WORKING OF LEGAL AID SERVICE SCHEME IN INDIA: ANIL KUMAR

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Working of Legal Aid Service Scheme in India

Author: Mr. Anil Kumar Sharma

Assistant Professor

S.S. Jain Subodh Law College, Jaipur

ISSN: 2582-3655

ABSTRACT

Lawful guide to poor people and feeble is essential for the safeguarding of rule of law which is fundamental for the presence of the efficient society. Until and except if a poor unskilled man isn’t legitimately helped, he is denied equity in the chance to look for equity. In this manner as a stage towards making the legitimate help serve poor people and the denied; the legal executive has checked out giving a lawful guide to the destitute in the ongoing past. The Indian Constitution accommodates a free and fair-minded legal executive and the courts are offered the capacity to secure the constitution and protect the privileges of individuals regardless of their money related status. Since the point of the constitution is to give equity to all and the order standards are in its indispensable piece of the constitution, the constitution directs that legal executive has obligation to secure privileges of the poor as additionally society overall. The legal executive through its critical legal mediations has constrained just as guided the assembly to concoct the reasonable enactments to carry equity to the doorsteps of the weakest areas of the general public. Open Interest Litigation is one brilliant illustration of how Indian legal executive has assumed the job of the vanguard of the privileges of Indian residents particularly poor people. It supported general society vivacious individuals to look for equity for poor people. For that Supreme Court loosened up methodology significantly. Aside from Public Interest Litigation and legal activism, there are changes in the legal procedure, where it intends to make equity modest and simple by presenting the Lok Adalat framework as one of the strategies to give free legitimate guide and expedient equity at the entryway steps of poor people. In this article, the writer features the significance of free lawful guides in a protected popular government like India where a noteworthy segment of the populace has still not seen the sacred guarantees of even the extremely essential thing rights being satisfied for them.

  1. INTRODUCTION

“An effective legal assistance program is not only essential to the maintenance of the democratic way of life and the rule of law but is also in a poor country like ours, a socio-economic necessity“.

– The Bhagwati Committee Report, 1971

Legitimate Aid to poor people and powerless is vital for the safeguarding of the rule of law which is vital for the presence of the systematic culture. Until and except if a poor unskilled man isn’t lawfully helped, he is denied correspondence in the chance to look for equity. Along these lines as a stage towards making the legitimate assistance serve poor people and the denied; the legal executive has looked into giving a lawful guide to the destitute in the ongoing past. The Indian Constitution accommodates an autonomous and unprejudiced legal executive and the courts are offered the capacity to secure the constitution and defend the privileges of individuals regardless of their budgetary status. Since the point of the constitution is to give equity to all and the mandate standards are in its basic piece of the constitution, the constitution directs that legal executive has obligation to ensure privileges of the poor as likewise society in general. The legal executive through its critical legal intercessions has constrained just as guided the assembly to think of the appropriate enactments to carry equity to the doorsteps of the weakest areas of the general public. Open Interest Litigation is one brilliant illustration of how Indian legal executive has assumed the job of the vanguard of the privileges of Indian residents particularly poor people. It empowered the general population of energetic individuals to look for equity for poor people. For that Supreme Court loosened up system significantly. Aside from Public Interest Litigation and legal activism, there are changes in the legal procedure, where it means to make equity modest and simple by presenting the Lok Adalat framework as one of the strategies to give free lawful guides and fast equity at the entryway steps of poor people. In this article, the writer features the significance of free lawful guide in a sacred majority rule government like India where a noteworthy area of the populace has still not seen the protected guarantees of even the exceptionally essential thing rights being satisfied for them.

In India, worry for a legitimate guide to poor people and to the penniless is consistently on the ascent. Lawful help and free lawful exhortation is the best way to ensure equivalent insurance of law to poor people. In a creating state like India where a larger part of the populace can’t ensure its advantage, it is the obligation of the State to empower the poor to verify their lawful rights. The courts are utilized by the more extravagant areas to attest their lawful rights while the poor stay denied. Added to this is the way that our legal executive is over-worked. This angle is progressively being a point of concern. Deferral in the transfer of cases by the legal executive further builds the expense of prosecution. Exchange debate redressal components are in this manner being accentuated upon. The truth is that the minor presence of laws doesn’t ensure the pleasure in those rights by the residents. Free lawful guide and ADR (Alternate Disputes Redressal) frameworks are ventures towards the requirement of those rights. The statutory help toward this path was given by the Legal Services Authorities Act, 1987. It additionally looked to give a uniform example to these legitimate administrations all over India.[1]

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.

  • LEGAL AID SERVICES SCHEME

Meaning

‘Legal Aid’ has been required also mean the sorted out exertion of the bar committee, the network, and the administration to give the administrations of legal advisors free, or for a token charge, to people who can’t manage the cost of the typical over the top expenses.

Failure to counsel or to be spoken to by a legal counselor may add up to a similar thing as being denied of the security of law. Rawls’s first rule of equity is that every individual is to have an equivalent right to the broadest complete arrangement of equivalent essential freedoms good with a comparable arrangement of freedoms for all. With regards to our Constitutional requests and State commitments, the Legal guide has expected an increasingly positive and dynamic job that ought to incorporate vital and preventive administrations. Soothing ‘Lawful Poverty’ – the insufficiency of numerous individuals to utilize law and its organizations – has now been acknowledged as an element of a ‘Welfare State’. Aside from the social, financial and political prerequisites on which the case of legitimate guide rests, its currently as of late perceived as a protected basic emerging from Articles 14(2), 21(3), 22(Part1), 39A of the Constitution of India.

Legitimate Aid is a development that imagines that the poor have simple access to courts and other government offices. It infers that the choices rendered are reasonable and simply assessing the rights and inabilities of gatherings. The focal point of the legitimate guide is on distributive equity, powerful execution of welfare advantages and disposal of social basic victimization poor people. It was taking these obligatory arrangements of The Constitution of India at the top of the priority list that the Parliament passed The Legal Services Authorities Act, 1987.

“Lawful Aid conspire was first presented by Justice P.N. Bhagwati under the Legal Aid Committee framed in 1971. As indicated by him, the lawful guide implies giving a course of action in the general public with the goal that the preacher of organization of equity turns out to be effectively available and isn’t far from the individuals who need to fall back on it for requirement of its given to them by law” poor people and uneducated ought to have the option to move toward the courts and their numbness and destitution ought not be an obstacle in the method for their getting equity from the courts. The legitimate guide ought to be accessible to poor people and unskilled. Lawful guide as characterized manages a legitimate guide to poor, uneducated, who don’t approach courts. One need not be a disputant to look for help by methods for the lawful guide. The lawful guide is accessible to anyone out and about.

P.N. BHAGWATI COMMITTEE REPORT

The Gujarat govt. in 1970 appointed a committee under the chairmanship of then Chief Justice of Gujarat High Court, Mr. Justice PN Bhagwati. The committee felt that legal aid is state responsibility which it cannot ignore.

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 programs. It stated that the inequality between the rich and the poor in the administration of justice can be removed by establishing and developing an 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 the social security program just as much as medical aid is.

There was a 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.

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 a 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 buy 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:
  • The prima-facie  case  test  and
  • The reasonableness test.   

The report also in detail stated the constitution and the working of different legal committees:
(a) The Taluka Legal aid Committee.- It was recommended that there shall be a Taluka Legal Aid Committee in every Taluka having a court of Civil Judge (Junior Division) or Judicial magistrate, It shall have the power to deal with the applications for legal aid in proceedings before the taluka court as also before the Tenancy Tribunal situated within the Taluka.

The presiding Judge or Magistrate should be the ex-officio member and Chairman and the other members of the Committee shall be 

  1. the President of the Taluka Bar Association ex-officio or a senior lawyer practicing in the Taluka court, 
  2.  one other lawyer practicing in the Taluka Court 
  3. one retired Judge or Magistrate, if available, and 
  4. one and if no retired Judge of or Magistrate is available, two social workers or public-spirited citizens. The members of the Taluka Legal Aid Committee would work in an honorary capacity and they would ordinarily hold office for a period of three years. Its accounts were also to be audited annually by the Government auditor along with the audit of the accounts of the Taluka Court. The Secretary of the Taluka Legal Aid Committee was to be appointed with the prior approval of the District Legal Aid Committee.

(b) The District Legal aid Committee, – The same provisions were applicable mutatis mutandis in respect of the District Legal Committee. Apart from the District Judge and the president of the District Bar Association, one more lawyer, a retired Judge or Magistrate or two social workers, the other members of the Committee was to be the Government Pleader of the District Court ex-officio, the President of the District Panchayat ex-officio and the Principal or a teacher of law college selected by the district judge.

(c) The State Legal Aid Committee. – It was to be at the apex of the entire Legal Aid Organization and was suggested to be a High power Body composed of different social interests dedicated to the cause of administration of legal aid. It was to have as its Chairman the Chief Justice or a High Court Judge nominated by him. The other members of the Committee constituted of the Advocate General, President of the High Court Bar Association or the Vice-President, Chairman of State Bar Councilor the Vice-Chairman, one senior member of the High Court Bar, three members of the mofussil Bar, one District Government Pleader, District Judges of Rajkot, Baroda and Surat, Secretary, Legal Department and Finance Secretary of the State Government, two members of the State Legislative Assembly, Director of Backward Classes, four social workers and a teacher of law. This Committee was to have mainly supervisory functions and lay down policies and principles for the administration of the Legal Aid Scheme. There was to be a State Director of Legal Aid responsible for the actual administration of the Legal Aid Programme within the State and was to be the Chief Executive Officer of the State Legal Aid Committee. The Committee was to exercise control over all the Legal Aid Committee in the State, and similarly the Taluka Legal Aid Committees shall be under the control and supervision of the District Legal Aid Committee.

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 money 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 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.

KRISHNA IYER COMMITTEE REPORT :

In the year the 1970s an Expert advisory group on Legal Aid, 1973 headed by Mr. Krishna Iyer. The panel was expansive based on individuals from calling, willful help gathering, academician promotion lawmakers. One of the reasons for setting up the advisory group was that ‘the focal government is of the view that a sufficient and fiery legitimate assistance program is important to be build up in every one of the states in the nation consistently’. It included making ‘suggestions for the setting up and working complete and a powerful lawful help program for successful executions of the financial estimates taken or to be taken by the administration incorporate detailing of the plan (s) for lawful administrations.’ The 1977 report originally centered around the foundation of the legitimate administrations of the association and unmistakably expressed that it was not to be a branch of the legislature yet a self-governing organization headed by the Judge of the Supreme Court. The body would have portrayals from Bar Associations, the Government, the Parliament, and the legal executive just as deliberate affiliations and social laborers and that there would be a multi-level set up for the legitimate guide association.

  • It adopted the three-fold tests to determine eligibility.
  • In criminal proceedings, the committee is not in favor of guaranteeing legal aid to habitual offenders and in offences where essentially privates claims are involved.
  • Regular arrangement for aid and advice to inmates of jails and other custodian institutions to be provided.
  • A liberalized bail policy that was not based on financial consideration and is related to the supervision of trade union or social services organization is to be adopted.
  • Legal aid is to be provided during the investigation stage and in a post-conviction stage.
  • It included 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

Persons Who Are Entitled To Get Free Legal Aid Under The Legal Services Authorities Act, 1987 –

Criteria for giving legal services are prescribed under Section 12 of the said Act. Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is –

  1. a member of a Scheduled Caste or Scheduled Tribe;
  2. a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
  3. women or a child;
  4. a person with a disability as defined in Clause (i) of Section 2 of the person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)’ Act, 1995
  5. a person under circumstances to the underserved want such as being victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or an industrial workman; or in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987); or 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.

Also, there are factors for disentitlement from getting legal aid – As per rules, the following persons are not entitled to the legal aid unless the Chairman of the Committee approves it as a special case-

(1) Proceedings wholly or partly in respect of defamation or malicious prosecution or any incidental proceedings thereto;

(2) A person charged with contempt of court proceeding or any incidental proceedings thereto;

(3) A person charged with perjury;

(4) Proceedings relating to any election.

(5) Proceedings in respect of offences where the fine imposed is not more than Rs. 50/-
(6) Proceedings in respect of economic offences and offences against social laws, such as the protection of the Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act, 1956 unless in such cases the aid is sought by the victim.

The legal aid is also denied where the person seeking the legal services –
(1) is concerned with the proceedings only in a representative or official capacity; or
(2) if a formal party to the proceedings, not materially concerned in the outcome of the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation. In the above two circumstances, even Chairman cannot sanction legal aid as a special case.

3. Conclusion and Suggestions                                           

The destinations of this program are enhancement of destitution as well as its evacuation. It should go for the anticipation of bad form which the poor endures from. As the evacuation of destitution relies on a radical change of the present social request so the legitimate administration’s projects should target reforming the disposal of this out of line organizations which abuse poor people and making another social request dependent on freedom, equity, and clique.

The lawful administration’s program should progress in the direction of helping the poor to leave their condition utilizing information, association and crude cash control. Such associations should look for help from rich businesspeople or social associations. They should cause the poor to comprehend the laws or what is called as lawful proficiency. It ought to likewise incorporate exercises like spreading legitimate mindfulness and teaching individuals on their fundamental rights with the assistance of NGO’s. The interest of the rehearsing legal counselors as well as of the courts, the law, educators, senior law understudies, prepared social specialists and open everywhere is additionally required. The consciousness of plans and projects to have the option to control the poor prosecutors in such manner.

BIBLIOGRAPHY

Books referred

  1. Baxi, Upendra. Law and Poverty, N.M.Tripathi Private Limited, 1988, Bombay.
  2. Bhalla Sandeep. Legal Services Authorities Act, 1987 India:  A Commentary.
  3. Mamta. Public Interest Litigation – Legal Aid and Lok Adalats, Eastern Book company, 2005, Lucknow.
  4. Mathews and Outton: Legal Aid & Advice, Butterworths, 1971, London.
  5. Mukherjee Roma. Women, law and free legal aid in india. Deep & Deep Publications; 1998.
  6. Muralidhar S. law, Poverty and legal aid: access to criminal justice. Lexis Nexis Butterworth;2004
  7. Narayana, P.S. Law Relating to LOK ADALAT.Asia Law House, 2002, Hyderabad.Rao,
  8. Shukla, V.N. The constitution of India, Eastern Book Company, 2004, Lucknow.

Journals referred

  1. Journal of Indian Law Institute
  2. Indian Law Journal

Research Papers referred

  1. Bloch FS, Ishar IS. Legal Aid, Public Service and clinical Legal Education: Future Directions from India and the United States. Mich. J. Int’l L …. 1990;12:92,
  2. Dhavan R. Managing Legal Activism: Reflections on India’s Legal Aid Programme, Anglo- American Law Review. 1986 Oct;15(4):281-309.

[1] Dr. Moitree Bhattacharya, ACCESS TO COURTS AND ENFORCEMENT OF RIGHTS, University of  Delhi ,2004, p.31

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