Constitutional provisions of legal aid by Tanya Singh, 4th year,
Legal Aid :
Fourth Year , B.A.LL.B.(Hons.)
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
-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
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
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”
• 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
• 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
• 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
• 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
• 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."
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
• 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.
Constitutional provisions to
• 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
• The Preamble to the Constitution of India secures to all its
citizen – justice, social, economical and political, and equity of
status and of opportunities.
Constitutional provisions to
• 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.
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
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.
Legal Research & Anr. v. State
• 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
• 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
• 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
Constitution And Hierarchy Of
• 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.
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
The Free Legal Services
• 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
• Preparation of appeal, paper book
including printing and translation of
documents in legal proceedings. 20
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.
• Legal and Counsel Scheme
• Permanent and Continuous Lok Adalat
• Counseling and Conciliation Scheme
• Legal Literacy Programme
• Legal Aid Camps
• Accreditation of Voluntary Social Service
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
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.
Counseling and Conciliation
• 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
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
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
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
• 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
• 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.
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.
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
• 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
• 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
• 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
• 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
• 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
Problem with Legal Aid
• 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
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.
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
Mentally-ill and the mentally-
• 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
• 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
Children's rights, a neglected
• 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
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
• Para-legal volunteers can help bridge the gap between the
ordinary citizen and legal services institutions.
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
• 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.
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