One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on the road. Justice Blackmun in Jackson v. Bishop says that; "The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice."
Article 39A of the Constitution of India provides that 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 disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. 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. Sec. 304, Criminal Procedure Code: 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.
Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at the 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 the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country. The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994.
Contributions Made By Justice V.R.Krishna Iyer To The Development Of Legal Aid - ‘Processionals Justice To Poor’- A Report
The contribution of justice Krishna Iyer towards the development and incorporation of the concept of legal aid in the Indian legal system has been tremendous. His report titled Processionals justice to poor’ has gone a step further in enabling the recognition of the poor for the purpose of giving legal aid.
In a report on Free Legal Aid in 1971. Justice Bhagwati 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."
A similar report of the Committee on Legal Aid titled "processionals justice to poor" presided over by Krishna Iyer in 1973, dealt with the nexus between law and poverty, and spoke of PIL in this context. It emphasized the need for active and widespread legal aid system that enabled law to reach the people, rather than requiring people to reach the law.
The two judges joined forces as a two member committee on juridicare, released its final report in August 1977. The report while emphasizing the need for a new philosophy of legal service programme cautioned that it ‘must be framed in the light of socio-economic conditions prevailing in the Country’. It further noted that ‘the traditional legal service programme which is essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems of the poor in our country’. The report also included draft legislation for legal services and referred to Social Action Litigation.
Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee was formulated as on the 22nd day of October 1972. The Committee after conducting sample surveys of large part of the country submitted a 275 page report to the Government on the 27th day of May, 1973. This report came to mark the cornerstone of Legal Aid development in India. The report clearly laid down that it is a democratic obligation of the State towards its subject to ensure that the legal system becomes an effective tool in helping secure the ends of social justice. He coined the word "Juridicare" to cover a scheme of legal aid which brought justice to the doorstep of the lowly and which was comprehensive in its coverage.
The report clearly suggests the colonial hangover of the Indian legal system which has prevented it from realising its true potential and extent. It also recognises the fact that much of our law was created by the British to suit their convenience and as a result of this it is mostly insensitive to the socio-economic problems of the masses it set out to govern and regulate.
The report also made an effort to classify those categories of persons who are most in need of Legal Aid, they are as follows:-
# The poor in general;# Those persons belonging to the Scheduled Castes or Scheduled Tribes, i.e. that category of persons who have been both economically as well as socially exploited by the cultural elitists since time immemorial.
# Those persons who either by reason of being inhabitants of backward areas or who are so geographically placed that their voice cannot reach the Courts of justice, e.g. People who are inhabitants of Scheduled Areas, Mountainous terrain’s, landlocked regions etc.
# The workman and the peasantry class who toil and labour to earn rewards for their hard work of which they are often deprived.
# Those soldiers and armed forces personnel who in order to protect the boarders are stationed at the edge of the land for long periods of time.
# Women and children who are deprived social justice on grounds of biological infirmity.
# Untouchables or those who are referred to as Harijans and who even after abolition of Unctouchability under Article 17 of the Indian Constitution are shunned by the Administrative class on the ground of their unacceptance in the community.
The 14th Law Commission Report stated the fact that if laws do not provide for an equality of opportunity to seek justice to all segments of society the have no protective value and unless some arrangement is made for providing a poor man the means to pay Court fee’s, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice.
Justice Krishna Iyer rightly observed that, "Such a consummation, a proposition to which we are Constitutionally dedicated is possible only through an activist scheme of legal aid, conceived wisely and executed vigorously." He went on to state that Law and Justice cannot be regarded as two separate wings any longer and that it had become necessary that they in unison work towards resurrecting the faith of the poor man in the legal system by providing him with adequate non- Governmental as well as Governmental assistance.
Justice Krishna Iyer regarded the Legal Aid program as a catalyst which would enable the aggrieved masses to re-assert State responsibility under Part IV of the Constitution.
Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore the sufferings being so may it is not possible for the legal system to remove even few of such problems. In keeping with the same view Justice Krishan Iyer asserted that poverty is a creation of unjust institutions and unjust society. Therefore in a country like India if you are poor you are ineffective socially as well as economically the only way that you can then be empowered is through radical revamping of the socio-economic structure. Such a radical change according to him could only be brought about in the form of a revolution that the legal service programme only is capable of gearing. Thus the legal aid programme aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind.
He 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 want of procedural formalities had taken precedence over the people at the cost of which justice often suffered casualties. He came to recognise the fact that the Courts of law had merely become instruments for law’s sake and were not administering justice as such. However, he placed blame for the attitude of the judiciary on the colonial hangover of namely all institutional systems in the Country. This lead him to express faith in the Gandhian system which professed the resolution of disputes at the grass root level through village Panchayat’s.
The expert committee appointed under the chairmanship of justice Krishna Iyer has made significant contribution toward the development of the concept of legal aid in India. The various suggestions made by him can be summarized as under:
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 test- 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 criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual offenders and in cases, which essentially involve private claims. Regular arrangement for aid and advice to the undertrials was to be provided. A liberalized bail policy which was not to be dependent on financial consideration Legal services were to be extended to investigation as well as post conviction stage. Legal services should also include rehabilitative services. In criminal legal aid, the committee was in favour of salaried lawyers. The report also encourages payment of compensation to victims in criminal cases. Family courts should be established for women and children with women judges this is specially required in slum areas and rural villages. Public defence council should be appointed in children’s court.
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.
Contributions Made By Justice P.N.Bhagwati To The Development Of The Concept Of Legal Aid-Report On National Jurdicare: Equal Justice-Social Justice, Ministry of Law And Justice And Company Affairs, 1977 Justice P.N. Bhagwati practiced at the High Court, Bombay, he became a Judge of the Gujarat High Court on 21st July, 1960, and became Chief Justice of Gujarat on 16th September, 1967. On 17th July, 1973, he became the judge of the Supreme Court of India. He was also Chairman of the Legal Aid Committee appointed by the Government of Gujarat for suggesting ways and means of providing free legal aid and advice to the poor and weaker section of the community; and also acted as Chairman of the State Legal Aid Committee for running the Pilot Project of free Legal Aid and Advice in Gujarat. He worked successfully to build up an elaborate legal aid programme. He is widely regarded as the originator of India’s legal aid programme, including setting up of legal aid camps in rural areas, working with NGOs, establishing legal aid clinics etc.
The post independence legal aid development was initiated by formation of Bombay Committee, in 1949 under the chairmanship of Mr. NH Bhagwati, followed by the below mentioned sequence of reports, committees and rules. Trevor Harries Committee in West Bengal, 1949 Initiatives by the state governments such as The Legal aid formed in 1952 in UP, The Legal Aid Committee formed in Madras in 1954, and so on. Kerala Legal Aid (to the poor) Rules, 1957 14th Report of the Law Commission of India. Central Government Scheme 1960. National Conference on Legal Aid, 1970. The Gujrat committee along with Mr. P.N. Bhagwati (Chairman) constituted of 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, and Ahemdabad.
The focus of the committee was the indigent person seeking to access justice. Answering to the question of inequality in the administration of justice between the rich and the poor the report clearly stated that there can be no rule of law unless the common man irrespective of the fact whether he is rich or poor is able to assert and vindicate to the rights given to him by the law. The machinery of law should be readily accessible to all. The poor must be placed in the same position as the rich by means of adequate legal service programme. It stated that the inequality between the rich and the poor in administration of the justice can be removed by establishing and developing effective system of the legal aid programme. Legal aid and advice should be regarded not as a matter of charity or bounty but as a matter of right. It is a part of social security programme just as much as medical aid is.
There was unanimous decision of the Committee that the State should regard it as an obligation to provide legal assistance to the poor and indigent. It stated that this obligation of the State was not merely, socio-economic or political but is also constitutional by reason of Articles 14 and 22(1}.
Further the report stated that the legislation and rules so made by the government should not be another piece of legislation made with the reference of any foreign legislation as there is a marked difference between socio-economic conditions prevailing in advanced countries and those prevailing in developing countries like India.
It also emphasized on having legal aid programmes and that the organization for effectuating the legal service programme must be responsive to the poor in giving legal service and must not be mechanical and wooden in its approach. Even after, such a programme is introduced there must be a continues examination of its utility and its responsiveness to the poor.
The report also in detail dealt with the true scope and extent of the legal aid. It recommended that the question is what costs, charges and expenses to be incurred by a litigant in court should be provided from the legal aid fund as part of legal aid scheme. The court fees constitute one of the largest constituents of legal expenses involved in a proceeding in a court of law. Instead of providing necessary funds to the assisted person to make payment of court fees the State should by legislation remit court fees in case of an assisted person. The scheme of legal aid should not be based on class or status. The main test for determining whether the applicant seeking legal aid is eligible for it is
1. The means test:
2. The prima-facie case test and
3. The reasonableness test.
The, means test must be applied to them as well and must be presumed to be satisfied in the case of members, belonging to Backward Classes. The Report stated that the administration of legal aid scheme was to be placed in the hands of Legal Aid Committees to be formed all over the State. Such Committees at all levels should be constituted into corporations with perpetual succession and common seal. As regards to the composition of Legal Aid Committee is concerned, it was suggested that there must be representation of Government officials, the presiding Judge or Magistrate should be ex-officio Chairman and member with the qualification that he should not participate in the determination of the question whether the applicant has a prima facie case or not. Neither the Collector nor the Mamlatdar, should be ex-officio member and the Chairman: of any Legal Aid Committee. Lawyers should be strongly represented on such committee. But the Committees should not consist exclusively of lawyers. There should be representation from the social service field and from other civic and business interests; proportion of lawyers on one hand and social workers and public spirited persons on the other hand may be roughly equal. The lawyers who are to serve on the legal aid committee should be drawn from the members of the bar practicing in the respective areas and as far as possible half of them should be senior members and half should be junior members. The selection of such lawyers must be entrusted to a responsible authority Viz. the chairman of the superior legal aid committee. The selection must be made in consultation with the Chairman of the concerned Legal Aid Committee and with the President of the respective Bar Association. The same procedure can be followed for the appointment of social workers and public spirited citizens on Legal Aid Committee. For clerical work as well as accounts work and to attend to the applicants for legal aid it would be necessary to have a full time Secretary for each Legal Aid Committee.
The report also in detail stated the constitution and the working of different legal committees:
(a) The Taluka Legal aid Committee.- It was recommended that there shall be a Taluka Legal Aid Committee in every Taluka having a court of Civil Judge (Junior Division) or Judicial magistrate, It shall have power to deal with the applications for legal aid in proceedings before the taluka court as also before the Tenancy Tribunal situated within the taluka.The presiding Judge or Magistrate should be the ex-officio member and Chairman and the other members of the Committee shall be (i) the President of the Taluka Bar Association ex-officio or a senior lawyer practicing in the Taluka court,
(ii) one other lawyer practicing in the Taluka Court
(iii) one retired Judge or Magistrate, if available, and
(iv) one and if no retired Judge of or Magistrate is available, two social workers or public spirited citizens. The members of the Taluka Legal Aid Committee would work in honorary capacity and they would ordinarily hold office for a period of three years. Its accounts were also to be audited annually by the Government auditor along with the audit of the accounts of the Taluka Court. The Secretary of the Taluka Legal Aid Committee was to be appointed with the prior approval of the District Legal Aid Committee.
(b) The District Legal aid Committee, - The same provisions was applicable mutatis mutandis in respect of the District Legal Committee. Apart from the District Judge and the president of the District Bar Association, one more lawyer, a retired Judge or Magistrate or two social workers, the other members of the Committee was to be the Government Pleader of the District Court ex-officio, the President of the District Panchayat ex-officio and the Principal or a teacher of law college selected by the district judge.
(c) The State Legal Aid Committee. - It was to be at the apex of the entire Legal Aid Organization and was suggested to be a High power Body composed of different social interests dedicated to the cause of administration of legal aid. It was to have as its Chairman the Chief Justice or a High Court Judge nominated by him. The other members of the Committee constituted of the Advocate General, President of the High Court Bar Association or the Vice-President, Chairman of State Bar Councilor the Vice-Chairman, one senior member of the High Court Bar, three members of the mofussil Bar, one District Government Pleader, District Judges of Rajkot, Baroda and Surat, Secretary, Legal Department and Finance Secretary of the State Government, two members of the State Legislative Assembly, Director of Backward Classes, four social workers and a teacher of law. This Committee was to have mainly supervisory functions and lay down policies and principles for the administration of the Legal Aid Scheme. There was to be a State Director of Legal Aid responsible for the actual administration of the Legal Aid Programme within the State and was to be the Chief Executive Officer of the State Legal Aid Committee. The Committee was to exercise control over all the Legal Aid Committee in the State, and similarly the Taluka Legal Aid Committees shall be under the control and supervision of the District Legal Aid Committee.
A special mention and recommendation was given regarding the Bail System. The bail system caused discrimination against the poor since the poor would not be able to furnish bail, while wealthier persons otherwise similarly situate would be able to furnish bail. The poor accused had often to fall back on touts and professional sureties for providing bail to suffer pre-trial detention the committee stated that the bail system was extremely unsatisfactory as and required reform so that it should be possible for the poor, as easily as for the rich, to obtain pre-trial release without jeopardizing the interests of justice. The committee giving wide powers to the magistrate suggested that if a Magistrate was satisfied after making an inquiry into the conditions and background of the accused that the accused has his roots in the community and is not likely to abscond, he could release the accused on order to appear or on his own recognizance. The Magistrate must ordinarily do so unless the Prosecutor can show that, having regard to the conditions and background of the accused, there is a substantial risk of his non-appearance at the trial. The decision as regards the amount of bail should be an individual decision depending on the individual financial circumstances of the accused and the probability of his absconding. When the accused is released on bail the magistrate must give a sufficiently long date, so that on the date on which the accused appears the case does not have to be adjourned on the ground that the charge sheet is not filed. If on the adjourned date the charge sheet is not filed the prosecution must be made to pay the cost of adjournment to the accused or in the alternative the magistrate may grant exemption to the accused from appearance until the charge sheet is filed provided that the accused is represented by a lawyer. There should not be too many adjournments on the ground that the prosecution is not ready with its witnesses. The magistrate should be given power to order payment of costs of adjournment to the accused where the prosecution has not taken reasonable steps to secure the presence of any witness and the case has to be adjourned on that account.
They also suggested that the penal law should be amended with a view to providing that if the accused willfully fails to appear in compliance with the order to appear or the promise contained in his recognizance he shall be liable to be punished with imprisonment or fine or both. The law should also provide that the failure of the accused to appear when required would constitute prima facie evidence that the failure was willful. The Magistrates may start releasing the accused on his own recognizance in cases where the offence charged does not involve imprisonment for more than one year. The committee further stated that if it was found from experience gained as a result of following this practice for a year or two, that the practice is working satisfactorily, the Magistrates may extend this practice to cases involving slightly higher offences.
The committee knowing that a large amount of finance would be required for an adequate legal service programme, suggested that there should be a Legal Aid Fund created by statute which would consist of moneys received from different sources such as donations from individuals, associations of merchants, traders or manufacturers, charitable organizations and Public Charitable Trusts. Tax exemption should be granted in respect of such' donations; organizing entertainment programme through social service organizations like the Rotary Club and the Lions Club and organizing a Rupee Drive; providing by statute that every vakalatnama should bear in addition to the usual Court fee stamp, Legal Aid Stamp of the denomination of Re. 1, amount of costs awarded to a legally assisted person; amount of legal aid granted to a legally assisted person when recovered from him or from the property or money decreed in his favor; contributions made by partially assisted persons; fees paid by applicant legal advice; grant made by the Central Government to State Government to meet expenses of providing legal service to members of Scheduled Caste and . Scheduled Tribes. Annual celebrations made by municipal corporations, municipalities, and many such sources.
The report stated that we as a nation really want to eradicate poverty and establish a truly free, just and egalitarian society; the legal service programme recommended by the Committee should be implemented wholly and in its entirety. But recognizing the difficulties that the state government may face, it may not be possible for the State Government to implement the whole of the legal service programme immediately in one single stage. It was, therefore, suggested that the legal service programme may be implemented in stages according to a phased plan. The committee recommended that the state government may implement the legal service programme immediately in so far as it relates to the provisions of legal aid in civil cases and cases before the administrative tribunals and also in regard to criminal cases other than committal proceedings and cases under the Bombay prohibition act, Bombay prevention of gambling act prevention of food adulteration act and suppression of immoral traffic in women and girls act. The provisions of legal aid in committal proceedings may be left over for the second stage and the provisions of legal aid in regard to offences under the enactment referred to above may be taken up at the final stage. The implementation of the preventive legal services programme should not be delayed. But if the state government thinks that it is not possible to implement the preventive service programme immediately, it may postpone implementation so far as the items of representation, legal research and innovation, institutional changes and organization of the poor are concerned. So far as the items of the legal service and education are concerned, there should be no delay in implementation.
This report was followed by the Expert committee on Legal Aid, 1973 headed by Mr. Krishna Iyer. Meanwhile there were many state initiatives taken and more state Reports were prepared which lead to development of legal aid in the states such as Tamil Nadu, Madhya Pradesh and Rajasthan.
On 19 May, 1976, the government of India appointed a two member committee, known as Juridicare Committee, of justice P N Bhagwati as chairman and Justice V.R.Krishna Iyer as member.
One of the purpose for setting up the committee was that ‘the central government is of the view that an adequate and vigorous legal service program is necessary to be establish in all the states in the country on a uniform basis’. The terms of reference of the Juridicare committee included making ‘recommendations for the establishing and operating comprehensive and a dynamic legal service program for effective implementations of the socio economic measures taken or to be taken by the government including formulation of scheme (s) for legal services.’
The juridicare Committee’s report was titled Report on National Juridicare: equal justice – social justice (hereinafter referred as the 1977 report). The introduction of the 1977 report made it clear that it was in continuation of the 1973 report. It said that ‘In a sense, the present report is an extensive revision, updating, revaluating and adding to the previous one.’
In an attempt to overcome the criticism of the 1973 report the Juridicare Committee submitted an interim report furnishing a draft of the national legal services bill, 1977, which comprehensively drew up the institutional setup for the delivery of legal services.
The 1977 report first focused on the infrastructure of the legal services of the organization and clearly stated that it was not to be a department of the government but an autonomous institution headed by the Judge of the Supreme Court. The body would have representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that there would be a multi tier set up for the legal aid organization.
The 1977 report was an amalgamation of the 1971 Gujarat report and the 1973 report but absence of certain aspects of the legal services was conspicuous. For instance, both the 1971 Report and the 1973 report dealt with the issues arising from the criminal justice separately. Hence it may be stated that except saying that it was continuation of the earlier reports, the 1977 Report made no reference to these aspects.
The continuation with the earlier reports was also evident in the reiteration by the 1977 Report of the failures of the traditional legal services programme. The goals of the preventive legal services programme, advocated forcefully by the 1971 Report were recapuliated in this report, it stated that while the endeavor would be to launch a frontal attack on the problem of the poverty, the legal service programme would have to be directed towards providing representation to ‘groups of social and economic protest’ and ‘must encourage group oriented and institution directed approach to the problem of poverty’.
The other goals that were reiterated were: the programme ‘should not identify lawyers with the law but should even pose them against law, wherever law is the reflection of an unjust social order’, it had to recognize the inter relatedness of social, legal, educational and psychological problems which beset the poor; the content of the legal services programme was to include spreading of awareness amongst the poor about their rights, tackling the class problems of the poor, initiating socio-legal research into the problems with a view to bringing about reform in law and administration and helping different groups of the poor to organize themselves.
The 1977 report envisaged several modes of delivery of legal services. The primary mode would be the providing of legal advice through various legal aid offices having both salaried lawyers and assigned lawyers.
The 1977 report favored the setting up of Nagrik Salah Kendra at each legal aid office to provide counseling service and also act as a referral body for all kinds of problems for which assistance may be needed.
A central concern in the 1977 report was the de-centralization of the justice and redressed mechanism and in this connection strengthening the existing system of Nay Achaia. A whole Chapter was devoted to PIL: and legal aid. The 1977 report envisioned class action as an essential form of redressing collective wrongs further the legal aid organization would be the initiators of such class action. The 1977 report focused on the orientation of the different actors who would be the participants in the program which included members of judiciary, law universities and law students, voluntary agencies and social workers. There was also an emphasis on the university law clinics and their functions included preventive and positive service at pre-litigation stage by negotiation and conciliation disputes outside the courts, giving postal advice in respect of legal problems of individuals, seeking administrative and legislative remedies against wrongs done and so on.
It was suggested that the Advocated Act, 1961 be amended to recognize and permit provision of legal aid by law teachers and students. The report clearly stated that the funding of the legal aid programme was the state responsibility and for this identified sources such as court fees collected from the litigants, legal aid steps, levy of special cess, donations and many more for the purpose of funding the legal aid programme and so on.
Though the ideas as laid down by the Report was revolutionary but not much that was mentioned in the report was implemented as the government that had appointed the Juridicare committee was not in power when the 1977 report was submitted. The 1977 report remained on the shelf along with it the National legal Services Bill. Though the congress was voted back to power in 1980 but it was too enthusiastic about the 1977 Report. Instead the government constituted the Center for Implementation of legal Aid Scheme (CILAS) under Justice Bhagwati.
The 1977 Report was the latest attempt by the Central government to comprehensively determine the issue of providing legal services to the poor. It is further submitted that there were certain common lacunae in all the reports, which need to be noticed:
Each of the reports though suggested of setting up of setting legal aid through a network of autonomous legal aid bodies, there was no clarity on how that could be achieved with the state being the major contributor of funds to the programme.
The 1977 report of the committee of Justices Krishna Iyer and P.N. Bhagwati, both of the Supreme Court, drew up a detailed scheme which envisaged public interest litigation (PIL) as a major tool in bringing about both institutional and law reform even while it enabled easy access to the judicial system for the poor. Their report, as those of the previous committees, was ignored. This explained partly the impatience of these two judges, in the post-emergency phase, in making the institution appear responsive to the needs of the population that had stood distanced from it. The two judges played a major role in spearheading the PIL jurisdiction.
Legal Services Authorities Act, 1987.
Criterion For Providing Legal AidSection 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-
Every person who has to file or defend a case shall be entitled to legal services under this Act if that person 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
(g) 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
(h) 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); or
(i) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., 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 Govt., if the case is before the Supreme Court.
(Rules have already been amended to enhance this income ceiling).
Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority.
Hierarchy of Bodies Created Under The Act
A nationwide network has been envisaged under the Act for providing legal aid
and assistance. National Legal Services Authority is the apex body constituted
to lay down policies and principles for making legal services available under
the provisions of the Act and to frame most effective and economical schemes for
legal services. It also disburses funds and grants to State Legal Services
Authorities and NGOs for implementing legal aid schemes and programmes.In every State a State Legal Services Authority is constituted to give effect to the policies and directions of the Central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats in the State. State Legal Services Authority is headed by the Chief Justice of the State High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated as its Executive Chairman.
District Legal Services Authority is constituted in every District to implement Legal Aid Programmes and Schemes in the District. The District Judge of the District is its ex-officio Chairman.
Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organise Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman.
Constitution of the National Legal Services:
The Central Authority shall consist of -a. the Chief Justice of India who shall be the Patron-in-Chief;
b. a serving or retired Judge of the Supreme Court to be nominated by the President, in consultation with the Chief Justice of India, who shall be the Executive Chairman; and
c. such number of other members, possessing such experience and qualifications, as may be prescribed by the Central Government, to be nominated by that government in consultation with the Chief Justice of India.
The Central Government shall in consultation with the Chief Justice of India, appoint a person to be the Member-Secretary of the Central Authority, possessing such experience and qualifications as may be prescribed by that Government, to exercise such powers and perform such duties under the Executive Chairman of the Central Authority as may be prescribed by that Government or as may be assigned to him by the Executive Chairman of that Authority.
The administrative expenses of the Central Authority, including the salaries, allowances and pensions payable to the Member-Secretary, officers and other employees of the Central Authority, shall be defrayed out of the Consolidated Fund of India.
Supreme Court Legal Services Committee:
The Central Authority shall constitute a Committee to be called the Supreme Court Legal Services Committee for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the Central Authority.The Committee shall consist of -
a. a sitting judge of the Supreme Court who shall be the Chairman; andb. such number of other members possessing such experience and qualifications as may be prescribed by the Central Government to be nominated by the Chief Justice of India.
The Chief Justice of India shall appoint a person to be the Secretary to the Committee, possessing such experience and qualifications as may be prescribed by the Central Government.
The schemes and measures implemented by the Central Authority:
a. After the constitution of the Central Authority and the establishment of NALSA office towards the beginning of 1998, following schemes and measures have been envisaged and implemented by the Central Authority:-(a) Establishing Permanent and Continuous Lok Adalats in all the Districts in the country for disposal of pending matters as well as disputes at pre-litigative stage;
(b) Establishing separate Permanent & Continuous Lok Adalats for Govt. Departments, Statutory Authorities and Public Sector Undertakings for disposal of pending cases as well as disputes at pre-litigative stage;
(c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign;
(d) Appointment of "Legal Aid Counsel" in all the Courts of Magistrates in the country;
(e) Disposal of cases through Lok Adalats on old pattern;
(f) Publicity to Legal Aid Schemes and programmes to make people aware about legal aid facilities;
(g) Emphasis on competent and quality legal services to the aided persons;
(h) Legal aid facilities in jails;
(i) Setting up of Counseling and Conciliation Centers in all the Districts in the country;
(j) Sensitisation of Judicial Officers in regard to Legal Services Schemes and programmes;
(k) Publication of "Nyaya Deep", the official newsletter of NALSA;
(l) Enhancement of Income Ceiling to Rs.50,000/- p.a. for legal aid before Supreme Court of India and to Rs.25,000/- p.a. for legal aid upto High Courts; and
(m) Steps for framing rules for refund of court fees and execution of Awards passed by Lok Adalats.
National Legal Services Authority was constituted on 5th December, 1995. His Lordship Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive Chairman of National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His Lordship initiated steps for making the National Legal Services Authority functional. The first Member Secretary of the authority joined in December, 1997 and by January, 1998 the other officers and staff were also appointed. By February, 1998 the office of National Legal Services Authority became properly functional for the first time.
In October, 1998, His Lordship Hon. Dr. Justice A.S. Anand assumed the Office of the Chief Justice of India and thus became the Patron-in-Chief of National Legal Services Authority. His Lordship Hon. Mr. Justice S.P. Bharucha, the senior-most Judge of the Supreme Court of India assumed the office of the Executive Chairman, National Legal Services Authority.
The First Annual Meet of the State Legal Services Authorities was held on 12th of September, 1998 at Vigyan Bhawan, New Delhi which was presided over by His Lordship Hon. Dr. Justice A.S. Anand, the then Executive Chairman, NALSA. His Lordship Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal Services Committee, the Members of the Central Authority and the Executive Chairmen and Member Secretaries of the State Legal Services Authorities attended this Meet. In this Meet, the progress of on-going schemes which had been initiated by NALSA was examined and decisions of far reaching implications were taken with a view to strengthen and streamline legal aid programmes in the country. The Second Annual Meet of the State Legal Services Authorities was held at Jubilee Hall, Hyderabad on 9th of October, 1999. This Meet was inaugurated by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India and Patron-in-Chief, NALSA. Hon. Mr. Justice S.P. Bharucha, Executive Chairman, NALSA delivered the keynote address. Other dignitaries present at the inaugural function included Hon. Mr. Justice S.B. Majmudar, Judge, Supreme Court of India and Chairman, Supreme Court Legal Services Committee, Hon. Mr. Justice M.S. Liberhan, Chief Justice of Andhra Pradesh High Court and Members of Central Authority.
In pursuance of the call given by His Lordship Hon. Dr. Justice A.S. Anand, the Chief Justice of India in the First Annual Meet, 9th of November is being celebrated every year by all Legal Services Authorities as "Legal Services Day".
NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign. Almost all the State Legal Services Authorities are identifying suitable and trustworthy NGOs through whom legal literacy campaign may be taken to tribal, backward and far-flung areas in the country. The effort is to publicise legal aid schemes so that the target group, for whom Legal Services Authorities Act has provided for free legal aid, may come to know about the same and approach the concerned legal services functionaries.
NALSA has also called upon State Legal Services Authorities to set up legal aid cells in jails so that the prisoners lodged therein are provided prompt and efficient legal aid to which they are entitled by virtue of section 12 of Legal Services Authorities Act, 1987.
Constitution of State Legal Services Authority:
A State Authority shall consist of -(a) the Chief Justice of the High Court who shall be the Patron-in-Chief;
{b) a serving or retired Judge of the High Court, to be nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and
(c) such number of other Members, possessing such experience and qualifications, as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court.
The State Government shall, in consultation with the Chief Justice of the High Court, appoint a person belonging to the State Higher Judicial Service not lower in rank than that of a District Judge, as the Member-Secretary of the State Authority, to exercise such powers and perform such duties under the Executive Chairman of the State Authority as may be prescribed by that Government or as may be assigned to him by the Executive Chairman of that Authority.
A person functioning as Secretary of a State Legal Aid & Advice Board immediately before the date of constitution of the State Authority may be appointed as Member-Secretary of that Authority, even if he is not qualified to be appointed as such under this sub-section, for a period not exceeding five years.
The administrative expenses of the State Authority, including the salaries, allowances and pensions payable to the Member-Secretary, officers and other employees of the State Authority shall be defrayed out of the Consolidated Fund of the State.
High Court Legal Services Committee:
The State Authority shall constitute a Committee to be called the High Court Legal Services Committee for every High Court, for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority.The Committee shall consist of
a) a sitting Judge of the High Court who shall be the Chairman; andb) such number of other Members possessing such experience and qualifications as may be determined by regulations made by the State Authority, to be nominated by the Chief Justice of the High Court.
Functions of the State Authority:
It shall be the duty of the State Authority to given effect to the policy and directions of the Central Authority.The State Authority shall perform all or any of the following functions, namely:-
a) give legal service to persons who satisfy the criteria laid down under this Act.
b) conduct Lok Adalats, including Lok Adalats for High Court cases;
c) undertake preventive and strategic legal aid programmes; and
d) perform such other functions as the State Authority may, in consultation with the Central Authority, fix by regulations.
Constitution of the District Legal Services Authority:
A District Authority shall consist of :-a) the District Judge who shall be its Chairman; and
b) such number of other Members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court.
The administrative expenses of every District Authority, including the salaries, allowances and pensions payable to the Secretary, officers and other employees of the District Authority shall be defrayed out of the Consolidated Fund of the State.
Functions of District Authority:
The District Authority may perform all or any of the following functions, namely:-a. co-ordinate the activities of the Taluk Legal Services Committee and other legal services in the District;
b. organise Lok Adalats within the Districts; and
c. perform such other functions as the State Authority may fix by regulations.
Constitution of the Taluk Legal Services Committee:
The Committee shall consist of -
a. the senior Civil Judge operating within the jurisdiction of the Committee who shall be the ex-officio Chairman; and
b. such number of other Members, possessing such experience and qualifications, as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court.
Functions of Taluk Legal Services Committee:
The Taluk Legal Services Committee may perform all or any of the following functions, namely:-a. co-ordinate the activities of legal services in the taluk;
b. organise Lok Adalats within the taluk; and
c. perform such other functions as the District Authority may assign to it.
Certain salient features of the Act are enumerated below:-
Section 2 Definitions.-
(1) (c) 'legal service' includes the rendering of any service in the conduct any case or other legal proceeding before any court or other Authority or tribunal and the giving of advice on any legal matter;(d) 'Lok Adalat' means a Lok Adalat organised under Chapter VI;
(g) 'scheme' means any scheme framed by the Central Authority, a State Authority or a District Authority for the purpose of giving effect to any of the provisions of this Act;
(h) 'State Authority' means a State Legal Services Authority constituted under Section 6;
(2) Any reference in this Act to any other enactment or any provision thereof shall, in relation to an area in which such enactment or provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
Section 19
1.Central, State, District and Taluk Legal Services Authority has been created who are responsible for organizing Lok Adalats at such intervals and place.2.Conciliators for Lok Adalat comprise the following: -
a. A sitting or retired judicial officer.
b. other persons of repute as may be prescribed by the State Government in consultation with the Chief Justice of High Court.
Section 20: Reference of Cases
Cases can be referred for consideration of Lok Adalat as under:-1. By consent of both the parties to the disputes.
2. One of the parties makes an application for reference.
3. Where the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.
4. Compromise settlement shall be guided by the principles of justice, equity, fair play and other legal principles.
5. Where no compromise has been arrived at through conciliation, the matter shall be returned to the concerned court for disposal in accordance with Law.
Section 21
After the agreement is arrived by the consent of the parties, award is passed by the conciliators. The matter need not be referred to the concerned Court for consent decree.The Act provisions envisages as under:
1. Every award of Lok Adalat shall be deemed as decree of Civil Court.
2. Every award made by the Lok Adalat shall be final and binding on all the parties to the dispute.
3. No appeal shall lie from the award of the Lok Adalat.
Section 22
Every proceedings of the Lok Adalat shall be deemed to be judicial proceedings for the purpose of :-1. Summoning of Witnesses.
2. Discovery of documents.
3. Reception of evidences.
4. Requisitioning of Public record.
According to section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case' which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the 'court' as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. As per section 2(1)(c) '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.
Supreme Court On Legal Aid
The linkage between Article 21 and the right to free legal aid was forged in the decision in Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that "there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." The court pointed out that Article 39-A emphasised 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.In his inimitable style Justice Bhagwati declared:
"Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality".
Further in the case of Hussainara Khatoon & Ors. (V) v. Home Secretary, State of Bihar, Patna Justice Bhagwati held that: "it’s the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a free lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and it is hoped that every State Government would try to avoid such a possible eventuality."
Two years thereafter, in the case of Khatri & Ors. (II) v. State of Bihar & Ors. , 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, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid at the expense of the State. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may, however, be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal or child abuse and the like, where social justice may require that free legal services need not be provided by the State."
He reiterated this in Suk Das v. Union Territory of Arunachal Pradesh and said "It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21." This part of the narration would be incomplete without referring to the other astute architect of human rights jurisprudence, Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra , he declared: If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice
In Khatri & Others v. St. of Bihar & others
Bhagmati J. observed;
Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoon’s Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate for it is at this stage that he gets the 1st opportunity to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the stage at which and accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice representation to the accused at this stage. Thus, state is under a constitutional obligation to provide free to aid to the accused not only at the stage of .... Every individual of the society are entitled as a matter of prerogative.
In Indira Gandhi v. Raj Narain the Court said:
"Rule Of Law is basic structure of constitution of India. Every individual is guaranteed the its give to him under the constitution. No one so condemn unheard. Equality of justice. There ought to be a violation to the fundamental right or prerogatives, or privileges, only then remedy go to Court of Law. But also at the stage when he first is produced before the magistrate. In absence of legal aid, trial is vitiated."
In, State of Haryana v. Darshana Devi, the Court said 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. Order XXXIII will apply to tribunals, which have the trappings of the civil court.Civil procedure code, 1908 - order XXXIII, rule 9A - it is a public duty of each great branch of government to obey the rule of law and uphold the tryst with the constitution by making rules to effectuate legislation meant to help the poor.
The court should expand the jurisprudence of access to justice as an integral part of social justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in nation's constitution. If the state itself should travesty this basic principle, in the teeth of articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as curt-fee, is fully reviewed by the supreme court. Before parting with this point the court must express its poignant feeling that no state has, as yet, framed rules to give effect to the benignant provision of legal aid to the poor in order xxxiii, rule 9A, civil procedure code, although several years have passed since the enactment. Parliament is stultified and the people are frustrated. Even after a law has been enacted for the benefit of the poor, the state does not bring into force by wilful default in fulfilling the conditio sine qua non. It is a public duty of each great branch of government to obey the rule of law and uphold the tryst with the constitution by making rules to effectuate legislation meant to help the poor. It is a public duty of each great branch of government to obey the rule of law and uphold the tryst with the constitution by making rules to effectuate legislation meant to help the poor."
Justice Bhagwati while delivering the judgement in the case of Kara Aphasia v. State of Bihar, where the petitioners were young boys of 12-13 years when arrested, and were still languishing in jail for over 8 years. They also alleged to have been kept in leg irons and forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21.
In Centre for Legal Research & Anr. v. State of Kerala , Chief Justice Bhagwati took a step further and laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lok adalats or niti melas.
While delivering the judgment Bhagwati, C.J., stated that the writ petition raised a question as to whether voluntary organizations or social action groups engaged in the legal aid programmed should be supported by the State Government and if so to what extent and under what conditions.
"There can be no doubt that if the legal aid programme is to succeed it must involve public participation. The State Government undoubtedly has an obligation under Article 39-A of the Constitution which embodies a directive principle of State policy to set up a comprehensive and effective legal aid programme in order to ensure that the operation of the legal system promotes justice on the basis of equality. But we have no doubt that despite the sense of social commitment which animates many of our officers in the Administration, no legal aid programme can succeed in reaching the people if its operations remains confined in the hands of the Administration. It is absolutely essential that people should be involved in the legal aid programme because the legal aid programme is not charity or bounty but it is a social entitlement of the people and those in need of legal assistance cannot be looked upon as mere beneficiaries of the legal aid programme but they should be regarded as participants in it. If we want to secure people's participation and involvement in the legal aid programme, we think the best way of securing it is to operate through voluntary organizations and social action groups. These organizations are working amongst the deprived and vulnerable sections of the community at the grass-root level and they know what are the problems and difficulties encountered by these neglected sections of Indian humanity. It is now acknowledged throughout the country that the legal aid programme which is needed for the purpose of reaching social justice to the people cannot afford to remain confined to the traditional or litigation oriented legal aid programme but it must, taking into account the socio-economic conditions prevailing in the country, adopt a more dynamic posture and take within its sweep what we may call strategic legal aid programme camps, encouragement of public interest litigation and holding of lok adalats or niti melas for bringing about settlements of disputes whether pending in courts or outside. The assistance of voluntary agencies and social action groups must therefore be taken by the State for the purpose of operating the legal aid programme in its widest and most comprehensive sense, and this is an obligation which flows directly from Article 39-A of the Constitution. It is also necessary to lay down norms which should guide the State in lending its encouragement and support to voluntary organizations and social action groups in operating legal aid programmes and organizing legal aid camps and lok adalats or niti melas. We are of the view that the following norms should provide sufficient guidance to the State in this behalf and we would direct that the State Government shall, in compliance with its obligations under Article 39-A of the Constitution extend its cooperation and support to the following categories of voluntary organizations and social action groups in running the legal aid programme and organizing legal aid camps and lok adalats or niti melas."
Legal Aid Under C.P.C And Cr.P.C
S. 304(1) "Lays down that when accused facing a trial. Concept of free legal aid scheme under legal services Authority. Act is only when accused facing trial in court. When person is VV poor, then he can get legal aid. In the absence of lawyer, the entire trial becomes vitiated and then case to be remanded back to the trial court. Court to ask the accused, whether he has services to engage a lawyer or not. If not, the court is bound to give him lawyer from the bar, who should be well versed with the law and to be get paid by St. Govt. Court cannot sympathize with a lawyer. Lawyer must be a competent one...."is amicus curiae (friend of court). S. 304, CrPC plays V. imp. role."Order 33, rule 17, CPC
Suit by or against an indigent person. When a plaint along with petition, that person unable to avail services of an lawyer, then court exempts him from court fees.Recent Amendments To Made To The Legal Services Authorities Act, 1987
The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts.However, the major drawback in the existing scheme of organization of the Lok Adalats under Chapter VI of the said Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the court of law or the parties are advised to seek remedy in a court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merits in case parties fails to arrive at any compromise or settlement, this problem can be tackled to a great extent. Further, the cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre-litigation stage and thus most of the petty cases which ought not to go in the regular courts would be settled at the pre-litigation stage itself which would result in reducing the workload of the regular courts to a great extent. It is, therefore, proposed to amend the Legal Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to public utility services.
The salient features of the amendment are as follows:
1) to provide for the establishment of Permanent Lok Adalats which shall consist of a Chairman who is or has been a district judge or additional district judge or has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services;2) (ii) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries; and insurance services;
3) (iii) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have not jurisdiction in respect of any matter relating to an offence not compoundable under any law;
4) (iv) it also provides that before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute;
5) (v) where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits; and
6) (vi) every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and shall be by a majority of the persons constituting the Permanent Lok Adalat.
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