comaparative public law legal aid

8/11/2019 Comaparative Public Law Legal Aid

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HIDAYATULLAH NATIONAL LAW UNIVERSITY

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CERTIFICATE

This is to certify that the project entitled The Right To Legal Aid: A Comparative

Analysis Of India And United Kingdom submitted by Ayush Bansal is a record of

the candidates own work carried out by him under my supervision. The matter

embodied in this project is original and has not been submitted for the award of

any other degree.

DATE: ( DD RR .. DD EE EE PP AAKK KKUU MM AARR SS RR IIVVAASS T T AAVVAA))

Assistant Professor


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DECLARATION

I, Ayush Bansal, student of LL.M. 1st Trimester of Hidayatullah National Law

University, hereby declare that the project work entitled The Right To Legal Aid:

A Comparative Analysis Of India And United Kingdom submitted to the

Hidayatullah National Law University, is a record of an original work done by me

under the guidance of Dr. Deepak Kumar Srivastava, Assistant Professor,

Hidayatullah National Law University, .

Date: Ayush Bansal

Roll No. 08


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ACKNOWLEDGEMENT

Apart from the efforts of me, the success of this project depends largely on the

encouragement and guidelines of many others. I take this opportunity to express

my gratitude to the people who have been instrumental in the successful

completion of the project.

I would specially like to thank my teacher, mentor Dr. Deepak Kumar Srivastava

without whose constant support and guidance this project would have been a

distant reality. His help and support gave me the strength to complete this project

with complete understanding.

This work is an outcome of an unparallel infrastructural support that I have

received from Hidayatullah National Law University. That is just an umbrella

under which shadow it would have been possibile to complete this project.

It would never have been possible to complete this study without an untiring

support from my family, specially my parents.

I would like to thank my friends and well-wishers.


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Table of Contents

Chapter 1

Introduction 1-2

Aims And Objectives Of Research Rational And Significance Of Study Hypothesi Research Methodology-

Chapterisation

Chapter 2- Legal Aid Definition & Legality: ..3 -11

What Is The Rationale For Legal Aid?

The Models Of Legal Aid1. The Ex Officio Assigned Counsel2. The Contracting System3. Public Defender System

Chapter 3- Legal Aid In India .11 -22

History Of Legal Aid In India: Legal Aid Provisions In The Constitution: Lok Adalats:

National Legal Services Authority (Nalsa): Cases, Jurist Opinions & Judgements: Persons Who Are Entitled To Get Free Legal Aid Under The Legal Services Authorities

Act, 1987

Chapter 4- Legal Aid In England And Wales ..23 -26

Criminal Defence Service

Chapter 5- Comparison Of The Provision Of Legal Aid In India And The United Kingdom(Wales And England), And Suggestions Aimed At Improving The Legal Aid Programme In

India ..26 -29

Conclusion .29

Bibliography .30


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INTRODUCTION

AIMS AND OBJECTIVES OF RESEARCH

To study in the meaning and concept of Legal aid. To find the rationale behind legal aid provisions and examine different modes of legal aid

available.

To critically examine the system of legal aid provisions in India and United Kingdom

(England and Wales).

RATIONAL AND SIGNIFICANCE OF STUDY

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.

HYPOTHESIS

in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law,[17]

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


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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.

RESEARCH METHODOLOGY-

Methodology can be: "the analysis of the principles of methods, rules and postulates employed

by a discipline "the systematic study of the methods that are, can be, or have been applied within

a discipline", "a particular procedure or set of procedures".

This research is based on the Doctrinal research. Doctrinal research means a research that has

been carried out of legal proposition or propositions by way of analysing the existing statutory

provisions and cases by applying the reasoning power. According to SN Jain, doctrinal research

involves analysis of case law, arranging, ordering and systematizing legal propositions and study

of legal institution through legal reasoning and rational deduction.


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THE RI GHT TO LEGAL AI D: A COMPARATIVE ANALYSI S OF I NDI A AND UNITED

KINGDOM

Introduction

Whatever standards a man chooses to set for himself, be they religious, mor al, social or purely

rational in origin, it is the law which prescribes and governs 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. -Mathews and Outton 1

The Encyclopedia Britannica defines legal aid as phrase which is acquired by usage and court

decisions, a specific meaning of giving to person of limited means grants or for nominal fees,

advice or counsel to represent them in court i n civil and criminal matters. 2 Inability to consult or

to be represented by a lawyer may amount to the same thing as being deprived of the security of

law. Rawls 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 Legal Aid is the method adopted to ensure that no one is debarred from professional advice

and help because of lack of funds. Thus, the provisions of legal aid to the poor are based on

humanitarian considerations and the main aim of these provisions is to help the povert-stricken

people who are sociall y and economically backward. 4

Lord Denning while observing that Legal Aid is a system of government funding for those who

cannot afford to pay for advice, assistance and representa tion said: The greatest revolution in

the law since the post-second World has been the evolution of the mechanism of the system for

legal aid. It means that in many cases the lawyers fees and expenses are paid for by the state:

1 Mathews and Outton: Legal Aid & Advice, London, Butterworths, 1971.2 Part 13 at p. 871, Quoted in Legal Aid Programme in India-A Constitutional Guarantee-Alka Shrivastav3 John Rawls: A Theory of Justice, Universal Law Publishing Co. Pvt. Ltd. Delhi, 20004 Scott, C.H.: Legal Aid Past and Present,A Brief Bleak Picture, pp. 4-5.


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and not by the party concerned. It is a subject of such importance that I venture to look at the law

about costs-as it was-as such it is- and as it should be. 5

Legal aid may be taken to mean free legal assistance to the poor persons in any judicial

proceedings before the Court, Tribunals or any authority. It intends to provide free legalassistance to the poor persons who are not able to enforce the rights given to them by law. Justice

P.N. Bhagwati has clearly stated that legal aid means providing an arrangement in the society

which makes the machinery of administration of Justice easily accessible and in reach of those

who have to resort to it for enforcement of rights given to them by law. He has rightly said that

the poor and the illiterate should be able to approach the courts and their ignorance and poverty

should not be an impediment in the way of obtaining justice from the Courts. The constitution of

India gives much importance to rule of law. In India, it is regarded as a part of the basic structure

of the Constitution and also of natural justice. Free legal aid to the poor and weak persons has

been held to be necessary adjunct of the rule of law.

India is a developing country. The development in the industrial sector is very much appreciable,

but still this progress in the field of industrialization, marketing, finance, etc. cannot hide the

indispensable drawbacks of our society like population explosion and illiteracy. These

drawbacks, coupled with environmental and social hinges results in increase in poverty and lack

of food for people.

It is true that the country is going through the phase of development but all the fruits of this tree

are being en- cashed by those who stay in the upper half of the society. The poor resides in their

own world of DARKNESS.But those who are still neglected are the main foundation of the

society that is to be remembered. So misusing their ignorance and encashing the fruits for the

benefit of the upper half of our society is not at all good for the future of the country.

The society is divided into two parts, according to financial standard, namely HAVES and the

HAVE NOTS. In our country with 100 million people, only a little part of the population comes

within the purview of the HAVES, whereas, the Lions share is the HAVE NOTS.The HAVE

NOTS as well as the HAVES both looks for earning their livelihood, looking for the benefit of

their family, giving a good future to the next generation, some are successful to it, some are not.

5 What Next in the Law: Lord Denning, London Butterworths, 1982.


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So, for both the categories of people it is necessary to make them understand what sort of wrongs

they actually are facing and the abatement is also causing a greater harm to the society and it can

hamper the well being of their own next generation. Keeping this fact in the mind the

Government has taken up policies to spread awareness to the common mass through organizing

different programmes held by different authorities, governmental or non-governmental. As the

people of this country becomes aware about their legal rights, duties and liabilities they,

themselves will understand how much better their lives can become. Spreading the awareness

about the rights of the people and how they are or can be infringed is the primary target of these

authorities. So that the one who is wronged can himself realize that he has been wronged.

Once he has realized, that he has been wronged the question of redress arises. These authorities,

governmental or non-governmental also provide the assistance, which is required by these

wronged ones. These authorities provide HELP, in the legal field. This HELP is turned as

LEGAL AID. These authorities and different other organizations hold such LEGAL AID

CLINICS through the nation with the motto to help the VICTIMS.

Legal Aid Definition & Legality:

Conventionally, Legal Aid has been taken too mean th e organized effort of the bar council, the

community and the government to provide the services of lawyers free, or for a token charge, to

persons who cannot afford the usual exorbitant fees. Inability to consult or to be represented by a

lawyer may amount to the same thing as being deprived of the security of law. Rawls 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. 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. 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 politicalrequirements on which the claim of legal aid rests, its now recently recognized as a constitutional

imperative arising from Articles 14, 21, 22(1), 39-A 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


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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 service s, which have been duly defined

in the Act.

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. 6

What Is The Rationale For Legal Aid?

As discussed above, international and several regional instruments prescribe free legal assistance

as a matter of right. But we may ask ourselves: why the need for legal aid? Should government

support go to only the officially poor or to those who cannot realistically afford lawyers?

Further, we may also wish to know the circumstances that can allow individuals to get full-blown

representation by attorneys, as opposed to other less expensive forms of assistance. 7

The reason for this clearly lies on the notion of equality under the law, which as stated

previously, is a commitment to equal justice, a core legitimacy of democratic processes, and

6 Legal Aid and Justice For the Poor N.R. Madhava Menon, pp 344, paragraph 2.7 D. Rhode Access to Justice (Oxford University Press 2004) p.6


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modern jurisprudence. 8 The social value of this commitment seems to be grounded by the

implication that equality in procedural opportunities leads to equality of social opportunities.

Equality of justice should not rely on the ability to pay, especially when a d efendant is facing

the state which has marshaled its legal resources to accuse him of a crime. True equality in

legal assistance would presumably require not only massive public expenditures, but also the

restriction of private expenditures. 9

Many legal systems around the world are characterized by complexities of procedures, which

makes it a hard task for anybody accessing justice in courts. From expensive defense legal fees,

coercive legal apparatus of the prosecution, and technicalities of court procedures, many an

accused person would rather wish for a quick end to their trials, regardless of the consequencesof their outcome. 10

Rhode is further of the view that:

For many individuals, legal aid is equally critical in legislative and administrative c ontextsnot

only does access to legal services help prevent erroneous decisions, it also affirms a respect for

human dignity and procedural fairness that are core democratic ideals. 11

In many developing countries such as India where death penalty is punishment for committing

capital offences, the provision of free legal aid makes a lot of difference in situations where

suspects have been charged of committing the said crimes, and cannot properly defend

themselves due to the complexities involved in legal and judicial processes. Therefore, the need

for free legal aid cannot be overemphasized.

8 Pushkarova Access to Justice: Legal Aid Systems in A. Uzelac et al Access to Justice and the judiciary. Towards NewEuropean Standards of Affordability, Quality and Efficiency of Civil Adjudication (Metro 2009) p. 459 Supra 7, at p.610 Ibid.11 Ibid, at p. 9.


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The Models Of Legal Aid

This chapter explores the various methods of legal aid currently being employed in many

countries today. It marks out the positive and negative side of each, which is important if states

wish to adopt a cost effective model that will be best suited for the legal needs of their citizens.

Many countries have adopted different models of providing legal aid service mechanisms for

criminal and civil matters, but no such system is ideal. As with Tolstoys unhappy families,

each of these systems breeds unhappiness in its own way.

Each countrys experience, however, can help inform the decisions of those seeking to reform

legal aid. There exi st three main types of legal aid model systems which are cost effective, andcan be put into practice. These include the Ex officio assigned counsel, the contracting and the

public defender systems which will be discussed below. 12

The Ex Officio Assigned Counsel

The ex officio model is one of the earliest models designed to assign lawyers to represent legal

aid clients in court. This model relies on random assignment of lawyers to cases as a method of

fairness. 13 However, it does not take into account the effect of assigning barely competent

lawyers to legal aid clients. It is for this reason that various nations which have adopted this

method of legal aid, have inevitably evolved and developed it to avoid this outcome, and

therefore provide a more fair system of lawyer selection.

12 Access to Justice In Central and Eastern Europe (Public Interest Law Initiative, Interrights, Bulgarian HelsinkiCommittee and Polish Helsinki Foundation For Human Rights 2003) p.1913 Ibid.


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Many countries have adopted more refined ex officio models, under which attorneys are

assigned on a rotational basis in accordance with their experience, their expertise, and the

complexity of the case. 14

The justification of the Ex Officio Model in randomizing appointment of lawyers is the very cruxof criticism against the efficiency of this model: Critics of the ex officio model point to its lack

of control over the qualifications of the appointed lawyers and the q uality of services. Rhode

elaborates that:

Under competitive bidding systems, lawyers offer to provide representation for all, or a specified

percentage of a jurisdictions criminal cases, in exchange for a fixed price, irrespective of the

number or complexity of matters involved. Such systems discourage effective assistance by

selecting attorneys who are willing to accept a high volume of defendants at low cost. Annualcaseloads can climb as high as 900 felony matters or several thousand misdemeanors. Rarely can

these lawyers afford to do adequate investigation, file necessary motions, or take a matter to

trial. 15

It is apparent that the shortcomings of the ex officio model run deeper than the selection process,

but also relate to the result of client paperwork overload.

The Contracting System

The ontracting system is one method of legal aid that has worked effectively in the United

Kingdom, and serves as a method of assigning lawyers to legal aid cases but without running the

risk of selecting barely competent lawyers. This model is focused around a contract that is

entered into by a law firm and the Legal Services Commission. 16

This contract guarantees quality of service by way of fee and caseload analysis of the firm in

question. There are also various other factors considered in determining the quality of the firms

14 Ibid.15 Supra note 7, at 1216 Supra note 12, at 21


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performance as a whole. This ensures more control over the qualifications of lawyers appointed

to legal aid cases. This is further enforced in the United Kingdom in the following way: In

England the contracts for legal representation of indigent people, negotiated between the Legal

Services Commission (formerly the Legal Aid Board), and law firms, contain certain clauses for

quality of services and mechanisms for supervision. 17 Furthermore, a law firm must have

complied with the standards of the code of professional practice, fulfilling requirements of

conduct, files and records maintenance, accountability, and the like. 18

Public Defender System

The Public Defender System, similarly with the Contracting System, aims to ensure legal aid

clients are provided with the best possible service upon appointment of a lawyer. However, this

system is based upon the employment of full-time lawyers working for a governmental agency

where their sole commitments are to handle the caseloads of legal aid clients.

The method aims to reduce costs and regulate the caseload of each lawyer so as to avoid

reducing the quality of the service provided. One inherent difficulty in doing so is that it may not

be possible for all cases to be taken on by lawyers due to sheer numbers.

This method also assures quality in the following way: Regardless of the organizational

structure or oversight mechanism, ethical rules and the codes of ethicsapplied to private attorneys

usually are binding on the staff of public defender offices as well. This system is used around

the world but can be difficult to minimize costs depending on the potential case load.

Although these methods try to maximize the benefit to the client, each one of them, and its

various evolutions around the world bear many shortcomings as Rhode argues that:

Under all these systems, the vast majority of court-appointed counsel lack sufficient resources

to hire the experts and investigators who are often essential to an effective defense. The same is

true for defendants who retain their own counsel. Most of these individuals are just over the line

17 Ibid.18 Ibid.


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of indigence and cannot afford substantial legal expenses, their lawyers typically charge a flat

fee, payable in advance, which creates obvious disincentives to prepare thoroughly or proceed to

trial 19

In light of this, it is clear that a greater obstacle lies in the way of providing best legal services tolegal aid clients. To eliminate both hurdles would call for even greater reform, therefore putting

pressure on available resources both financial and non-financial. Although many inadequacies

can be found in the methods of legal aid, it is very important not to lose sight of the ultimate

goal, which is to enable ones cas e to be heard in the general interest of justice.

Legal Aid In India

History Of Legal Aid In India:

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

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.

Legal Aid Schemes were floated through Legal Aid Boards, Societies and Law Departments in

various States in the Country. In 1980, a National Committee 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

19 Supra note 7, at p. 12


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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. 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 and bring about 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.

The right to assignment of counsel at Government expenses was emphasized in the 14th Law

Commission Report. Thereafter, in 1969, the Law Commission again strongly recommended that

the right of the accused to representation at the cost of Government should be placed on statutory

footing in relation to trials for serious offences and as a first step in this direction, the

Commission proposed that such a right should be available in all trials before the Court of

Session.

In order to achieve the objective enshrined in Article 39-A of the Constitution, Government had,

with the object of providing free legal aid, by a Resolution appointed a Committee for

implementing Legal Aid Scheme to monitor and implement Legal Aid Programmes on a uniform

basis in all States and Union Territories. The said Committee evolved a model scheme which

was accordingly implemented by the Government. But on review, certain deficiencies were

found and it was considered desirable to constitute statutory legal authorities at National, State

and district levels so as to provide effective monitoring of Legal Aid Programmes.

For the disposal of large number of cases expeditiously and without much cost Lok Adalats have

been constituted and they have been functioning as a voluntary and conciliatory agency without

any statutory backing for its decisions. In order to provide for the composition of statutory legal

authorities and to provide statutory backing to Lok Adalats and its awards the Legal Services

Authorities Bill, 1987, was introduced in the Lok Sabha on 24th August 1987.

Article 39-A of the Constitution provides that 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. With


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the object of providing free legal aid, Government had, by Resolution, appointed the Committee

for Implementing Legal Aid Schemes (CILAS) under the Chairmanship of Mr. Justice P.N.

Bhagwati (as he then was) to monitor and implement Legal Aid Programmes on a uniform basis

in all the States and Union territories CILAS evolved a model scheme for Legal Aid Programme

applicable throughout the country by which several Legal Aid and Advice Boards have been set

up in the States and Union territories, cilas in funded wholly by grants from the central

Government.

Object of the enactment of the said Act - In our democratic set-up, all laws are made for all men

- common or uncommon. By common man, in common parlance, we understand a man on the

street. A man who may not have any status, office, post or rank in society. He is only a human

being, an ordinary citizen with expectations of a just and human order. He may be a Tom, Dick

or Harry, Ram, Rahim or Shyam. The Expression includes a cobbler, sweeper, baker, butcher, a

priest, or a soldier. A person of whatever name and nomenclature known in the society. A legal

system and its effectiveness has to be gauged or measured by the extent of its usefulness to the

common man. The failure of law for common man is due to no change of hear or outlook of

other fellow beings who are privileged and have a better status in the society. There has been no

emotional integration between haves in the society and have nots. The society cannot be

improved by laws. Social reforms are done not by laws but by leaders in the society who are

virtuous, wise and of high moral character. Before making the laws or along with them, no

attempts have to be made on behalf of the State of their agencies to spread moral education to

encourage science with spirituality. The spirituality and science alone can rule the world

including the government based on democracy in the absence of any effort in proper direction,

the common man is deprived of the benefit of the laws enacted for him which do not reach him

due to inefficient bureaucracy and mal-administration.

Legal Aid Provisions In The Constitution:

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


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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 .

The Constitution of India under Article 39-A mandates for free legal aid to the poor and weakersections 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


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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 dated26th 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 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.


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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.

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, 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. 20

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.21

In about 349710 motorvehicles 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

20 Public Interest Litigation Legal Aid and Lok Adalats, Mamta Rao, Eastern Book company, pp 351.21 Ibid.


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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 hier archy 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 22.\

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 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

22 Legal Aid and Justice For the Poor N.R. Madhava Menon, pp 344, paragraph 2.


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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 Section3 (1) under the Chapter II of the Act 23, 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. 24

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. 25

Cases, Jurist Opinions & Judgements:

In the case of Hossainara Khatun v. State of Bihar 26 in, the Supreme Court held that 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 to be implicit in the guarantee of Article 21. This was acase where it was found by Mr. Justice P.N. Bhagwati and Justice D.A. Desai that many under-

23 Law, Poverty and Legal Aid Access to Criminal Justice S.Muralidhar; Lexis Nexis24 Ibid.25 Public Interest Litigation Legal Aid and Lok Adalats, Mamta Rao, Eastern Book Company, pp 372, paragraph 3and 5.26 Hossainara Khatun v. State of Bihar AIR 1979 S.C. page 1371


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trail prisoners in different jails in the State of Bihar had been in jail for period longer than the

maximum terms for which they would have been sentenced, if convicted, and that their retention

in jails was totally unjustified and in violation of the fundamental rights to personal liberty under

Article 21 of the Constitution. While disclosing shocking state of affairs and callousness of our

legal and judicial system causing enormous misery and sufferings to the poor and illiterate

citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati,

made following observations in paragraph 6 of the judgment, which are thought provoking:-

This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal

service programs, but so far, these cries do not seem to have evoked any response. We do not

think it is possible to reach the benefits of the legal process to the poor to protect them against

injustice and to secure to them their constitutional and statutory rights unless there is a nation-

wide legal service program to provide free legal services to them. We would strongly

recommend to the Government of India and the State Government that it is high time that a

comprehensive legal service program is introduced in the country. That is not only a mandate of

equal justice implicit in Article 14 and to right to life and liberty conferred by Article 21, but also

the compulsion of the constitutional directive embodied in Article 39A.

Two years thereafter, in the case of Khatri v. State of Bihar 27 , Justice P.N. Bhagwati while

referring to the Supreme Courts mandate in the aforesaid Hossainara Khatuns case, made the

following comments, in paragraph 4 of the said judgment:

It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an

accused person by a process of judicial construction of Article 21, most of the States in the

country have not taken note of this decision and provided free legal services to a person accused

of an offence. The State is under a constitutional mandate to provide free legal aid to an accused

person who is unable to secure legal services on account of indigence, and whatever is necessary

for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but the law does not permit any Government to deprive its priorities in

expenditure but the law does not permit any Government to deprive its citizens of constitutional

rights on the plea of poverty.

27 Khatri v. State of Bihar AIR 1981 S.C. at page 926 (Bhagalpur Blinded Prisoners case)


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In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh 28, Justice P.N.

Bhagwati, while referring to the decision of Hossainara Khatuns case and so me other cases had

made the following observations in paragraph 6 of the said judgment:-

Now it is common knowledge that about 70% of the people living in rural areas are illiterate andeven more than that percentage of the people are not aware of the rights conferred upon them by

law. Even literate people do not know what are their rights and entitlements under the law. It is

this absence of legal awareness which is responsible for the deception, exploitation and

deprivation of rights and benefits from which the poor suffer in this land. Their legal needs

always stand to become crisis oriented because their ignorance prevents them from anticipating

legal troubles and approaching a lawyer for consultation and advice in time and their poverty

because magnifies the impact of the legal troubles and difficulties when they come. Moreover, of

their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves.

The Law ceases to be their protector because they do not know that they are entitled to the

protection of the law and they can avail of the legal service programs for putting an end to their

exploitation and winning their rights. The result is that poverty becomes with them a condition of

total helplessness. This miserable condition in which the poor find themselves can be alleviated

to some extent by creating legal awareness amongst the poor. That is why it has always been

recognized as one of the principal items of the program of the legal aid movement in the country

to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it

were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid

would become merely a paper promise and it would fail of its purpose.

It was in the above backdrop that he Parliament passed the Legal Services Authorities Act, 1987,

which was published in the Gazette of India Extraordinary Part II, Section I No. 55 dated 12th

October, 1987. Although the Act was passed in 1987, the provisions of the Act, except Chapter

III, were enforced with effect from 9.11.1995 by the Central Government Notification S.O.893

(E) dated 9th November 1995. Chapter III, under the heading State Legal Services Authorities

was enforced in different States under different Notifications in the years 1995-1998.

28 Sukhdas v. Union Territory of Arunachal Pradesh AIR 1986 S.C. at page 991.


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In M.H Hoskot v. State of Maharashtra 29 , the Supreme Court laid down some banning

prescription for free legal aid to prisoners which are to be followed by all the courts of India,

such as furnishing of free transcript of judgment in time, to the sentences; where the prisoner

seeks to file an appeal for revision, every facility for exercising such right shall be made

available by the jail administration and if a prisoner is unable to exercise his statutory and

constitutional right of appeal including special leave to appeal for want of legal assistance, there

is implicit in the court under Article 142, read along with Article 21 and 39-A of the

Constitution, the power to assign counsel to the prisoner provided he does not object to the

lawyer named by the court[14].

Persons Who Are Entitled To Get Free Legal Aid Under The Legal Services Authorities

Act, 1987

Criteria for giving legal service are prescribed under the 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

a. a member of a Scheduled Caste of Scheduled Tribe;

b. a victim of trafficking in human beings or beggar as referred to in Article 23 of the

Constitution;

c. a women or a child;

d. a person with disability as defined in Clause (i) of Section 2 of the person with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

e. a person under circumstances to the underserved want such as beinga 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)

29 M.H Hoskot v. State of Maharashtra, AIR (1978) 3 SCC 544.


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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 Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act, 1956 unless in

shc 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.


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Legal Aid In England And Wales

Legal aid in England and Wales is regulated by the Access to Justice Act 1999. 30

It establishes a Legal Services Commission which shall have functions relating to Community

Legal and Criminal Defence Service. Further to this, the Commission is empowered by the

statute in section 3 to enter into any contracts, make grants, make loans, invest money, promote

or assist in the promotion of publicity relating to its functions, and to advise the Lord Chancellor

on matters concerning the functions of the Commission.

Before the enactment of the Access to Justice Act 1999, le gal aid in England and Wales was

administered by the Law Society, the Solicitors professional association. Assistance was

provided by a solicitor chosen by the client. The solicitor would be paid by the state. 31

However, the system had its own shortcomi ngs. It did not particularly focus on the quality of

legal services. A major transformation though came in 1988 through the enactment of the Legal

Aid Act 1988 as Uzelac et al explains:

A major change was introduced when its administration was transferred by the Legal Aid Act

1988 from the Law Society to a Legal Aid Board established as a quasi -independent national

government organisation ( quango). The Board was statutorily responsible for managing the

legal aid budget, decision-making in individual cases, and implementing policy, but wasotherwise independent of the government, save that Ministers appointed its members and it had

to report on its spending .32

From the 1980s to the 1990s, the Board developed the idea of preferred suppliers. This

involved identifying a group of practitioners who could satisfy the criteria of competence and

reliability, and it would then encourage and assist them by contracting partnerships under

30 http://www.legislation.gov.uk/ukpga/1999/22/contents31 Supra note 8, at 3732 ibid


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preferential terms in return for maintaining quality standards. 33 In other words, this is what is

referred to as franchising.

However, this system received sharp criticism from all quarters, especially in a publication

released in 1994. It was based on one of the largest observational studies of practitioners everconducted. Its findings were damning. The level of criminal quality was reported to be

extremely low. Further, it was reported that legal assistance was mostly being provided by

paralegals who were not lawyers, and who were merely responding to the evidence submitted by

the prosecution instead of taking the initiative.

The Law Society responded swiftly. Through a publication entitled Active Defence, it set out

guidelines and detailed best practices for solicitors on how to best conduct criminal cases.

The idea behind active defence is suggested by its title. The defence lawyers must takeinitiatives rather than always being responsive to the prosecution.At significant milestones in

the case, they must analyse and take stock of the information obtained so far, secondly, consider

the implication of this for the prosecution and defence cases, and thirdly, make decisions about

the actions to be taken in consequence, particularly defence investigation. 34

In order to improve the quality of legal services, the Legal Aid Board decided to set up its own

standards known as the Franchising Quality Assurance Specification (LAFQAS). 35

Since then, only solicitors firms and non -profit advice agencies that have passed a quality audit

and contracted with the Board have been entitled to receive state funding via the Board. Though

a number of solicitors have complained about the bureaucracy involved in this, it has however

helped improve the quality of provision of legal aid services in England and Wales.

Criminal Defence Service

The Access to Justice Act 1999 empowers the Legal Services Commission to establish,

maintain and develop a service called the Criminal Defence Service for the purpose of securing

33 Ibid , at p. 4634 http://www.justice.org.uk/images/pdfs/legalaidqual.pdf p. 335 Ibid.


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that individuals involved in criminal investigations or criminal proceedings have access to such

advice, assistance and representation as the interest of justice require. Section 12 (2) of the Act

defines and elaborates on what constitutes criminal proceedings. 36

One of the most important things to note under the Act is that, any offence or order sanctioned by the criminal law of England and Wales shall be funded by the Commission in accordance

with sections 13 to 15 of the statute. Section 13 of the Act provides for advice and assistance. It

provides that the Commission shall fund such advice and assistance it considers appropriate

when individuals have been arrested and are being held in custody, or those individuals who are

under investigations that may lead to criminal proceedings, or have been subject of criminal

proceedings. And in the furtherance of this as provided in section 13(2), the Commission has the

duty to facilitate the best legal services for a client. Section 15 of the Act is further in line with

the fundamental guarantees associated with the right to a f air trial embodied in international

human rights treaties. 37 It enables clients to choose lawyers to represent them at their best

interests.

Section 18 of the Act provides that the Lord Chancellor shall pay to the Commission such sums

as are required to meet the costs of any advice, assistance and representation funded by the

Commission as part of the Criminal Defence Service. However, to qualify for legal aid services

as provided under the General Criminal Contract, one has to satisfy certain criteria. An

individual has to undergo a means testing to show whether they can be eligible for funding.

Means testing ensures that those who can afford to pay, do pay for legal representation. 38 The

Legal Services Commission expounds on who can qualify for legal aid funding. First, passported

applicants will automatically pass the means testing. However, they still need to undergo a

further Interest of Justice Test to qualify for legal aid.The initial means test assesses the

applicants income and how this is sprea d between any partners and children. A full means test is

carried out if, through the initial means test, the applicants adjusted income is calculated to be

more than 12,475 and less than 22,325. It works out an applicants disposable income after

deducting tax, maintenance and other annual costs from the gross annual income. The complex

36 Access to Justice Act, Sec. 12(1)37 Supra note 7, p. 1038 http://www.legalservices.gov.uk/criminal/criminal_legal_aid_eligibility.asp


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means test is for those who have complex financial circumstances. 39 Finally, hardship reviews

can be carried out if an applicant can show they are unable to fund their own representation.

The Legal Services Commission through the Criminal Defence Service (CDS) also provides

Public Defender Services (PDS), which is the first salaried criminal provider in England andWales. Clients seeking legal aid have a choice of either choosing their own lawyers through the

General Criminal Contract, or can have an option of going directly for lawyers employed by the

Commission.

Besides guaranteeing that people charged and accused of criminal offences get free legal advice

and represe ntation, the Criminal Defense Service (CDS) plays a very important role in the

criminal justice system by helping the police and courts operate fairly and efficiently. This is

very crucial if a verdict is to be arrived at fairly, and without compromise in a criminal

adversarial system such as the one in England and Wales.

This chapter has enabled us to see how and why the English legal aid system is often referred to

as the best in the world. With all the financial and legal resources at the Legal Services

Commissions disposal, it is clear that access to justice in England and Wales guarantees equality

of persons under the law.

Comparison Of The Provision Of Legal Aid In India And The United Kingdom (Wales

And England), And Suggestions Aimed At Improving The Legal Aid Programme In India

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

39 Ibid.


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legal proceeding before any court or other authority or tribunal and the giving of advice on any

legal matter.

Legal Services Authorities after examining the eligibility criteria of an applicant and the

existence of a prima facie case in his favour provide him counsel at State expense, pay therequired 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.

England and Wales the scene is different. The Access to Justice Act 1999 confers a right to

persons seeking free legal aid to approach the Legal Services Commission. Further, the

Commission through the Criminal Defence Service provides professional lawyers for its clients

under the Public Defender System. In this system, legal representation for all sorts of offencescommitted is therefore an entitlement, and not just a luxury of the few, a lesson that ought to be

learnt by Kenyas legal and policy makers.

In India, 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, children, handicapped, etc. Thus by

this the Indian Parliament took a step forward in making the legal aid possible in the country.

In England and Wales, from the point of arrest, interrogation and trial, a suspect if he chooses,

can be represented by a state lawyer provided by the Legal Services Commission. Public defence

lawyers are usually available twenty-four hours a day, seven days a week to give advice to

people who have been arrested, and who are being held in police custody. 40 Advice at the point

of arrest, interrogation and trial is very important as distortion, or twisting of evidence in order to

enhance the chances of winning a case, is a common phenomenon with prosecutions in most

parts of the world.

40 http://www.legalservices.gov.uk/criminal/pds.asp


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For the disposal of large number of cases expeditiously and without much cost Lok Adalats have

been constituted and they have been functioning as a voluntary and conciliatory agency without

any statutory backing for its decisions. In order to provide for the composition of statutory legal

authorities and to provide statutory backing to Lok Adalats and its awards the Legal Services

Authorities Bill, 1987, was introduced in the Lok Sabha on 24th August 1987.

In England and Wales, the Legal Services Commission just like its predecessor, the Legal Aid

Board, is a quasi -independent natio nal government organisation 117 , makes its own decisions

free from government interference. This is important because political interferences can easily

influence a State body at arriving in not so independent decisions, thus altering its image and

performance. For example, political interference could easily influence the direction and position

of a defence counsel handling a suspects file, especially in a highly charged political case.

Though bound by the duty of confidentiality, and to serve clients best interests as provided under

the lawyers professional and ethics code, a highly charged political case can easily change tide

and turn against the clients interests.

Suggestions For Effective Legal Aid in India

1. The legal aid movement has to go to the grass root level and help to discover, identify and

solve the problems and difficulties of the poor.

2. The participation not only of the practicing lawyers but also of the courts, the law, teachers,

senior law students, trained social workers, public at large is also needed.

3. It should also include activities like spreading legal awareness and educating people on their

basic rights with the help of NGOs.

4. Promote more informal paralegal services in places where basic access to justice opportunities

and infrastructures are absent.

5. Promote a pro bono service culture and tradition within the legal profession.

6. Offer comparative models of legal aid to government in reforming the movement.


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7. Support the development of demonstration legal aid/public defender offices in cooperation

with governments.

8. Lok Adalats should be promoted in the right direction as they settle the disputes quickly by

counseling and discussions, etc. Its basis is to provide quick justice with the mutual consent of

the parties. Their object is to reduce burden on the Courts so that the problem of laws delay may

be solved and people may get justice within due time. The machinery of the Government

engaged in the execution of this movement in the state must be geared from bottom to top.

CONCLUSION

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 act as the guideline of the rendering of free

justice.

It will be interesting to know the special problems of the rural poor and the urban poor separately

and also to find how they compare with the legal problems of the non-poor living in rural and

urban India. An efficient organization of a legal services delivery system may have to take

account of all these differences in legal needs of the poor and design the program accordingly.

Except sketchy impressionistic references in the reports of the various legal aid committees,

there has been a very little attention given to the analysis of the legal problems of the poor at the

academic, official or professional level.

The discomfort of the bureaucracy arising out of the policing role of legal aid is understandable.

In a Welfare State, the Government cannot be made available for litigation against itself to

vindicate the legal rights of the poor. The criticism that legal aid litigation, aims at law reform


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thereby making the judiciary usurps the functions of the legislature is illogical and does not carry

conviction in common law jurisprudence.

Access to justice through legal representation as has been previously discussed, is a fundamental

right. Costs involved in legal aid reforms cannot outweigh the va lue of a persons right to access justice, or be adequately defended by a lawyer when on trial. Therefore, the question of

financing legal aid system is not a question of charity but a matter of positive state

obligation.Through low cost and effective me chanisms of employing legal aid such as those

ones discussed in chapter three, many people can be assured of accessing justice. Internal and

external funds if utilized properly, can make a whole lot of difference in ensuring sustainable

funds are available before another financial year to cater for the legal aid needs of indigents.

BIBLIOGRAPHY

Books:

Access to Justice Act 1999, England. A.Uzelac and C.H van Rhee (eds) Access to justice and the judiciary. Towards New

European Standards of Affordabilty, Quality and Efficience of Civil Adjudication Year

(Intersentia-Metro 2009)

Access To Justice In Central And Eastern Europe: Country Reports (Public Interest Law Initiative- Budapest Hungary, Interights London UK, Bulgarian

Helsinki Committee Sofia Bulgaria,Polish Helsinki Foundation for Human Rights

Access to Justice in Central and Eastern Europe: Source Book (Public Interest Law

Initiative, Budapest Hungary, Interights-London United Kingdom, Bulgarian Helsinki

Committee-Sofia Bulgaria, Polish Helsinki Foundation for Human Rights, Warsaw-

Poland 2003)

Mariana Berbic Access to Justice and its Implication on Fundamental Rights (Central

European University 2001)


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Legal Aid and Justice For the Poor N.R. Madhava Menon, Universal Publications, 3 rd

edition, 2007.

Law, Poverty and Legal Aid Access to Criminal Justice S.Muralidhar; Lexis Nexis

publications, 2008.

The Indian Legal Services Authorities Act, 1987.

Public Interest Litigation Legal Aid and Lok Adalats, Mamta Rao, Eastern Book

Company.

comaparative public law legal aid

Documents