Legal Aid
Legal Aid
ABSTRACT
Marginality is the experience that affects millions of people throughout the country. The marginalized
people have relatively little control over the resources available to them. In 1995 when in India the
Legal Services Authorities Act came into force the concept of Free Legal Aid for socially and
economically vulnerable people was introduced. The Law aims to ensure justice for all on the basis of
equal opportunity and the main objective is to offer free services of lawyers who volunteer their time
for pro bono cases to those who cannot afford to pay. According to 2018 HDI report by UNDP India
ranked 130 out of 189 countries.
“Law is the means and justice is the ends” and to achieve such ends our legal system must be accessible
to all. Under the Directive Principles Of State Policy of Indian Constitution, Article-39A (Equal
Justice and Free Legal Aid) states 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’.
The Constitution of India provides for Free Legal Aid as a right under Articles-14, 21, 39A, 22(1) and
38(9) to the persons who are not able to afford a legal counsellor due to their financial problems or any
other reason. In this study an attempt has been made to highlight the current status of marginalized
population accessing towards justice, their position in the past, role and contribution of legal
authorities, social media, NGOs, and some other initiatives taken on judicial level for the betterment of
poor and needy people.
INTRODUCTION
Indian Judicial System like those in Commonwealth countries, is firmly rooted in the common law
tradition. India is a signatory to various international and regional instruments that seek to ensure
access to justice as an inalienable right to citizen. The Indian Government has also introduced several
policies and domestic legislations that seeks to regulate and promote access to justice for all. Law is the
means and justice is the end and to achieve that end the law must be accessible to all. Some groups of
people often fail to access justice.
To deny people their human rights is to challenge their very humanity. -Nelson Mandela
The word “access to justice” immediately stir up in our mind the idea that every person who seeks
justice must be provided with the requisite monies to approach a Court of Justice. But that is not the
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only meaning of these words. Access to Justice may be defined as “the process through which people
claims or obtains justice remedies through formal or informal institutions of justice and in conformity
with human rights standards”.
This article argues for a more attainable aspiration. The article begins with history and development of
the concept of access to justice in India, further followed by role and contribution of Supreme Court
and High Courts, role of Legal Services Authorities in India, power of Judicial Review and PIL, and
further concluding with various issues that are relevant for the access to justice i.e. need for adequate
courts, court fees, and the Independence of the judiciary.
securing justice are not denied to any citizen by reason of economic or other disabilities.’1 However the
courts are used by the richer sections to assert their legal rights while poor remain deprived of access
to the Justice system. The fact of the matter is that mere existence of laws does not guarantee the
enjoyment of rights by the citizens. It is believed that India has 32 million pending cases, the majority
of which are in district courts, relate to criminal law and are pending for over two years. Another
amazing statistic is that the government is the largest litigant. It is said that 46% of the pending cases
Article-39A was the Constitutional authorization which was responsible to set the tone of development
of Legal Aid Programme. It also includes the organisation of Lok Adalats through the State Legal Aid
Boards with the Central Committee for Implementing Legal Aid Schemes, popularly known as CILAS
headed by the sitting or retied judicial officer as the Chairman with two other members usually a
Like other commonwealth countries, since 1952 the Government of India also started addressing to the
question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In
1980, a Committee at national level was constituted to oversee and supervise legal aid programmes
throughout the country under the chairmanship of Hon. Mr. Justice P.N. Bhagwati then a judge of
Supreme Court of India. This committee came to be known as CILAS (Committee for Implementing
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In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes.
This act was finally enforced on 9th November 1995.
In 1971 Justice Bhagwati in a report on Free Legal Aid observed “even while retaining the adversary
system, some changes may be effected whereby the judge is given greater participatory role in the trail
so as to place poor, as far as possible, on a footing of equality with the rich in the administration of
justice.”5
The report clearly suggests the colonial hangover of the Indian Legal System which has prevented it
from realising its true potential. The report also made an effort to classify those categories of persons
who are most in need of Legal Aid, they are: -
Justice Krishna Iyer realised the fact that though the system had been flagged off under the term “We
the people of India” it had no longer continued in the same direction. The expert committee appointed
under the
Justice Krishna Iyer realised the fact that though the system had been flagged off under the term “We
the people of India” it had no longer continued in the same direction. The expert committee appointed
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under the chairmanship of Justice Iyer has made significant contribution towards the development of
Legal Aid in India. The suggestions made by him can be summarized as :-
A National Legal Service Authority accountable to the Parliament but protected from official control
was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement
outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down
for determining eligibility. Means test to determine people entitled to legal aid prima facie- to
determine whether there was a prima facie case to give legal aid or not Reasonableness test- to see
whether the defence sought by a person is ethical and moral. In backward areas, legal advice bureau
should be established in each development block. The report encourages the involvement of law students
in legal aid schemes particularly for preventive legal services. Public law service should be an
alternative available as against the private bar and legal services authority should fix the fees payable
to the lawyer.6
The Legal Services Authorities Act, 1987 was enacted to give a statutory base to legal aid programme
and to constitute legal services authorities to provide free and competent legal services to the weaker
section of the society to ensure that opportunities for securing justice were not denied by reason of
financial or other disabilities and to organise Lok Adalats to ensure that the operation of the legal
system promoted justice on the basis of equal opportunity.
The Government of India enacted Legal Services Authorities Act 1987 with the view to provide access to
justice to all. Under this act the needy persons are entitled to legal aid on the expense of the state if
they fall under any of the given criteria:-
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According to Legal Services Authority Act 1987, a National Legal Service Authority is established and
legal service authorities are established in every state, district, and taluk level. The National Legal
Service Authority is the apex body which reviews all the state legal service authorities. The intention
of the legislators was to provide justice to all. In a country of over 100 billion population it is very
difficult to provide justice to everyone. The legal authorities thus are working on very monumental
task in providing access to justice to all the needy and aggrieved persons who are deprived of their
rights. Even in procedural law of our country the provisions of legal aid has been laid down in, Section
304 of Criminal Procedure Code which sates that if the accused does not have sufficient means to
engage a lawyer, the court must provide one for the defence of the accused on the expense of the state.
It is very important to note that mere providing legal aid is not the intention of the legislation but the
victim should be provided a quality legal aid. By mentioning the word quality, it means that state
should provide a reasonable and competent lawyer to the aggrieved.
Legal Services Authorities in different states have been enshrined with this purpose to make access to
justice to all. They play a very vital role and acts as a bridge between the needy and the courts. They
are the link that shows the poor and needy the way to attain justice from the court; it includes
providing counsel, paying court fees, and fulfilling other formalities of the court.
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In order to provide for social securities to all categories of unorganised workers, the Central
Government has also enacted an umbrella legislation by the name of Unorganised Workers Social
Security Act, 2008. Various social security schemes have been required to been floated for the benefits
of the workers under the Building and Construction Workers Act, 1996 and Unorganised Workers
The following principles shall be borne in mind by all Legal Services Institutions while implementing
the scheme for unorganised workers-
The Preamble of the Constitution of India assures equality of status and opportunity to all citizens
and to promote among them Fraternity, assuring the dignity of the individual. Article 42 mandates
State for making provisions for securing just and humane conditions work and for maternity relief.
The Preambular promise of upholding the dignity of the individual cannot be fulfilled unless the
dignity of labour is ensured.
The unorganized sector is one of the marginalized sector of society and they, as the citizens of the
country, are equally entitled to right to work, just and humane condition of work, living wages,
maternity relief and a decent standard of life.
The welfare measures initiated by the Government in the form of legislations or schemes etc.
Require the intended beneficiaries or the victims to mobilize the system for realization of their
rights. The workers in the unorganized sector belongings as they do, to the deprived and vulnerable
sections of the society do not possess the capacity to mobilize the system.
The large system of categories of the unorganized workers, large population in each category and
their vast geographical spread necessitates a project-approach to the issue of providing legal
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services to them. The Legal Services Authorities have to act as watchdogs against administrative
inaction.10 NALSA (Child Friendly Legal Services to Children and their protection) Scheme 2015
Children as a class are vulnerable and our Constitution accords right to children and gives them special
status. In this regard the parliament has enacted several programmes which are being run by
Government. However there is lack of awareness in general public towards this issue. To spread
awareness and to create sensitivity towards Children the scheme by NALSA i.e. NALSA (Child Friendly
Legal Services to Children and their protection) Scheme 2015.
To outline the basic rights and benefits that should be afforded to children.
To ensure legal representation to the children in need of care and protection and children in conflict
with law at all levels.
To strengthen legal services, institutional care, counselling and support services at the national,
state, district and taluk levels.
To create an environment in the juvenile justice system, where children are valued, encouraged and
affirmed and have their rights respected.
To have database of all the existing central or state schemes, policies, regulations, SOPs,
conventions, rules, declarations, and reports etc. Available for child welfare and protection.
The following principles shall be borne in mind by all Legal Services Institutions while implementing
the scheme for children-
Every child has the right to have his or her best interests given primary consideration while
providing legal services to the children in need of care and protection and child in conflict of law.
The welfare of children must always come first, regardless of all other considerations. Early
intervention and support should be available to promote the welfare of the child.
Every child has the right to be treated with dignity and compassion and its worth is to be respected
and protected.
A child shall be treated without discrimination of any kind, irrespective of the child’s caste, race,
religion, beliefs, age, family status, culture, language, ethnicity, disabilities if any or place of birth.
Every child has right to be informed, right to be heard and to express views and concerns freely.
Ever child has the right to safety at all stages and he or she shall not be subjected to any harm, abuse
or neglect etc. The privacy of a child shall be protected by legal services institutions at all levels.11
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This was the need that NALSA draw up a scheme for the Tribal people. To facilitate this, a committee
was constituted to study the issue and come up with suggestions. The committee submitted a
comprehensive report to the Hon’ble Executive Chairman, NALSA on the occasion of World Tribal Day.
The present scheme NALSA (Protection and Enforcement of Tribal Rights) Scheme, 2015 is based on
the report of the committee.
The scheme is aimed at ensuring access to justice to the tribal people in India. The access to justice
would be facilitated in all its connotations, i.e. access to rights, benefits, legal aid, other legal services,
etc., so that the assurance of the constitution of justice Social, Economic, and Political, is meaningfully
organised in Junagarh on 14th March 1982.13The movement has now subsequently spread to the entire
country, the reason is only the pending cases and providing justice to the litigants in the queue.
The Legal Services Authority Act, 1987 has been enacted by the Parliament, whose aim is to organise
Lok Adalats to secure that the operation of legal system promotes justice on the basis of equal
opportunities. Chapter Vl of the act deals with Lok Adalats. The act created National, State and District
Legal Service Authorities with the power to organize Lok Adalats.
In The Hussainara Khatoon Case, 1979, the Supreme Court said – the State can not be permitted to deny
the constitutional right of speedy trial to the accused on the ground that the state has no adequate
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financial resources to incur the necessary expenditure needed for improving the administrative and
judicial apparatus with a view to improving speedy trial.
The poor in their contact with the legal system have always been on the wrong side of the law. They have
always come across “law for the poor” rather than” law of the poor”.14
National Lok Adalats- National level Lok Adalats are held for the regular intervals where on a single
day Lok Adalats are held throughout the country, in all the courts right from the Supreme Court to the
Taluk Levels wherein cases are disposed off in huge number.
Mobile Lok Adalats- They are organised in various parts of the country which travel from one location
to the other to resolve disputes in order to facilitate the resolution of disputes through this mechanism.
Objective of Lok Adalats is to settle the disputes which are pending before the courts, by negotiations,
conciliation and by adopting persuasive common sense and human approach. The system has received
laurels from the parties involved in particular and by the public and legal functionaries in general.
Through this mechanism, disputes can be settled in a simpler, quicker and cost-effective way.
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Social Media as a tool for spreading legal awareness can be used as-
. Social Media nowadays is the best way to regulate a message. To spread a word in Urban areas,
simply by advertising a Facebook page, frequently giving updates on Twitter and using other social
networking sites can make ample of difference.
. Imagine if the legal awareness campaign associates itself with mobile operators and send just SMS
frequently and have a good messaging scheme. If the message is one worth for example- Under
Section 51 of Cr.P.C., a female can only be searched by a female with strict regard to decency.
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Advocates
Legal profession is monopolistic in nature and this monopoly itself inheres certain high traditions,
which its members are expected to upkeep and uphold. The role of the advocates in the
implementation of schemes becomes pivotal due to the fact that legal profession being monopolistic,
the various schemes of legal aid under the act can only be put into operation through advocates. The
advocate is paid by the Legal Services Authority but this payment is generally quite low as compared to
the normal fees charged by the advocate.
Para-Legal Volunteers
Para Legal Volunteers Scheme aims at imparting legal training to volunteers selected from different
walks of life so as to ensure legal aid reaching all sections of people. The Para-Legal Volunteers are
expected to act as intermediaries bridging the gap between the common people and Legal Services
Institutions to remove impediments in access to justice. Ultimately, the process aims at Legal Services
Institutions reaching out to the people at their doorsteps rather than people approaching such Legal
Services Institutions.
Prison Reforms
A prisoner is one whose liberty has been denied and who has been confined to a particular place
against his/her will. The prisoners have human rights, full constitutional rights, right to access to good
food, to shelters, to security, to legal representatives, the right to meet their family members and
relatives. The only right that they don’t have is that they can’t be released only a order by court can
release them. The work of NALSA have been influenced by a number of judgements which have asked
these legal systems to do something. One of the main judgement is the Kasab Judgement that
Academicians
Legal Education should not only produce lawyers but should be regarded as a legal instrument for
social design. The main aims of legal education are: to train students for legal profession, to educate
students to solve individual client’s problems as well as to solve the society’s problems in which he
lives, to provide a center where scholars must contribute to understanding of law and participate in
their growth and improvement, to inculcate students with operative legal rules and to provide them
adequate experience to apply these rules, to point the right road for future development. Thus, legal
education aims at furnishing skills and competence, for creation and maintenance of just society.
Information Technology
Taking into consideration the fact that technology has advanced the customary way of life, it becomes
quite a necessity that the law and the teaching of law must move accordingly. At present the changes
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brought about by the use of technology can be seen in law, legal education, research and practice. For
instance students, researchers, and teachers can in the comfort of their study tables access millions of
research materials online including laws and judicial decisions of the country and other jurisdictions.
Legal aid is the socio-legal movement spreading justice to the poor and spearheading peaceful change
under law towards the Constitutional goal of just, classless order. Legal Aid as the significant welfare
right is not the exclusive product of political right to seek defence in the court of law. Legal Aid is the
provision of assistance to people otherwise unable to afford legal representation and access to the
court system. Legal Aid is regarded as central in providing access to the justice by ensuring equality
before law, right to counsel and right to a fair trial.
Further referring to Article 39A which is the fundamentals in directive justice emphasized that, the
right to free legal services is, therefore, clearly 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.
Footnotes
. Art.39-A, Constitution Of India,1950. ↩
. Sriparna Ganguly Chaudhuri, The Winding Road To Justice in India,( Jan 24, 2018, 01:51 AM),
https://www.livemint.com/Opinion/pPyGzS0Y7PXmIqI9CBIaMJ/The-winding-road-to-justice-in-
India.html ↩
. Oyshee Gupta (CNLU Patna ) & Suhaas Arora (RGNUL, Patiala), Lok Adalats, (Feb 4,2015),
https://www.lawctopus.com/academike/lok-adalats/ ↩
. Varun Pathak, The Brief History of Legal Aid, www.legalserviceindia.com/articles/laid.htm ↩
,www.legalserviceindia.com/articles/legaut.htm
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. The Legal Services Authorities Act, 1987, section 12, (w.e.f. 09.11.1995) ↩
. NALSA (Legal Services to the Workers in the Unorganized Sector) Scheme, 2015,
https://nalsa.gov.in/acts-rules/preventive- strategic-legal-services-schemes/nalsa-legal-services-to-
the-workers-in-the-unorganized-sector-scheme-2015. ↩
. id. At 9 ↩
. NALSA (Child Friendly Legal Services to Children and their protection) Scheme, 2015,
https://nalsa.gov.in/acts-rules/preventive- strategic-legal-services-schemes/nalsa-child-friendly-
legal-services-to-children-and-their-protection-scheme-2015 ↩
. Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, AIR 1360, (1979). ↩
. R.K. Goel, Role of Legal Aid Authorities and Monitoring Committees. 3rd National Consultation
on Prisoners Rights, Legal Aid and Prison Reform, ( March, 19-20, 2016), https://hrln.org/wp-
content/uploads/2018/03/National-Cons-Report.pdf ↩
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