Legal Aid in India
The help of an expert is often essential not merely to enforce or defend legal rights but to recognize, identify and define them. Legal Aid implies giving free legal service to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. In this post, we look into functioning of legal aid in India, eligibility of recipients of legal aid, and its basis in the law.
Concept of Legal Aid
Under Section 2(1) (c) of the Legal Services Authorities Act, 1987 “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. To provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act.
The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation, who are not able to pay for it.
Provisions of law
Apart from the Constitution itself, provisions for legal aid are contained in The Code of Criminal Procedure, 1973, the Civil Procedure Code, 1908 and the Legal Services Authorities Act, 1987.
- The preamble of the Constitution secures to its citizen, social, economic and political justice. Article 14 of the Constitution makes it clear that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution as has been held repeatedly by the Supreme Court of India. It forms the basis of reasonable, fair and just liberty under Article 21 of the Constitution of India, which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 39A contains the Directive Principle of “Equal Justice and Free Legal Aid”. It states “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.
- Section 304 of the Criminal Procedure Code provides that where, in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the Court that the accused has not sufficient means to engage a pleader; the Court shall assign a pleader for his defence at the expense of the State. Section 304 makes it clear that the State is under an obligation to provide legal assistance to a person charged with offence triable before the Court of Session. It enables the State Government to direct that these provisions shall apply in relation to any class of trials before other courts in the State.
- Order 33 of the Civil Procedure Code provides for suits by an indigent person. If an application to sue as indigent person is granted the plaintiff shall not be liable to pay court fee and in case he is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him. This benefit has been extended to a defendant also.
- A separate legislation, The Legal Services Authorities Act, 1987 has been enacted to constitute the Legal Service Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.The Legal Services Authorities Act establishes statutory legal services authorities at the National, State and District level.This Act, and the Rules framed under it lay down the eligibility criteria as seen in the next section.
Persons Entitled to Legal Aid
Section 12 lays down the criteria for giving legal services. 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 beggar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);
(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 of1956) or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital orpsychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, 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 Government, if the case is before the Supreme Court. According to the National Legal Services Authority Rules prescribes that any citizen of India whose annual income from all sources does not exceed fifty thousand rupees shall be entitled to legal services under clause (h) of section 12 of the Act.
Also, there are factors for disentitlement from getting legal aid. As per the Rules, the following persons are not entitled to legal aid unless the Chairman of the Committee approves it as a special case-
(1) Proceedings wholly or partly in respect of defamation or malicious prosecution or any incidental proceedings thereto;
(2) A person charged with contempt of court proceeding or any incidental proceedings thereto;
(3) A person charged with perjury;
(4) Proceedings relating to any election.
(5) Proceedings in respect of offences where the fine imposed is not more than Rs. 50/-
(6) Proceedings in respect of economic offences and offences against social laws, such as, the protection of Civil Rights Act, 1955, and the Immoral Traffic
(Prevention) Act, 1956 unless in such cases the aid is sought by the victim:
Legal aid is also denied where the person seeking the legal services -
(1) is concerned with the proceedings only in a representative or official capacity; or
(2) if a formal party to the proceedings, not materially concerned in the outcome of the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation. In these two circumstances, even the Chairman cannot sanction legal aid as a special case.
There is a paradigm shift in the State’s approach; legal aid is now a fundamental right as opposed to it being a goal that the State endeavours to achieve. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.