ASSAM UNIVERSITY SILCHAR

DEPARTMENT OF LAW
ASSIGNMENT WORK

2024

SUBMITTED ON THE TOPIC

LEGAL AID UNDER INDIAN CONSTITUTION

SUBMITTED TO: SUBMITTED BY:

BISWAJIT DAS SIR NAME: SUNAYANA GUPTA

ASSISTANT PROFESSOR ROLL NO: 05 SEMESTER: 1ST

DEPARTMENT OF LAW COURSE NO: 506

ASSAM UNIVERSITY SUBJECT: LEGAL AID AND LEGAL AWARNESS

SILCHAR COURSE:LL.M

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 ACKNOWLEDGEMENT
It was a great pleasure to undertake this assignment. To make the final outcome
of any assignment successful it requires a lot of guidance and I am extremely
thankful to my teacher SHRI BISWAJIT DAS SIR, Assistant Professor
Department Of Law , Assam University who has provided me with this
opportunity to gain knowledge through this assignment.

I am also grateful to my family and classmates who constantly motivated

me to this assignment within the time period.

I am privileged to do this assignment and gain so much knowledge

through it. The assignment wouldn’t have completed without the enormous help
and guidance within the limited time frame.

THANKING YOU

Sunayana Gupta

LLM 1st Sem Roll No :05

Department Of Law

Assam University,

Silchar

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 Contents
S.No Topic Page No
1 Introduction 4
2 Emergence of Legal Aid 4
3 Meaning And Concept Of Legal Aid 5
4 Constitutional Provisions Relating To 7
Legal Aid

5 Landmark Judgements 10
6 Issues And Challenges 11
7 Conclusion 12

8 Reference 13

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 LEGAL AID UNDER INDIAN CONSTITUTION
“The spiritual essence of legal aid movement is said to consist in investing the Law with
human soul” -Justice V.R. Krishna Iyer1

Introduction:

India being a welfare state has incorporated various principles into various
laws and legislations to promote the ideals of welfare state and ensure social and economic
justice and thus protect the interest of general public However, these ideals of welfare has
still not been achieved completely due to numerous issues. Among the numerous issues that
our country is currently facing, poverty has undoubtedly taken up a prominent position. As a
consequence of this prevailing reality, a vast population of people pertains to marginalised
group who still face many hindrances to access justice. In the context of this sticking reality,
legal aid to this marginalised group of people has become the need of the hour.

In order to achieve and ensure equal access to law and justice, the
India Government brought about plethora of laws and legislation made in consonance with
various international covenants which plays a significant role in providing legal aid to the
poor.

Emergence Of Legal Aid :

The roots of legal aid can be traced back to early 1851 in France
when the government sanctioned the legislation to offer legal help to the impoverished.
Similarly, the concept of legal aid was initially introduced in India in 1952 when the Indian
government began to address the issue of legal assistance for the poor in many Law Ministers
and Law Commissions conferences.
The Law Commission of India’s 14th Report proposed that the government should provide
free legal aid to the underprivileged. The Report emphasized on the legal community’s
responsibilities to administer the legal aid scheme.
In 1960, the government laid down guidelines for legal assistance programmes. Many states
implemented legal aid programmes through Legal Aid Boards, Societies, and Law
Departments.

1
Inaugural address at the 2nd State Lawyers’ Conference Andhra Pradesh at Rajmurthy, (1976) 2. Sec.'1,

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With the 42ND Amendment Act of Indian Constitution, Article 39A was inserted in Indian
Constitution, which provided Directives to the State to give free legal aid equal justice for all.
In1980, a nationwide committee was set up to oversee and supervise legal assistance
programmes across the country, under the chairmanship of Hon. Mr Justice P.N. Bhagwati,
the then-Judge of the Supreme Court of India. The Committee adopted the acronym CILAS
(Committee for the Implementation of Legal Aid Schemes) and began monitoring legal aid
operations throughout the country.
Furher, with the establishment of Lok Adalats , new chapter was opened in the country’s
judicial system, and they played a effective role by adding a supplemental venue for litigants
to solve their disputes through conciliatory ways.

To provide a legislative framework for legal aid programs throughout the nation, the Legal
Services Authorities Act was enacted in 1987. After necessary adjustments were made
through the Amendment Statute of 1994, this act was finally put into effect on November 9th,
1995.

Meaning And Concept of Legal Aid:

In the realm of socioeconomic circumstances, legal aid is

fundamentally and conceptually intertwined with poverty, often overshadowed by the
challenges posed by illiteracy and lack of knowledge. The primary emphasis of legal aid is
directed towards the equitable distribution of justice, the proficient execution of social
welfare advantages, the eradication of illiteracy, and the amelioration of social and structural
biases.

Legal Aid is a facet of fair trial and principle of natural justice .Legal aid strives to ensure
that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available
to the poor, downtrodden and weaker sections of the society.

According to Cambridge Advanced Learners‟ Dictionary “Legal Aid‟ means a system of

providing free advice about the law and practical help with legal matters for people who are
too poor to pay for it.”2

2
Available At: https://dictionary.cambridge.org/dictionary/english/legal-aid (Last Visited on 08.02.2024)

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Justice P.N. Bhagwati rightly observed that3, “The legal aid means providing an arrangement in the
society so that the missionary of administration of justice becomes easily accessible and is not out of
reach of those who have to resort to it for enforcement of its given to them by law, the poor and
illiterate should be able to approach the courts and their ignorance and poverty should not be an
impediment in the way of their obtaining justice from the courts. Legal aid should be available to the
poor and illiterate, who don't have access to courts. One need not be a litigant to seek aid by means of
legal aid”

As per Jagat Narain, legal aid is understood as financial assistance to a person who
desires to claim or defend his rights in a court of law and who wouldn’t be able to do so
without such assistance, with regard to his financial means.

In comprehensive term, legal aid means and includes legal aid proper in the litigation and
legal advice & preventive legal service dynamic concept of socio-economic justice and rule
of law which endeavours to bring defacto equal justice to the poor and the people under other
disabilities in the backdrop of the contemporaneous trend of modem society towards
egalitarianism and humanism to help and cause the socio-eco-legal justice reach the common
man speedily, fairly, equally and with little or no expenses .

The Legal Service Authorities Act ,Under Sec12 prescribes the criteria for giving legal
services to the eligible persons.

“It makes a person eligible for assistance under the act if he is –

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution; (c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) 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; or

(f) an industrial workman; or

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1 Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its
Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker,
Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College,
Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice between the
rich and the poor.

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(g) in custody, including custody in a protective home or in a juvenile home

(h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g)
of section 2 of the Mental Health Act, 1987; or

(i) A person whose annual income less than rupees fifty thousand or such other higher
amount as may be prescribed by the State Government”4.

Constitutional Provisions Relating To Legal Aid

The Constitution of India is Supreme Law of the land and is thus the guardian of the rights of
the citizen. The preamble of the constitution signifies the goals envisaged by the Constitution.

Though the Preamble does not explicitly mention about legal aid but it is implied by the goals
envisaged in the declarations. The preamble of the Indian Constitution declares that “to
secure to all citizens justice, social, physical, and political,” as well as “equality of status and
opportunity.” which impliedly signifies fair trial and equal access justice. Thus, making
social and economic justice the supreme goal of the constitution, the founding fathers also
provided ample liberty for legal aid.

Article 14 also aims at achieving socioeconomic justice by mandating that the state shall not
deny any person equality before the law or equal protection of the laws within the territory of
India.

Affirming the close relation of the principle of equality with the social justice, the Supreme
Court in India Gandhi vs Raj Narain 5 held that “Social justice and equality were
complementary to each other and the rule law was a potent instrument of social justice to
bring about equality in result”

The notion of equality before law necessarily encompasses the idea that all the parties to a
legal proceeding must be given an equal opportunity to access justice and present their cases
before the court. The expression Equal protection of law is relatively a consequence of the
first expression and a pledge of the protection of equal laws having positive substance
attached to it.

4
Sec 12, Legal Service Authorities Act 1987
5
AIR 1975 SC 2299

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In E.P. Royappa Vs. State of Tamil Nadu 6, the Supreme Court, has given a dynamic
interpretation to the equalising principle, contained in Article 14by stating that Article, 14
aims to eliminate arbitrariness in state action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically forms a integral
element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.

Under Art. 21 of the constitution of India provide the fundamental right including the
protection of life and personal liberty. which cannot be taken away except by procedure
established by law.

A procedure is fair and just only when it follows the principles of natural justice. Such
Procedure should not be arbitrary or oppressive or fanciful as opined by the Hon’ble court In
Maneka Gandhi’s Case .

Right to hearing is an fundamental part of natural justice. If the right to counsel is essential to
fair trial then it is equally important to see that the accused has sufficient means to defend
them. Since Legal Aid is connotation of fair trial breach of these safeguards of fair trial
would invalidate the trial and conviction, irrespective of whether the accused had asked for
legal aid or not and thus it would infringe his fundamental Right to fair trial envisaged
under Article 21.

Also Article 22(1) stipulates that a person arrested should not be detained in custody without
duly being informed the grounds for such arrest and should not be denied the right to consult
and be defended by a legal practitioner of his choice.

Article 38 establishes that the State should strive to promote the welfare of the people by
effectively ensuring and protecting a social order in which justice encompassing social,
economic and political permeates all facets of national life.

Article 39 A, which was incorporated into the Constitution through the enactment of the
Forty-Second Amendment In 1976, stipulates the provision of equitable justice and free legal
assistance.

It sets the Directives to the State by asserting the state shall ensure that the operation of the
legal system promotes justice by fostering equal opportunity and shall in particular, provide
free legal aid, by suitable legislation or scheme or in any other way, to ensure that

6
AIR 1974 SC 555

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opportunities for securing justice are not denied to any citizen by reason of economics and
other disabilities.

Bangalore V. –State of Mysore, 7para 13 it was by the Court that whilst rights granted under
Part III are fundamental, the directives specified under part IV are fundamental in the
governance of the country. There is no conflict on the whole between the provisions
contained in Part III and Part IV. They are complementary and auxiliary to each other.

The scope of Article 39A is envisaged by the Supreme Court of India in Air India Statutory
Corporation v. United Labour Union, that 8 where it was opined Article 39A furnishes a
beacon light that justice is done on the basis of equal opportunity and no one is denied justice
by reason of economic or other disabilities.

Article 39 A of the Constitution of India thus ensures for equal justice and free legal aid. It is,
therefore clear that the State has been ordained to secure a legal system, which promotes
justice on the basis of equal opportunity.

Other statutory provisions:

1. Criminal Procedure Code, 1973

Section 304 provides that where in a trial before the Court of Session, the accused is
not represented by a pleader and where it appears to the court that the accused has no
adequate means or revenue to engage a pleader, the Court shall assign a pleader for
his defence at the expense of the State; and the section further empowers the State
Government to extend the application of the above provision in relation to any class
or trials before other Courts in the State
2. Civil Procedure Code, 1908
Order 33 gives out the provisions for filing of suits by indigent persons. It enables
persons who are too poor to pay court fees to file a suit without payment of requisite
court fees

7
AIR 1970 SC 2042
8
AIR[ 1997] SC 645: [1997] 9 SCC 377: [1997]1 LLJ 113

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Landmark Judgements:

The Judiciary played an effective role by making vehement proclamation in regards to the
privileges of poor people and destitute in various judgment over the period of time.

M.H. Hoskot vs. State of Maharashtra 9The petitioner’s right to seek justice was violated
due to the delay made by the High Court in supplying a copy of the ruling because of which
his SLP was filed late.

The major issue was that whether the right to free legal aid provided and guaranteed to
prisoners in India under Article 21 of the Constitution

The Supreme Court emboldened by the strength of interpretation of Maneka Gandhi’s case
held the - “benign prescriptions for free legal aid to the prisoners to be followed by the
lowest to the highest Court in the Country where deprivation of life and personal liberty of a
Citizen is in substantial peril ... Partial statutory implementation of the mandate is found in
Section 304 Cr. P.C. and in other situations, Courts cannot be inert in the face of Article 21
and 39A”

Hussainara Khatoon Vs State of Bihar10 where the solicitor forwarded a notice to the
Supreme Court by conveying that the vast majority of the under trials have been languishing
in jail for a longer period of time for what they would have had they been sentenced
immediately. The main reason of delay was caused because of the inability of the people to
seek a legitimate guidance to protect them in the court and the primary purpose for their
powerlessness was their poverty. Therefore, in this case, the Hon’ble court pointed out that
Article 39-A emphasized that free legal service was an inalienable ingredient of reasonable,
fair and just‘ procedure and that the right to free legal services was inherent in the guarantee
of Article 21.

In Khatri & Ors v. State of Bihar & Others11 , it held that: the State is Constitutionally bound
to render such assistance 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 lack of funds administrative incapability or even if the accused did not ask
for it.

9
AIR 1978 SC 1548
10
AIR, 1979 SC 1377-1381
11
(1981) 1 SCC 635

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Sukhdas vs. Union Territory of Arunachal Pradesh12, it was held, a conviciontion or trial of
an accused shall be set aside if it is vitiated by constitutional infirmity in case an accused is
not informed of his right and as a result he remains unprecedented by a lawyer. Similarly
article 14 addresses about equality before law. Section 304 of CrPC imposes an obligation on
the courts to provide legal aid at the expense of the state to an accused, who has no sufficient
means and finances to engage an advocate. Equality in real sense cannot be achieved in
criminal cases unless the accused gets a fair trial of defending himself against the charge with
a professional assistance.

ISSUES AND CHALLENGES

 Lack of public awareness: This is the chief obstacle in the execution of legal aid

services as these legal aid services are for the poor, weaker and illiterate people and

the foremost issue is that they are not educated and aware of it which leads to

exploitation of their rights.

 Lack of devotion: One of the barriers of achieving in meeting the goal of the legal aid

movement is due Lack of devotion among the Legal Aid Counsels which has laden

the quality of services provided by them and due to which people have lost faith in the

legal aid system and prefers private lawyers over legal aid counsels.

for the hearing and then there is a delay in the disposal here as well.

 Lack of support from advocates, attorneys, and other professionals: Due to

financial constraints, professionals in all industries today want to be compensated for

their work, including lawyers who are least likely to provide pro bono legal aid. There

are some lawyers who don’t represent their clients fairly. One of the reasons for this is

that they aren’t compensated fairly—they aren’t paid enough to cover side expenses.

 Lack of authority: In comparison to civil courts, Lok Adalats have little authority.

First, there is an improper procedure, and as a result, the parties cannot be forced to

12
AIR 1986 SC 991.

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 attend the hearings. Additionally, one of the parties frequently fails to show up for

cases consequence of which there is delay in disposal of cases.

Conclusion:

India is one of the largest democratic country having an independent judiciary and sovereign
government .The founding pillars of judiciary is the principle of natural justice where no one
can be condemned unheard. Even after numerous measures taken by the judiciary and the
government, the Equal opportunity to access to justice still faces difficulties. The Judicial
system is quite costly and complex process and has got multifaceted dimensions because of
which it makes the downtrodden people unable to approach the court.Legal aid is not a
charity or bounty but is an obligation of the State and rights of the citizens. Therefore proper
legal awareness and schemes are essential in order for the legal aid movement to succeed, and
this promotion is not just the responsibility of the legal profession, but is also the duty of the
educated citizens. Only if the society together voluntarily comes forward to take care for its
most vulnerable citizens, then only can the constitution’s pledge to legal aid be kept.

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 Reference
AUTHORS:

 Dr. J.N Pandey, Constitutional Law Of India, Central Law Agency,55th Addition,
2018
 Narain, Jagat, “Legal Aid-Litigational Or Educational: An Indian Experiment,” 25
Journal Of The Indian Law Institution, (1983).
 Prof. Kiran Suresh Marathe & Dr. Nitesh Dharamdas Chaudhari ,Constitutional And
Legal Framework Of The Right To Free Legal Aid In India, Epitome Journals , Issue
9, September 2016, ISSN: 2395-6968

Article:

1. Articles 14
2. Article 21 Of The Constitution Of India
3. 22(1) Of The Indian Constitution
4. . Article 39A Of The Indian Constitution
WEBSOURES
 Https://Articles.Manupatra.Com/Article-Details/Legal-Aid-In-India-Current-
Scenario-And-Future-Challenges (LAST VISITED ON 8TH FEB 2024)
 Https://Lawbhoomi.Com/Right-To-Legal-Aid-In-India-An-Unawared-Right/
#:~:Text=And%20this%20legal%20aid%20is,Promotes%20social%20justice
%20%5B7%5D .(LAST VISITED ON 8TH FEB 2024)
 Https://Ignited.In/I/A/306146 (LAST VISITED ON 8TH FEB 2024)

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