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National Legal Aid Movement in India- Its Development and Present Status

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National Legal Aid Movement in India- Its Development and Present Status

Faculty Of Law University Of Kashmir , One Day National seminar on legal aid to marginalized: The Efficacy and Challenges, Under the auspices of project: ACESS TO JUSTICE:NE and J&K, Department of Justice, GOI, New Delhi.

PRESENTED BY
Mustafa Majid Sheikh
Research Scholar School of Education
Central University of Kashmir

Faculty Of Law University Of Kashmir , One Day National seminar on legal aid to marginalized: The Efficacy and Challenges, Under the auspices of project: ACESS TO JUSTICE:NE and J&K, Department of Justice, GOI, New Delhi.

PRESENTED BY
Mustafa Majid Sheikh
Research Scholar School of Education
Central University of Kashmir

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National Legal Aid Movement in India- Its Development and Present Status

  1. 1. National Legal Aid Movement in India- Its Development and Present Status Faculty Of Law University Of Kashmir One Day National seminar on legal aid to marginalized: The Efficacy and Challenges Under the auspices of project: ACESS TO JUSTICE:NE and J&K, Department of Justice, GOI, New Delhi. Mustafa Majid Sheikh Research Scholar School of Education Central University of Kashmir
  2. 2. The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice. ---- Justice Blackmun in Jackson v Bish
  3. 3. WHAT IS LEGAL AID ? Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring  equality before the law,  the right to counsel,  and the right to a fair trial
  4. 4. EQUALITY BEFORE THE LAW Equality before the law, also known as equality under the law, equality in the eyes of the law, or legal equality, is the principle under which all people are subject to the same laws of justice. The law and the judges must treat everyone equally before the law regardless of their race, gender, gender identity, national origin, colour, ethnicity, religion, disability, or other characteristics, without privilege, discrimination, or bias
  5. 5. RIGHT TO COUNSEL Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendants legal expenses.
  6. 6. RIGHT TO A FAIR TRIAL Article 10 states that: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."
  7. 7. WHY LEGAL AID? Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the existence of the orderly society. Until and unless poor illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step towards making the legal service serve the poor and the deprived; the judiciary has taken active interest in providing legal aid to the needy in the recent past.
  8. 8. THE INDIAN CONSTITUTION The Indian Constitution provides for an independent and impartial judiciary and the courts are given power to protect the constitution and safeguard the rights of people irrespective of their financial status. Since the aim of the constitution is to provide justice to all and the directive principles are in its integral part of the constitution, the constitution dictates that judiciary has duty to protect rights of the poor as also society as a whole. The judiciary through its significant judicial interventions has compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections of the society
  9. 9. Ailments of Indian Judicial System India being a Welfare state Legal Services is very essential, the rule of law without legal Services is a judicial myth. Indian Judiciary is suffering from “ABC” ailments: A - Accessibility of Justice B – Backlog of cases C – The cost of litigation. To cure these diagnosed “ABC” disease in the judiciary, The Legal Service Authorities Act 1987, has prescribed “Three Drug” combination of which can be named as “Three LAS i.e. Legal Aid, Legal Awareness and Lok Adalats
  10. 10. Constitutional Provisions To Legal Services • Article 14 of the Constitution states that the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India. • The Constitution of India provides the fundamental rights including protection of life and liberty in Article 21.And provision of legal aid services is an integral part of the article. • Article 38(I) states that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, as social order in which justice – social, economic and political shall inform all the institutions of national life. • Article 39(A) “Provides equal justice and free legal aid”. It states that the state shall secure that the operation of the legal system promotes justice on the basis if equal opportunity, and shall in particular, provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This is a piece of legislation which deals with several aspects relating to providing legal aid to the poor and the down trodden 10
  11. 11. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. In 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November, 1995 with an object to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal services available under the Act. The Act empowers the State to establish a Four Tier System of providing speedy and informal justice at the National, State, District and Taluk Levels.
  12. 12. The Legal Services Authorities Act, 1987 The Act prescribes the criteria for giving legal services to the eligible persons. It makes a person eligible for assistance under the act if he is -  a member of a Scheduled Caste or Scheduled Tribe;  a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;  a woman or a child;  a mentally ill or otherwise disabled person;
  13. 13. CONTINUED.. a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or an industrial workman; or  in custody, including custody in a protective home or in a juvenile home  of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987; or (i) A person whose annual income less than rupees fifty thousand or such other higher amount as may be prescribed by the State Government
  14. 14. Free Legal Aid In India : The Positive Contribution Of Judiciary Hussainara Khatoon V Home secretary, state of bihar The petitioner brought to the notice of Supreme Court that most of the under trails have already undergone the punishment much more than what they would have got had they been convicted without any delay. The delay was caused due to inability of the persons involved to engage a legal counsel to defend them in the court and the main reason behind their inability was their poverty. Thus, in this case the court pointed out that Article 39-A emphasized that free legal service was an inalienable element of reasonable, fair and just‘ procedure and that the right to free legal services was implicit in the guarantee of Article 21
  15. 15. Khatri v. State of Bihar The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require…The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid.  In, State of Haryana v. Darshana Devi, the Court said that: "the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC.
  16. 16. A case of Juveniles Justice Bhagwati while delivering the judgment in the case of Kara Aphasia v. State of Bihar, where the petitioners were young boys of 12-13 years when arrested, and were still languishing in jail for over 8 years. They also alleged to have been kept in leg irons and forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21. 16
  17. 17. After the constitution of the Central Authority and the establishment of NALSA office towards the beginning of 1998, following schemes and measures have been envisaged and implemented by the Central Authority:- (a) Establishing Permanent and Continuous Lok Adalats in all the Districts in the country for disposal of pending matters as well as disputes at pre- litigative stage; (b) Establishing separate Permanent & Continuous Lok Adalats for Govt. Departments, Statutory Authorities and Public Sector Undertakings for disposal of pending cases as well as disputes at pre-litigative stage; (c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign; (d) Appointment of "Legal Aid Counsel" in all the Courts of Magistrates in the country; (e) Disposal of cases through Lok Adalats on old pattern; (f) Publicity to Legal Aid Schemes and programmes to make people aware about legal aid facilities;
  18. 18. CONTINUED.. (g) Emphasis on competent and quality legal services to the aided persons; (h) Legal aid facilities in jails; (i)Setting up of Counseling and Conciliation Centers in all the Districts in the country; (j) Sensitisation of Judicial Officers in regard to Legal Services Schemes and programmes; (k) Publication of "Nyaya Deep", the official newsletter of NALSA; (l) Enhancement of Income Ceiling to Rs.1,25,000/- p.a. for legal aid before Supreme Court of India and to Rs.1,00,000/- p.a. for legal aid upto High Courts; and (m) Steps for framing rules for refund of court fees and execution of Awards passed by Lok Adalats
  19. 19. Constitution And Hierarchy Of NALSA • In every State, a State Legal Services Authority and in every High Court, a High Court Legal Services Committee has been constituted • District Legal Services Authorities and Taluka Legal Services Committees have been constituted in the Districts and most of the Talukas in order to give effect to the policies and directions of the NALSA and to provide free legal services to the people and conduct Lok Adalats in the State. • The State Legal Services Authorities are chaired by Hon'ble Chief Justice of the respective Districts and the Taluk a Legal Services Committees are chaired by the Judicial Officers at the Taluka Level. • Supreme Court Legal Services Committee has been constituted to administer and implement the legal services programme in so far as it relates to the Supreme Court of India. 19
  20. 20. Functioning of National Legal Services Authority (NALSA) The NALSA issues guidelines for the State Legal Services Authorities to implement the Legal Aid Programmes and schemes throughout the country. Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge the following two main functions on regular basis To Provide Free Legal Services to the eligible persons; To organize Lok Adalats for amicable settlement of disputes. 20
  21. 21. The Free Legal Services include: • Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings • Providing Advocate in legal proceedings; • Obtaining and supply of certified copies of orders and other documents in legal proceedings; • Preparation of appeal, paper book including printing and translation of documents in legal proceedings. 21
  22. 22. Eligible persons for getting free legal services include:  Women and children;  Members of SC/ST;  Industrial workmen;  Victims of mass disaster; violence, flood, drought, earthquake, industrial disaster;  Disabled persons;  Persons in custody;  Persons whose annual income does not exceed Rs. 50,000/-  Victims of Trafficking in Human beings. 22
  23. 23. The NALSA has formulated the following schemes to perform its functions under the Legal Services Authorities Act, 1987 Legal and Counsel Scheme Permanent and Continuous Lok Adalat Scheme Counseling and Conciliation Scheme Legal Literacy Programme Legal Aid Camps Accreditation of Voluntary Social Service Institutions 23
  24. 24. Present Status NALSA The Act empowered the State to establish a Four Tier System of providing speedy and informal justice at the National, State, District and Taluk Levels. The Thirteenth Finance Commission (TFC) has provided Rs. 5000 crore (USD 1 billion) for the period 2010-2015 to the Justice sector, primarily for reducing pendency, improving infrastructure, legal aid, training and speedy justice delivery. The Government has also allocated Rs.130 crore (USD 26 million) during the 12th Five Year Plan period (2012 – 2017) for setting up model courts. Another forward-looking initiative of the Department of Justice is the setting up of the National Mission for Justice Delivery and Legal Reforms10 with the twin objectives of a) Increasing access by reducing delays and arrears in the system, and b) Enhancing accountability through structural changes and by setting performance standards and capacities.
  25. 25. The Access to Justice Project (2009-2012)  The Access to Justice Project (2009-2012) implemented by the Department of Justice in collaboration with the UNDP is an example of efforts being made for creating sustainable and positive change across the States. Achievements of the Access to Justice Project  Over 2 million people have been made aware of their rights and entitlements.  Over 7000 paralegals have been trained.  Over 300 legal aid lawyers have been trained and sensitized.  Knowledge products have been created to sensitize judiciary and other stakeholders on laws and issues relating to marginalized communities.
  26. 26. Present Status Till 31.03.2009 about 96.99 lakh people have benefited through legal aid and advice throughout the country in which about 13.83 lakh persons belonging to Scheduled Caste and 4.64 lakh people of Scheduled Tribe communities were beneficiaries. More than 10.22 lakh people were women and about 2.35 lakh people in custody were also benefited. About 7.25 lakh Lok Adalats have been held throughout the country in which more than 2.68 crore cases have been settled. In about 16.87 lakh Motor Accident Claim cases, more than Rs. 7593 crore has been awarded as compensation.
  27. 27. During the period from 1st April, 2011 to 30th September, 2011 more than 6.95 lakh persons have benefited through legal aid services in the country. Out of them, more than 25.1 thousand persons belonged to the Scheduled Castes, about 11.5 thousand Scheduled Tribes, about 24.6 thousand were women and 1.6 thousand were children. During this period, 53,508 Lok Adalats were organised. These Lok Adalats settled more than 13.75 lakh cases. In about 39.9 thousand Motor Vehicle Accident Claim cases, compensation to the tune of Rs. 420.12 crore has been awarded.
  28. 28. Over 56,000 cases across the country were disposed in the third National Lok Adalat held in 2015 which also saw disbursal of Rs 265 crore as claims towards final settlement in bank recovery and cheques bounce cases. The second National Lok Adalat saw the disposal of over 1.25 crore cases. In 2013, the first National Lok Adalat had seen disposal of 71.50 lakh cases.
  29. 29. What can be done?  Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens.  The prime object of the state should be ―equal justice for all.  Lack of legal awareness - It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.  Legal services institutions have until now functioned in uncharted waters, often making their presence felt only at certain ports of call like court-based legal services, organising legal literacy camps and Lok Adalats.  Now, with a paradigm shift in the concept of legal services, legal services authorities are reaching out to the people to facilitate ‘access to justice' to all in the most practicable and economical manner.  Para-legal volunteers can help bridge the gap between the ordinary citizen and legal services institutions. 29
  30. 30. What can be done? Bringing in more competent, well-known and senior lawyers for rendering Legal Services and Legal Aid.  Payment of better honorarium to the lawyers who provide Legal Aid.  Inclusion of all designated senior lawyers in the Legal Aid Schemes and requesting them to undertake at least two cases free of charge every year.  In appropriate cases, payment of the entire expenses including the normal fees of the lawyers.  Annual evaluation of the progress of cases in which Legal Aid was given. 30
  31. 31. THANKS FOR YOUR VALUBLE TIME

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