Introduction

“Whatever standards a man chooses to set for himself, be they religious, moral, social or purely rational in
origin, it is the law which prescribes and his rights and duties towards the other members of the community.
This somewhat arbitrary collection of principles he has very largely to take as he finds and in a modern
society it tends to be so diverse and complex that the help of an expert is often essential not merely to enforce
or defend legal rights but to recognize, identify and define them”.1
– Mathews and Outton

Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the
existence of the orderly society. Until and unless poor illiterate man is not legally assisted, he is denied
equality in the opportunity to seek justice. Therefore as a step towards making the legal service serve the
poor and the deprived; the judiciary has taken active interest in providing legal aid to the needy in the recent
past.
The Indian Constitution provides for an independent and impartial judiciary and the courts are given
power to protect the constitution and safeguard the rights of people irrespective of their financial status. Since
the aim of the constitution is to provide justice to all and the directive principles are in its integral part of the
constitution, the constitution dictates that judiciary has duty to protect rights of the poor as also society as a
whole.
The judiciary through its significant judicial interventions has compelled as well as guided the
legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections
of the society. Public Interest Litigation is one shining example of how Indian judiciary has played the role of
the vanguard of the rights of Indian citizens especially the poor. It encouraged the public spirited people to
seek justice for the poor. For that Supreme Court relaxed procedure substantially. Apart from Public Interest
Litigation and judicial activism, there are reforms in the judicial process, where it aims to make justice cheap
and easy by introducing Lok Adalat system as a one of the methods to provide free legal aid and speedy
justice at the door steps of the poor.
In this project the importance of free legal aid in a constitutional democracy like India has been
highlighted; where a significant section of the population has still not seen the constitutional promises of
even the very basic fundamental rights being fulfilled for them.
This project deals with not only the concept of legal aid but also the history behind the emergence of
1
Mathews and Outton: Legal Aid & Advice, London, Butterworths, 1971
1
such a concept. It deals with how the poverty, and subsequent inaccessibleness, corruption and the twisting of
the legal system led to the formation of institutions and organisations intent on helping the poor and the
needy. Even though there was a sense of responsibility towards the poor even in the ancient times it was until
1851 that the concept was given a clear cut name and purpose.
The project further goes on to describe the various Legal Aid movements that took place and
the efforts made by the Government to better the situation by forming different committees and trying to rid
them of their parameters. Even now one can see that efforts are being made to better the current legislation
regarding legal aid to the poor.
Apart from the views of some the greatest lawyers and jurists as to what legal aid means and how it
can be further widened to encompass the whole of our country this project also strive to point out the various
institutions currently working under the Central Authority, trying to eradicate the problems of accessibility
for the poor.
It would also be prudent to mention that even though there may not be a proper legislation other than
Legal Services Authorities Act, 1987 specifically dealing with legal aid, there are however provisions made
in our constitution as well as other statutes such as the CrPC and CPC to ensure that the disadvantaged
persons are not left out while meting out justice.

Legal Aid, Definition& Legality

The concept of legal aid is the very spirit of equality and its movement is dedicated to the principle of equal
justice to the poor.2 Rawl’s first principle of justice is that each person is to have an equal right to the most
extensive total system of equal basic liberties compatible with a similar system of liberties for all. 3 In the
context of our Constitutional demands and State obligations Legal aid has assumed a more positive and
dynamic role which should include strategic and preventive services. Legal aid means giving to persons of
limited means legal advice and assistance in civil and criminal matters in courts. The main object is to make
it impossible for any man, woman or child to be denied equal protection of the law simply because he or she
is poor.4
Legal aid has been taken to mean the organised effort of the Bar, the community and the Government

2
A Brief History Of Legal Aid - Author - Varun Pathak found in www.legalserviceindia.com/articles/laid.htm
3
Rawl’s Mature Theory of Social Justice – An Introduction for Students by Dr. Jan Garrret found in
http://people.wku.edu/jan.garrett/ethics/matrawls.htm
4
Legal Aid; Constributed by Samrat Dutta found in
http://www.lawcollegedehradun.com/lawreview/vol1_issue1_nov09/article4.html
2
to provide the services of lawyers free to persons who cannot afford to pay lawyer’s fee as inability to consult
or to be represented by a lawyer may amount to the same thing as being deprived of the security of law.5
According to the New Encyclopedia Britannica legal aid means:
“The professional legal assistances given, either free or for a nominal sum, to indigent persons in
need of such help.”6
From Black’s Law Dictionary legal aid has been defined as:
“Free or inexpensive advice, assistance or representation concerning the law given to those who
cannot afford it based on jurisdictional criteria.”7
In the words of P.N. Bhagawati:
“the legal aid means providing an arrangement in the society so that the machinery of administration
of justice becomes easily accessible and is not out of reach of those, who have to resort to it for enforcement
of the rights given to them by law. In such an arrangement the pot and the illiterate should be able to
approach the courts and their ignorance and poverty should not be an impediment in the way of their
obtaining justice from the courts.”8
Thus, legal aid is a social assistance or help extended to the one who is facing a legal problem but can’t
afford, due to lack of means and resources, to stand equal to his opposite party in his exercise to get justice.
Legal aid has been accepted as a function of the welfare state implying affirmative action from the State,
providing effective access to individuals and groups to avail themselves of legal entitlements. If the poor are
unable to approach the courts; it would result in denial of equal protection of the law, simply because the
aggrieved person has no means to approach the court. Legal aid has thus been recognised as an essential part
or function of the administration of justice, particularly in democratic and socialistic structure of society and
policy.9
Relieving ‘Legal Poverty’ – the incapacity of many people to make full use of law and its institutions
– has now been accepted as a function of a ‘Welfare State’. Apart from the social, economic and political
requirements on which the claim of legal aid rests, its now recently recognized as a constitutional imperative

5
Delivery of Legal Services: A Critical and Comparative Study of Law with Special Reference to Delhi; Thesis by Ms. Sangita Dhingra
Sehgal Amity Law University, Noida found in https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB8QFjAA&url=https%3A%2F%2Ffanyv88.com%3A443%2Fhttp%2Fshodhganga.inflibnet.ac.in
%2Fbitstream%2F10603%2F10485%2F1%2Fthesis%2520final%2520print
%2520(28.5.2011).doc&ei=ehhfVPO4BI6FuwSy6oLQAQ&usg=AFQjCNFj-
_8zK9tZb8qU8rcaTOYb1GBd5g&sig2=uTbQQOKoC8x6MrchjSUNAA&bvm=bv.79189006,d.c2E
6
The New Encyclopedia Britannica, Vol. VI 122 (1974)
7
Black’s Law Dictionary (2nd Ed.)
8
Government of Gujarat, Report of the Legal Aid Committee, 5 (1971); found in Right to Legal Aid in Human Rights: A Judicial
Response by Dr. M. Asad Malik, Indian Bar Review Vol. XLI (2) 2014
9
Right to Legal Aid in Human Rights Perspective: A Judicial Response
3
arising from Articles 14102111, 2212(1), 39-A13 of The Constitution of India.
Legal Aid is a movement that envisages that the poor have easy access to courts and other
government agencies. It implies that the decisions rendered are fair and just taking account of the rights and
disabilities of parties. The focus of legal aid is on distributive justice, effective implementation of welfare
benefits and elimination of social structural discrimination against the poor. It was taking these mandatory
provisions of The Constitution of India in mind that the Parliament passed The Legal Services Authorities
Act, 1987.
This Act, as amended with effect from 12.6.2002, now provides for decision even on merits, by the Presiding
Officers of the Permanent Lok Adalats constituted by the State Legal Services Authority, of those matters
which relate to “public utility services”, which have been duly defined in the Act.14

Today we find that the law of supply and demand operates in all its naked fury in the legal profession.
There is practically no limit of the fees that a lawyer may charge his client. This directly leads to inequality in
the quality of legal representation as between the rich and the poor. Not only would there be inequality in the
competence of legal representation which would be available to the rich by reason of their superior financial
resources.15

History of Legal Aid Movement in India

Free legal aid to the poor is an essential element of fair trial procedure for securing justice to all on the basis
10
Constitution of India: Article 14 Equality before law- The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
11
Article 21 Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to
the procedure established by law.
Article 39 A Equal Justice and Free Legal Aid - 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 legislations 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.
12
Article 22 Protection against arrest and detention in certain cases – (1) No person who is arrested shall be detained in custody
without being informed of the grounds , as soon as may be, for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
13
Article 39 A Equal Justice and Free Legal Aid - 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 legislations 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.
14
Legal Aid and Justice for the Poor – N.R. Madhava Menon, pp 344, Paragraph 2
15
Ibid.
4
of equal opportunity for defence. By the mid – twentieth century the above principle was realized all over the
world. In England it was started by the Legal Aid Act, 1949, in civil cases and it extended to criminal cases.
The Courts in Britain have established the concept of legal aid that if the party has cause of action but has no
money to pay for the fee of lawyers, he is entitled to get legal assistance from the Government Exchequer. In
practice it is made available almost automatically when the accused shows that he has no means to defend his
case.16
Ancient India was not aware of the concept of equal justice. It is revealed from the history that the
King was empowered by Manusmriti to administer justice without minding his wimps emphasizing on the
religion. Manusmriti says that the sanctity of administration of justice in social, economic and political
aspects has to be preserved and developed.
In the medieval period, the King was required to administer Islamic Law in deciding all cases
irrespective of religion of the parties to the suit. It was Jahangir who took the credit for dispensing even –
handed justice to all irrespective of birth, rank of the official position etc. Because of hi fair hearing the
justice was known as ‘Jahangiri Nyaya’.17
In the modern period, the earliest Legal Aid Movement appears to have been emerged in the year
1851 when some enactment was introduced in France for providing legal assistance to the indigent. In
Britain, the history of the organized efforts on the part of the State to provide legal services to the poor and
needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed the Rushcliffe Committee to
enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make
recommendations as appear to be desirable for ensuring that persons in need of legal advice are provided the
same by the State. Since 1952, the Government of India also took the initiative to addressing to the question
of legal aid for the poor and indigent in various Ministerial Law Conferences and Commissions. In 1960,
some guidelines were drawn up by the Government of India for legal aid schemes.18
Legal Aid Schemes were floated through Legal Aid Boards, Societies and Law Departments in
various states in the Country. In 1980, a Committee at the national level was constituted, under the
Chairmanship of Honorable. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India to oversee
and supervise legal aid programs throughout the country. 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

16
Legal Aid Issues Challenges and Solutions an Empirical Study by Justice T. Mathivanan (Judge, Madras High Court); found in
www.hcmadras.tn.nic.in/legalaid-issues.pdf
17
Ibid.
18
http://www.hcmadras.tn.nic.in/legalaid-issues.pdf
5
disputes. The year 1987, proved to be very significant in Legal Aid history, as the “Legal Services Authorities
Act” was enacted to give a statutory base to legal aid programs 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. Honorable Mr. Justice R.N. Mishra the then Chief Justice of India played a
key role in the enforcement of the Act.19
The 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 17th July, 1997. Soon after assuming the office His Lordship initiated steps in order to
make National Legal Services Authority (NALSA) functional. With the appointment of the first Member
Secretary on 17th December, 1997 and the appointment of the other officers and staff by January 1998
NALSA, by February 1998 became properly functional for the first time.
In October 1998, His Lordship assumed the Office of the Chief Justice of India and thus became the
Patron – in – Chief of NALSA. In his stead His Lordship S.P. Barucha J., the senior m- most Judge of the
Supreme Court of India assumed the office of the Executive Chairman.

Legal Services Authorities Act, 1987

19
Introduction and History of NALSA found in http://nalsa.gov.in
6
Definitions under Legal Services Authorities Act20 –
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.
Section 2(c) defines ‘legal services’ which 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.

Working of Legal Services Authorities –

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 Act
has led to a nationwide provision of legal aid and assistance.21

Hierarchy of Legal Aid Services Authorities –

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 Aid Services Authorities and
NGOs for implementing legal aid schemes and programs.
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.22
District Legal Services Authority is constituted in every District to implement Legal Aid Programs
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 for group of Taluks to

20
Legal Aid Services Authorities Act, 1987
21Legal aid in hospitals: An innovative approach, by Suresh Bada Math, Naveen C. Kumar, and T. Harish; Indian J Med Res. Mar
2013; 137(3): 440–441. found in http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705650/
22
Introduction and History of NALSA found in http://nalsa.gov.in
7
co – ordinate the activities of legal services in the Taluk and to organise Lok Adalats. A senior Civil Judge
operating within the jurisdiction of the Committee is appointed as the ex – officio Chairman in every Taluk
Legal Services Committee. 23

Schemes and Measures Implemented by NALSA24 –

After the constitution of the Central Authority and the establishment of NALSA the following schemes and
measures have been adopted 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 and continuous Lok Adalats for Government Departments, Statutory
Authorities and Public Sector Undertakings for disposal of pending cases as well as disputes at pre –
litigative stage;

c) Appointment of “Legal Aid Counsel” in all the Courts of Magistrates n the country;

d) Disposal of cases through Lok Adalats on old pattern;

e) Publicity to Legal Aid schemes and programs to make people aware about legal aid facilities;

f) Legal aid facilities in jail;

g) Emphasis on competent and quality legal services to the aided persons;

h) Setting up of Counseling and Conciliation Centers in all the Districts in the country;

i) Sensitization of Judicial Officers in regard to Legal Services Schemes and Programs;

j) 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 up to High Courts;

23
Legal Aid in India and the Judicial Contribution by Dr. G. Mallikarjun found in
www.commonlii.org/in/journals/NALSARLawRw/2013/13.pdf
24
Ibid.
8
 k) Publication of the official newsletter of NALSA, “Nyaya Deep”;

l) Steps for framing rules for refund of court fees and execution of Awards passed by Lok Adalats.

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 maybe 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."25
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 program
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 program 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.26
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

25
A Brief History of Legal Aid by Varun Pathak; found in http://www.legalserviceindia.com/articles/laid.htm
26
Ibid.
9
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 is mostly insensitive to the socio-
economic problems of the masses it set out to govern and regulate.27
The report also made an effort to classify those categories of persons who are most in need of Legal
Aid, they are as follows28:-
 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
27
http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.VF8hh_mUdaA
28
Ibid.
10
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 Krishna 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 program only
is capable of gearing. Thus the legal aid program 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
11
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 defense 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.29

Contributions Made By Justice P.N.Bhagwati To The Development Of The Concept Of Legal Aid-
Report On National Juridicare: Equal Justice-Social Justice, Ministry Of Law And Justice And
Company Affairs, 1977
29
A Brief History of Legal Aid by Varun Pathak; found in http://www.legalserviceindia.com/articles/laid.htm
12
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 program. He is widely regarded as the originator of India's legal aid program,
including setting up of legal aid camps in rural areas, working with NGOs, establishing legal aid clinics etc.30
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 Gujarat 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
Ahmadabad.31
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
program. 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 program. 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
program just as much as medical aid is.32
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).
30
A Brief History of Legal Aid (Refer p.16 of proj.)

31
ROLE OF JUDGES IN THE ESTABLISHMENT OF LEGAL CLINICS; found in http://advfazalabdali.blogspot.in/
32
A Brief History of Legal Aid (Refer p.16 of proj.)
13
 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 programs and that the organization for effectuating the legal
service program must be responsive to the poor in giving legal service and must not be mechanical and
wooden in its approach. Even after, such a program is introduced there must be a continuous examination of
its utility and its responsiveness to the poor.33
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 is34:

1. The means test,

2. The prima-facie case test, and

3. The reasonableness test

The means test determines one’s financial eligibility for legal aid by looking at an applicant’s
disposable income and disposable capital. 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

33
Found in http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.VEtJfvmUdSA
34
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=5166
14
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.35
The report also in detail stated the constitution and the working of different legal committees:
a) The Taluk Legal aid Committee – It was recommended that there shall be a Taluk Legal Aid
Committee in every Taluk 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 taluk court as
also before the Tenancy Tribunal situated within the taluk.
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 Taluk Bar Association ex-officio or a senior lawyer practicing in
the Taluk court,

(ii) one other lawyer practicing in the Taluk Court one retired Judge or

(iii) 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 Taluk 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 Taluk Court. The Secretary of the Taluk Legal Aid

35
Concept and Development of Legal Aid (Chapter II) found in
http://shodhganga.inflibnet.ac.in/bitstream/10603/7785/9/09_chapter%202.pdf
15
 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 Program 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 Taluk 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
16
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.36
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.37
The committee knowing that a large amount of finance would be required for an adequate legal
service program, 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 program 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

36
http://shodhganga.inflibnet.ac.in/bitstream/10603/7785/9/09_chapter%202.pdf
37
Ibid.
17
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 program 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 program immediately in one
single stage. It was, therefore, suggested that the legal service program may be implemented in stages
according to a phased plan. The committee recommended that the state government may implement the legal
service program 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 program should not be delayed. But if the state government thinks that it is not possible to
implement the preventive service program 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.38
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

38
Found in http://shodhganga.inflibnet.ac.in/bitstream/10603/7785/15/15_chapter%208.pdf
18
formulation of scheme (s) for legal services.’39
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.40
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.41
The continuation with the earlier reports was also evident in the reiteration by the 1977 Report of the
failures of the traditional legal services program. The goals of the preventive legal services program,
advocated forcefully by the 1971 Report were recapitulated 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 program 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’42.
The other goals that were reiterated were: the program ‘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 program 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.
39
http://shodhganga.inflibnet.ac.in/bitstream/10603/7785/15/15_chapter%208.pdf
40
Ibid.
41
Ibid.
42
Concept and Development of Legal Aid (Chapter II) found in
http://shodhganga.inflibnet.ac.in/bitstream/10603/7785/9/09_chapter%202.pdf
19
 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.43
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 program 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 program and so
on.44
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.45
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
43
Free Legal Aid in India found in https://vrindasharma.wordpress.com/category/law-india/
44
Free Legal Aid in India found in https://vrindasharma.wordpress.com/category/law-india/
45
Ibid.
20
aid bodies, there was no clarity on how that could be achieved with the state being the major contributor of
funds to the program.
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.

Development of Legal Aid in India

Pre - Independence
The history of legal aid in India is invariably connected with our history of legal system. The Indian legal
system began in the year 1600. Even though ancient India had its own legal system, it has no correlation
whatsoever with our present legal system as the latter system is what was created by the British during the
17th Century.
A study of the criminal justice system prevailing in Madras during the 17 th and 18th century shows that
the process of administering justice was very slow. The accused were put behind bars for unnecessarily long
periods of time, so much so that even their offences were forgotten, and when they were punished, the
punishments were brutal and inhumane. Ultimately the British took over the criminal justice system in 1790,
21
with Lord Cornwallis, the then Viceroy coming up with a new scheme to bring in a three tier system of
adjudication:
a) Magistrates at the lower rung;

b) Court of Circuits in between; and

c) Sadar Nizamat Adalat at the top

Even then the salaries of the Officers were meager, accepting bribes was common as a result of which
crimes were promoted, as the criminals thought that they could get away with any crime just by paying
money. Proceedings in the courts were still very slow and the conditions of the prisons were overcrowded
and unsanitary. 46
In 1793 an attempt was made to separate the executive from the judiciary and was placed under the
supervision of law so that the oppression and tyranny committed by such officers could be prevented. He also
created the regular and organised profession of lawyers or vakeels who were to work under Government
license. However the inadequacy of the courts, pressure of works on the magistrates, absence of Indian
judges to better understand the Indian mentality and way of administration, contributed to the failure of the
scheme.
Another attempt was made in 1833 by Sir William Bentick but that also seemed to fail. The core
problems of incarceration of prisoners and the over crowdedness and unsanitary conditions of the prisons
were still present. Although the concept of legal representation arose during this period the concept of legal
aid was yet to have emerged.47
Following the efforts from Cornwallis, some sorts of regulations were introduced for the regulation of
conduct and for the enrollment of the vakeels in Bombay, Madras and Calcutta presidencies. Later on, the
Legal Practitioners Act was enacted in the year 1846 for the same. However, the right to council was not
recognised till the year 1850. Earlier, lawyers were looked upon as the most undesirable lot of the legal
system. But slowly the rise of the Indian barrister led ultimately to a stage when there was no movement in
any sphere of public activity – cultural, educational or humanitarian – in which lawyers were not in forefront.
It is even said that a few lawyers took to active politics and played an active part in the freedom struggle of
India. The British used the courts as a weapon to neutralize the active personages and dissent. The denial of
right of representation in their defence to Raja Lal Singh in 1846 and to Bahadur Shah Zafar in 1858

46
Refer to Outlines of the India Legal History by M.P. Singh
47
Refer to Outlines of the Indian Legal History
22
contributed to reducing their trials to a farce and ensured their eventual exile. It was not till the enactment of
the Code of Criminal Procedure in 1898 that the right of an accused to legal representation was formally
recognised. Representation at State level was provided to the accused only when an indigent accused was
being tried for an offense punishable with a capital sentence. It was not until 1973 that the Criminal
Procedure Code provided for assignment of counsel at state expense.48
The Bombay Legal Aid Society (BLAS) was another initiative in the pre – independence stage which
was independent of the judiciary for providing legal aid. Its objectives were making justice accessible to the
poor and reducing the cost of litigation, providing lawyers to the poor on the basis of need, rendering legal
services voluntarily and making provisions for the payment of court fees. This practice was soon adopted by
the Bombay High Court, the Government and other courts. It was BLAS which took the initiative to make
recommendations for formulating a scheme of state sponsored legal service. It drew the attention of the law
member of the Government of India in 1945 towards the Rushcliffe Committee report of England. 49 This
committee has given a number of recommendations for improvising the system of legal aid in England. It
suggested that a similar committee should be appointed in India.50

Post – Independence
In the post – independence stage the Bombay Committee sought to expand the scope of legal aid to include
legal advice. A committee was organised under the Chairmanship of NH Bhagwati J., which submitted its
report on 31st October, 1949. It gave the following recommendations:
 A hierarchy of legal aid delivery committee was suggested at Taluk, District, High Courts and State
levels.

 Legal aid was to cover court fee, process fee, out of pocket costs, diet money for witnesses, cost of
obtaining certified copies as well as fees for pleaders.

 Legal aid was to be available at trial and appellate stages.

 Two tests of eligibility were suggested – Prima Facie test and Interest of Justice test.

 The bar associations would chose the panel of lawyers who would provide legal aid to people. The
48
Ibid.
49
BLAS suggested that every lawyer should do a maximum of six cases a year without charging fees.
50
The Evolution of Legal Aid in India by Nishant Gokhale (Vth Year, NUJS) found in http://las-
letsgettalking.blogspot.in/2010/10/evolution-of-legal-aid-in-india.html
23
 lawyers having at least 5 years experience was to be empanelled and once empanelled they can’t
refuse to undertake legal aid work. They were also expected to give legal advice.

 Publicity was given due importance. Every notice or summon is issued by the court would inform the
recipient about the legal aid. Notice boards would be put up at police stations to inform people about
availability of legal aid as the perception was this that this was essentially a right of an accused and
has to be made known to him at the earliest.

Even though the recommendations were not implemented, but they contained the facets of state sponsored
traditional legal services program. However, in respect of criminal cases, it was suggested that the legal aid
should be confined to providing legal representations in trials of serious offences punishable with
imprisonment of 5 years or more.
This system continued even after the Trevor Harries Committee in West Bengal and the First Law
Commission.51Another similar committee was constituted under the Chairmanship of Sir Arthur Trevor
Harries, a retired Chief Justice of Calcutta High Court to examine the availability and administration of legal
aid services in that state. The program which these committees provided was litigation oriented; it did not
address the issue of access to justice from the point of view of the indigent person. However, under these
committees persons who have acted bona fide in the right of their private defence and complaints whose
cases had not been taken by the police were also entitled to legal aid.
The Central Government wrote to the State Government to make provisions for legal aid in criminal
cases in respect of offences punishable with not less than 5 years imprisonment and further appeal.
On the one hand a legal aid committee formed in Madras was not successful and on the other a local
cultural association in Andhra Pradesh renamed itself as a legal aid organisation. 52 The Bangalore legal aid
society provided assistance to the poor in criminal appeals in the High Court. In Bihar, there was a voluntary
organisation of lawyers that gave assistance to gratis. A legal aid society was formed in Orissa as well. In
1957, a Law Minister’s Conference was held in Delhi, in which it was unanimously agreed that each state
should formulate a scheme for legal aid to the poor and forward it to the Law Ministry at the center. For the
first time the recognition of right of the underprivileged to demand equal treatment in the matter of access to
justice emerged in the 1957 Kerala Rules. It provided legal aid by way of representation in class action suits
thus, setting the stage for public interest litigations. Under these rules, a poor person was given legal aid in
proceedings before the High Court, Court of Sessions, and the Court of District Magistrates in all criminal

51
The recommendations of the Trevor Committee are mentioned in the 14 th Law Commission Report, Appendix II, p.611
52
NR Madhava Menon, Legal Aid and Justice for the Poor
24
cases, appeals, trial and revisions.53

The 14th Law Commission Report –

The Law Commission54 submitted a two – volume report on reforms in administration of justice. It provided
for review of judicial administration and suggested ways and means for improving and making it speedy and
less expensive. The law commission observed:
“…unless some provision is made for assisting the poor man for the poor man for the payment of
court fees and lawyers fees and other incidental costs of litigation, he is denied equality in the opportunity to
seek justice. The rendering of legal aid to the poor litigant, is therefore, not a minor problem of procedural
law but a question of a fundamental character.”55
It refuted the apprehension that state funded schemes would make people more litigious, result in
increased litigation and abuse of the scheme. It also ruled out the element of compulsion upon lawyers to take
up legal aid work. The day to day working of the legal aid services will be the job of the body of lawyers and
the role of the state will be limited to providing funds. The fees for the lawyers working voluntarily was fixed
two thirds of the fees payable on civil cases etc. it acknowledged both the Bombay Committee Report and the
Trevor Harries Committee Report and recommended that legal aid must be first extended to those who were
accused of committing crimes of serious nature, preference shall be given to those belonging to the SC/ST
and that the legal aid should be given to the really poor first and then to those of moderate means. Each bar
association was asked to for a legal aid committee. Further it helped to clarify that legal aid would also
include legal advice and thus, promoting the preventive aspect of legal aid. The earlier reports did not
consider the negative impacts of fixing artificially low fees; it would reduce the voluntary participation and it
was unrealistic to expect lawyers to subsidize what was acknowledged to be an activity of state. The
government’s response to the 14th Law Commission Report was however very disappointing. It took the
government 15 years to implement the suggestions mentioned in it.56

Central Government Scheme 1960 –

The Central Government formulated a scheme for legal aid and circulated it to all the State Governments to
enable them to draft similar schemes. Three tests were suggested by this scheme as has been mentioned

53
NR Madhava Menon, Legal Aid and Justice for the Poor
54
14th Law Commission Report, 1958; the first law commission of India presented a report and considered the issue of legal aid
55
14th Law Commission Report, p. 587
56
By this time the law commission had released 3 reports – the 36 th Report on grant of bail with condition – Sections 497, 498,
499 of CrPC 1898, the 41st Report for CrPC 1898 and the 48th Report on some questions of CrPC bill 1970. The 48 th Report
recommended that legal aid be made available in all criminal trials. However, Section 304 went only as far as giving effect to the
recommendations of the 14th and 41st Reports.
25
beforehand:
a) Means Test: A flexible approach not limited to consideration of disposable income and disposable
capital was recommended. It was asked to be dispensed within the case of SC/ST.

b) Prima Facie Test: The legal aid committee has to decide after the inquiry, if the appellant had a prima
facie case

c) Reasonableness Test: the legal aid committee has to determine whether it was reasonable in all
circumstances of the case to grant legal aid to the applicant.
However, nothing much came out of this program.

National Conference on Legal Aid –

The conference, which was held in Delhi on 28 th and 29th of March 1970, drew a wide participation. A paper
presented depicted that the funds provided are so inadequate as to negate the fact of comprehensive coverage.
Poverty was and is still considered as the root cause of all the problems, which arise in India. The
Gujarat Report of 197157 made a departure from the remedial legal services program that was litigation
oriented to a preventive legal service program under which the problem of poverty itself could be tackled and
not merely its results. Class action and test cases were given due importance. Attention was given to the
interest of both accused and the victims of the crime. It was after this report, for the first time the concept of
duty counsel in magistrate’s court and visits by lawyers to prisons was advocated. Reforms in the hard
monetary bail system were recommended and personal recognizance bonds advocate. Legal aid by the way
of representation was to be granted for all the criminal cases, which were punishable with imprisonment.
However, certain categories of cases were excluded like those, which were arising under prohibition and
gambling laws. This had no rational basis particularly since the report itself recognised that the denial of
legal aid in criminal case would result in the conviction and the punishment of an accused person without
trial. It would thus, militate against the presumption of innocence, which was the very essence of the criminal
jurisprudence. It emphasized on legal literacy not only for the poor but also education of social workers and
advocates associated with it. Gujarat committee recommended that legal aid bodies should be autonomous
and free from legal control. It also took note of the fact that a large number of persons languished in jails,
despite the grant of bail, because they were unable to furnish monetary sureties and bail bonds. It also
suggested that a person shall be released on bail on his own recognizance. The mapping of scope of access to

57
Constituted on 22nd June, 1970 under the chairmanship of PN Bhagwati J.
26
justice was achieved by the Gujarat committee. The expert committee report of 1973 58 too acknowledged that
the legal system was not designed to address the problems of the majority of the population and has become
the sole preserve of a small percentage who could afford the prohibitive costs of litigation. It was not enough
to provide legal aid to individuals but it was important to initiate laws and institutional reforms through the
device of class actions and public interest actions. The report advocated an overhaul of the justice system and
wanted to unshackle the system from the stranglehold of lawyers and judges. A similar report of the
Committee on Legal Aid titled “Processionals Justice to Poor” 59 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.
A lot of emphasis was given on the preventive and proactive approach of legal service system. It was
further suggested that legal representation be provided at each stage and that too at state expense, i.e. from
the point of arrest till the final disposal of the appeal. Legal aid by way of representation was to be provided
at all stages to all indigent accused persons facing trial in session’s court. Again the bail system was asked to
be liberalized and personal recognizance bonds recommended for acceptance by the courts. However, this
report invited mixed response. Some criticized it, and some considered it as tailored to realities, to meet the
needs of the country.
The 1977 Report60 did not contribute any new ideas except that PIL was a strategic arm of the legal
aid movement. It was basically an amalgamation of the earlier reports. There were certain shortcomings,
which were to be noted in this report:
 Institutionalizing was suggested in all reports, through a network of legal bodies at various
administrative levels. It was to be autonomous, but there was no clarity as to how this could be
achieved even when the state was the major contributor of funds.

 In the whole legal aid system, the state too was playing a major role, but the reason for states
indifference was never looked upon.

 The practical implications of the collaboration of the judiciary and the executive for the purpose of
legal aid were not accounted for

 Most of the reports were based on models of UK and USA, although it was not considered by anyone
58
27th October, 1972; the Ministry of Law and Justice appointed an expert committee on legal aid with Krishna Iyer J. as Chairman
59
Pg. 10 - 14
60
Juridicare committee report, two member – Committee under the Chairmanship of PN Bhagwati J.
27
 that the political scenario and circumstances under which legal aid system developed in all these
countries were entirely different. The image of a legal aid as a charity was unintentionally reinforced.
A recommendation which was repeatedly made in the reports was that a public sector must be
established in the legal profession is yet to get a positive response from the organised bar.

 The reports which were published back to back were repetitive in approach as they were authored by
the same persons, who agreed to their approach to the issue and the underlying philosophy of the legal
services program. Further assumptions may have challenged the reasonableness of expectations which
the reports had about the roles of the state, the judiciary and the legal profession.

 Lack of proper date depicting the details of the prisons, courts, systems was a drawback which if
solved, would have helped a lot to clear the gap between the intent of the law and its practice.

 The reports were silent on the stands of corruption. A legal aid program would definitely involve
expenditure and distribution of public money for the benefit of powerless underprivileged section of
the litigants. There was no built in checks on the use of public money in the past as well as for future.

 The reports were not strong on programming content. The judges could not be expected to have
answers for all questions thus; an involvement of experts from other fields was of utmost importance.
The 1977 Report favoured 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 – centralisation 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 organisation 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.

28
 It was suggested that the Advocated Act, 1961 be amended to recognise and permit provision of legal
aid by law teachers and students. The report clearly stated that the funding of the legal aid program was the
state responsibility and for this identified sources such as court fees collected from the litigants, legal aid
steps, and levy of special cess, donations and many more for the purpose of funding the legal aid program
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.61

Institutions for Providing Legal Aid Services:

Article 39A - Equal Justice and Free Legal Aid. – “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 legislations or schemes or in any other way, to ensure that opportunities for securing justice are not
61
Juridicare committee report, two member – Committee under the Chairmanship of PN Bhagwati J.
29
denied to any citizen by reason of economic or other disabilities.”62
The Constitution of India under Article 39-A mandates for free legal aid to the poor and weaker sections of
society. The Legal Services Authorities Act, 1987, as amended by the Act of 1994 which came into force on
9th November 1995, aims at establishing a nation-wide network for providing free and comprehensive legal
services to the weaker sections. It makes 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.
The Legal Services Authority Act, 1987 was enacted to effectuate the constitutional mandates enshrined
under Articles 14 and 39-A of the Constitution of India. The object is to provide ‘Access to Justice for all’ so
that justice is not denied to citizens by reason of economic or other disabilities. However in order to enable
the citizens to avail the opportunities under the Act in respect of grant of free legal aid, it is necessary that
they are made aware of their rights.
By the Constitutional 42nd Amendment Act of 1976, a new provision was incorporated in the Constitution
under Article 39-A, for providing free Legal Aid and enhancing the concept of equal justice found a place in
our constitution Article 39-A which was incorporated under part IV-Directive Principles of State Policy reads
as under:-
“Equal justice and free legal aid-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”.
LEGAL AID reasoned in the Act— “The Court has been approached by an organization deeply engaged in
rendering social and judicial services for securing justice and equal opportunity to the needy. They have
approached the Court for mandamising the State to carry out the objectives and obligation of Article 39-A of
the Constitution of India as well as the mandate of the Act, introduced with tall claims. The Court held that
the petitioner are entitled to ask the High Court to issue directions sought for in the writ petition for proper
implementation of the provisions of the Act and to carry out the purposes of the Act in true sense and spirit
and not to scuttle it by resort to any pretences and/or treat the constitutional directives as an empty slogan.”
With the object of providing free legal aid, the Government of India had, by a resolution dated 26th
September, 1980 appointed a Committee known as “Committee for Implementing Legal Aid Schemes”
(CILAS) under the chairmanship of Chief. Justice P.N. Bhagwati to monitor and implement legal aid
programs on a uniform basis in all the States and Union Territories. ‘CILAS’ evolved a model scheme for
62
Constitution of India, 1949
30
legal aid programs applicable throughout the country by which several legal aid and advice Boards were set
up in the States and Union Territories.
Legal aid is an essential part of the Administration of Justice. “Access to Justice for all” is the motto
of the Authority. The goal is to secure justice to the weaker sections of the society, particularly to the poor,
downtrodden, socially backward, women, children, handicapped etc. but steps are needed to be taken to
ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of
knowledge.
The National Legal Services Authority is a statutory body which has been set up for implementing
and monitoring legal aid programs in the country. The Supreme Court Legal Services Committee has also
been constituted under the Act. In every High Court also, The High Court Legal Services Committees are
being established to provide free legal aid to the eligible persons in legal matters coming before the High
Courts. The Legal Services Authorities Act, 1987 also provides for constitution of the State Legal Services
Committees, High Court Legal Services Committees, District Legal Services Committees and Taluk Legal
Services Committees.
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) (a) 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.63
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.64
Under The Legal Services Authorities Act, 1987 every citizen whose annual income does not exceed
Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the
Supreme Court, the limit is Rs 12,000. This limit can be increased by the state governments. Limitation as to
the income does not apply in the case of persons belonging to the scheduled castes, scheduled tribes, women,

63
Legal Aid Services Authorities Act, 1987
Section 12 - Every persons who has to file or defend case shall be entitled to legal services under this Act if that person is –
[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.
64 Legal aid in hospitals: An innovative approach, by Suresh Bada Math, Naveen C. Kumar, and T. Harish; Indian J Med Res. Mar

2013; 137(3): 440–441. found in http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705650/

31
children, handicapped, etc.

Lok Adalats –
Lok Adalats are judicial bodies set up for the purpose of facilitating peaceful resolution of disputes between
the litigating parties. They have the powers of an ordinary civil court, like summoning, examining evidence
etc. Its orders are like any court orders, but the parties cannot appeal against such orders. Lok Adalats can
resolve all matters, except criminal cases that are non-compoundable. Either one or both 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.
Lok Adalats have proved to be an effective mechanism for resolution of disputes through conciliatory
methods. Up to 31 December 1997, about 17633 Lok Adalats have been held in different parts of the country
where about 68.86 lakh cases were settled. In about 349710 motor vehicles accident claims cases,
compensation amounting to over 1,160.07 crore rupees were awarded. Under the Legal Services Authorities
Act, Lok Adalat has been given the status of a Civil Court and every award made by Lok Adalat is final and
binding on all parties and no appeal lies to any court against its award. Under Chapter VI-A of the Legal
Services Authorities Act, 1987, there is the provision of Lok Adalats. Up to December 2004, over 2 lakh 52
thousand Lok Adalats have been organized which have settled over 1 crore 74 lakh cases. For more effective
use of provisions of this act, the conference will deliberate on the feasibility of setting up permanent Lok
Adalats in the states.
The constitution of the Committee for the Implementation of Legal Aid Schemes (CILAS) in 1980 was a
major step in institutionalizing legal aid. The Legal Services Authorities Act, 1987, displaced the ‘CILAS’
and introduced a hierarchy of judicial and administrative agencies. The ‘LSAA’ began to be enforced only
eight years later, under the directions of the Supreme Court. It led to the constitution of the National Legal
Services Authority (NALSA) at the Centre and a State Legal Services Authority in the States to give effect to
its directions.65
National Legal Services Authority (NALSA) –
The National Legal Services Authority is a statutory body which has been set up for implementing and
monitoring legal aid programs in the country. The legal aid program adopted by ‘NALSA’ include promoting
of legal literacy, setting up of legal aid clinics in universities and law colleges, training of paralegals, and
holding of legal aid camps and Lok Adalats. 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
65
Law, Poverty and Legal Aid – Access to Criminal Justice – S.Muralidhar; Lexis Nexis
32
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 programs.
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. A nationwide
network has been envisaged under the Act for providing legal aid and assistance.
National Legal Services Authority was constituted on 5th December, 1995. According to Section 3 (1) under
the Chapter II of the Act66, the Central Government is instructed to constitute a body at the National level
known as the National Legal Services Authority, to exercise powers and perform functions conferred on it or
assigned to it under the Act. His Lordship Hon. Dr. Justice A.S. Anand, Judge, of The 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.
‘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. The Government has sanctioned Rs 4 crores as grant-in-
aid for ‘NALSA’ for 1998-99 for allocating funds to the State, District authorities, etc. The ‘NALSA’ is also
monitoring and evaluating the implementation of the legal aid programs in the country. Up to December 1997
about 23.88 lakh persons were benefited through court-oriented legal aid programs provided by the State
Legal Aid and Advice Boards/ State Legal Services Authorities. Of them, 3.73 lakh persons belonged to the
scheduled castes, about 2.14 lakh to the scheduled tribes, 240485 were women and 8578 were children.67

Constitution of NALSA
The Central Authority shall consist of -
a) the Chief Justice of India who shall be the Patron-in-Chief;

66
The Indian Legal Services Authorities Act, 1987.
67
Working Statute of Legal Aid in India by Ishan Vyas (II Yr. B.Com, LL.B (H),Gujarat National Law University) found in
http://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-India.html
33
 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.68

Supreme Court Legal Services Committee69 –

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; and
b) 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:

68
http://www.legalserviceindia.com/articles/laid.htm
69
Ibid.
34
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.70

70
http://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-India.html
35
 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".71

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, 1987.72

State Legal Services Authority –

71
Ibid.
72
http://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-India.html
36
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.73

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.74

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.75

Functions of the State Authority

It shall be the duty of the State Authority to give 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

73
NALSA Acts and Rules Section 3(3) found in nalsa.gov.in/actrules.html
74
NALSA Acts and Rules Section 6(3) found in nalsa.gov.in/actrules.html
75
NALSA Acts and Rules Section 6(7) found in nalsa.gov.in/actrules.html
37
 d) perform such other functions as the State Authority may, in consultation with the Central Authority,
fix by regulations76

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.77

The Committee shall consist of –

a) a sitting Judge of the High Court who shall be the Chairman; and

b) 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.78

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 –

76
NALSA Acts and Rules Section 7 found in nalsa.gov.in/actrules.html
77
NALSA Acts and Rules Section 8A (1) found in nalsa.gov.in/actrules.html
78
NALSA Acts and Rules Section 8A (2) found in nalsa.gov.in/actrules.html
38
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.

Taluk Legal Services Committee79 –

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 it80

79
mpslsa.nic.in/taluk-authority.htm
80
Ibid.
39
 Constitutional Provisions for Legal Aid
The Preamble to the Constitution invokes ‘Justice – social, economic and political’ as the core principle. The
innate relation of legal aid and justice accords the preamble as a strong citadel of legal aid. Equality, life and
personal liberty and rule of law conjointly constitute a strong justification for the provision of legal aid to the
indigent person. Article 14 of the Indian Constitution lays down the most fundamental postulate of legal aid
that envisions “equality before law” and “equal protection of laws”. Equality before law presupposes equality
of access to court and equal protection of law is the corollary of the first. “Equality in the administration of
justice” is said “to form the basis of our Constitution.” 81 Article 21 ordains that right to life and personal
liberty cannot be taken away without the procedure established by law. The procedure is “just, fair and
reasonable”82 when it fulfills the demands of natural justice. A procedure can be just, fair and reasonable only
when equal representation is guaranteed to the indigent through legal aid before the court of law. Article
22(1) guarantees “right to consult and to be defended by a legal practitioner of choice” to every persons
recognizing the indispensability of legal aid to an arrested person. The common cause of Article 38 and 39
offers sounder justification for legal aid. Article 39A83 providing for “Equal Justice and Free Legal Aid”
obligates the state “to provide legal aid to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.” The portion of the Constitution detailing the
Fundamental Rights and Directive Principles of State Policy are meant for “social revolution” 84 to bring
about social justice on the basis o equality.
The constitutional scheme providing for legal aid emerges from the substratum of the preamble,
Article 14, 21, 22(1), 38 and 39 but the direct provision for legal aid is couched in Article 39A. The right of
an arrested person to be represented by a counsel was declared to be a fundamental right under Article 22(1)
but no obligation was read under the Article on the state to provide counsel to an indigent accused as a matter
of right. This right was interpreted in affording necessary opportunity to an accused person to engage a
counsel if he so desires.85 Despite various deliberations86 arguing strongly for the urgent need of free legal aid
in terms of fundamental right, the Parliament could not be impressed upon elevate legal aid to the status of a
fundamental right and has recognised right to legal aid as non – enforceable right imposing no obligation on
the state to provide legal aid as a matter of right, which was a half – hearted measure. This occasion could
81
Encyclopaedia of Social Work in India (1968), p. 470; Found in Indian Bar Review Vol. XLI (2) 2014, Legal Aid in India: A Critical
Appraisal by J.S. Bisht (Associate Professor, Faculty of Law, Kumaun University, SSJ Campus, Almora, Uttarakhand)
82
Maneka Gandhi v. Union of India, AIR 1978 SC 597
83
Incorporated by the Constitution (42nd Amendment) Act, 1976
84
Glanville Austin, Indian Constitution: Cornerstone of a Nation, (1966) found in Indian Bar Review Vol. XLI (2) 2014
85
Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217; Tara Singh v. State, AIR 1951 SC 441
86
Bomaby Committee Report, 1945; Trevor Harris Committee Reports, 1945; 14th Report of the Law Commission of India, 1958;
Central Government Scheme, 1960; All India Law Minister’s Conference, 1962; National Conference on Legal Aid, 1970; Gujarat
Committee Report, 1971; Expert Committee Report, 1973; Various State Reports; National Juridicare – Equal Justice – Social
Justice, 1977 etc
40
have been utilized to recognise right to legal aid as a fundamental right.
To fulfill the Constitutional obligation, in 1987 the Legal Services Authorities Act was passed.
Section 12 of this Act prescribes the criteria giving legal services to the eligible persons.87
Legal Service Authorities after examining the eligibility criteria of an applicant and the existence of a
prima facie case in his favour provide him counsel as 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
provisions of the Act, is a welcome development in the field of legal aid. In order to reach out to the people
NALSA has come up with a project to set up legal aid clinics in all villages, subject to financial viability. A
legal aid clinic is a facility to assist and empower people who face barriers to ‘access to justice’.88

87
Section 12of the Legal Services Authorities Act, 1987 reads: Every person who has to file or defend a case shall be entitled to
legal service under this Act if that person is –
a) A member of a Scheduled Caste or Scheduled Tribe
b) A victim of trafficking in human being or beggar as referred to in Article 23 of the Constitution
c) A woman or child

(contd. from previous page)

d) A person with disability as defined in clause (1) of Section 2of the Person with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995;
e) A person under circumstance 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;
g) In custody, including custody in protective home within the meaning of clause (g) of Section 2 of the Immoral Trafficking
(Prevention) Act, 1956 (104 of 1956); or 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);
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 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.
88
Right to Legal Aid in Human Rights Perspective: A Judicial Reponse by Dr. M. Asad Malik, found in Indian Bar Review Vol. XLI (2)
2014
41
 Statutory Provisions for Legal Aid

There are various strands of statutes providing legal aid to the disadvantaged population of India. Prominent
among them are given under
Code of Criminal Procedure –
Before independence, right to counsel in criminal proceedings was not provided to an accused person.
Therefore, after independence the Law Commission of India recommended that lawyers at state expense
should be provided to the accused in Sessions Court, jail appeals and criminal revision proceedings. 89
However the recommendation was not acceded to by the government. Subsequently, the Law Commission in
its 41st Report expressed the view that the government should make available the right to counsel at least in
trial before the court of sessions. The Commission observed that:
“… we strongly recommend that the right of the accused to representation at government expense
should be placed on a statutory footing in relation to trials of serious offences, and as a first step in this
direction, we propose that such a right should be available in all trials before a court of sessions. The Code
should also contain a provision enabling the state government to extend this right by a notification to any
class of trials before other courts in the state.”90
In 1972 the Law Commission of India in its 48th Report recommended that “all accused persons must
be furnished with counsel for their defence at state expense.”91 Justifying its recommendation the Law
Commission observed:
“In our view representation by counsel is so basic an ingredient of a criminal trial that the law should
go as far as possible in seeking that this requirement is not absent. The assistance of counsel is required at
every step in the proceedings and irrespective of nature of the offence under trial.”92
These successive recommendations of the Law Commission impressed upon the government to

89
14th Report of the Law Commission of India on Reform in the Administration of Justice, 1958, p. 598
90
41st Report of the Law Commission of India on the Code of Criminal Procedure, 1898, 1969, p. 203
91
48th Report of the Law Commission of India on Some Questions under the CrPC Bill, 1972, p. 24
92
48th Report of the Law Commission of India on Some Questions under the CrPC Bill, 1970, p. 23 – 25
42
extend the right to legal aid only to the extent of all sessions trials but criminal proceedings before other
courts were left out of the purview of the scheme and Section 304 was introduced in the Code of Criminal
Procedure, 1973, which came into force from 1st April, 1974 providing:
Section 304(1): Where in a trial before the court of sessions, 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.
The section further empowers the state governments to extend the provision of legal aid to all the subordinate
courts by issuing a notification. So far, no such notification was issued by the state governments to enlarge
the amplitude of legal aid in relation to the proceedings in the criminal courts subordinate to the sessions.
Though the Code of Criminal Procedure, 1973 for the first time recognised the right of the accused
person to be defended in all criminal proceedings before the sessions court. This “selective provision” of
legal aid excluded a large number of indigent accused from the benefit of legal services at the cost of state in
the criminal trials before the courts below the ‘sessions’, 93 for whom the proceedings in the lower courts
result in conviction and consequent incarceration without any further appeal. Moreover, the existing scheme
of legal aid built in the Code is abrasive of the right to life and liberty guaranteed by Article 21 of the
Constitution and does not match the constitutional norm. Since right to legal aid is a sine qua non to right to
life and liberty – the most fundamental and cherished right, therefore, there appears no legislative
justification for withholding the availability of legal aid to the accused in the subordination courts – a
“minimum content” for fair trial.

Code of Civil Procedure –

Order XXXIII of the Code of Civil Procedure provide for legal aid to be provided in civil cases. The civil
litigation, which deals primarily with the property of the persons, has not been given that much of importance
by the state that is given to the life and liberty of the person. Therefore, the relief provided under the Order is
of limited utility to the poor persons, for the standard of indigency set is as low as to exclude all but the
utterly poor persons. The Order allows the exemption of court fee to defend and to prosecute the suit in
forma pauperis if the indigent is not having property worth_1000.94 The Order further provides for the
assignment of pleader if the indigent person is unrepresented.
The procedure for seeking legal aid under the Code for indigent suit is cumbersome and dilatory. The
person seeking legal aid is required to establish his indigence. Inquiry into the means of an indigent person is
93
RWM Dias, Jurisprudence, 5th Ed. P. 455. “Too much attention has traditionally been devoted to the processes in the appellate
courts to the neglect of the lower courts. Knowledge of what goes on in lower courts is needed in order to know what law ‘means
to persons in lower income brackets’.
94
Before the Civil Procedure (Amendment) Act, 1976 a person was entitled to sue as forma pauperis if he was having property
worth _1000 as a result of the 14th, 27th and 54th Reports of the Law Commission of India.
43
being done by the revenue officials with considerable delay. Permission to as forma pauperis is given to the
indigent person only after an application is moved in the court and then evidence is adduced to establish the
indigence of the applicant, wherein notices are served on the opposite party and the government counsel to
resist the application. The inquiry into the means of the indigent person is in fact an ordeal one has to
undergo before the actual ordeal of the litigation commences. Unless the party can afford to engage a counsel
he cannot move the court effectively for getting this concession.

Jail Manuals –
The Prisons Act, 1894 empowers the state governments to frame jail manuals for the good government of
jails.95 Each state has a separate manual of its own, having colonial origin meant to administer the jails
rigorously with the object to break the criminal streak of the criminals, which paid no heed to the dignity and
sanctity of human persons. Undertrials and convicts are incarcerated in harsh and inhuman conditions.
Communication and interviews with inmates by their lawyers are highly restricted and on each occasion they
have to seek permission afresh. The councils have also to file jail appeals that require to be countersigned by
the jail superintendent. In death row cases the period of appeal is just seven days and the appeals are
presented to the superintendent for their submission in the court. In drawing the clemency petition to the
President or Governor, assistance ad facilities shall be given by the jail administration.
This factual matrix underscores the urgent need of legal aid to be provided to the prison population.
But except Maharashtra,96 no state manual provides for legal aid. These manuals neither requires the jail
superintendent to inform the convicts that they have a right to legal aid nor he is put under a non – derogable
duty to co – ordinate with the nearest legal aid committee for assistance in preparing and filing appeal.
Presenting of petitions of appeal to the jail superintendent tantamount presenting the appeal in the court. If
the convict has been sentenced to death, the appeal has to be filed within seven days through the jail officials
and if they deliberately delay the sending of papers resulting the appeal being rejected as time – barred, the
manuals does not visit the jail officials responsible with a penal consequence. 97Moreover, these manuals
discourage the access of the lawyers to prisons by making it obligatory on their part to seek fresh permission
for every visit.98
95
Section 59, The Prisons Act, 1894
96
Section 34 of the Maharashtra (Facilities to Prisoners) Rules, 1962 read: Legal aid: Prisoners of all categories may be given
necessary facilities for appeal and petitions according to the provisions of any law; legal defence; delegation of power of attorney
(property, land, civil suits, business etc.); and execution of will.
97
20 specific instances of delay being committed by jail officials in filing appeals by convicts came to light in Supreme Court Legal
Services Committee v. UOI, (1998) 5 SCALESP – 19
98
E.g. – Rule 472 (3 of the Assam Jail Manual states: “When any person desires to interview an unconvicted criminal prisoner in
the capacity of the prisoner’s legal adviser he shall apply in writing, giving his name and address and stating to what branch of
legal profession he belongs and he must satisfy the Superintendent that he is the bona fide legal adviser of the prisoner with
whom he seeks an interview and that he has legitimate business with him.
44
 Despite the categorized directions of the Supreme Court that reformative steps be introduced to
ameliorate the harsh and inhuman jail conditions,99 the law laid down by the apex court has not been
incorporated in the manuals so far.

The Legal Services Authorities Act, 1987 –

The most important legislation passed in pursuance of Article 39A of the Constitution, the Legal Services
Authorities Act, 1987 (LSAA), was passed to aim at constituting three – tier Legal Services 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 disabilities, and to organise
Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal
opportunity.100 The LSAA for the first time institutionalized legal aid in India, besides providing for the
organisation of Lok Adalats and constitution of Permanent Lok Adalats to facilitate inexpensive and speedy
conciliatory justice and constitution Legal Aid Funds. The Act lays down entitlement criteria to legal services
to be provided to the applicant when he satisfies the concerned authority that he is entitled to legal services
and has a prima facie case to defend or prosecute. The Act enjoins the central authority to take appropriate
measures for disseminating legal literacy and legal awareness to educate weaker sections of the society about
the rights, benefits and privileges guaranteed by welfare legislations.
The legislation is a laudable step in the institutionalization of legal aid in India. It has constituted
various services authorities from national level down to the taluka level apart from the constitution of the
Supreme Court and High Court Legal Services Committees to extend free legal aid to the members of weaker
sections of the society. The Act for the first time accords statutory recognition to the institution of Lok Adalat
in the country. The authorities are put under obligation to organise legal literacy and awareness camps to
educate the people about their rights, remedies and legal aid. However, the legislation emphasizes on
litigation oriented legal aid than the preventive legal aid. The establishment of PLAs for pre – litigation
conciliation and settlement of disputes concerning public utility services and to decide them on merits if no
settlement is forthcoming, is not a welcome measure. The object sought to be achieved through the
establishment of PLAs is contrary to the concept of Lok Adalats, for the failure of the parties to arrive at a
compromise locks them in compulsory adjudication by creating a bar on seeking other remedies available
under the law, making the award final and binding. Excluding the jurisdiction of civil courts and other forums
in relation to the disputes of public utilities services and conferring conclusive powers on PLAs does not

99
Sunil Batra (1) v. Delhi Administration, (1978) 4 SCC 494
100
Section 1 of LSAA, 1987
45
stand to any judicial wisdom.

The Mental Health Act, 1987 –

Section 91 of the MHA provides for legal aid to the mentally ill persons as state expense. Section 91(1)
provides that where a mentally ill person by legal practitioner in any proceeding before a District Court or
Magistrate because such person does not have sufficient means to engage a legal practitioner then the court
‘shall’ assign a legal practitioner to represent him at the expense of the state. Section 91(2) provides that
where a person having sufficient means is unrepresented, the court ‘may’ assign a legal practitioner only if it
appears to the court, having regard to the circumstances of the case, that such person ought to be represented
by a legal practitioner. Section 43 of the Act empowers the patient to make an application for his discharge to
the Magistrate.
The Act envisages the provision of legal aid only after filing of the application for the discharge of the
mentally ill persons from a psychiatric hospital or nursing home. The discharge process may cause
difficulties to the patients seeking discharge since they may not be aware of their rights, procedure to seek
discharge and to move the requisite application before a Magistrate. Therefore, the provision of legal aid
should cover not only the post – application phase but pre – application phase as well to initiate the process
of discharge. As a result of this the patients who have recovered remain incarcerated in the hospital for many
years. The Act does not envisage the establishment of any legal aid mechanism to ensure that the patients
who have recovered should be given legal aid in seeking their discharge. Moreover, Section 93 accords an
absolute right to legal aid and a qualified right to legal representation to a mentally ill person under the Act.
Chapter V of the Act provides for the appointment and monthly inspection by the “Visitors” but the Board of
“Visitors” does not include a legal professional who can at least ensure the discharge of the patient by
imparting necessary legal aid and advice. This statutory infirmity of the legislation can be set right by making
necessary amendments in the Act.101

NALSA (Free and Competent Legal Services) Regulation, 2010 –

The Regulation was framed in 2010102 in exercise of the powers conferred by Section 29 of the LSAA to
provide free and competent legal services to the eligible legal aid clientele. The Regulation makes the
provision for selection of the panel lawyers to be designated as Retainers by inviting the application along
with the professional specialization and experience and further provides that a legal practitioner having less
than 3 years of experience shall not be empanelled besides fixing the monthly honorarium ranging from

101
Legal Aid in India: A Critical Appraisal by J.S.Bisht found in Indian Bar Review Vol.XLI (2) 2014 p. 57
102
Came in to force on 9th September, 2010
46
_3,000 to _10,000 and shall devote their time exclusively for legal aid cases and shall man the front office.
The Regulation enjoins the Monitoring Committee to submit its bi – monthly report on the progress of each
and every legal aid case and the performance of the panel lawyer and after evaluation of the report Legal
Services Institution (LSI) shall decide the course of action to be taken in each case. The Regulation further
provides that if the panel lawyer does not perform satisfactorily or acts contrary to the Act and these
Regulations, the LSI may withdraw the case from him or remove him from the panel. These Regulations
provide for the constitution of the Monitoring Committee to watch the day – to – day proceedings of the
court and if the case is not satisfactory, the Committee may advice the LSI to take appropriate steps. If the
Monitoring Committee is of the opinion that services of senior advocate has to be provided in any particular
case the LSI may engage such a senior advocate. The Executive Chairman of NALSA has been empowered
to nominate or authorize the members of its Central Authority to supervise, monitor and advise the LSI for
effective and successful implementation of these regulations.

Judicial Pronouncements and Right to Legal Aid

Legal aid and speedy trial have now been laid down to be fundamental rights under Article 21 of the Indian
Constitution available to all persons and enforceable by the courts of India. The State is under a duty to
provide lawyer to a poor person and it must pay to the lawyer his fee as fixed by the Court. The Supreme
Court through its various pronouncements has been successful in helping the poor and underprivileged
people to get the legal aid that they require.

Queen Empress v. Pohpi &Others103

Mahmood J. in his dissenting opinion held that an appeal against conviction could not be disposed of in the
absence of the accused and that he must be heard in person, if he was not represented by counsel. The view
taken by Mahmood J. assimilated even the modern concept under Articles 21 and 39A of the Constitution.

Indira Gandhi v. Raj Narain104

The Court said:
"Rule of Law is basic structure of constitution of India. Every individual is guaranteed the right to be heard.
It’s given to him under the constitution. No one can be so condemned unheard. There should be equality of

103
I.L.R. 13 All 171 (FB) (1893)
104
[1976] 2 SCR 34
47
justice. There ought to be a violation to the fundamental right or prerogatives, or privileges, only then to seek
remedy he can go to the court of law and at the stage when he first is produced before the magistrate. In
absence of legal aid, trial is vitiated."

Maneka Gandhi v. UOI105

The court held that the procedure under Article 21 which deprived a person of his life or liberty should be
just, fair and reasonable. Now, a procedure which does not make available legal services to an accused
person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without
legal assistance, cannot possibly be regarded as just, fair and reasonable. It is only a lawyer who is
conversant with law who can properly defend an accused. Further the court said that the provision relating to
fundamental rights should be interpreted widely; Bhagwati J. said:
“The attempt of the court should be to expand the reach and ambit of the Fundamental Rights rather
than to attenuate their meaning and content by a process of judicial construction.”

M.H. Hoskot v. State of Maharashtra106

The court held that 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.

Nandini Sathpathy v. P.L. Dani107

The court held that the accused must be allowed legal representation during custodial interrogation and the
police must wait for a reasonable time for the arrival of a lawyer. The Apex Court observed:
“Not that a lawyer’s presence is a panacea for all problems of involuntary self – incrimination, for he
cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to
intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist
on questions and answers being noted where objections are not otherwise fully appreciated. He cannot
harangue the police but may help his client and complain on his behalf, although his very presence will
ordinarily remove the implicit menace of a police station.”108

105
AIR 1978 SC 597
106
AIR (1978) 3 SCC 544.
107
AIR 1978 SC 1025
108
Ibid. p. 1047
48
Hussainara Khatoon & Ors. (V) v. Home Secretary, State of Bihar109
Justice Bhagwati held: "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."

Khatri & Ors (II) v. State of Bihar & Others110

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.

Khatri & Others v. State of Bihar & others111

Bhagwati J. observed: “Right to free legal aid, just, fail and reasonable procedures is a fundamental right
109
AIR 1979 S.C. page 1371
110
AIR 1981 S.C. at page 926 (Bhagalpur Blinded Prisoners’ case)
111
1981 SCR (2) 408
49
(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.”

Kadra Pahadia v. State of Bihar112

While delivering the judgement in this case Justice Bhagwati 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 21of the Constitution.

Sheela Barse v. State of Maharashtra113

The court held that legal assistance at the cost of the state should be given to the indigent persons under
police custody also, besides the under trials and convicts which is a constitutional imperative by Article 39 A
and also by Articles 14 and 21 of the Constitution.

Centre for Legal Research & Anr. v. State of Kerala114

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
programs 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 programs should be supported by the
State Government and if so to what extent and under what conditions.
He observed:
"There can be no doubt that if the legal aid program 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
program 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
112
AIR 1981 CS 939
113
AIR 1983 SC 378
114
AIR 1986 SC 1322
50
Administration, no legal aid program 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
program because the legal aid program 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 program
but they should be regarded as participants in it. If we want to secure people's participation and involvement
in the legal aid program, 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
program 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 program 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 program 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 program 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 programs 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 program and organizing legal aid camps and lok adalats or niti
melas."

Suk Das v. Union Territory of Arunachal Pradesh115

Bhagwati J. held: "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.”

115
AIR 1986 S.C. at page 991.
51
State of Maharashtra v. Manubhai Bagaji Vashi116
In this case the Supreme Court has considerably widened the scope of right to free legal aid. The court held
that in order to provide free legal aid it is necessary to have well – trained lawyers in the country. This is only
possible if there are adequate number of law colleges with necessary infrastructure, good teachers and staff.

Chairman, Railway Board v. Chandrima Das117

The Supreme Court held:
“Our Constitution guarantees all the basic and fundamental human rights set out in the Universal
Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the
fundamental rights is contained in part III of the Constitution of India. The purpose of this part is to
safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the
reach of the political parties who, by virtue of their majority, may come to form the Government at the
Centre or in the State.”

Md. Sukur Ali v. State of Assam118

The court held that in a criminal case if the counsel for the accused does not appear, for whatever reasons,
case cannot be decided against the accused. The court should appoint Amicus Curiae to defend the accused.

A.S. Mohammed Rafi v. State of Tamil Nadu119

The Supreme Court held that:
“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay
his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a
resolution that none of its members will appear for a particular accused, whether on the ground that he is a
policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of
the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has
always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the
legal community. We declare that all such resolutions of Bar Associations in India are null and void and the
right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be

116
(1995) 5 SCC 730
117
AIR 2000 SC 988
118
Criminal Appeal No. 546 of 2011 (arising out of S.L.P. (CRL.) No(s).679 of 2011) (Feb. 24, 2011)
119
AIR 2011 SC 308
52
upheld in this country. It is the duty of a lawyer to defend ‘no matter what the consequences’, and a lawyer
who refuses to do so is not following the message of the Gita.”

Mohammad Hussain alias Zulfikar Ali v. State (Government of NCT)120

The first trial was held vitiated Justice H.L. Dattu as the appellant was not provided with a counsel to defend
himself properly, while C.K. Prasad held that the trial was illegal and directed the appellant to be set at
liberty. However, in view of the split verdict, the Bench requested that the matter be placed before the Chief
Justice of India to seek another Bench to decide whether the case was to be given a fresh hearing or the
accused should be set at liberty.

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 willful default in
fulfilling the conditio sine qua non. It is a public duty of each great branch of government to obey the rule of
120
AIR 2012 SC 750
53
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."

Mohd. Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra121

A Bench of Justices Aftab Alam and C.K.Prasad gave this direction while upholding the death sentence
handed out to Ajmal Kasab, the key accused in the Mumbai 26/11 terrorist attack case. The Apex Court
observed:
“The right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a
person arrested in connection with a cognizable offence is first produced before a Magistrate. It is the duty
and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first
produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and,
in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid
at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be
strictly enforced. All the Magistrates in the country are directed to faithfully discharge the aforesaid duty and
obligation. It is further made clear that any failure to fully discharge the duty would amount to dereliction in
duty and would make the Magistrate concerned liable to departmental proceedings.”122
The court further held that:
“Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the
trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a
lawyer, or he remains silent, it is the constitutional duty of the court to provide him with a lawyer before
commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in
clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend
himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute,
and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the
accused.”

PIL as an Instrument of Legal Aid

121
(2012) 9 SCC 1
122
Refer p. 25 of project
54
Public Interest Litigation in Indian law means litigation for the protection of public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court but by the court itself or by any other
private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim
of the violation of his or her right should personally approach the court. Public Interest Litigation is the
power given to the public courts through judicial activism. In the State of Kerala in 1957, the rules providing
for legal aid contemplated class action particularly in context of those unable to afford litigation on
individual basis.123 The two – member committee on National Juridicare, which examined the legal aid
scheme and submitted a report in the year 1977, saw PIL as an important tool of the legal aid movement. It
expected the legal aid units to be the initiators of community proceedings, PIL, class action and the like
before the court, tribunals and other authorities. The Gujarat Legal Aid Committee, by the year 1990, filed as
many as 20 PILs in the High Court on various issues confronting the underprivileged sections. It has even
found its way into the Legal Services Authorities Act.124 Krishna Iyer J., regarding PIL, had observed:
“…test litigation, representative actions, probono public and like broadened forms of legal
proceedings are I keeping with the current accent on justice to the common legal proceedings are in keeping
with the current accent on justice to the common man and a necessary disincentive to those who wish to
bypass the real issue on the merits by the suspect reliance on peripheral, procedural shortcomings. Public
interest is promoted by a spacious construction of locus standi on our social economic conditions and
conceptual latitudinarianism permits taking liberties.”
Another important aspect was to mount challenges to the constitutional validity of the substantive
provisions of law that were perceived as either being anti – poor or violative of the fundamental rights. In the
context of criminal justice system, there are two moves, easing of procedures to ensure access to the justice
system, and initiating institutional reforms litigation, were simultaneous and the impetus came from the court
itself.
Sunil Batra Case (I) and Case (II)125 and Sobraj Case126
The court dealt with the prison regulations and prescribed the conditions under which convicts would be
confined in the jails. These two petitions had many firsts to their credit. The court treated the cases brought
before it by the two individuals as representative petitions. Krishna Iyer J. held:
“Although neither of these writ petitions is a class action in the strict sense, each is representative of many
123
Rule 8 of Kerala Legal Aid to the Poor Rules, 1957
124
Section 4(d) identifies one of the functions of the Central Authority as taking necessary steps by way of social justice litigation
with regard to consumer protection, environment protection or any other matter of special concern to the weaker sections of the
society - Kamgar Sabha v. Abdulbhai Faizullabhai (1976) 3 SCC 832
125
AIR 1675, 1979 SCR (1) 392; 1980 AIR 1579
126
1996 IIAD Delhi 550
55
other similar cases. I think these martyr litigations possess a beneficent potency beyond the individual
litigant and their consideration on a wider representative basis strengthens the rule of law. Class actions,
community litigations, representative suits, test cases and public interest proceedings are in advance of our
traditional system with a broad based concept of locus standi so necessary in a democracy where the masses
are in many senses weak.”
Over the years the PIL cases of lawyers shifted their focus from prisoners to their human right
concerns to that of the victim and then to the institution. An instance has been provided in the cases that have
dealt with the fundamental right to speedy trial of criminal cases. The Hussainara case saw the right to legal
aid and to speedy trial of an accused as being components of the right of access to justice.

A.R. Antuley v. R.S. Nayak127

In this case while the court acknowledged that every accused has a fundamental right to a speedy trial, it took
the position that it would be unrealistic to impose any time limits for the completion of the trials 128 a
constitutional bench now felt that it is neither advisable nor feasible to draw or prescribe any time limit for
conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial.
This decision was perhaps the beginning of a trend which prioritises the problems of the institution
over the problems of the accused. The strict rules under the NDPS and TADA Act made it extremely difficult
for the accused to get a bail. In these two cases the Supreme Court stipulated the conditions on which some
of the under trials could be granted bail, but even the bail conditions were extremely onerous. It is doubtful
that these orders made in the PIL jurisdiction, could have helped the prisoners who were economically
backward. In the NDPS Act, the bail amount was to be 50% of the maximum fine where the offences were
punishable with imprisonment of 5 years or less. The amount would not be less than 50,000 if the
imprisonment prescribed is between 5 and 10 years, and a fine of rupees 1,00,000 where the imprisonment is
for a minimum of 10 years.129
Raj Deo Sharma v. State of Bihar130
In the above case, in his dissenting opinion given by MB Shah J. said that there should not be any time limit
for closing a case, if it is continued and permitted, it would affect the smooth functioning of the society in
accordance with the society and finally with the Constitution. If the victims are left without any remedy, they
would resort to taking revenge by unlawful means resulting in further increase in crimes and criminals.
People at large in the society would also feel unsafe and insecure and their confidence in the criminal justice

127
1992 1 SCC 225
128
Ibid. p.269
129
Supreme Court Legal Aid Committee representing Under Trials v. Union of India 1994 6 SCC 731
130
1999 7 SCC 606, 623
56
system would be shaken. While PIL continues to provide space for the issues concerning criminal justice
system, the focus has definitely shifted from the prisoner to the institution. In Delhi, the court, sits in Tihar
Jail on the third Saturday of every month to dispose off the cases of the undertrials held on petty charges. The
prisoners eager to be free from the long incarcerations which they have undergone, invariably plead guilty
and are immediately convicted and sentenced to the periods already spent by them in the jail. Two lawyers
appointed by the legal aid committees are to appear in all the cases. Their task is to ensure speedy disposal
after a perfunctory hearing.

Sukharam v. State of Maharashtra131

In this case when the commissioner suggested that the court may sit inside the jail premises since the
undertrials would in any event prefer to plead guilty in irrespective of the fact that he is actually guilty or not
and seek freedom rather than contesting the case, the Bombay High Court pointed out that in such a case it
would be a gross violation of human rights.
PILs concerning convicts in jails, apart from carrying forth the implementation of Hoskot’s direction,
were primarily responsible for the implementation of LSAA. Through repeated warnings to state
governments that failure to comply with the others would result in contempt proceeding being initiated
against them, the Supreme Court was able to ensure that the committees contemplated by the LSAA were
constituted in each of the States and Union Territories.132
However, it has its own limitations. One problem which needs to be acknowledged is the lack of
follow up by those initiating the PIL or by the court itself. In Khatri v. State of Bihar133, although the court
kept for consideration at a later date, the question of payment of compensation to the blinded prisoners, this
never got addressed subsequently. Later cases have shown that the situation in other jails is no better. Even in
cases like Hussainara Khatoon, the orders passed by the court several years after they began, actually made
no mention of the need for facilitating easy access to justice by making legal aid available to prisoners in jail.
However, we cannot neglect the case of DK Basu134, where the court itself took the initiative, the right of
access to justice, itself is a human right, and it requires to be positioned as an inalienable and non – derogable
right at par with other rights that are amendable to protection and enforcement not only by our courts but also
by NHRC.

Violation of Human Rights and Legal Aid

131
(1999) 1 SCC 220
132
Lawyer’s Collective – 1998 Issue
133
(1981) 1 SCC 635
134
D.K. Basu v. State of West Bengal 1996(9) SCALE

57
The reports of the National Human Rights Commission (NHRC) as well as the statistics brought out every
year by the government by the government in the form of Crime in India Reports, point to the increasing
state and non – state crimes, the former including deaths in custody, torture in custody, illegal detentions,
disappearances and encounter killings. Legal aid, seen as encompassing the preventive, representative and
rehabilitative aspects, can make a difference to ho the state treats persons who were arrested or those who
have been victims of crime.
Legal aid committees under the LSAA are statutory bodies vested with statutory powers and
functions. Their locus standi to provide legal assistance to the victims, which is one of their essential
activities, cannot be questioned. The Courts and the NHRC need to follow up on the investigation and taking
up the cases on behalf of the victims.
Legal aid committees could ensure the presence of duty counsel at police stations round the clock.
They can also seek visiting rights for their lawyers at all custodial and detention centers. This might serve as
a dual purpose – it could act as a deterrent to custodial violence and it might also help in enforcing
accountability for state action. Under situations that are extraordinary, and are seen to require extraordinary
laws and procedures, when human rights violations by state action occur and the functioning of courts and
lawyers become vulnerable, the dimensions of legal aid may get significantly altered.
This leads to the role of lawyers in the movement for ensuring access o justice. Lawyers have been in
the forefront of PIL movement as well.135

Lawyers and Legal Aid

Legal profession is monopolistic in character and this monopoly itself has certain high traditions, which its
members are expected to upkeep and uphold. Law is a Hon'ble profession and an Advocate is an Officer of
justice and friend of the Court. He is an integral part for the administration of justice. From the ancient times,
the legal obligations of the Advocates to conduct the case of a poor litigant without reward when so required
by the Court has been recognized not only in our country and in England but also in US and other Countries.
However, in practice, Counsels have been assigned only in criminal cases of serious nature and a few civil
cases.
135
Right to Legal Aid in Human Rights Perspective: A Judicial Response by Dr. M. Asad Malik; Indian Bar Review Vol. XLV (2) 2014
58
 The critical position enjoyed by an Advocate in administration of justice in fact imposes a
responsibility upon him to ensure that justice is made available to all. Rule 46 of Bar Council if India Rules
in part-VI relating to a standard professional conduct and etiquette reminds Advocates of the obligation they
owe to the society. The Rule reads as under:-
“Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in
need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that
within the limits of an Advocate's economic condition, free legal assistance to the indigent and oppressed is
one of the highest obligations an Advocate owes to society.”
To ensure justice to poor and marginalized sections of the society, an Advocate is required to provide
them legal assistance even when they are not in position either to pay him at all or adequately pay him for his
services. In fact the least duty expected of an Advocate is to play his role sincerely in implementing the
various legal aid schemes available under the Legal Services Authorities Act, 1987 - be it legal aid to poor
and other marginalized sections of the society or promotion of legal literacy or facilitating resolution of
disputes through Lok Adalats. The role of the Advocates in implementation of these schemes becomes
pivotal due to the fact that legal profession being monopolistic, the various schemes of legal aid under the
Act can only be put into operation through Advocates.
Assignment of a competent Advocate to take up the case of a poor litigant is the most crucial component in
providing effective and purposeful legal aid to the weaker sections of the society. The Advocate is paid by the
concerned Legal Services Authority but this payment is generally quite low as compared to the normal fee
charged by the Advocate. As such, well established Advocates are generally reluctant to undertake
assignment as an Advocate under the scheme of legal aid under the Legal Services Authorities Act. The result
is that newly enrolled Advocates or Advocates, who do not have enough cases with them alone opt for taking
up such cases with the result that the poor and marginalized person get only substandard legal assistance,
which is a serious handicap in successfully implementing the legal aid scheme for weaker sections of the
society. The reluctance of senior Advocates in doing service to the community is becoming a serious
constraint in the success of the legal aid scheme in India The Supreme Court in the case of Kishore Chand v.
State of H.P.136 commented on this situation as under :-
“Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and
though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal
defence if, as is common knowledge the youngster from the Bar who has either a little experience or no
experience is assigned to defend him. It is high time that senior counsel practicing in the Court concerned,
136
AIR 1990 SC 2140
59
volunteer to defend such indigent accused as a part of their professional duty.”
The situation in India is in contrast to the situation existing in Britain. Michael Zander, who studied the legal
system of Britain to suggest law reforms records with satisfaction in his book "A Master of Justice" that in
Britain, a large number of competent senior Barristers are busy in acting as amicus curiae in courts and in
providing legal aid to the poor for which they are paid by the State. The Advocates in India need to take a
lesson from their British counterparts in this respect and need to inculcate the spirit of dedication to the cause
of justice and for community service so that legal aid movement could succeed in India. Indeed, failure to
make justice available to poor may threaten the very existence of the democracy and the rule of law. The
members of the legal profession would do well to bear in mind the famous words said by Leeman Abbot
years ago in relation to affluent America –
“If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the
poor who need it most cannot have it, when only a golden key will unlock the door to the court-room, the
seeds of revolution will be sown' the fire-brand of revolution will be lighted and put into the hands of men
and they will almost be justified in the revolution which will follow.”
There have been many instances where Advocates in India have taken the causes of poor and downtrodden
without any reward and have ensured justice to them. Unfortunately, there have also been instances where
lawyers assigned by public funds have not faithfully played their role in implementation of the legal aid
schemes which has cast a serious doubt on the very credibility of a scheme of legal aid available to weaker
sections of society in India. The dark side of the legal aid scheme and how the lawyers are swindling the
unsuspecting and ever gullible poor litigants as well as petty criminals and first time convicts, most of whom
are so because of compelling circumstances, was reported by the Indian Express in a news item under the
caption "Free Legal Aid for a Fee". The paper reported how Advocates were abusing the scheme and funds of
free legal aid. The modus operandi reported was that the lawyers engaged by the Legal Aid Committee were
fleecing money from the parties on whose behalf they had been engaged and holding their cases to ransom by
delaying tactics. In the process, many innocent persons were also being compelled to pay large amounts to
the lawyers, who are supposed to get their fee from the Legal Aid Committee and to be giving a service for
the cause of justice. The phenomenon is not new and has been in existence since the establishment of the
institution of free legal aid and has been flourishing since then. Lawyers can always be innovative as any
other professionals, in fact much more than that. After all they provide escape routes in people of any hue in
trouble. They know how to break laws and get away with it.
Free legal aid undoubtedly is beneficial to poor people and has been instituted with noble purpose. Yet it has
become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is
engaged through legal aid, obviously the party or his men would come to the lawyer for consultations and it
60
is then that they are asked to fish out some money which they naturally cannot refuse. One factor that may be
contributing to this is that the remuneration paid to lawyers by Legal Aid Committee is very low and
sometimes even does not meet the incidental expenses what to speak of compensating the labour put in by
the lawyer. Beyond that the greed to pocket some easy money out of the helplessness of the victim is always
there. But what speaks worst about the system is the fact that entrustment of the cases to Advocates under the
scheme has become a case of distribution of largesee amongst the favourites, which is guided by factors other
than the capacity of the lawyer to deliver the results. In the circumstances, the quality of legal service
provided to poor and downtrodden sections of the society is seriously compromised to the detriment of
justice to them. The result is that whole purpose of the scheme gets defeated.
Considering that Administration of Justice is a central function of Advocates, it is incumbent upon them to
play a purposeful role in implementation of various legal aid schemes provided under the Legal Services
Authorities Act, 1987. The Advocates, as a class and senior Advocates in particular have a solemn duty to
ensure justice to all citizens and particularly to poor and marginalized sections of the society and they should
rise up to meet the challenge effectively and successfully. The consequences of failure of legal aid schemes
are too serious to be ignored. There is no doubt that legal community in India will rise to the occasion and
meet the challenge successfully and effectively. Justice to poor alone is the lasting guarantee of continued
existence of Rule of Law and democracy in the country.
However, there are many drawbacks that are faced by these lawyers which ultimately lead to their
reluctance in accepting such legal aid cases or providing their legal expertise in such cases or if forced to take
up the case then not doing it wholeheartedly. Some these drawbacks faced by lawyers as well as the victims
are as mentioned below:-
Concerns about Fees –
The lack of interest which a lawyer takes for fighting a case can be traced in the lack of initiatives taken by
them in legal aid cases. The fees provided for by most states are extremely low and never attract competent
lawyers to offer their services. Though fees vary from one High Court to another, they are largely inadequate.
Eg. – The fee prescribed by the Calcutta High court is Rs. 60 per day for a senior lawyer and Rs. 30 per day
for a Junior Lawyer for appearing in the session court while the district outside Calcutta is reduced by to Rs.
40 and Rs. 20 respectively.
The role of the lawyer outside of the state sponsored program, in providing legal aid in cases
involving human rights violations has not been adequately accounted for. Their role in bringing forth public
interest litigation, in the early years of its development, on behalf of undertrials and convicts has also not
merited sufficient acknowledgement. It may not be therefore, right to attribute the lack of involvement by
lawyers in the state sponsored programmed to lack of motivation.
61
Concern about Standards –
To expect the senior counsel practicing in the court in the court concerned would volunteer to defend such
indigent accused as part of their professional is not only unrealistic given the conditions under which lawyers
function in the criminal side of practice.
Even if lawyers assigned to an accused, facing a trial for murder punishable with death sentence, stay
away from the trial, offer no explanation for their absence, and yet do not withdraw formally from the case to
enable another lawyer to take over, they may not be charged with professional misconduct. It is the accused
who may have to suffer the consequences.

Conclusion

Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object
of the state should be equal justice for all‖. Thus, legal aid strives to ensure that the constitutional pledge is
fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of
the society.

But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law14,
the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. 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. Thus it is the need of
the hour that the poor illiterate people should be imparted with legal knowledge and should be educated on
their basic rights which should be done from the grass root level of the country. Because if the poor persons
fail to enforce their rights etc. because of poverty, etc. they may lose faith in the administration of justice and
instead of knocking the door of law and Courts to seek justice, they may try to settle their disputes on the
streets or to protect their rights through muscle power and in such condition there will be anarchy and
complete dearth of the rule of law. Thus legal aid to the poor and weak person is necessary for the
preservation of rule of law which is necessary for the existence of the orderly society. Until and unless poor
illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice.

62
 Hence in this area we have a huge number of laws in the form of judgements as well as legislations
but they have just proven to be a myth for the masses due to their ineffective implementation. Thus the need
of the hour is that we need to focus on effective and proper implementation of the laws which we already
possess instead of passing new legislations to make legal aid in the country a reality instead of just a myth in
the minds of the countrymen

Suggestions –

As contemplated by Justice Iyer and Bhagwati that the vast millions of Indians, steeped in ancient injustice
and modern misery have little to hope for from the law, they have much to shoot against it. In such state of
affairs it is imperative for state to take steps to keep the confidence of masses in the justice system breathing.
Though the execution of the legal aid program has been yielding favorable results yet much more needs to be
reformed. Our compilations of the suggestive measures in this area are:

Exploring ADRs

Using the various forms of ADRs like Arbitration, Conciliation, Negotiation and Mediation in the settling of
disputes especially those involving matrimonial problems can prove to be an effective legal aid tool
providing quick and inexpensive justice to the masses Focus on Lok Adalats in its true spirit: Lok Adalats, a
permanent feature of the functioning of legal services authorities is largely being used as a tool of case
management to help the over burdened judiciary and not so much as a instrument of the justice delivery to
the litigant. If the `success’ of the lok adalat stems from negative reasons attributable to the failures of the
formal legal system, the utility of this mechanism may also be short-lived.

Adequate Financial Support

A master plan for juridicare cannot succeed without sufficient financial resource. An annual amount of Rs. 6
crore is being allocated to NALSA for the execution of its policies. The Committee is of the opinion that this
amount is inadequate for such an important scheme and strongly recommends that substantial allocation
should be made at Revised Estimate stage to make the functioning of NALSA more effective.

63
No compromise on Quality

Free legal aid must not be read to imply poor or inferior legal services. The lawyers in the panel should be
experienced. The law ministry should ensure the senior lawyers do at least ten cases a year free of charge in
the courts.

There are number of precedents as well as legislations to up hold the right to free legal aid but they
have just proven to be a myth for the masses due to their ineffective implementation. Thus the need of the
hour is that one should need to focus on effective and proper implementation of the laws which are already in
place instead of passing new legislations to make legal aid in the country a reality instead of just a myth in
the minds of the countrymen.

Inform people

Lack of awareness is the main impendent in effective ‘legal aid’. Efforts should be made to inform the public
of the existence of these services by using electronic media and aggressive campaigns.

It is suggested that it is the need of the hour that the poor illiterate people should be imparted with
legal knowledge and should be educated on their basic rights which should be done from the grass root level
of the country. For that judiciary needs the support from state administration to conduct legal literacy
program.

Sensitization of the judiciary

Awareness of schemes and programs to be able to guide the poor litigants in this regard. The judiciary should
focus more on Legal Aid because it is essential in this present scenario where gulf between haves and have-
nots is increasing day by day. And elimination of social and structural discrimination against the poor will be
achieved when free Legal Aid is used as an important tool in bringing about distributive justice.

Performance appraisal by all legal aid authorities

64
Where each district legal aid service authority should be evaluated and compared with other district legal
service authority inter as well as intra states to encourage legal aid.

Law schools

Law schools are the blossoming gardens of fresh, young talent. We suggest not only the inclusion of law
students but also insertion of the legal academicians, who with their deepened knowledge and experience can
be an active part in the implementation of the legal aid program.

A reverse osmosis approach needs to be followed where rather than to wait for the poor to come and
approach for legal aid a system with the help of NGOs to identify people in need of such services shall be
developed, more so because people are ignorant both of their rights and also the availability of legal aid. The
culture of donations by the privileged sections of the society should be encouraged.

Free Legal Services Authorities must be provided with sufficient funds by the State because no one
should be deprived of professional advice and advice due to lack of funds.

65