Legal Aid: A recent trend in Indian Jurisprudence

Introduction

Legal aid means giving to persons of limited means gratis, of for nominal fees, legal advice and legal assistance in courts in civil and criminal matters. Its primary object is to make is impossible for any man, woman or child to be denied equal protection of the law became he or she is poor.The preamble to the Constitution declares to secure to all citizens – Justice, social, economic and political: liberty of thought, expressions, belief, faith and worship, equality of status and of opportunities and to promote among them all fraternity assuring to dignity of the individual and the unity of the nation. Article 14 and 38 of the Constitution provide for equality of justice to all citizens, article 14 states – The state shall not deny to any person equality before the law of the equal protection of the laws within the territory of India. Article 38 states – The state shall strive to promote the welfare of the people by securing and protection as effectively as it may a social order in which justice social economics and political shall inform all the institutions of the national life. Thus, in order to ensure equality of justice as conceived by our Constitution legal aid to the poor is necessary.

Historical background of legal aid in India

In England, in 1944 a committee under the chairmanship of Lord Rushcliffe was appointed to enquire what facilities at present exist in England and Wales for giving legal advice and assistance to the poor persons and to make such recommendations as appear to be desirable for the purpose of securing that poor person’s in need of legal advice may have such facilities at their disposal and for modifying and improving, so far as seems expedient, the existing system whereby legal aid is available to poor persons  in the conduct of litigation in which they are concerned whether in civil or in criminal courts. The Committee submitted its reports in 1945 with the following recommendations:

• Legal aid should be available in all the courts and in such manners as will enable persons in need to have access to the professional help they require.
• This provision should not be limited to those who are normally classed as poor but include a wider income group.
• Those who cannot afford to pay anything for legal aid should receive this free of cost. There should be a scale of contribution for those who can pay something towards costs.
• The cost of the scheme should be borne by the state but the scheme should not be administered either as a department of state of by local authorities.
• The legal professions should be responsible for the administration of the scheme.
• Barristers and solicitors should receive adequate remuneration for their services.
• The term poor person should be discarded and the term assisted person adopted

The Indian law commission in its 14th report emphasis the need for the creation of legal aid agencies in India to redress the inequality produced by economic disparities. The advocate’s amendment act of 1970 considered legal aid as a part of the profession duty of the lawyer. In 1970 the national legal aid conference drew attention to the crying need for legal aid in India. The government of India constituted the legal aid committee in 1972 with Shri VR Krishna Iyre as chairman who was at that time member of the law commission. Shri Krishna presented a brilliant report to the government of India setting forth the philosophy underlying the movement for legal aid and furnishing a blueprint of far-reaching reform designed for effective, speedy and inexpensive justice.

Gujarat Committee

The government of Gujarat appointed a committee under the chairmanship of Shri PN Bhagwati  to consider the question of the grant of legal aid in civil criminal revenue labor and other proceedings to backward classes and to make such recommendations as may be desirable so as to render legal advice more easily available and to make justice more easily accessible to such persons including recommendations on the questions of encouragements and financial assistance to institutions engaged in the work such as legal aid.
The Committee observed in its report that the state should regard it as an obligation to provide legal assistance to the poor and indigent.

Legal Aid Programme

In Pursuance of the Directives from the central government many states enacted their own legal aid legislation. The State of MP introduced a comprehensive legal aid scheme under the legal aid and assistance act 1976. Initially the scheme was introduced only in few districts which were predominantly inhabited by Adiwasis or aborignal tribes; it was subsequently extended to all over the States.

Constitutional Provisions of Legal Aid.

Article 39-A of the Constitution expressly provided legal aid it is one of the Directive Principles of state policy and therefore the state is under obligation to adopt suitable measures for providing free legal aid to the poor

A. Statutory Provisions.

1. Criminal law

SECTION 304 of the criminal procedure code provides for legal aid to the accused at the states expense in certain cases.

2. Civil Law

Order XXIII of the civil procedure code as amended by the amendment act 1976   provides for suits by indigent persons. An ‘indigent person’ has been defined as a person who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in the suit, or where no such fees km is prescribed if he is not entitled to property of the value of one thousand rupees other than the property exempt from attachment in execution of a degree and the subject matter of the suit.

Rule 17 which has been inserted by the amendment act 1976 provides this benefits to the defendant also, it says that any defendant who desire to plead a set off or counter claims. May be allowed to set up such claims as an indigent person and the rules contained in this order shall so far as may be apply to him as if he were a plaintiff and his written statements were a plaint.

Rule 18 of the same order also inserted but the amendment act 1976 provides that subject to the provision of order XXXIII, the central or any state government may make such supplementary provision as it thinks fit for providing free legal services to those who have been permitted to sue as indigent person.

Order XLIV of the civil procedure code deals with appeals by indigent persons. Any person entitled to an appeal who is unable to pay the fee required for the memorandum of appeal may present an application accompanied by a memorandum appeal and may not be allowed to appeal as an indigent person subject in all matters including the presentation of such application to the provision relating to suit by indigent persons, in so far those provisions are applicable.

Procedural Machinery for Legal Aid 

Procedural machinery for Legal Aid includes voluntary legal aid societies at the local level. State level and national level. For the successful implementation of legal aid schemes active Co -operation of the legal professionals, law teachers and law students is required, certain legal aid clinics are also required to be opened. Some law colleges have already started legal aid clinics.

 Role of the Supreme Courts in implementation Legal Aid Scheme

 The Supreme Court has been very successful in the implementation of the programme of legal aid to poor and resource less people. In its historic decision in Hussainara Khatoon v. State of Bihar which was followed by a similar decision in Kadra Phadia v. State of Bihar the Supreme Court observed that free legal aid and assistance is a right implicit in the mandate contained is article 21 relating to the protection of life and liberty of persons.

In Khatri v. State of Bihar the Supreme Court clarified that the right of an accused to get legal aid and assistance being from the time he is produced before the magistrate for the first time.

 

Author: Umang Bhatla,
Delhi Metropolitan Education affiliated to GGSIPU, 3rd Yr.