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Access to Justice for Marginalized People in India

ABSTRACT

Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. 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. This essay describes the development of legal aid and its principles.


Article 39-A of the Constitution provides that the 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 disabilities.


Under Section 2(1) (c) of the Legal Services Authorities Act, 1987 “Legal Service” includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter; To provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act.


Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law.



Introduction


Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the existence of the orderly society. Until and unless poor illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step towards making the legal service serve the poor and the deprived; the judiciary has taken active interest in providing legal aid to the needy in the recent past. The Indian Constitution provides for an independent and impartial judiciary and the courts are given power to protect the constitution and safeguard the rights of people irrespective of their financial status. Since the aim of the constitution is to provide justice to all and the directive principles are in its integral part of the constitution, the constitution dictates that judiciary has duty to protect rights of the poor as also society as a whole. The judiciary through its significant judicial interventions has compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections of the society. Public Interest Litigation is one shining example of how Indian judiciary has played the role of the vanguard of the rights of Indian citizens especially the poor. It encouraged the public spirited people to seek justice for the poor. For that Supreme Court relaxed procedure substantially. Apart from Public Interest Litigation and judicial activism, there are reforms in the judicial process, where it aims to make justice cheap and easy by introducing Lok Adalat system as a one of the methods to provide free legal aid and speedy justice at the door steps of the poor.



Concept of Legal Aid


The right to assignment of counsel at Government expenses was emphasized in the 14th Law Commission Report. Thereafter, in 1969, the Law Commission again strongly recommended that the right of the accused to representation at the cost of Government should be placed on statutory footing in relation to trials for serious offences and as a first step in this direction, the Commission proposed that such a right should be available in all trials before the Court of Session.


In order to achieve the objective enshrined in Article 39-A of the Constitution, Government had, with the object of providing free legal aid, by a Resolution appointed a Committee for implementing Legal Aid Scheme to monitor and implement Legal Aid Programmes on a uniform basis in all States and Union Territories. The said Committee evolved a model scheme which was accordingly implemented by the Government. But on review, certain deficiencies were found and it was considered desirable to constitute statutory legal authorities at National, State and district levels so as to provide effective monitoring of Legal Aid Programmes.


For the disposal of large number of cases expeditiously and without much cost Lok Adalatshave been constituted and they have been functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. In order to provide for the composition of statutory legal authorities and to provide statutory backing to Lok Adalats and Legal Services Authorities Bill, 1987 was introduced in the Lok Sabha on 24th August 1987.


With the object of providing free legal aid, Government had, by Resolution, appointed the “Committee for Implementing Legal Aid Schemes” (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati to monitor and implement Legal Aid Programmes on a uniform basis in all the States and Union territories. CILAS evolved a model scheme for Legal Aid Programme applicable throughout the country by which several Legal Aid and Advice Boards have been set up in the States and Union territories.

I. Who is entitled for legal aid?

According to Section 12 of the Legal Services Authorities Act, the following categories of people are entitled for free legal services —

  1. A member of a Scheduled Caste or Scheduled Tribe.

  2. A victim of trafficking in human beings or begar as referred to in Article 23 of the 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 a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster.

  6. An industrial workman; In custody, including custody in a protective home within the meaning of clause(g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of 1987).

In receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the state government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the central government, if the case is before the Supreme Court.

II. Types of legal services provided

Free legal services include free legal aid in civil and criminal matters for those poor and marginalised people who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Provision of free legal aid may include:

  1. Representation by an advocate in legal proceedings.

  2. Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings.

  3. Drafting of legal documents, special leave petition etc.

  4. Rendering of any service in the conduct of any case or other legal proceeding before any court or other Authority or tribunal. Giving of advice on any legal matter.

III. When can Legal services be rejected? If the applicant: -has adequate means to access justice; – does not fulfill the eligibility criteria; – has no merits in his application requiring legal action.

IV. When can the legal services be withdrawn? The legal services committee can with draw the services if,

  1. the aid is obtained through misrepresentation or fraud;

  2. any material change occurs in the circumstances of the aided person;

  3. there is misconduct, misbehavior or negligence on the part of the aided person;

  4. the aided person does not cooperate with the allotted advocate;

  5. the aided persons appoints another legal practitioner;

  6. the aided person dies, except in civil cases;

  7. the proceedings amount to misusing the process of law or of legal service.

V. [1]The Concept of Lok Adalat: Lok Adalat is judicial body set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. It has the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like any court orders, yet the parties cannot appeal against such orders. Lok Adalat can resolve all matters, except criminal cases that which are non-compoundable. Either of the parties to litigation can make an application to the court for transferring the case to a lok adalat. Where no compromise or settlement is made by the lok adalat, such a case is transferred to the court and that court deals with the litigation from the stage the lok adalat had reached.

VI. [2]How to apply?

A person in need of free legal services can approach the concerned authority or committee through an application which could either be made by sending in written form or by filling up the forms prepared by the said authorities stating in brief the reason for seeking legal aid or can be made orally, in which case an officer of the concerned legal services authority or a paralegal volunteer can assist the person.

A person can also apply online for getting Legal Aid to any Legal Services Institution in the country by filling up the Legal Aid Application form available online at NALSA’s website and by uploading necessary documents.

Right To Free Legal Aid

The preamble of the Indian constitution basically aims to secure to the people of India justice: socio-economic and political. Justice P.N. Bhagwati aptly stated that legal aid means providing an arrangement in the society which makes the machinery of administration of Justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law. Article 38(1) avows that the State shall promote the welfare of the people by securing and protecting the social order including justice. Article 21 clearly says that every person has an equal right to life and liberty except according to the procedure established by the law.

The 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 disabilities.

Art. 39 A of the Constitution of India It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities.

Sec. 304 of Code of Criminal Procedure, 1973 If the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the expense of the state.

Khatri II Vs. State of Bihar[3]

The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand.

Madav Hayavadanrao Hoskot Vs. State of Maharastra[4] A person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal.


Working of The Legal Services Authorities In India – Frame Works, Functions Under The Legal Services Authorities Act, 1987 At Different Levels


Functions of the Central Authority –


According to Section 4, the Central Authority shall perform all or any of the following functions, namely:

  1. Lay down policies and principles for making legal services available under the provisions, of this Act.

  2. Frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act.

  3. Utilize the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities.

  4. Take necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections, of the society and for this purpose, give training to socials workers in legal skills.

  5. Organize legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes though Lok Adalats.

  6. Encourage the settlement of disputes by way of negotiation, arbitration and conciliation.

  7. Undertake and promote research in the field of legal services with the special reference to the need for such services among the poor.

  8. To do all things necessary for the purpose of ensuring commitment to the fundamental duties of citizens under Part IVA of the Constitution. Monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act.

  9. Provide grants-in-aid for specific schemes to various voluntary social service institutions and the State and District Authorities, from out of the amounts placed at its disposal for the implementation of legal services schemes under the provisions of this Act. Develop, in consultation with the Bar Council of India, programmes for clinical legal educations and promote guidance and supervise the establishment and working of legal services clinics in universities, law colleges and other institutions.

  10. Take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of the society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures.

  11. Make special efforts to enlist the support of the voluntary social welfare institution, working at the grass-root level, particularly among the Scheduled Castes and the Scheduled Tribes, women and rural and urban labour.

  12. co-ordinate and monitor the functioning of (State Authorities, District Authorities, Supreme Court Legal Services Committee, High court Legal Services Committees, Tuluk Legal Services Committees and voluntary social service institutions) and other legal services organizations and give general directions for the proper implementations of the legal services programmes.


Functions of the State Authority-

Under Section 7of the said Act, the Functions of the State Authority are prescribed which are as follows:

It shall be the duty of the State Authority to give effect to the policy and directions of the Central Authority.

Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any of the following functions, namely:

give legal services to persons who satisfy the criterial laid down under this Act;

conduct (Lok Adalats including Lok Adalats for High Court cases) undertake preventive and strategic legal aid programmes


Functions of the District Authority-


Under Section 10 of the said Act, Functions of the District Authority are –

It shall be the duty of every District Authority to perform such of the functions of the State Authority in the District as may be delegated to it from time to time by the State Authority. Without prejudice to the generality of the functions referred to in sub-section (1), the District Authority may perform all or any of the following functions, namely:

co-ordinate the activities of the Taluk Legal Services Committee and other Legal Services in the District); organize Lok Adalats within the District; and perform such other functions as the State Authority may fix by regulations.

Contribution of Judiciary for Free Legal Aid in India


The Supreme Court of India got a major opportunity to make an emphatic pronouncement regarding the rights of the poor and indigent in judgment of Hussainara Khatoon[5]where the petitioner brought to the notice of Supreme Court that most of the under trails have already under gone the punishment much more than what they would have got had they been convicted without any delay. The delay was caused due to inability of the persons involved to engage a legal counsel to defend them in the court and the main reason behind their inability was their poverty. Thus, in this case the court pointed out that Article 39-A emphasized that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services was implicit in the guarantee of Article 21.


Two years later, in the case of Khatri v. State of Bihar[6], the court answered the question the right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights. The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require…The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid.


In Suk Das v. Union Territory of Arunachal Pradesh[7], Justice P.N. Bhagwati, emphasized the need of the creating the legal awareness to the poor as they do not know their rights and further observed that in India most of the people are living in rural areas are illiterates and are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness they are not approaching a lawyer for consultation and advice. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant and they cannot even help themselves. That is why promotion of legal literacy has always been recognized as one of the principal items of the program of the legal aid movement in the country.

Supreme Court in State of Haryana v. Darshana Devi[8]observed that “the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC. The state of Haryana, mindless of the mandate of equal justice to the indigent under the magna carta of republic, expressed in article 14 and stressed in article 39A of the constitution, has sought leave to appeal against the order of the high court which has rightly extended the ‘pauper’ provisions to auto-accident claims.


In State of Maharashtra v. Manubhai Pragaji Vashi[9], The Supreme Court has made it quite clear that it is now well established that the failure to provide free legal aid to an accused at the cost of the State unless refused by the accused, would vitiate the trial. In M.H Hoskot v. State Of Maharashtra, Justice Krishna Iyer observed that providing free legal aid is the State’s duty and not Government’s charity.


Also, as observed in Moni Mathai v. Federal Bank Ltd[10]., by the Kerala High Court, the Lok Adalats are also bound to follow the principles of natural justice, equity, fair play and other legal principles. Had the Committee taken care to issue notice to the petitioners and obtain a written statement containing their version and placed the same before the Lok Adalat all these unfortunate disputes could have been avoided. The Lok Adalats shall also not forget that their duty is not to dispose of cases somehow but settle cases amicably.



Conclusion


Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object of the state should be ―equal justice for all. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law, the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.



[1]http://www.legalservicesindia.com/article/1176/Right-to-Free-Legal-Aid.html [2]https://www.firstpost.com/india/free-legal-aid-is-crucial-right-granted-by-constitution-scs-sts-women-among-categories-of-people-eligible-for-provision-7034801.html [3] 1981 SCR (2) 408, 1981 SCC (1) 627 [4] (1978)3 SCC 544) (Art. 142 of the Constitution r/w Articles 21 and 39A of Indian Constitution) [5] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98 [6] Khatri v. State of Bihar, AIR 1981 SC 262 [7] 1986 AIR 991, 1986 SCR (1) 590 [8] 1979 AIR 855, 1979 SCR (3) 184 [9] 1996 AIR, 1 1995 SCC (5) 730 [10] AIR 2003 Ker 164 at 170


Author Details: Deeksha Shrivastava ( FIMT College, Guru Gobind Singh Indraprastha University, New Delhi)


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