Legal Aid as a Human Right

SUBMITTED TO

Dr. Parvesh Kumar Rajput

(Faculty, Alternate Dispute Resolution System)

SUBMITTED BY

Vijaya Choudhary

SEMESTER- VI

SECTION-A

Roll No.-191

Date of Submission-06.03.2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA, NEW RAIPUR (C.G.)
 I

Declaration

I, Vijaya Choudhary, hereby declare that, the project work entitled, Legal Aid as a Human
Right submitted to H.N.L.U., Raipur is record of an original work done by me under the able
guidance of Dr. Parvesh Kumar Rajput Faculty, Hidayatullah National Law University, New
Raipur.

Vijaya Choudhary

Semester – VI

Section -A

Roll No.-191
 II

Acknowledgements

I feel highly elated to work on the topic “Legal Aid as a Human Right”.

The practical realization of this project has obligated the assistance of many persons. I
express my deepest regard and gratitude for Dr.Parvesh Kumar Rajput, Faculty of
Alternate Dispute Resolution System, His consistent supervision, constant inspiration and
invaluable guidance have been of immense help in understanding and carrying out the
nuances of the project report.

I would like to thank my family and friends without whose support and encouragement,
this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful
to receive comments and suggestions to further improve this project report.

Vijaya Choudhary

Semester- VI

Section-‘A’

Roll No. -191

 III

Contents
1. Introduction________________________________________________________________1
2. Aims and Objectives_________________________________________________________4
3. Research Questions__________________________________________________________4
4. Scope of Study_____________________________________________________________5
5. Research Methodology_______________________________________________________5
6. Legal Aid: The Concept______________________________________________________6
7. Legal Aid Under International Law_____________________________________________8
8. Free Legal Aid in India: The Positive Contribution of Judiciary______________________11
9. Legal Aid in India: Statutory Recognition_______________________________________14
10. Bodies Under the Act and their Hierarchy_______________________________________16
11. A Comparative Analysis of Free Legal Aid in India, United Kingdom and
Australia_________________________________________________________________18
12. Conclusion_______________________________________________________________21
13. References________________________________________________________________23
 1

Introduction
Jurisprudence relating to legal aid can be traced back to the Magna Carta, which in its 40th
paragraph provides that, “ to no one will we sell, to no one will we deny, or delay, right or
justice1.”

Legal aid means extending legal assistance free of cost to the poor and needy, to those who do
not have the resources to engage a lawyer to represent them in legal proceedings in a tribunal,
court or before any other authority2. It implies offering legal help to those embroiled in some
legal troubles. The insurmountable number of legislations necessitate legal aid for an individual
to ensure he is acting within the sphere of laws. The poor or marginally usually have very little
or absolutely no knowledge about their rights and the legal services act seeks to ameliorate this
situation and increase awareness of legal aid. Poverty leads to disempowerment and socio-
economic deprivation, thus disables people from accessing courts for securing legal assistance to
protect their rights. Without giving the poor equal opportunity to access law, it deprives them of
legal protection and gives excessive powers to the powerful to exploit them. Legal aid is a gift to
all individuals who may have been denied access to justice and were victims of atrocities. It is a
means of removing inequalities existing in the society in terms of access to legal aid and the
abuse of power by the higher sections of society. Since legal aid is provided for free, it is
assumed that all societies would have a certain percentage of individuals who would not have
access to the legal system due to impoverished circumstances.

Legal aid movement first began in the US with the organization of institutions by the German
Society of New York to give legal assistance to the immigrants who had just arrived there. Later,
scholarly and literary works promoted ideas that encouraged the Bar to think that it was their
duty to give representation to those who had no access to the legal system and this lead to the
growth of Public Interest Litigation as well. Then there were private firms who were solely
dedicated to the cause of expanding the right to legal aid.
1
Multiple Action Research Group(MARG), Needs Assessment Study of Legal Services Authorities, iv (2012)
available at http://www.undp.org/content/dam/india/docs/DG/needs-assessment-study-of-selected-legalservices-
authorities.pdf (Last visited on July 28th , 2013)
2
Commonwealth Human Rights Initiative, Legal Aid and Advice, available at
http://www.humanrightsinitiative.org/publications/police/legal.pdf (Last visited on July 28th , 2013)
 2

International conventions and their provisions relating to legal aid inspired the schemes for legal
services in India too. For instance, Article 8(e) of the American Convention on Human Rights
provides the accused with an ‘inalienable’ right to be aided by a state provided counsel , who
may or may not be paid(according to the domestic law) in case the defendant is unable to defend
himself on his own or appoint a counsel for the same in the time frame stipulated by law. The
European Convention on Human Rights, Article 6, gives the accused who doesn’t have adequate
resources to afford legal assistance or fails to defend himself, the right to be given a lawyer of his
choice by the state, in order to satisfy the aims of justice. It has been held in Monnell v. Morriss
that the right under Article 6 cannot be allowed when the defendant has already received
representation and a fair trial has taken place but he demands legal aid to appeal against his
conviction. Thus is in order to give a proof of need for legal aid in interest of justice, a written
submission requesting the same is sufficient. Also, when the state appointed counsel turns out to
be incompetent to properly defend the accused, then the domestic court is legally required to
resolve the problem3.

India, being a modern welfare state, must seek to promote the well being of its citizens through a
just laws and equality of opportunities to all.

“Article 39A. Equal justice and free legal aid”

“The State shall secure that the operation of the legal system promotes justice, on the 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 disabilities4”

Article 39A, forms a part of the Directive Principles of State Policy, and is given under Part V of
The Constitution of India, 1950. It was inserted by the Constitution (42nd Amendment) Act,
19765. It essentially imposes a duty on the state to ensure that the legal system functions in a
manner that furthers justice, provides equal opportunity and more importantly, devises

3
D.D. Basu, supra note 4, at 4099
4
Art. 39A, THE CONSTITUTION OF INDIA, 1950
5
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, vol. 3, 4098, 8th edn. (2008)
 3

appropriate mechanisms or legislations so that it can extend legal aid free of cost. The purpose of
this is to promote equality so that any citizen is not denied the right to seek justice because of
economic incapacity to bear the cost of legal aid6.

The article orders the State to give free legal aid so as to promote the goals of equal opportunity
and justice as envisaged in the Preamble7. From the language of the Article, it can be construed
that it is mandatory in nature and the use of words such as ‘shall’ also shows this8.

6
M.P. Jain, INDIAN CONSTITUTIONAL LAW, vol. 2, 1616, 5th edn. (2003)
7
Id.
8
M.P. Jain, supra note 5, at 1616.
 4

Aims and Objectives

Set in above prospective the major aim of the project is:

1. To study about the Concept of Legal Aid

2. To Analyze the Legal Aid Under International Law
3. To Study about the Free Legal Aid in India and the Positive Contribution of Judiciary
4. To Throw light on the Legal Aid in India and Statutory Recognition
5. To Explain the Bodies Under the Act and Their Hierarchy
6. To Comparatively Analyze the Free Legal Aid in India, United Kingdom and Australia

Research Questions

1. Explain the concept of Legal Aid?

2. What is the Legal Aid Under International Law?
3. What is the Free Legal Aid in India and what is the Contribution of Judiciary?
4. What are the Statutory Recognition for Legal Aid in India?
5. What are the Bodies Under the Act and their Hierarchy?
6. Comparatively Analyze the Free Legal Aid in India, United Kingdom and Australia?

Review of Literature
 Durga Das basu, Commentary on the Constitution of India(a comparative
treatiseon the universal principles of justice and constitutional government with
special reference to the organic instrument of india (8 edn, LexisNexis) 4097

 Raman Mittal , K.V. Sreemithun (eds), Legal Aid Catalyst for Social Change
Aid(Satyam Law International)

 SouvikDhar, „Necessity of Legal Aid - International Provisions‟(Speakingtree,

27July 2015)
 5
 Jon Robins, „Legal aid in 21st-century Britain‟ (The Guardian,12 March 2009)

 VarunPathak, „A Brief History of Legal Aid‟(Legalserviceindia) 7 October 2015

Scope of Study

The Scope of this Project is limited to the study of the Cocept of Legal Aid, Legal Aid under
International Law, Free Legal Aid in India and the Positive Contribution of Judiciary, Legal Aid
in India and Statutory Recognition, The Bodies under the Act and Their Hierarchy and
Comparative Analysis of Free Legal Aid in India, United Kingdom and Australia.

Research Methodology

Nature of Project Report

This project is doctrinal in approach. It describes about the Legal Aid aas a Human Right.

Sources of Data

The sources of collection of data is secondary data. This secondary data has been obtained from
published sources such as web sources, articles and other references as guided by the faculty of
Alternate Dispute Resolution System were primarily helpful and of atmost importance in the
successful completion of the project.
 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 that9:

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 10that 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

9
Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman,
Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat
Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College,
Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice between the rich
and the poor.
10
Article 39A of the Indian Constitution
 7

or other disability. Constitution of India also makes it obligatory for the State to ensure equality
before law and a legal system which promotes justice on a basis of equal opportunity to all11

11
Articles 14 and 22(1) of the Indian Constitution
 8

Legal Aid under International Law

Access to justice is one of the most critical issues facing the legal community worldwide. Poor
people the world over do not have access to the tools they need to protect and promote their
rights and interests.

In short, no legal system has escaped the difficulties to providing the justice system to poor
people. If equality before the law is more than an empty promise, States must accept the task of
guaranteeing all citizens an equal opportunity to protect their rights and promote their interests.

This chapter discusses the evolution of legal aid in International Conventions and its influence on
national legislations especially in Indian perspective

LEAGUE OF NATIONS AND LEGAL AID (1924)

In the first half of the Twentieth century, at the end of the First World War, international concern
for human rights found expression in certain provisions of the Covenant of the League of
Nations. It was also realised that universal peace could be established only by imparting social
justice to al112.

There was a necessity of legal aid, because without legal aid social justice to all was not possible.
Therefore, after due advance preparation under the auspices of the League of Nations,
International Committee of Legal Aid experts met at Geneva from 30th July to 31'd August
1924. France, England, Norway, Italy, Poland, Spain, U.S.A, and Japan sent their representatives
to participate in the conference. Justice for the poor was the primary issue in those meetings. The
League of Nations submitted a report in 1927 on the survey regarding legal aid in various
countries13.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

12
United Nations Publication, The United Nations and Human Rights ( New York, 1984) 1
13
Dr. Sharma S.S, Legal Services, Public Interest Litigations and Para Legal Services (Central Law Agency, lst Ed.
2003) 42
 9

The Universal Declaration of Human Rights was adopted and proclaimed by the General
Assembly of the United Nations on 10th December 1948. Its purposes were to provide a
common standard of achievement for all peoples and all nations and to promote respect for these
rights and freedoms by progressive measures; national and international .The Declaration
consists of a Preamble and 30 articles set forth the basic human rights and fundamental freedoms
which all human beings are entitled.

The provisions of the Declaration, directly or indirectly providing social justice to the poor.
Preamble to the Declaration recognizes the inherent dignity and the equal and inalienable rights
of all members of the human family as the foundation of freedom, justice and peace in the world.
It is the main component of the Declaration expressing its main objectives and ideals. From the
language of the preamble it is clear that equality and justice are basic objectives of the
Declaration. Equality and Justice are reciprocal. Without equality there can be no justice. A
person due to paucity of money will not be able to enforce his human rights and hence frustrate
the whole purpose of the Declaration of Human Rights. At this juncture legal aid becomes sine-
qua-non for achievement of ideals enshrined in the preamble of the Declaration of Human
Rights.

EUROPEAN CONVENTION FOR PROTECTION OF HUMAN RIGHTS (1950)14

The European Convention of Human Rights was signed in Rome on November 4, 1950 and
came into force on 31-`1 September 1953. Article 6(3) (C) of the Convention directly deals with
legal aid in criminal cases. Article 6(3) provides that "Every one charged with a criminal offence
has the following rights: to defend himself in person or through legal assistance of his own
choosing or if he has no sufficient means to pay for legal assistance to be given it free when the
interests of justice so require."

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966115

14
Bimal N Patel, A Comprehensive guide of laws of Human Rights in Commonwealth Countries, 1st edi.,2007,
Wadhwa , Nagpur, at 88.
15
Andrew S. Butler, "Legal Aid Before Human Rights Treaty Monitoring Bodies", 49 ICLQ (2000) 369
 10

The Universal Declaration of Human Rights was also followed by two significant instruments,
which transformed the principles enunciated in the Declaration into the treaty provision and
established legal obligation on the part of each ratifying country. Those instruments were a)
International Covenant on Civil and Political Rights and its Optional Protocol b) International
Covenant on Economic, Social and Cultural Rights.

The General Assembly adopted these two Covenants and Protocols on 16th December 1966.
They were duly ratified and came into force on 23th March 1976 and 311 January 1976
respectively. India also ratified these Covenants with Protocol, but with certain reservations.
Indian Judiciary has given due importance to these civil and political rights and has even
endeavoured to enforce these rights, while interpreting and giving effect to Part III of the
Constitution of India.

AMERICAN CONVENTION ON HUMAN RIGHTS, 196916

The American Convention on Human Rights adopted in 1969 has general resemblance with the
European Convention for protection of Human Rights. For example, Article 24, of the
Convention provides that all persons are equal before the law; consequently, they are entitled
without any discrimination to equal protection of law.

Under Article 8(2)(e) during the trial proceedings (i.e. remand stage on words till the
pronouncement of judgment) every indigent person is entitled with full equality, the inalienable
right to be assisted by counsel provided by the state. Indigent person is who does not defend
himself or engage his own counsel.

STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS

Under Rule 93 an untried prisoner can apply for free legal aid and to receive visits from his legal
advisor with a view to his defence and to prepare and hand to him confidential instructions.I6 In
India under legal services authorities act , prison clinics established. Legal Aid advocates,
professors and students from law colleges will visit the jail and inform to inmates of jail about
their legal aid provisions." District Judge had a duty to sudden inspections to jail.
16
http://www.hrcrorg/docs/American_convention/oashr5.html
 11

Free Legal Aid in India : The positive

Contribution of Judiciary
The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of Hussainara Khatoon17 where the
petitioner brought to the notice of Supreme Court that most of the under trails have already under
gone 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-Aemphasized 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.

Two years later, in the case of Khatri v. State of Bihar18 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. 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…The State cannot
avoid this obligation by pleading financial or administrative inability or that none of the
aggrieved prisoners asked for any legal aid.

17
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98
18
Khatri v. State of Bihar, AIR 1981 SC 262.
 12

In Suk Das v. Union Territory of Arunachal Pradesh19 Justice P.N. Bhagwati, emphasized the
need of the creating the legal awareness to the poor as they do not know the their rights more
particularly right to free legal aid and further observed that in India most of the people are living
in rural areas are illiterates and are not aware of the rights conferred upon them by law. Even
literate people do not know what are their rights and entitlements under the law. It is this absence
of legal awareness they are not approaching a lawyer for consultation and advise. Moreover,
because of their ignorance and illiteracy, they cannot become self-reliant and they cannot even
help themselves. That is why promotion of legal literacy has always been recognized as one of
the principal items of the program of the legal aid movement in the country. I would say that
even right to education would not fulfill its real objective if education about legal entitlements is
not made accessible to people and our constitutional promise of bringing justice to the door
stepsof the people would remain an illusion.

Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that ‗if a prisoner
sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of
appeal inclusive of special leave 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, the
power to assign counsel for such imprisoned individual ‗for doing complete justice20

It is a statutorily recognized public duty of each great branch of government to obey the rule of
law and uphold the tryst with the constitution by making rules to effectuate legislation meant to
help the poor.21Though the law has been enacted to protect the poor the governments are lazy to
implement the enacted law. The same was observed by Supreme Court in State of Haryana v.
Darshana Devi,22 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

19
AIR 1986 SC 991.
20
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81
21
Order 33, Rule 9A,Code Civil Procedure,1908.
22
AIR 1972 SC 855.
 13

auto-accident claims. Order XXXIII will apply to tribunals, which have the trappings of the civil
court‖…even court also expressed its poignant feeling that ―no state has, as yet, framed rules to
give effect to the benignant provision of legal aid to the poor in order xxxiii, rule 9A, civil
procedure code, although several years have passed since the enactment. Parliament is stultified
and the people are frustrated. Even after a law has been enacted for the benefit of the poor, the
state does not bring it into force by willful default‖.
 14

Legal Aid in India: Statutory Recognition

Though there was a statutory procedure providing free legal aid23 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

(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 Government24 .

23
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure.
24
Section 12 of the Legal Services Authorities Act, 1987.
 15

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 functions25. 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 matte26.

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.

25
Section 2(1) (a) of the Legal Service Authority Act,1987
26
Section 2(1)(c) of the Legal Service Authority Act,1987.
 16

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
Lok Adalats 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 Lok Adalats. 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
 17

that the SCLSC has full time Legal Consultant who provides legal advise to poor litigants either
on personal visit or through the post.
 18

A Comparative Analysis of Free Legal Aid in India,

United Kingdom And Australia
As the countries like India, Australia, U.K are parties to the International Covenant on Civil and
Political Rights, each of these countries provide the scheme of free legal aid to its citizens.

Under the Constitution of India, Article 39-A emphasize that free legal service is 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. Article 39A states that “The State shall secure that the
operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities.” Further, the Code of Criminal Procedure, 1973 provides statutory
implementation of free legal aid under Section 304(1) which states that in a trial before the
sessions judge, if the accused has no sufficient means to engage a plea, the court should assign a
pleader for his defense at the expense of the state. Also, Order 33, Rule 17 of Code of Civil
Procedure provides for suit by or against an indigent person. The Supreme Court has ruled that
free assistance must be provided to all poor accused, irrespective of the severity of the crime
attributed to them, at every stage of the three-tier justice delivery system and could not be
restricted to the trial stage only. National Legal Services Authority Act is the statutory
recognition of India to provide free legal aid to the poor and indigent people in the country.

In U.K, the scheme of legal aid is controlled by the Legal Service Commission. But in U.K legal
Aid is no longer available for welfare benefit cases except for appeals to the Upper Tribunal or
higher courts.In England legal aid is represented by "Legal Services Commission” which
guarantee that individuals get the right information, counsel and legal assistance they have to
manage a series of problems, for example,

i. Criminal cases
 19

ii. Civil cases - with special cases including libel, most personal injury cases, associated
cases with the running of businesses, and family cases.

The LSC is in charge of the Community Legal Service (civil) and Criminal Defense Service
(criminal) legitimate guide schemes. Contingent upon the sort of case, legal aid might be means
tried.

LSC works in association with solicitors and non-profit organisations. Their key work is to give
social and legal justice to the helpless and socially backward individuals. Their job is is to ensure
that applicants can get to the help they require to address their issues. Legal Aid in United
Kingdom can be acquired through the web and/or via phone. Here legal aid is controlled by the
Legal Services Commission, and is accessible for most criminal cases, and numerous types of
civil cases with exemptions including libel, most personal injury cases (which are now dealt with
under Conditional Fee Agreements, a species of contingency fee) and cases associated with the
running of a business.

Criminal legal aid is for the most part given through private firms of solicitors and advocates in
private practice. Civil legal aid is provided through solicitors and barristers in private practice
but also non-lawyers working in law centers and not-for-profit advice agencies.

In Australia, Legal Aid commissions play a defining role in achieving equality before the law by
striving to ensure that all citizens, including those who cannot afford to pay, have access to the
legal services they need to obtain justice.

In Australia, Legal Aid commissions demonstrates a critical part in accomplishing fairness in the
witness of the law by endeavoring to guarantee that all nationals, including the individuals who
can't stand to pay, have admittance to the legal service. The Australian Government and most
State and Territory Governments additionally subsidize community legal centers, which are free,
non-profit organizations that give referral, counsel and help to individuals with legal issues.
Also, the Australian Government reserves financial assistance for legal services under certain
statutory plans and legal services for Indigenous Australians.
 20

The Australian Government made its first real stride towards a national arrangement of legal aid
when it built up the Legal Services Bureaux in 1942. Be that as it may, there was a move in the
late 1970 to give administration conveyance by the States and Territories (not the federal arm of
government). In 1977, the Australian Government instituted the Commonwealth Legal Aid
Commission Act 1977 (LAC Act) which set up cooperative arrangements between the Australian
Government and State and Territory governments under which legal aid would be given by
independent legal aid commissions to be built up under State and Territory enactment. The
procedure of setting up the LACs took various years. It initiated in 1976 with the foundation of
the Legal Aid Commission of Western Australia and finished in 1990 with the foundation of the
Legal Aid Commission of Tasmania. The cooperative arrangements that were built up by the
LAC Act accommodated Commonwealth and State and Territory legitimate guide financing
understandings, which started in 1987.

In July, 1997 the Australian Government changed its arrangements to specifically finance legal
aid services for Commonwealth law matters. Under this course of action the States and
Territories reserve legal aid with deference of their own laws.
 21

Conclusion and suggestions

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 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 Lok Adalat 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.

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
 22

movement in India is the lack of legal awareness. People are still not aware of their basic rights
due to which the legal aid movement has not achieved its 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. 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.
 23

References
Books
[1] BasuDurga Das, Commentary on the Constitution of India(a comparative treatiseon the
universal principles of justice and constitutional government with special reference to the organic
instrument of india (8 edn, LexisNexis)

[2] Austin Granville, Working A democratic Constitution (2003 edn, Oxford University Press,
USA 2000)

Websites

[1] VarunPathak, „A Brief History of Legal Aid‟(Legalserviceindia)

[2] TNN, „Poor accused must get free legal aid at all levels: SC‟ Times of India (Delhi 11August
2012 )

[3] Raman Mittal , K.V. Sreemithun (eds), Legal Aid Catalyst for Social Change Aid (Satyam
Law International) <
https://books.google.co.in/books?id=al6y7aEqgzsC&pg=PA3&source=gbs_toc_r&cad=4#v=one
page&q&f =false

[4] SouvikDhar, „Necessity of Legal Aid - International Provisions‟(Speakingtree, 27July 2015)

[5] „The Universal Declaration of Human Rights‟ (UN )

[6] „UN Chronicle‟ (UN Chronicle.un)

[7] Jon Robins, „Legal aid in 21st-century Britain‟ (The Guardian,12 March 2009)

[8] „Legal Aid in Australia‟(Legal.aidact)