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Constitutional provisions of legal aid by Tanya Singh, 4th year,

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Constitutional provisions of legal aid by Tanya Singh, 4th year,

  1. 1. Legal Aid : Constitutional Provisions Tanya Singh Fourth Year , B.A.LL.B.(Hons.) 1
  2. 2. What is Legal Aid? • Legal aid is the provision of assistance to people otherwise unale to afford legalrepresentation and access to the court. • Legal aid is regarded as central in providing access to justice by ensuring -Equality before the law -Right to counsel - Right to Fair trial • It is to ensure welfare provisions by providing access to legal advice and the courts • It is an inseperable constituent of a Welfare State as proclaimed under a democracy. • Legal aid in India has been incorporated in India under constitutional provisions (Art. 39 A) and under statutary provisions (Legal Services Authorities Act,1987) 2
  3. 3. Supreme Court On Legal Aid Justice Bhagwati 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-A emphasised 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. In his inimitable style Justice Bhagwati declared: "Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. 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 we have no doubt that every State Government would try to avoid such a possible eventuality". 3
  4. 4. Emphasis on Speedy trial • In his inimitable style Justice Bhagwati declared: • "Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. 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 we have no doubt that every State Government would try to avoid such a possible eventuality” 4
  5. 5. Case Laws • 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 5
  6. 6. Case Laws • Further in the case of Hussainara Khatoon & Ors. (V) 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." 6
  7. 7. Case Laws • In Khatri & Others v. St. of Bihar & others Bhagmati J. observed; • 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 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. 7
  8. 8. Case Laws • 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. The state of Haryana, mindless of the mandate of equal justice to the indigent under the magna carta of republic, expressed in article 14 and stressed in article 39A of the constitution, has sought leave to appeal against the order of the high court which has rightly extended the 'pauper' provisions to auto-accident claims. Order XXXIII will apply to tribunals, which have the trappings of the civil court. 8
  9. 9. Case Laws • In Indira Gandhi v. Raj Narain the Court said: • "Rule Of Law is basic structure of constitution of India. Every individual is guaranteed the its give to him under the constitution. No one so condemn unheard. Equality of justice. There ought to be a violation to the fundamental right or prerogatives, or privileges, only then remedy go to Court of Law. But also at the stage when he first is produced before the magistrate. In absence of legal aid, trial is vitiated." 9
  10. 10. Mohd. Hussain @ Julfikar Ali vs The State (Govt. of NCT) Delhi • H.L. Dattu, J. tobserved as follows: • “In the present case, not only was the accused denied the assistance of a counsel during the trial but such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. • The court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 CrPC. 10
  11. 11. Constitutional provisions to Legal Services • Justice P.N.Bhagwati states in the report of the Legal Aid Committee “Legal aid implies providing an arrangement in the society so that the machinery of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcements of the rights given to them”. • The Preamble to the Constitution of India secures to all its citizen – justice, social, economical and political, and equity of status and of opportunities. 11
  12. 12. 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. 12
  13. 13. • 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 13
  14. 14. A case of Juveniles • Justice Bhagwati while delivering the judgement 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. 14
  15. 15. Legal Research & Anr. v. State of Kerala • In Centre for Legal Research & Anr. v. State of Kerala , Chief Justice Bhagwati took a step further and laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lok adalats or niti melas 15
  16. 16. Article 39A • Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. • Article 14 and 22(1) of the constitution also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all • Hon'ble Mr. Justice K.G. Balakrishnan, the Chief Justice of India is the Patron-in-Chief and Hon'ble Mr. Justice S.B. Sinha, Judge Supreme Court of India, is the Executive Chairman of the Authority. 16
  17. 17. Statutary Provisions • Legal Services Authorities Act is a statutary provsions that render the objectives set up under Art. 39 A • 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. 17
  18. 18. 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. 18
  19. 19. 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. 19
  20. 20. 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. 20
  21. 21. 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. 21
  22. 22. TheNALSAhasformulatedthefollowingschemesto performitsfunctionsundertheLegalServices AuthoritiesAct, 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 22
  23. 23. Legal and Counsel Scheme NALSA has initiated Legal Aid Counsel Scheme to provide meaningful legal assistance to under-trial prisoners who, on account of lack of resources or other disabilities, cannot engage a counsel to defend them. Now, Legal Aid Counsel have been attached to each Magisterial Court who provide assistance and defend a person who is not able to engage a counsel, right from the stage he/she is produced in the court by the police. 23
  24. 24. Permanent and Continuous Lok Adalat Scheme • A Permanent and Continuous Lok Adalat Scheme has been formulated and implemented to establish Lok Adalats under Section 19 of the Act in all the districts of the country. Under this scheme, the Lok Adalats are now organized regularly at designated venues, even away from court complexes and the cases which remain unsettled are taken up in the next Lok Adalat. Lok Adalats have thus acquired permanency and continuity and are no more occasional. 24
  25. 25. Counseling and Conciliation Scheme • NALSA has formulated a Counseling and Conciliation Scheme to encourage the settlement of disputes by way of negotiations and conciliation. Under this scheme, Counseling and Conciliation Centres are being set up in all the Districts of the country for guiding and motivating the migrants to resolve their disputes amicably. Such Centres have been set up in most of the Districts. 25
  26. 26. Legal Literacy Programme • NALSA has formulated a strategy to provide basic and essential knowledge to the vulnerable groups so that they can understand the law and know the scope of their rights under the law and eventually assert their rights as a means to take action, uplift their social status and being in social change. 26
  27. 27. Legal Aid Camps • NALSA has been organizing the Legal Aid Camps through State Legal Services Authorities, Taluka Legal Services Committees, NGOs. etc. in the rural area and slum areas for educating the weaker sections as to their rights and for encouraging them to settle their disputes through ADR Mechanism. The people are educated/made aware of their rights, benefits and privileges guaranteed by social welfare legislations, administration programmes and measures etc. 27
  28. 28. Accreditation of Voluntary Social Service Institutions • NALSA has formulated a scheme for accreditation of Voluntary Social Service Institutions to establish a nation wide network of voluntary agencies in order to spread legal literacy, legal awareness and publicity for legal services throughout the nook and corner of the country. All the State Legal Services Authorities have been urged to identify Social Service Institutions in all Districts and give them accreditation. 28
  29. 29. StateLegalAwarenessProgrammesintheStatesonthe followinglaws: • Maintenance and Welfare of Parents and Senior Citizens Act, 2007. • Gram Nyayalaya Act. • Protection of Women From Domestic Violence Act, 2005. • Persons with Disabilities (Equal Protection of Rights and Full Participation) Act. • National Trust Act. • Laws relating to Marriage. • Labour Laws. • Environmental Protection Laws. • Consumer Protection Laws. • Campaign against Female Infanticide. • Campaign against Human Trafficking. • Cooperation with National Commission for Women at the Centre and associating the activities of State Legal Services Authorities with the State Women's Commissions. • Conduct awareness programmes and seminars with the involvement of National Women's Commission, Ministry of Social Welfare, Ministry of Child Welfare and Development and Ministry of Rural Development. 29
  30. 30. Other Schemes Of NALSA • Para-legal Volunteer Scheme: It is a scheme for building up a group of volunteers from among the rural people to act as intermediates between the common people and legal services institutions at Central, State, District and Taluka levels. • Lok Adalats: Widening the network of Lok Adalat to Government Departments, Petitions pending before Women's Commissions, various Tribunals, Labour Courts, Industrial Tribunal and Tax Tribunals etc., setting-up Special Lok Adalats in all Family Courts. 30
  31. 31. Legal Aid Clinics • Establishing Legal Aid Clinics in all Gram Panchayats (similar to primary health centres) by engaging competent lawyers as legal consultants in the clinics. Give wide publicity about the clinics with the help of local Self-Government Institutions. • Setting-up Legal Aid Clinics in all law colleges and law universities and to encourage students to adopt remote village areas as their area of operation. For this purpose, the following strategies may be adopted: • The students may be divided into small groups and deputed to the adopted villages. • In urban areas, colonies and slum areas where economically and socially backward people reside may be chosen for setting up Legal Aid Clinics. • Law Students should be guided by a team of senior Professors/Lecturers including part-time Lecturers. Rapport between the students and the people of the adopted area should be maintained throughout the year. 31
  32. 32. • Law Students shall identify the problems which require Legal Aid. They shall discuss the problem with the teacher-in-charge and if it warrants further free legal services, the matter should be brought before the Legal Services Authorities/Committees concerned. • The students shall be encouraged to organize legal awareness classes for small groups of people (4 or 5 houses together or 10 to 12 people). It should be more in the form of informal gatherings. • The students should aim at preventive and strategic legal aid. • In appropriate cases, senior students and postgraduate students who have already enrolled as lawyers, may be entrusted with the filing and conducting of the litigation in the Courts free of cost. • No fee shall be collected from the beneficiaries of legal aid clinic. 32
  33. 33. Problem with Legal Aid Services • One of the problems faced by legal services institutions is their inability to reach out to the common people. This hiatus between them and the common people was perceived as indirectly defeating the objectives of the Act. It is in this context that the National Legal Services Authority (NALSA) has come up with the idea of para-legal volunteers to bridge the gap between the common person and legal services institutions. • The scheme seeks to utilise community-based volunteers selected from villages and other localities to provide basic legal services to the common people. Educated persons with commitment to social service and with a record of good character are selected. The volunteers are trained by district legal services authorities. The training equips them to identify the law-related needs of the marginalised in their locality. Such needs include assistance to secure legal rights, benefits and actionable entitlements under different government schemes that are denied to them. Coming as they do from the same locality, they are in a better position to identify those who need assistance and bring them to the nearest legal services institutions to solve their problems within the framework of law. They can assist disempowered people to get their entitlements from government offices where ordinary people often face hassles on account of bureaucratic lethargy and apathy. 33
  34. 34. Legal aid clinics in villages • A legal aid clinic is a facility to assist and empower people who face barriers to ‘access to justice.' • In order to reach out to the common people, NALSA has come up with a project to set up legal aid clinics in all villages, subject to financial viability. • Ignorance of what to do when faced with law-related situations is a common problem for disempowered people. • Legal aid clinics work on the lines of primary health centres, where assistance is given for simple ailments and other minor medical requirements of village residents. • Legal aid clinics assist in drafting simple notices, filling up forms to avail benefits under governmental schemes and by giving initial advice on simple problems. 34
  35. 35. What can be done? • There has been a widespread grievance that lawyers engaged by legal services institutions do not perform their duties effectively and that the lawyers are not paid commensurately for their work. In order to solve these problems, NALSA has framed the National Legal Services Authority (Free and Competent Legal services) Regulations, 2010 to provide free and competent legal services. • Scrutiny of legal aid applications, monitoring of cases where legal aid is provided, and engaging senior lawyers on payment of regular fees in special cases, are the salient features of the Regulations. In serious matters where the life and liberty of a person are in jeopardy, the Regulations empower legal services authorities to specially engage senior lawyers. • . 35
  36. 36. Mentally-ill and the mentally- retarded • Legal services to the mentally-ill and the mentally-retarded, to workers in the unorganised sector, and to solve disputes arising out of the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, are other schemes drawn up by NALSA for implementation by legal services institutions. A web-based monitoring system is in place to monitor their activities. NALSA works with civil society organisations, specialised statutory bodies and government departments. 36
  37. 37. Para-legal volunteers • Trained para-legal volunteers are available to run legal aid clinics in villages. The common people in villages will feel more confident to discuss their problems with a friendly volunteer from their own community rather than with a city-based legal professional. The volunteers will refer any complicated legal matters that require professional assistance to the nearest legal services institutions. When complex legal problems are involved, the services of professional lawyers will be made available in the legal aid clinics. • Free and competent legal services 37
  38. 38. Children's rights, a neglected field • Juveniles including children constitute more than a third of India's population. Yet, children and their rights are neglected. The problems of children are often seen through the spectacles of an adult. Consequently, the rights of children who are orphaned, abandoned and in conflict with the law are not properly handled by government officials and juvenile justice institutions. Denied care and protection, they may end up as children in conflict with law. At the same time, children in conflict with the law need care and protection. In October 2011, the Supreme Court, in Sampurna Behrua v. Union of India , a public interest litigation, directed the Directors General of Police of the States to designate one police officer in each police station as juvenile/child welfare officer. The court directed legal services authorities to train such police officials and give free legal services to all children in conflict with law on an incremental basis, starting with the State capital cities 38
  39. 39. What can be done? • 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. 39
  40. 40. 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. 40
  41. 41. *End of Presentation* 41

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