Legal Aid
Legal Aid
“LEGAL AID”
Submitted By:
Tushar Gund (L40218008)
B.COM, LLB
March, 2022
Department of Law,
PDM University, Bahadurgarh,
Haryana-124507, INDIA.
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DECLARATION
Tushar gund
L40218008 ……………………….
B.COM, LLB Signature
Date: 31/03/2022 (Dr. Sandeep Lal)
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ACKNOWLEDGEMENT
Common Abbreviations
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AB: Assembly Bill.
ABA: Applied Behaviour Analysis.
ADA: Americans with Disabilities Act.
ADD: Attention Deficit Disorder.
ADHD: Attention Deficit Hyperactivity Disorder.
ADR: Alternative Dispute Resolution.
AIT: Auditory Integration Training.
APE: Adaptive Physical Education.
AS: Asperger syndrome.
ASD: Autism Spectrum Disorder.
ASL: American Sign Language.
AT: Assistive Technology.
AU: Autism/Autistic.
BL: Blind.
CAC: Community Advisory Committee.
CBI: Community Based Instructions.
CCS: California Children Services.
COE: California Department of Education.
CMH: Country Mental Health.
CP: Cerebral Palsy.
DBL: Deaf-Blind.
DCFS: Department of Child and Family Service.
DD: Developmental Delays or Developmental Disabilities.
DDS: Department of Developmental Services
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Table of contents.
Introduction 6-9
Conclusion 21
Bibliography 22
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INTRODUCTION
Legal Aid implies giving free legal services to the poor and needy who cannot
afford the services of a lawyer for the conduct of a case or a legal proceeding in any
court, tribunal or before an authority. The earliest Legal Aid movement appears to
be of the year 1851 when some enactment was introduced in France for providing
legal assistance to the indigent. In Britain, the history of the organised 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 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.
One need not be a litigant to seek aid by means of legal aid. Legal aid is available to
anybody on the road. Justice Blackmun in Jackson v. Bishop says that; "The
concept of seeking justice cannot be equated with the value of dollars. Money plays
no role in seeking justice."
Article 39A of the Constitution of India provides that State shall secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and
shall in particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disability. Articles 14 and 22(1) also make it
obligatory for the State to ensure equality before law and a legal system which
promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure
that constitutional pledge is fulfilled in its letter and spirit and equal justice is made
available to the poor, downtrodden and weaker sections of the society. Sec. 304,
Criminal Procedure Code: The Constitutional duty to provide legal aid arises from
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the time the accused is produced before the Magistrate for the first time and
continues whenever he is produced for remand.
Legal aid is the provision of assistance to people who are unable to afford legal
representation and access to the court system. Legal aid is regarded as central in
providing access to justice by ensuring equality before the law, the right to
counsel and the right to a fair trial. This article describes the development of legal
aid and its principles, primarily as known in Europe, the Commonwealth of
Nations and in the United States.
Legal aid is essential to guaranteeing equal access to justice for all, as provided for
by Article 6.3 of the European Convention on Human Rights regarding criminal
law cases. Especially for citizens who do not have sufficient financial means, the
provision of legal aid to clients by governments increases the likelihood, within
court proceedings, of being assisted by legal professionals for free or at a lower
cost, or of receiving financial aid.
A number of delivery models for legal aid have emerged, including duty lawyers,
community legal clinics, and the payment of lawyers to deal with cases for
individuals who are entitled to legal aid. More informal or general legal advice and
assistance may also be provided for free or at low cost through such means as law
centres (UK), community legal centres (Australia) or a variety of other
organisations which provide various forms of legal aid in and outside of court.
Legal aid programs help ensure fairness in the justice system. Almost 47 million
people, and more than one in five children, live in or near poverty in the United
States. Legal aid providers protect the rights of millions of Americans with low-
income each year in areas such as housing, consumer, family, education and
employment, and defend access to services for people of all backgrounds, including
children, veterans, victims of domestic violence, the elderly, and those living with
disabilities.
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Civil legal aid is the assistance of counsel and legal advocacy for people living at
or near poverty in legal matters that fall outside of the criminal justice system. For
people facing civil legal challenges, such as unlawful evictions, foreclosure,
domestic abuse, or wrongful denial of government assistance, navigating the justice
system without a lawyer can be impossible. However, unlike the Sixth Amendment
right to counsel in criminal proceedings, courts have not recognized a right to a
lawyer in the vast majority of civil cases. This puts justice out of reach for low-
income people, and undermines a fundamental principle of our nation, that: the
amount of money a person has should not determine the quality of justice they
receive.
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Who Provides Legal Aid?
Legal aid providers vary in size and mission; some are locally focused or
concentrate only on a specific issue (such as domestic violence or employment
practices), while others may take cases from across a city or state with few
restrictions on issue area.
The total amount allocated to the delivery of civil legal aid in the United States is
around $1.345 billion. The Legal Services Corporation (LSC) is the single largest
funder of legal aid programs in the United States, providing about one-fourth of this
funding. LSC is a federally-funded non-profits corporation which makes grant
awards to 134 grantees nationwide. With this federal funding, its grantees are
required to meet certain restrictions on advocacy and client eligibility that are not
placed on many other sources of funding for civil legal aid. NLADA played a
leadership role in the creation of LSC in 1974, and continues to lobby vigorously in
Congress in support of its funding.
Additional sources of funding for legal aid include private foundations and
donations, state funding often through state bar foundations, contracts and grants
from federal, state and local government entities and cy press awards.
Pro bono assistance from private attorneys is an invaluable adjunct to the services
provided by staff-based legal aid programs. Pro bono practice is rapidly becoming
institutionalized in private firms and corporate legal departments. However, the
unmet need for civil legal aid is so great that only transformative change in the
resourcing of America’s dedicated legal assistance structures will enable this
country to provide access to justice for all.
Since 1952, the Govt. of India also started addressing to the question of legal aid for
the poor in various conferences of Law Ministers and Law Commissions. In 1960,
some guidelines were drawn by the Govt. for legal aid schemes. In different states
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legal aid schemes were floated through Legal Aid Boards, Societies and Law
Departments. In 1980, a committee at the national level was constituted to oversee
and supervise legal aid programmes throughout the country under the Chairmanship
of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This
Committee came to be known as CILAS (Committee for Implementing Legal Aid
Schemes) and started monitoring legal aid activities throughout the country. The
introduction of Lok Adalats added a new chapter to the justice dispensation system
of this country and succeeded in providing a supplementary forum to the litigants
for conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act
was enacted to give a statutory base to legal aid programmes throughout the country
on a uniform pattern. This Act was finally enforced on 9th of November 1995 after
certain amendments were introduced therein by the Amendment Act of 1994.
Contributions Made by Justice V.R. Krishna Iyer to The Development Of Legal Aid
- ‘Processionals Justice To Poor’- A Report
The contribution of justice Krishna Iyer towards the development and incorporation
of the concept of legal aid in the Indian legal system has been tremendous. His
report titled Processional’s justice to poor’ has gone a step further in enabling the
recognition of the poor for the purpose of giving legal aid.
In a report on Free Legal Aid in 1971. Justice Bhagwati observed " even while
retaining the adversary system, some changes may be effected whereby the judge is
given greater participatory role in the trail so as to place poor, as far as possible, on
a footing of equality with the rich in the administration of justice."
The two judges joined forces as a two-member committee on juridic are, released
its final report in August 1977. The report while emphasizing the need for a new
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philosophy of legal service programme cautioned that it ‘must be framed in the light
of socio-economic conditions prevailing in the Country’. It further noted that ‘the
traditional legal service programme which is essentially Court or litigation oriented,
cannot meet the specific needs and the peculiar problems of the poor in our
country’. The report also included draft legislation for legal services and referred to
Social Action Litigation.
Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid.
The Committee was formulated as on the 22nd day of October 1972. The
Committee after conducting sample surveys of large part of the country submitted a
275-page report to the Government on the 27th day of May, 1973. This report came
to mark the cornerstone of Legal Aid development in India. The report clearly laid
down that it is a democratic obligation of the State towards its subject to ensure that
the legal system becomes an effective tool in helping secure the ends of social
justice. He coined the word "Juridic are" to cover a scheme of legal aid which
brought justice to the doorstep of the lowly and which was comprehensive in its
coverage.
The report clearly suggests the colonial hangover of the Indian legal system which
has prevented it from realising its true potential and extent. It also recognises the
fact that much of our law was created by the British to suit their convenience and as
a result of this it is mostly insensitive to the socio-economic problems of the masses
it set out to govern and regulate.
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exploited by the cultural elitists since time immemorial.
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 Untouchability 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 they have no
protective value and unless some arrangement is made for providing a poor man the
means to pay Court fee’s, advocates fees and other incidental costs of litigation, he
is denied an opportunity to seek justice.
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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.
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 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 led him to express
faith in the Gandhian system which professed the resolution of disputes at the grass
root level through village Panchayat’s.
There was unanimous decision of the Committee that the State should regard it as
an obligation to provide legal assistance to the poor and indigent. It stated that this
obligation of the State was not merely, socio-economic or political but is also
constitutional by reason of Articles 14 and 22(1}.
Further the report stated that the legislation and rules so made by the government
should not be another piece of legislation made with the reference of any foreign
legislation as there is a marked difference between socio-economic conditions
prevailing in advanced countries and those prevailing in developing countries like
India.
It also emphasized on having legal aid programmes and that the organization for
effectuating the legal service programme must be responsive to the poor in giving
legal service and must not be mechanical and wooden in its approach. Even after,
such a programme is introduced there must be a continues examination of its utility
and its responsiveness to the poor.
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The report also in detail dealt with the true scope and extent of the legal aid. It
recommended that the question is what costs, charges and expenses to be incurred
by a litigant in court should be provided from the legal aid fund as part of legal aid
scheme. The court fees constitute one of the largest constituents of legal expenses
involved in a proceeding in a court of law. Instead of providing necessary funds to
the assisted person to make payment of court fees the State should by legislation
remit court fees in case of an assisted person. The scheme of legal aid should not be
based on class or status. The main test for determining whether the applicant
seeking legal aid is eligible for it is:
The, means test must be applied to them as well and must be presumed to be
satisfied in the case of members, belonging to Backward Classes. The Report stated
that the administration of legal aid scheme was to be placed in the hands of Legal
Aid Committees to be formed all over the State. Such Committees at all levels
should be constituted into corporations with perpetual succession and common seal.
As regards to the composition of Legal Aid Committee is concerned, it was
suggested that there must be representation of Government officials, the presiding
Judge or Magistrate should be ex-officio Chairman and member with the
qualification that he should not participate in the determination of the question
whether the applicant has a prima facie case or not. Neither the Collector nor the
Mamlatdar, should be ex-officio member and the Chairman: of any Legal Aid
Committee. Lawyers should be strongly represented on such committee. But the
Committees should not consist exclusively of lawyers. There should be
representation from the social service field and from other civic and business
interests; proportion of lawyers on one hand and social workers and public-spirited
persons on the other hand may be roughly equal. The lawyers who are to serve on
the legal aid committee should be drawn from the members of the bar practicing in
the respective areas and as far as possible half of them should be senior members
and half should be junior members. The selection of such lawyers must be entrusted
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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.
Article 39A of the Constitution of India, provides for 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.
This Article emphasises that free legal service is an inalienable element of
'reasonable, fair and just' procedure, for without it a person suffering from economic
or other disabilities would be deprived of the opportunity for securing justice.
In the civil side, Order XXXIII. R.18 of the Code of Civil Procedure 1908 provided
that the state and central governments may make supplementary provisions as it
thinks fit for providing free legal services to those who have been permitted to sue
as an indigent person. The Legal Services Authorities Act, 1987 made drastic
changes in the field of legal services. It is an Act to constitute 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 organize Lok Adalat’s to
secure that the operation of the legal system promotes justice on a basis of equal
opportunity.
Awareness of Legal Aid in India:
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“Equality before the law in a true democracy is a matter of right. It cannot be a
matter of charity or of favour or of grace or of discretion.” - Justice. Wiley Rutledge
(US. SC)
Issues and Challenges: “The Poor man looks upon the law as an enemy, not as a
friend. For him the law is always taking something away.” - Attorney General
Robert Kennedy, Law Day Speech, May 1, 1964.
The legal aid system in India has proven ineffective. There are four main reasons
why the National Legal Services Authorities has not been able to deliver real legal
aid there is a general lack of awareness of the availability of legal aid; there is a
perception that free service is incompatible with quality service;
there are not enough lawyers delivered by the legal services authorities, and lawyers
generally are uninterested in providing competent legal assistance because of
financial constraints.
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Moreover, too often for the lawyers assigned to provide legal aid and get paid with
public funds do not faithfully represent their clients, casting serious doubt on the
credibility of the scheme of legal aid provided to weaker sections of society. Some
lawyers engaged by legal aid committees hold their client’s cases for ransom by
employing delay tactics. These lawyers compel their clients, many innocents, to pay
additional amounts of money to them, even though they are supposed to obtain their
fee from the legal aid committee. One factor that mat be contributing to this is that
the remuneration paid to lawyers by the legal aid committee is very low and does
not even meet the lawyer’s incidental expenses.
Another major obstacle to the legal aid movement in India is that the delivery
system for legal aid is far too inefficient. More lawyers must be encouraged to
delivery free legal aid and a campaign should be launched to inform people about
the existence of free legal aid. The legal aid movement cannot achieve its goal so
long as people are not aware of their basic rights. When the poor are not aware of
their legal rights, they are subject to exploitation and ultimately deprived of the
rights and benefits provided to them under law. Thus, the key to a successful free
legal aid system is increased awareness among the populace and more efficient
delivery processes.
Conclusions:
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Legal aid is not a charity or bounty, but is an obligation of the state and right of the
citizens. The focus of legal aid is on distributive justice, effective implementation of
welfare benefits and elimination of social and structural discrimination against the
poor. It works in accordance with the Legal Services Authorities Act, 1987 which
acts as the guideline of the rendering of free justice. 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 law, 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.
BIBLIOGRAPHY.
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1) Legal Services India.
[NALSA].
4) Civils Daily.
5) Drishtiias.
6) Lawoctopus.
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