India is a mixed economy with emphasis on both aspects - Growth and Development of Country and Social Welfare. All the policies for the growth of economy are framed keeping in mind the aspect of welfare of the people. Hence, it is said that India is a welfare state with the primary objective of working on the path of welfare of the society. There is no doubt in this because the concept of Social Welfare is taken into consideration while taking any strategic decision. And a lot of provisions have been provided in the constitution of India in the interest of society. Unequal Distribution of Income is one of the major issues that the legislation tries to eliminate through different schemes and provisions. One such attempt was the introduction of the concept of Legal Aid in India. This concept aims to ensure justice by providing opportunities to the poor and incapable persons for enforcing their rights provided by Law. Besides that, it aims to achieve the objective of Constitutional Provisions of Equality before Law and Rule of Law.
WHAT IS LEGAL AID ?
Legal Aid is a provision of providing assistance to the people who are unable to afford and enforce the rights in any judicial proceedings before the Courts, Tribunals or any such authorities.
By providing assistance to the incapable persons in the form of free Legal Services, Legal Aid aims to ensure justice through providing opportunities to people for legal representation and access to the courts.
The Mini Constitution of India i.e. 42nd Constitutional Amendment Act, 1976 incorporated a new provision inserting Article 39 (A) in the constitution. This new article introduced the concept of Legal Aid in the form of free legal services and hence provided a place to the concept of equal justice in our Constitution.
Article 39 A was inserted under Part IV -Directive Principles of State Policy of the Constitution. It brought a drawback also. DPSPs cannot be enforced in the courts like that of Fundamental Rights. Hence, a separate act named Legal Services Authorities Act, 1978 was passed by the Parliament providing provisions for formation of Legal Service Authorities from higher to root level to provide Legal Aid.
1952 - The government of India took the initiative to address the question of Legal aid for poor and indigenous in various Ministerial Law conference and commissions.
1960 - Guidelines were issued by the Government of India for the schemes and provisions relating to Legal Aid.
1980 - A National Committee named CILAS (Committee for Implementing Legal Aid Schemes) was constituted under the Chairmanship of Honourable Justice P.N. Bhagwati (then a judge of Supreme Court of India) to supervise and monitor the Legal aid programmes throughout the country.
1987 - This year holds a major significance in the history of Legal Aid because of the enactment of Legal services Authorities Act in this year that provided a statutory base to the Legal Aid programmes throughout the country.
1995 - The act enacted in 1987 was finally enforced in the country on 9 November, 1995 bringing a uniform pattern. Honourable Justice R.N. Mishra (the then CJI) played a significant role in the enforcement of this act.
■ Every year, National Legal services Day is celebrated throughout the country on 9th November to spread awareness among the people for ensuring justice and fair procedure for seeking justice for all the citizens.
• Article 39A - Article 39A of the Constitution states that it is the obligation of the state to ensure that Legal system provides justice based on equal opportunities for all the citizens of the country. It further mentions to provide free legal aid to the individuals who are unable to get justice on their own because of their financial and other disabilities.
• Article 14 - This article ensures Equality before Law stating all the citizens are equal in eyes of Law. And the concept of Legal Aid aims to remove inequality between various sections providing equal opportunity to all to have legal representation and access to the court irrespective of their situation.
• Article 21 - Article 21 provides Fundamental Rights to the people like Right to life and liberty. And the provisions of the Legal Aid prove to be an essential part of these rights.
• Order 33 rule 17 of CPC (Civil Procedure Code, 1908) - It states that if any poor or indigenous person is unable to avail the Legal Services, then the Court shall exempt that person from paying Court Fees.
• Section 304 of CrPC (Criminal Procedure Code, 1973) - It is mentioned in this section that if an accused is unable to procure a legal advisor, then Court must provide one to represent the accused on the bearing of the state.
● Hussainara Khatoon V. State of Bihar -
In this case, Supreme Court held that “If any accused is not in a position to afford a legal representative for presenting his case, then that person will be able to avail free legal services in the form of Legal Aid on the cost of the State.”
● Khatri V. State of Bihar -
It was held by the Supreme Court in this case that “The obligation to provide Legal Aid to an accused arises from the moment the accused is produced before the magistrate for the first time and continues whenever he is produced for demand.”
LEGAL SERVICES AUTHORITIES ACT, 1987
In 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November, 1995 for establishing a uniform network throughout the country to provide free and competent legal services to the weaker sections of the society.
The act provided for the establishment of legal services authorities from national to grass-root level throughout the country. The authorities are as follows-
I National Legal services Authority
II State Legal Services Authority
III District Legal Services Authority
IV Taluk or Mandal Legal Services Authority
National Legal Services Authority –
NALSA is the apex authority established at the central or national level for controlling the legal services throughout the country. This is covered under sections 3, 3 A and 4 of the acts.
NALSA is consisted of Chief Justice of India (as Patron- In- Chief), a serving or retired judge (as Executive Chairman), a Member Secretary and other officers as nominated by the government in consultation with CJI.
• Implementation of schemes
• Framing of Policies
• Arrangements for raising and utilizing funds
• Provide Guidelines to Organize Lok Adalat Camps
• Monitors and supervises lower levels
• Coordinates with BCI and NGOs to expand Legal Aid services
State Legal Services Authority -
Sections 6, 7 and 8 of the Act mentions about the establishment of legal service authorities at the state level. This authority is consisted of the Chief Justice of the High Court (as Patron-in-chief), a siting or retired judge (as Executive Chairman), a Member Secretary and other members as nominated by the State Government with consultation of the Chief Justice of the High Court.
• To provide legal services
• To spread legal awareness
• To follow the policies implemented by the Central Authority
• To organize Lok Adalats at required time and place
• To organize strategic legal aid programmes
District Legal Services Authority -
Covered under Sections 9 and 10 of the Act, this authority is established at the district level consisting of a District Judge (as Chairman), a Member Secretary (not lower than rank of a Civil Judge) and other members as nominated by the State Government in consultation with the Chief Justice of the High Court.
• To follow the guidelines of the higher authority
• To organize Lok Adalat’s at such intervals and time
• To coordinate with lower level
Taluk Legal Services Authority -
Under Section 11 of the Act, an authority is established for each Taluk or Mandal or for Group of Taluks or Mandal’s. A Taluk Legal Service Authority is consisted of a Senior Civil Judge of that Taluk (as Ex-officio Chairman) and other members nominated by the State Government in consultation with the Chief Justice of High Court.
• To perform activities of Legal Services within the Taluk
• To follow the guidelines of District Legal Service Authority
• To organize Lok Adalats at the required time and place
WHO CAN AVAIL SERVICES UNDER LEGAL SERVICES AUTHORITIES ACT, 1987?
Section 12 of the Act mentions about the persons who can avail the services under this act which is as follows –
• Any member of Scheduled Castes and Scheduled Tribes
• Victim of human trafficking
• Woman and child
• Mentally ill and other disabled persons
• Victim of mass disaster
• Industrial Workmen
• Persons having income less than or equal to Rs. 3,00,000 p.a.
Lok Adalats are a sort of Alternate Dispute Redressal mechanism where disputes pending in the Court of Law or at pre-litigation stage are compromised amicably. Proceedings are done through Conciliators who can be retired judges, sitting judges or social workers. Cases are referred in Lok Adalat’s even if one of the party’s consent for the same. The decision of the Lok Adalat is binding on both the parties and no appeal can be made after that.
Legal Aid aims to preserve the Rule of Law which is included in the basic structure of the Constitution. Rule of Law states that Law is Supreme and no one is above the Law. There will be no Rule of Law unless the common man is able to assert and enforce the rights given to him by law irrespective of the financial capacity of the person. For a free and fair trial, both parties are heard to find the guilty one and legal aid ensures that every person in the country gets a legal representation to voice his/her case in the Court.