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Projectreportunderlegalclinicprogram
Legal aid
SUBMITTED TO
SCHOOL OF LAW
Full Name:- Vaibhav Kumar Project Report coordin...
Sharda University
LEGAL AID
Submitted by- Vaibhav kumar
BA LLB (2rd
year)
System I.D - 2015010144
Legal Aid History
The concept of seeking justice cannot be equated with the value of dollars. Money plays no
role in seeki...
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legal aid

  1. 1. Projectreportunderlegalclinicprogram Legal aid SUBMITTED TO SCHOOL OF LAW Full Name:- Vaibhav Kumar Project Report coordinate Class:BA llb 2nd year Mr. Abhinav kr. mishra Batch: 2015-2020 Lecturer
  2. 2. Sharda University LEGAL AID Submitted by- Vaibhav kumar BA LLB (2rd year) System I.D - 2015010144
  3. 3. Legal Aid History The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.By-Justice Blackmun in Jackson v Bishop Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. The earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, the history of the organised efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee to enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make recommendations as appear to be desirable for ensuring that persons in need of legal advice are provided the same by the State. One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on the road. Justice Blackmun in Jackson v. Bishop says that; "The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice." Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. Sec. 304, Criminal Procedure Code: The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand
  4. 4. Introduction As early as in 1951, the Supreme Court of India stated that where an accused is disabled from accessing justice due to poverty, it will amount to negation of fair trial. The Supreme Court has since then categorically asserted that right to a fair and reasonable trial includes the right to counsel of one’s choice. In Hussainara Khatoon’s9 case the Supreme Court held that an indigent person should have access to quality justice in order for a trial to be fair and just. India is not only a parliamentary democracy but also a constitutional democracy. The Constitution obligates the State to ensure access to justice for all people through a variety of means including legal aid. The right to justice is now an inalienable, integral and primordial part of the basic structure of the constitution. The constitutional right to justice has been now translated into a statutory right through the enactment of the Legal Services Authorities Act, 1987. The question, however, is whether this right will remain just on paper, or will it become a reality for poor and vulnerable sections of the society. To make right to legal aid meaningful for the people, it is essential to ensure that there are adequate numbers of trained and motivated judges, lawyers, and paralegals to provide access to justice to all who need it Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the existence of the orderly society. Until and unless poor illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step towards making the legal service serve the poor and the deprived; the judiciary has taken active interest in providing legal aid to the needy in the recent past. The Indian Constitution provides for an independent and impartial judiciary and the courts are given
  5. 5. power to protect the constitution and safeguard the rights of people irrespective of their financial status. Since the aim of the constitution is to provide justice to all and the directive principles are in its integral part of the constitution, the constitution dictates that judiciary has duty to protect rights of the poor as also society as a whole. The judiciary through its significant judicial interventions has compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections of the society. Public Interest Litigation is one shining example of how Indian judiciary has played the role of the vanguard of the rights of Indian citizens especially the poor. It encouraged the public spirited people to seek justice for the poor. For that Supreme Court relaxed procedure substantially. Apart from Public Interest Litigation and judicial activism, there are reforms in the judicial process, where it aims to make justice cheap and easy by introducing LokAdalat system as a one of the methods to provide free legal aid and speedy justice at the door steps of the poor. In this article the author highlights the importance of free legal aid in a constitutional democracy like India where a significant section of the population has still not seen the constitutional promises of even the very basic fundamental rights being fulfilled for them.
  6. 6. Legal Aid: The Concept 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. Legal Aid is the method adopted to ensure that no one is deprived of professional advice and help because of lack of funds. Therefore, the main object is to provide equal justice is to be made available to the poor, down trodden and weaker section of society. In this regard Justice P.N. Bhagwati rightly observed that: The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don't have access to courts. One need not be a litigant to seek aid by means of legal aid. Therefore, legal aid is to be made available to the poor and needy by providing a system of government funding for those who cannot afford the cost of litigation. 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. It is worthy to mention that the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. Constitution of India also makes it obligatory for theState to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all
  7. 7. Services offered by the Legal Services Authority: 1.Payment of court and other process fee; 2. Charges for preparing, drafting and filing of any legal proceedings; 3.Charges of a legal practitioner or legal advisor; 4. Costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding; 5.Costs of paper work, including printing, translation etc. When can Legal services be rejected? If the applicant - has adequate means to access justice; - does not fulfill the eligibility criteria; - has no merits in his application requiring legal action. Cases for which legal aid is not available: 1. Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc. 2. Proceedings relating to election; 3.Cases where the fine imposed is not more than Rs.50/-; 4.Economic offences and offences against social laws; 5.Cases where the person seeking legal aid is not directly concerned with the proceedings and whose interests will not be affected.
  8. 8. When can the legal services be withdrawn? The legal services committee can with draw the services if, 1 The aid is obtained through misrepresentation or fraud; 2. Any material change occurs in the circumstances of the aided person; 3. There is misconduct, misbehavior or negligence on the part of the aided person; 4. The aided person does not cooperate with the allotted advocate; 5. The aided persons appoints another legal practitioner; 6. The aided person dies, except in civil cases; 7. The proceedings amount to misusing the process of law or of legal service. The Concept of Lok Adalat: Lok Adalat is judicial body set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. It has the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like any court orders, yet the parties cannot appeal against such orders. LokAdalat can resolve all matters, except criminal cases that which are non-compoundable. Either of the parties to litigation can make an application to the court for transferring the case to a lokadalat. Where no compromise or settlement is made by the lokadalat, such a case is transferred to the court and that court deals with the litigation from the stage the lokadalat had reached
  9. 9. Who is entitled to free legal aid? Any person, who is: 1. a member of the scheduled castes or tribes; 2. any person belonging to the Schedule caste/tribe, persons suffering from natural calamity, industrial worker, children, insane person, handicap, persons in custody and those having annual income less than Rs 1 lakh were entitled to avail free legal aid 3. a victim of trafficking in human beings or beggar; 4.disabled, including mentally disabled; 5. a woman or child; 6. a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earth quake, industrial disaster and other cases of undeserved want; 7. an industrial workman; 8. in custody, including protective custody; 9. facing a charge which might result in imprisonment; —(Khatri II Vs. State of Bihar, (1981) 1SCC); and 10.unable to engage a lawyer and secure legal services on account of reasons such as pover ty, indigence, and incommunicado situation; 11. in cases of great public importance; 12. special cases considered deserving of legal services.
  10. 10. Free Legal Aid in India:- The positive Contribution of Judiciary Supreme Court On Legal Aid The linkage between Article 21 and the right to free legal aid was forged in the decision in Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that "there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." The court pointed out that Article 39-Aemphasised 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. Further in the case of Hussainara Khatoon&Ors. v. Home Secretary, State of Bihar, Patna Justice Bhagwati held that: "it’s the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a free lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and it is hoped that every State Government would try to avoid such a possible eventuality." Two years thereafter, in the case of Khatri &Ors. (II) v. State of Bihar &Ors. , the court answered the question the right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that: "the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it.
  11. 11. Magistrates and Sessions Judges must inform the accused of such rights. The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid at the expense of the State. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may, however, be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal or child abuse and the like, where social justice may require that free legal services need not be provided by the State." He reiterated this in Suk Das v. Union Territory of Arunachal Pradesh and said "It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21." This part of the narration would be incomplete without referring to the other astute architect of human rights jurisprudence, Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra , he declared: If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoon’s Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate for it is at this stage that he gets the 1st opportunity
  12. 12. to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the stage at which and accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice representation to the accused at this stage. Thus, state is under a constitutional obligation to provide free to aid to the accused not only at the stage of ... Every individual of the society are entitled as a matter of prerogative. Legal Aid in India: Statutory Recognition Though there was a statutory procedure providing free legal aid10 by appointing the advocate for defending criminal case and by exempting court fees in civil cases, it was not really making any significant impact on the ability of the underprivileged people to get the judicial redressal for their grievances. Hence under tremendous constitutional persuasion from the Supreme Court the Legal Services Authorities Act, 1987 was passed by the parliament of India. 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) a member of a Scheduled Caste or Scheduled Tribe; (b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution; (c) a woman or a child; (d) a mentally ill or otherwise disabled person; (e) 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 (f) an industrial workman; or (g) in custody, including custody in a protective home or in a juvenile home
  13. 13. (h) 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. This limit on income 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. According to the Act the 'court' is 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. Under the Act '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 . 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.
  14. 14. Bodies under the Act and Their Hierarchy A nationwide network has been envisaged under the Act for providing legal aid and assistance. 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. In every State a State Legal Services Authority is constituted to give effect to the policies and directions of the Central Authority (NALSA) and to give legal services to the people and conduct LokAdalats in the State. State Legal Services Authority is headed by the Chief Justice of the State High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated as its Executive Chairman. District Legal Services Authority is constituted in every District to implement Legal Aid Programmes and Schemes in the District. The District Judge of the District is its ex-officio Chairman. Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organize LokAdalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman. In order to provide free and competent legal service, the NALSA has framed the National Legal Service Authority (Free and competent Legal service) Regulations, 2010. The salient feature of Regulation is engaging senior competent lawyers on payment of regular fees in special cases like where the life and liberty of a person are in jeopardy. Supreme Court of India has also set up Supreme Court Legal Services Committee (SCLSC) to ensure free legal aid to poor and under privileged under the Legal Services Authorities Act. It is headed by a judge of Supreme Court of India and has distinguished members nominated by Chief justice of India. The SCLSC has a panel of competent Advocates on record with certain minimum number of years of experience who handle the cases in the Supreme Court. Apart from that the SCLSC has full time Legal Consultant who provides legal advise to poor litigants either on personal visit or through the post
  15. 15. 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 officers and staff were also appointed. By February, 1998 the office of National Legal Services Authority became properly functional for the first time. A nationwide network has been envisaged under the Act for providing legal aid and assistance. National Legal Services Authority was constituted on 5th December, 1995. According to Section 3 (1) under the Chapter II of the Act[8], the Central Government is instructed to constitute a body at the National level known as the National Legal Services Authority, to exercise powers and perform functions conferred on it or assigned to it under the Act. His Lordship Hon. Dr. Justice A.S. Anand, Judge, of The Supreme Court of India took over as the Executive Chairman of National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His Lordship initiated steps for making the National Legal Services Authority functional. The first Member Secretary of the authority joined in December, 1997 and by January, 1998 the other officers and staff were also appointed. By February, 1998 the office of National Legal Services Authority became properly functional for the first time. ‘NALSA’ has also called upon State Legal Services Authorities to set up legal aid cells in jails so that the prisoners lodged therein are provided prompt and efficient legal aid to which they are
  16. 16. entitled by virtue of section 12 of Legal Services Authorities Act, 1987. The Government has sanctioned Rs 4 crores as grant-in-aid for ‘NALSA’ for 1998-99 for allocating funds to the State, District authorities, etc. The ‘NALSA’ is also monitoring and evaluating the implementation of the legal aid programs in the country. Up to December 1997 about 23.88 lakh persons were benefited through court-oriented legal aid programs provided by the State Legal Aid and Advice Boards/ State Legal Services Authorities. Of them, 3.73 lakh persons belonged to the scheduled castes, about 2.14 lakh to the scheduled tribes, 240485 were women and 8578 were children. Supreme Court Legal Services Committee: The Supreme Court Legal Services Committee has been enacted under the Legal Services Authorities Act, 1987 for the effective rendering of justice in the apex court. If a person belongs to the poor section of the society having annual income of less than Rs. 18,000/- or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural calamity, is a woman or a child or amentally ill or otherwise disabled person or an industrial workman, or is in custody including custody in protective home, he/she is entitled to get free legal aid from the Supreme Court Legal Aid Committee. The aid so granted by the Committee includes cost of preparation of the matter and all applications connected therewith, in addition to providing an Advocate for preparing and arguing the case. Any person desirous of availing legal service through the Committee has to make an application to the Secretary and hand over all necessary documents concerning his case to it. The Committee after ascertaining the eligibility of the person provides necessary legal aid to him/her. Persons belonging to middle income group i.e. with income above Rs.18000/- but under Rs. 120000/- per annum are eligible to get legal aid from the Supreme Court Middle Income Group Society, on nominal payments.
  17. 17. Conclusion Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object of the state should be ―equal justice for all‖. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. But in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law14, the legal aid movement has not achieved its goal. There is a wide gap between the goals set and met. The major obstacle to the legal aid movement in India is the lack of legalawareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor. Suggestions It is suggested that it is the need of the hour that the poor illiterate people should be imparted with legal knowledge and should be educated on their basic rights which should be done from the grass root level of the country. For that judiciary needs the support from state administration to conduct legal literacy programme.  The judiciary should focus more on Legal Aid because it is essential in this present scenario where gulf between haves and have-nots is increasing day by day. And elimination of social and structural discrimination against the poor will be achieved when free Legal Aid is used as an important tool in bringing about distributive justice. There are number of precedents as well as legislations to up hold the right to free legal aid but they have just proven to be a myth for the masses due to their ineffective implementation.
  18. 18. Thus the need of the hour is that one should need to focus on effective and proper implementation of the laws which are already in place instead of passing new legislations to make legal aid in the country a reality instead of just a myth in the minds of the countrymen. In providing Legal Aid, the Legal Aid institutions at all level should use proper ADR methods so as to speed up the process of compromise between parties to the case and with that matter will be settled without further appeal. Free Legal Services Authorities must be provided with sufficient funds by the State because no one should be deprived of professional advice and advice due to lack of funds.
  19. 19. REFERENCE [1] Mathews and Outton: Legal Aid & Advice, London, Butterworths, 1971. [2] Constitution of India: Article 14 Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. [3] Article 21 Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to the procedure established by law. [4] Article 39 A Equal Justice and Free Legal Aid - The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. [5] Legal Aid and Justice For the Poor – N.R. Madhava Menon, pp 344, paragraph 2. [6] Law, Poverty and Legal Aid – Access to Criminal Justice – S.Muralidhar; Lexis Nexis [7] Public Interest Litigation – Legal Aid and LokAdalats, Mamta Rao, [8] HossainaraKhatun v. State of Bihar AIR 1979 S.C. page 1371 [9]Khatri v. State of Bihar AIR 1981 S.C. at page 926 (Bhagalpur Blinded Prisoners’ case)

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