Legal aid refers to providing free legal services to the needy and underprivileged who cannot afford to hire an attorney to represent them in a case or legal procedure in a court, tribunal, or before a judicial authority.
In essence, the preamble of the Indian constitution seeks to guarantee socioeconomic and political fairness to the Indian people. Legal aid, as His Lordship Justice P.N. Bhagwati succinctly put it, is an arrangement in society that makes the machinery of administration of justice readily available and within reach of those who need to use it to enforce the rights that the law has granted to them. According to Article 38(1), the State shall advance the well-being of the people by ensuring and preserving the rule of law and the societal order. Every individual has an equal right to life and liberty, according to Article 21, unless otherwise provided for by the legal process.
In order to ensure that no citizen is denied the opportunity to pursue justice due to financial or other limitations, the State must ensure that the functioning of the legal system promotes justice on the basis of equal opportunity. In particular, the State must provide free legal aid through appropriate legislation or programs or in any other manner.
In the case of Hussainara Khatoon v. State of Bihar, it was decided that any accused person has a right to free legal assistance at the state’s expense if he is unable to pay for legal representation.
The State has a responsibility to ensure that the legal system advances justice based on the equal chance for all of its citizens. So, it must make arrangements. to offer free legal aid to those who are unable to obtain justice because of their financial situation or other barriers.(Art.39 A of the Constitution of India)
The court must provide an attorney at the cost of the state if the accused lacks the resources to hire one for their defence.
—(Sec. 304 of Code of Criminal Procedure,1973)
When the accused is first brought before the magistrate and every time he is brought back for remand, there is a constitutional obligation to provide legal assistance.
—(1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470; Khatri II v. State of Bihar
An individual who has the right to appeal their sentence has the right to request legal representation so they can prepare and present their case.
—State of Maharashtra v. Madav Hayavadanrao Hoskot (1978) 3 SCC 544 (Article 142 r/w Articles 21 and 39A of the Constitution
Services Offered by Authority
- Payment of court and another processing fee;
- Charges for preparing, drafting and filing any legal proceedings;
- Charges of a legal practitioner or legal advisor
- Costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding;
- Costs of paperwork, including printing, translation etc.
Duties of the Police and the Courts:
The police must inform the nearest Legal Aid Committee about the arrest of a person immediately after such arrest.
—(Sheela Barse V. State of Maharashtra)
The Magistrates and Session judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
Failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence. —(Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401; 1986 SCC (Cri) 166)
When can Legal services be rejected?
If the applicant:-
– has adequate means to access justice;
– does not fulfil the eligibility criteria;
– has no merits in his application requiring legal action
Cases for which legal aid is not available:
- Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc.
- Proceedings relating to the election;
- Cases, where the fine imposed, is not more than Rs.50/-;
- Economic offences and offences against social laws;
- Cases where the person seeking legal aid is not directly concerned with the proceedings and whose interests will not be affected.
When can the legal services be withdrawn?
The legal services committee can withdraw the services if,
- the aid is obtained through misrepresentation or fraud;
- any material change occurs in the circumstances of the aided person;
- there is misconduct, misbehaviour or negligence on the part of the aided person;
- the aided person does not cooperate with the allotted advocate;
- the aided person appoints another legal practitioner;
- the aided person dies, except in civil cases;
- the proceedings amount to misusing the process of law or of legal service.
Who is entitled to free legal aid?
Any person, who is:
- a member of the scheduled castes or tribes;
- any person belonging to the Schedule caste/tribe, persons suffering from natural calamity, industrial workers, children, insane persons, handicapped, persons in custody and those having annual income less than Rs 1 lakh were entitled to avail of free legal aid
- a victim of trafficking in human beings or beggars;
- disabled, including the mentally disabled;
- a woman or child;
- a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, industrial disaster and other cases of undeserved want;
- an industrial workman;
- in custody, including protective custody;
- facing a charge which might result in imprisonment; —(Khatri II Vs. State of Bihar, (1981) 1SCC); and
- Unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence, and incommunicado situation;
- In cases of great public importance;
- special cases considered deserving of legal services.
The Concept of Lok Adalat
Lok Adalat is the judicial body set up for the purpose of facilitating the peaceful resolution of disputes between the litigating parties. It has the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like any court order, yet the parties cannot appeal against such orders. Lok Adalat can resolve all matters, except criminal cases that are non-compoundable. Either of the parties to litigation can make an application to the court for transferring the case to a Lok Adalat. Where no compromise or settlement is made by the Lok Adalat, such a case is transferred to the court and that court deals with the litigation from the stage the Lok Adalat had reached
Issues and challenges
Even after so much of statutory provisions, committees and authorities, there is still a vacuum which needs to be filled. Even today, many people settle for injustice because they cannot afford an advocate to defend them. There are many reasons why there are so many pending cases in courts, there are many people who are innocent but convicted and are not able to defend themselves. There are many challenges and issues which come in the way of the implementation of legal aid services.
Lack of public legal education and legal awareness
These legal aid services are for poor and illiterate people, and the major issue is that they are not educated. They do not have a legal education, that is, they are not aware of their basic rights and legal rights. People are not much aware of the legal aid services which they can avail. Hence, the legal aid movement has not achieved its goal, as the people are not much familiar with Lok Adalats, Legal Aid, etc.
Lack of support by the advocates, lawyers, etc.
These days all the lawyers and advocates want the proper fee for their services, and most of them are not interested in participating in such social services. There are very few counsels who contribute these services but the lack of good quality legal representation hinders the delivery of justice.
Lack of powers to Lok Adalats
Lok Adalats have limited powers as compared to civil courts. Firstly, the lack of proper procedures. Then in this, they cannot compel the parties to appear for the proceedings. Many times one of the parties does not appear for the hearing and then there is a delay in the disposal here as well.
Underutilization of para-legal volunteers
The basic role of these para-legal volunteers is to promote legal aid camps, and schemes and to reach the poor and weaker sections of society. But there is a lack of proper training, monitoring, and verification, of these para-legal volunteers. And these volunteers are also very less in number as compared to the whole population.
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.
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.
The goal of legal aid would be achieved when all the needy and poor people are aware and are getting benefits from it, as it is their fundamental right. So, there are some improvements to be made to fill those lacunas in the legal aid system.
Role of NGOs
Involving and increasing the role of non-governmental organisations to create awareness amongst the people about their rights and effective justice delivery.
Legal aid programmes and legal awareness
There should be an organisation of legal aid camps and Lok Adalats at a mass level to spread awareness about the rights of the people and awareness about the free legal aid programmes for the needy ones. There should be the establishment of entitlement centres in various backward areas to make them aware of their rights, and laws and encourage them to opt for free legal services by solving disputes through Alternative Dispute Arbitration, Lok Adalats, etc.
Legal Literacy Mission
Other developed countries have missions of 2 years or 5-year plans to inform people about the laws and rights. India can also introduce a 5-year plan to educate people about their rights and laws.
Better remuneration to the lawyers
Nowadays, good representation for lawyers is difficult to find because they are not interested in giving free legal services, and expect certain fees for the services. So, there should be an increase in remuneration paid to the lawyers by the courts or government, appearing or defending the accused for free.
The monitoring of the work of the counsels should be evaluated through the feedback approach, that is, by asking the people for feedback of the work of the council and then there should be proper progress reports of every advocate. This all could be done by setting up a proper monitoring committee.