential of these clinics to act as a bridge between clients and lawyers. The clinics must be given more recognition as the students can act as para-legal volunteers in drafting applications, giving opinions, and persuading their alumni base to represent clients assisted by the clinics. The Bar Council of India must consider making clinical education credit-based and mandatory, which reflects in the academic performance of students, similar to clinics in law schools across the globe”.[25] Legal aid and legal services is best statutory armor to access justice for the persons who are marginalized and vulnerable. The claim that the legal system takes priority over other public services in the allocation of public money is in the hands of policy makers to decide. In any event, the importance of access to court for everyone with claim or defence cannot justify an expensive and inefficient system just unaffordable to ordinary litigants, but taxpayers as well.
[1]. Justice P.N. Bhagwati
[2]. Glanville Austin, Indian Constitution-Cornerstone of a Nation (1976 Reprint ), p. 164
[3]. 1978 Cri. L.J. 1678 (SC)
[4]. AIR 1951 SC 217
[5]. Id., p. 222
[6]. AIR 1951 SC 441
[7]. AIR 1968 SC 1313
[8]. Over 95% of the cases are tried by Magistrates. Therefore the right was not available to 95% of the poor accused.
[9]. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
[10]. Legal Department, Government of Bombay, Report of the Committee on Lega Aid and Legal Advice in the State of Bombay (1950)
[11]. 1 Law Commission of India, Fourteenth Report (1958)
[12]. Id. at 589
[13]. Id. at 587
[14]. See id. appendix III, at 615 for a summary of legal aid facilities available India at the time the report was published
[15]. See Marsh, The Rule of Law in a Free Society (1959)
[16]. Id. at 311, 312
[17]. “Legal Aid” (a working paper discussed at the Third All-India Law Con- ference, August 1962) in 2 Indian Advocate 29 (April-June 1962
[18]. Id. at 34-39.
[19]. Order XXI (25), Supreme Court of India Rules, 1966, Gazette of India Extraordinary, January 15, 1966, at 42
[20]. In all capital cases amicus curiae is appointed by the Court, when the accused is unrepresented and a fee of Rs. 100 or such fee as is fixed by the Court is paid. See order XXI(8), Supreme Court of India Rules, 1966
[21]. Supra note 20
[22]. Mukherjee, Roma, women, law and free legal aid in India, p.30; Legal Aid Movement in India, http://legalaidindia.weebly.com
[23]. K.D Gaur, Law and Society in Modern India, Deep & Deep Publications, 1989, pp. 498-549
[24]. https://www.livelaw.in/top-stories/justice-dy-chandrachud-access-to-legal-aid-failure-of-legal-fraternity-nalsa-182954
[25]. https://www.livelaw.in/top-stories/justice-dy-chandrachud-access-to-legal-aid-failure-of-legal-fraternity-nalsa-182954
Author: Umar Bashir
Juris Centre 