Right to legal aid in india

CHANAKYA NATIONAL LAW UNIVERSITY

RIGHT TO LEGAL AID

TABLE OF CONTENTS

1. Acknowledgement...............................................................

2. Research Methodology........................................................

3. List of Cases………………………....................................

4. Introduction…………………………................................

5. Position in India: Development of right to legal aid...........

6. Functionaries involved in the promoting legal aid......................

a) The Legal Services Authorities............................................

b) Lok Adalats.................................................................................

c) National Legal Services Authority..................................................

d) Supreme Court Legal Services Committees...................................

e) Taluk Legal Services Committee....................................................

7. When can Legal services be rejected?.............................................

8. When can the legal services be withdrawn...

9. Cases for which legal aid is not available........................................

10. Recovery of the Aid:........................................................................

11. Whom to approach for free legal aid...............................................

12. How to Approach.............................................................................

13. Steps involved in the process............................................................

14. Duties of the aided person:........................................................................

15. Position under international law........................................................

16. Conclusion.................................................................................................

17. Bibliography..............................................................................................

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Table of cases
1. Centre for Legal Research & Anr. v. State of Kerala AIR 1983 SC1322

2. Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98

3. In M.H. Hoskot v. State of Maharashtra 1978 SCC (3) 544

4. Indira Gandhi v. Raj Narain 1975 Supp SCC1

5. Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217

6. Kara Aphasia v. State of Bihar

7. Khatri & Ors. (II) v. State of Bihar & Ors. A.I.R. 1981 SC 928

8. Sheela Barse, V. State of Maharashtra AIR 1983 SC378

9. State of Haryana v. Darshana Devi AIR 1983 SC 857

10. Suk Das v.Union Territory of Arunachal Pradesh (1986) 2 SCC

401

11. Tara Singh v State of Punjab AIR 1951 SC 411

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RESEARCH METHODOLOGY
The project work on RIGHT TO LEGAL AID is based on doctrinal method of research. I have
considered various articles and write ups. Secondary sources have been used i.e. books, articles,
commentaries and internet.

The writing style is both descriptive and analytical. The project is a result of extensive research work.

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Introduction

The Encyclopaedia Britannica defines legal aid as phrase which is acquired by usage and
court decisions, a specific meaning of giving to person of limited means grants or for nominal
fees, advice or counsel to represent them in court in civil and criminal matters.1 Inability to
consult or to be represented by a lawyer may amount to the same thing as being deprived of
the security of law. Rawls first principle of justice is that each person is to have an equal right
to the most extensive total system of equal basic liberties compatible with a similar system of
liberties for all. 2

Legal Aid is the method adopted to ensure that no one is debarred from professional advice
and help because of lack of funds. Thus, the provisions of legal aid to the poor are based on
humanitarian considerations and the main aim of these provisions is to help the poverty-
stricken people who are socially and economically backward.3 Lord Denning while observing
that Legal Aid is a system of government funding for those who cannot afford to pay for
advice, assistance and representation said: “The greatest revolution in the law since the post-
second World has been the evolution of the mechanism of the system for legal aid. It means
that in many cases the lawyers’ fees and expenses are paid for by the state: and not by the
party concerned. It is a subject of such importance that I venture to look at the law about
costs-as it was-as such it is-and as it should be.4

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”.

Thus the following project explores the scope of right to legal aid in India and with respect to
international law

1
Part 13 at p. 871, Quoted in Legal Aid Programme in India-A Constitutional Guarantee-Alka Shrivastav
2
John Rawls: A Theory of Justice, Universal Law Publishing Co. Pvt. Ltd. Delhi, 2000
3
Scott, C.H.: Legal Aid Past and Present, A Brief Bleak Picture, pp. 4-5.
4
What Next in the Law: Lord Denning, London Butterworths, 1982.

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Position in India: Development of right to legal aid

After Independence schemes of legal aid was developed under the aegis of Justice N.H.
Bhagwati, then of Bombay High Court and Justice Trevore Harris of Calcutta High
Court.5The matter of legal aid was also referred to the Law Commission to make
recommendations for making the legal aid program an effective instrument for rendering
social justice. Coming up with recommendation in its XIV report6, under the leadership of
leading jurist M.C. Setalvad, the Commission opined that free legal aid is a service which
should be provided by the State to the poor. The State must, while accepting the obligation,
make provision for funds to provide legal aid. The legal community must play a pivotal role
in accepting the responsibility for the administration and working of the legal aid scheme. It
owes a moral and social obligation and therefore the Bar Association should take a step
forward in rendering legal aid voluntarily. These would include representation by lawyers at
government expenses to accused persons in criminal proceedings, in jails, and appeals.

The Commission also recommended the substitution in Order XXXIII, Civil Procedure Code
of the word with poor persons. Acting on the recommendations of the Law Commission, the
Government of India in 1960 prepared a national scheme of legal aid providing for legal aid
in all courts including tribunals. It envisaged the establishment of committees at the State,
District and Tehsil level. However due to the inability of States to implement the scheme
because of lack of finances the scheme did not survive. The judicial attitude towards legal aid
was not very progressive. In Janardhan Reddy v. State of Hyderabad7 and Tara Singh v
State of Punjab8, the court, while taking a very restrictive interpretation of statutory
provisions giving a person the right to lawyer, opined that this was, a privilege given to
accused and it is his duty to ask for a lawyer if he wants to engage one or get his relations to
engage one for him. The only duty cast on the Magistrate is to afford him the necessary
opportunity to do so. Even in capital punishment cases the early Supreme Court seemed
relentless when it declared that it cannot be laid down in every capital case where the accused

5
Law as struggle: Public Interest Litigation in India, Rajeev Dhawan Ed., 36 JILI 325 (1994).
6
Law commission: fourteenth report on reform of judicial administration
7
AIR 1951 SC 217
8
AIR 1951 SC 411

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is unrepresented the trial is vitiated. Thus it can be pointed out that newly Independent India
was not clear about the broad perspective of its right to legal aid.

For again trying to revive the programme, the Government of India formed an expert
committee, the Krishna Iyer Committee, in 1973 to see as to how the states should go about
devising and elaborating the legal aid scheme. The committee came out with the most
systematic and elaborate statement regarding establishment of legal aid committees in each
district, at state level and at the Centre. It was also suggested that an autonomous corporation
be set up, law clinics be established in Universities and lawyers be urged to help. The
Government of India also appointed a committee on judicature under the chairmanship of
Justice P.N. Bhagwati to effectively implement the legal aid scheme. It encouraged the
concept of legal aid camps and Nyayalayas in rural areas.

The committee in its report recommended the introduction of concept of legal aid in the
Constitution of India. Accepting this recommendation in the 1976, Article 39-A was
introduced in the Directive Principles of State Policy by 42nd Amendment of the
Constitution. With the object of providing free legal aid, the Government of India had, by a
resolution dated 26th September, 1980 appointed a Committee known as Committee for
Implementing Legal Aid Schemes (CILAS) under the chairmanship of Chief. Justice P.N.
Bhagwati to monitor and implement legal aid programs on a uniform basis in all the States
and Union Territories. CILAS evolved a model scheme for legal aid programs applicable
throughout the country by which several legal aid and advice Boards were set up in the States
and Union Territories.

Article 39A mandates about Equal Justice and Free Legal Aid. – “The State shall secure that
the operation of the legal system promotes justice, on a basis of equal opportunity, and shall,
in particular, provide free legal aid, by suitable legislations or schemes or in any other way,
to ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.” The Constitution of India under Article 39-A mandates for
free legal aid to the poor and weaker sections of society. The Preamble to the Constitution of
India secures to all its citizen – justice, social, economical and political, and equity of status
and of opportunities. 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. The economic and social inequalities are prevalent in Indian society.

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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. Similarly under section304 (1) of
CrPC the right to Legal aid to accused at State expense in certain cases has been recognised
as where, in a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the court that the accused has not sufficient means to engage a
pleader, the court shall assign a pleader for his defence at the expense of the State. Similarly
under O33 mandates that suits may be instituted by indigent person.

Duties of the Police and the Courts:

The police must inform the nearest Legal Aid Committee about the arrest of a person
immediately after such arrest.9 The Magistrates and sessions judges must inform every
accused who appears before them and who is no represented by a lawyer on account of his
poverty or indigence that he is entitled to free legal services at the cost of the State. Failure to
provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might
even result in setting aside a conviction and sentence10. Similarly the Supreme Court has
strengthened the right to legal aid through several landmark judgements.
The linkage between Article 21 and the right to free legal aid was forged in the decision in
Hussainara Khatoon v. State of Bihar11 where the court was appalled at the plight of
thousands of under trials 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".

9
Sheela Barse, V. State of Maharashtra
10
(Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401
11
(1980) 1 SCC 98

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Further in the case of Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna
Justice Bhagwati held that: "it’s the constitutional right of every accused person who is
unable to engage a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation, to have free legal services provided to him by the
State and the State is under a constitutional mandate to provide a free lawyer to such
accused person if the needs of justice so require. If free legal services are not provided to
such an accused, the trial itself may run the risk of being vitiated as contravening Article 21
and it is hoped that every State Government would try to avoid such a possible eventuality."

In the case of Khatri & Ors. V.State of Bihar & Ors12. , 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, provided of course the accused person does not object to the
provision of such lawyer.

The State cannot avoid this obligation by pleading financial or administrative inability or that
none of the aggrieved prisoners asked for any legal aid at the expense of the State. The only
qualification would be that the offence charged against the accused is such that on conviction,
it would result in a sentence of imprisonment and is of such a nature that the circumstances of
the case and the needs of social justice require that he should be given free legal
representation. There may, however, be cases involving offences such as economic offences
or offences against law prohibiting prostitution or child abuse and the like, where social
justice may require that free legal or child abuse and the like, where social justice may require
that free legal services need not be provided by the State."

12
A.I.R. 1981 SC 928

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Justice Bhagvati in Suk Das v. Union Territory of Arunachal Pradesh13 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 Maharashtra14 , 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 14215 read with Articles 21 and 39-A of
the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete
justice.

In Indira Gandhi v. Raj Narain16 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 goes 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.

In, State of Haryana v. Darshana Devi17, 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
13
Supra note 10
14
1978 SCC (3) 544
15
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court
in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
16
1975 Supp SCC1
17
AIR 1983 SC 857

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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.

Justice Bhagwati while delivering the judgement in the case of Kara Aphasia v. State of
Bihar18, 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.

In Centre for Legal Research & Anr. v. State of Kerala19 , 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 mela .

Functionaries involved in the promoting legal aid

The Legal Services Authorities Act, 1987, as amended by the Act of 1994 which came into
force on 9th November 1995, aims at establishing a nation-wide network for providing free
and comprehensive legal services to the weaker sections. It 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 all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter
and spirit and equal justice is made available to the poor, downtrodden and weaker sections of
the society.

The Legal Services Authority Act, 1987 was enacted to effectuate the constitutional mandates
enshrined under Articles 14 and 39-A of the Constitution of India. The object is to provide
‘Access to Justice for all’ so that justice is not denied to citizens by reason of economic or
other disabilities. However in order to enable the citizens to avail the opportunities under the
Act in respect of grant of free legal aid, it is necessary that they are made aware of their
rights. According to Section 2(1) (a) of the Act, legal aid can be provided to a person for a
'case' which includes a suit or any proceeding before a court. Section 2(1) (a) defines the

18
Legal service india/pathak
19
AIR 1983 SC1322

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'court' as a civil, criminal or revenue court and includes any tribunal or any other authority
constituted under any law for the time being in force, to exercise judicial or quasi-judicial
functions. As per Section 2(1)(c) 'legal service' includes the rendering of any service in the
conduct of any case or other legal proceeding before any court or other authority or tribunal
and the giving of advice on any legal matter.

Legal Services Authorities after examining the eligibility criteria of an applicant and the
existence of a prima facie case in his favour provide him counsel at State expense, pay the
required Court Fee in the matter and bear all incidental expenses in connection with the case.
The person to whom legal aid is provided is not called upon to spend anything on the
litigation once it is supported by a Legal Services Authority.

Under The Legal Services Authorities Act, 1987 every citizen whose annual income does not
exceed Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high
courts. In cases before the Supreme Court, the limit is Rs 12,000. This limit 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.

Lok Adalats:

Lok Adalats are judicial bodies set up for the purpose of facilitating peaceful resolution of
disputes between the litigating parties. They have the powers of an ordinary civil court, like
summoning, examining evidence etc. Its orders are like any court orders, but the parties
cannot appeal against such orders. Lok Adalats can resolve all matters, except criminal cases
that are non-compoundable. Either one or both the parties to litigation can make an
application to the court for transferring the case to a lok adalat. Where no compromise or
settlement is made by the lok adalat, such a case is transferred to the court and that court
deals with the litigation from the stage the lok adalat had reached.

Lok Adalats have proved to be an effective mechanism for resolution of disputes through
conciliatory methods. Up to 31 December 1997, about 17633 Lok Adalats have been held in
different parts of the country where about 68.86 lakh cases were settled. In about 349710
motor vehicles accident claims cases, compensation amounting to over 1,160.07 crore rupees
were awarded. Under the Legal Services Authorities Act, Lok Adalat has been given the
status of a Civil Court and every award made by Lok Adalat is final and binding on all parties

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and no appeal lies to any court against its award. Under Chapter VI-A of the Legal Services
Authorities Act, 1987, there is the provision of Lok Adalats. Up to December 2004, over 2
lakh 52 thousand Lok Adalats have been organized which have settled over 1 crore 74 lakh
cases. The constitution of the Committee for the Implementation of Legal Aid Schemes
(CILAS) in 1980 was a major step in institutionalizing legal aid. The Legal Services
Authorities Act, 1987, displaced the CILAS and introduced a hierarchy of judicial and
administrative agencies. The LSAA began to be enforced only eight years later, under the
directions of the Supreme Court. It led to the constitution of the National Legal Services
Authority (NALSA) at the Centre and a State Legal Services Authority in the States to give
effect to its directions.20

National Legal Services Authority (NALSA):

The National Legal Services Authority is a statutory body which has been set up for
implementing and monitoring legal aid programs in the country. The legal aid program
adopted by NALSA include promoting of legal literacy, setting up of legal aid clinics in
universities and law colleges, training of paralegals, and holding of legal aid camps and Lok
Adalats. National Legal Services Authority is the apex body constituted to lay down policies
and principles for making legal services available under the provisions of the Act and to
frame most effective and economical schemes for legal services. It also disburses funds and
grants to State Legal Services Authorities and NGOs for implementing legal aid schemes and
programs.

National Legal Services Authority was constituted on 5th December, 1995. His Lordship
Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive
Chairman of National Legal Services Authority on 17the July, 1997. Soon after assuming the
office, His Lordship initiated steps for making the National Legal Services Authority
functional. The first Member Secretary of the authority joined in December, 1997 and by
January, 1998 the other officers and staff were also appointed. By February, 1998 the office
of National Legal Services Authority became properly functional for the first time. A
nationwide network has been envisaged under the Act for providing legal aid and assistance.

National Legal Services Authority was constituted on 5th December, 1995. According to
Section 3 (1) under the Chapter II of the Act, the Central Government is instructed to

20
Law, Poverty and Legal Aid : Access to Criminal Justice S.Muralidhar; Lexis Nexis

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constitute a body at the National level known as the National Legal Services Authority, to
exercise powers and perform functions conferred on it or assigned to it under the Act. His
Lordship Hon. Dr. Justice A.S. Anand, Judge, of The Supreme Court of India took over as the
Executive Chairman of National Legal Services Authority on 17the July, 1997. Soon after
assuming the office, His Lordship initiated steps for making the National Legal Services
Authority functional. The first Member Secretary of the authority joined in December, 1997
and by January, 1998 the other officers and staff were also appointed. By February, 1998 the
office of National Legal Services Authority became properly functional for the first time.

NALSA has also called upon State Legal Services Authorities to set up legal aid cells in jails
so that the prisoners lodged therein are provided prompt and efficient legal aid to which they
are entitled by virtue of section 12 of Legal Services Authorities Act, 1987. The Government
has sanctioned Rs 4 crores as grant-in-aid for NALSA for 1998-99 for allocating funds to the
State, District authorities, etc. The NALSA is also monitoring and evaluating the
implementation of the legal aid programs in the country. Up to December 1997 about 23.88
lakh persons were benefited through court-oriented legal aid programs provided by the State
Legal Aid and Advice Boards/ State Legal Services Authorities. Of them, 3.73 lakh persons
belonged to the scheduled castes, about 2.14 lakh to the scheduled tribes, 240485 were
women and 8578 were children.

Supreme Court Legal Services Committee:

The Supreme Court Legal Services Committee has been enacted under the Legal Services
Authorities Act, 1987 for the effective rendering of justice in the apex court. If a person
belongs to the poor section of the society having annual income of less than Rs. 18,000/- or
belongs to Scheduled Caste or Scheduled Tribe, a victim of natural calamity, is a woman or a
child or a mentally ill or otherwise disabled person or an industrial workman, or is in custody
including custody in protective home, he/she is entitled to get free legal aid from the Supreme
Court Legal Aid Committee. The aid so granted by the Committee includes cost of
preparation of the matter and all applications connected therewith, in addition to providing an
Advocate for preparing and arguing the case.

Any person desirous of availing legal service through the Committee has to make an
application to the Secretary and hand over all necessary documents concerning his case to it.
The Committee after ascertaining the eligibility of the person provides necessary legal aid to

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him/her. Persons belonging to middle income group i.e. with income above Rs. 18000/- but
under Rs. 120000/- per annum are eligible to get legal aid from the Supreme Court Middle
Income Group Society, on nominal payments.

Taluk Legal Services Committee:

Sections 11-A and 11-B were inserted by the Act 59 of 1994 whereby provisions relating to
Taluk Legal Services were added in the Legal Services Authorities Act, 1987. The Taluk
Legal Services Committee work under the rules made by the different States. Relating to its
composition, conditions of services in certain States, additional functions have also been
assigned, e.g. in Andhra Pradesh where the functions are subject to superintendence of the
District and the State Authority. Apart from the abovementioned four-tier machinery the
Legal Services Authorities Act also provides for the Supreme Court Legal Services
Committee to perform functions as may be determined by the Central Authority and State
Authority respectively.

When can Legal services be rejected?

If the applicant - has adequate means to access justice; does not fulfil the eligibility criteria;
has no merits in his application requiring legal action.
When can the legal services be withdrawn?
The legal services committee can withdraw the services if, the aid is obtained through
misrepresentation or fraud; any material change occurs in the circumstances of the aided
person; there is misconduct, misbehaviour or negligence on the part of the aided person; the
aided person does not cooperate with the allotted advocate; the aided persons appoints
another legal practitioner; the aided person dies, except in civil cases; the proceedings
amount to misusing the process of law or of legal service.
Cases for which legal aid is not available
Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc.
Proceedings relating to election; Cases where the fine imposed is not more than Rs.50/-;
Economic offences and offences against social laws; Cases where the person seeking legal
aid is not directly concerned with the proceedings and whose interests will not be affected, if
not represented properly.
Recovery of the Aid:

Where legal services are withdrawn, the Committee is empowered to recover the cost of legal
services granted.

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Whom to approach for free legal aid?

The person who needs free legal aid can approach the Legal Services Authority at any level-
national, state, district or taluq. The request can be made to:

 The Senior Civil judge nominated as the chairperson of the Mandal/Taluq/Legal

Services Authority.
 The Secretary, District Legal Services Authority at the district level.
 The Secretary, High Court Legal Services Committee at the state level
 The Secretary, Supreme Court Legal Services Committee at the higher Level.
 The member secretary of the State legal services authority.
 The magistrate before whom she/he is produced.
 The custodial authorities, if under detention.
How to Approach?

 A written application can be made to the concerned authority .

 Where the person cannot read or write, the legal services authority will record his/her.
statement along with thumb impression. Such a statement is treated as an application.
 The person who claims legal aid has to file an affidavit of his income.
Steps involved in the process:
 The eligibility criteria and the merits of the case are examined.
 If the application for legal aid is rejected, reasons shall be duly recorded and also
informed to the applicant.
 The applicant has the right to appeal before the chairman for a decision
against such rejection.

Duties of the aided person:

The aided person must:

 comply with directions given by the Secretary of the Legal Services Authority.
 attend the office of the committee or Court as well as of the advocate assigned, as
when required.
 furnish full and true information to the advocate rendering legal service
 not pay any fee or expenses to the advocate rendering legal service
Position under international law

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There exists a range of international norms and standards that are relevant to the question of a
state’s responsibility to provide legal aid, which began to be articulated by the international
community after 1945 with the establishment of the United Nations and the development of
international human rights law. These standards are contained in treaties, such as covenants
and conventions, which are binding amongst the states that ratify them, as well as other
instruments designed to provide guidance, such as declarations, principles, rules,
recommendations and guidelines.
The latter instruments, while not legally binding upon states, have been
accepted by a large number of states and considered to have moral force. Before addressing
the specific provisions contained in the international instruments, it is useful to note how
these international norms and standards are reflected in national laws.
In some countries, with a dualist system, the international and domestic laws
are viewed as two distinct systems of law and thus the treaty provisions do not have
immediate effect in domestic law nor do they provide a basis upon which an action may be
commenced in domestic courts. For international law to become part and parcel of national
law, incorporation is necessary, either by new legislation, amended legislation or existing
legislation. However, in order for a state to fulfil its obligations under a treaty, it is not
necessary to incorporate the treaty directly into its own laws.
A violation occurs only when a standard of the treaty is contravened and not when a
state party fails to incorporate the provisions of the treaty into its own laws. In other
countries, with a monist system, international law and domestic law are viewed as one
coherent system of law with international law being supreme. There is no need to incorporate
the treaty provisions into domestic law as the treaty becomes part of domestic law upon
ratification.
The International Covenant on Civil and Political Rights
It is principally the United Nations International Covenant on Civil and Political Rights
(ICCPR) that set out specific obligations of states to provide state-funded counsel for
indigent persons.
Article 14(3) (d) of the ICCPR requires that an accused offender is entitled “to have legal
assistance assigned to him, in any case where the interests of justice so require, and without
payment by him in any case if he does not have sufficient means to pay for it” 21. This

21
Article 14(3) of the ICCPR: In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality : to be tried in his presence, and to defend himself
in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance,

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provision for legal aid in Article 14(3) is set out among the minimum guarantees to which
everyone is entitled, in full equality, in the determination of any criminal charge.
Article 14(1) of the ICCPR mandates that all persons shall be equal before the
courts and tribunals. In the determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. Therefore the right to free
legal counsel is rooted in the idea of equality; however, this right is only specified in the
context of the criminal justice system. An acceptable limitation on the availability of legal aid
is provided for in international law as States are required to provide legal aid only where “the
interests of justice so require”. Another accepted limitation to the right to counsel when it is
provided by the state is that counsel may be assigned rather than a choice of counsel being
given. The entitlement to this right is based on the costs of the legal representation and the
inability to afford such costs.
The Human Rights Committee, which is the treaty monitoring body established by the
ICCPR, has developed jurisprudence over the years addressing issues such as the scope and
form of legal representation. The Committee, under the Optional Protocol to the ICCPR, is
entitled to hear individual petitions that challenge a state’s compliance under the provisions
of the ICCPR. The decisions rendered by the Committee, while not binding upon state parties
to the Optional Protocol, are considered to have persuasive force. While providing some
direction, the jurisprudence does not provide all the answers. Generally, the Human Rights
Committee views individual cases in order to determine if there is a requirement to provide
legal assistance in that particular case. The Committee does not see its role as an evaluator of
whether or not a state’s comprehensive legal aid scheme is in compliance with the ICCPR. It
has, however, made the comment that counsel should receive adequate remuneration for
providing legal assistance under a legal aid plan.
Some of the Committee’s decisions provide scope to certain elements of Article 14(3). For
instance, although choice of counsel is conferred to all those who have been charged with a
criminal offence, it seems that the state may “assign” legal representation in cases of
indigence. The Committee has held that while choice of counsel may not be required by the
state in these cases, such assigned counsel must be competent and independent from state
authorities. The Committee, therefore, has focused not on the issue of choice of counsel, but

of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any case if he does not have sufficient means to pay for it.

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on the way in which the administration of the legal aid service might infringe upon the
freedom of lawyers to act on behalf of their clients.
In elaborating on the meaning of when the “interests of justice” would require free legal
representation, the Committee considers the severity of the charge and the complexity of the
case in making the determination.
Therefore, in a case where the accused was charged with a minor criminal
offence which would have likely resulted in a fine, the Committee found that the state was
not required to provide state-funded legal assistance. The Committee has also found that
accused persons might have a right to legal advice prior to trial requiring the state to appoint
legal counsel during the pre-trial contact with the criminal justice system. However, it is still
unclear whether or not this right exists immediately upon detention.
The regional treaty, The European Convention for the Protection of Human Rights and
Fundamental Freedoms (the European Convention), provides for criminal legal aid in the
same terms as the ICCPR and its jurisprudence has often been cited by international bodies in
interpreting the requirements under the ICCPR. In determining whether the interests of justice
require states to provide legal aid, the European Court has identified a number of factors to be
addressed: the complexity of the case; the capacity of the particular accused to present the
case him or herself; and, the seriousness of the offence and the possible penalty that could be
imposed.
The Convention on the Rights of the Child
It is recognised that children should be treated differently from adults when they are accused
or convicted of criminal conduct. With respect specifically to the situation of young persons
charged with a crime, the Convention on the Rights of the Child22 (the Children’s
Convention) requires states to ensure that every child deprived of his or her liberty shall have
the right to prompt access to legal and other appropriate assistance. It further provides the
right to have legal or other appropriate assistance in the preparation and presentation of his or
her defence. While not creating an automatic right to public-funded legal counsel, the
Children’s Convention does create a responsibility on the part of the state to provide a child
with legal assistance in the preparation and presentation of his or her case when assistance is

22
The Convention on the Rights of the Child, Article 37: State Parties shall ensure that: every child deprived
Of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as
the right to challenge the legality of the deprivation of his or her liberty before a court or other competent,
Independent and impartial authority, and to prompt decision on any such action.

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not otherwise available. The exact nature of the legal assistance to be provided has not been
specified.
It is interesting to note that while the Children’s Convention does not specifically address the
issue of state-funded legal assistance for children, there is a provision that provides for the
right to free assistance of an interpreter if the child cannot understand or speak the language
used.
Other Relevant International Standards
Other international instruments which are relevant for an individual to access state-funded
counsel include the United Nations Basic Principles on the Role of Lawyers23 which
stipulate that governments shall ensure the provision of sufficient funding and other resources
for legal services to the poor and, as necessary, to other disadvantaged persons. The
Principles state that professional associations of lawyers should cooperate in the organization
and provision of services, facilities and other resources.
The United Nations Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment24 provides that a detained person shall be entitled to have legal
counsel assigned to him or her by a judicial or other authority in all cases where the interests
of justice so require and without payment by him or her if he/she does not have sufficient
funds to pay. The United Nations Standard Minimum Rules for the Treatment of
Prisoners25provide for untried prisoners to be allowed to apply for legal aid where such aid is
available.
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice26
provide that, throughout proceedings, juveniles have the right to be represented by a legal
advisor or to apply for free legal aid where there is provision for such aid in the country. The
United Nations Rules for the Protection of Juveniles Deprived of Their Liberty provide that
where juveniles are detained under arrest or awaiting trial, they have a right to legal counsel
and are to be able to apply for free legal aid where such aid is available.27
Conclusion
23
The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the
prevention of Crime and the Treatment of Offenders.
24
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
25
United Nations Standard Minimum Rules for the Treatment of Prisoners, Economic and Social Council
resolution 663 (XXIV).
26
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)
27
THE RESPONSIBILITY OF STATES TO PROVIDE LEGAL AID Report of The International Centre for
Criminal Law Reform and Criminal Justice Policy

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Thus we can find a paradigm shift in the approach of the Supreme Court towards the concept
of legal aid from a duty of the accused to ask for a lawyer to a fundamental right of an
accused to seek free legal aid. But in spite of the fact that free legal aid has been held to be
necessary adjunct of the rule of law,28 the legal aid movement has not achieved its goal. There
is a wide gap between the goals set and met. There are many hurdles in way of implementing
the idea of legal aid. A very embarrassing debate started on the issue of providing legal aid to
Mohammad Kasab, the alone surviving terrorist involved in the hilarious Mumbai attack.
Several demonstrations were started in the country on the issue of providing lawyer to Kasab.
Even almost all the bar associations passed resolutions against providing legal aid to Kasab.
Some lawyers tried to defend him but they were attacked by the fundamentalists. Thus it
shows that there are still some loopholes in our legal system. Similar was the case of
assassins of Rajeev Gandhi. In this case the legal aid advocates of assassins were paid a
meagre amount where as their counterparts (public prosecutors) were paid very high amount
by the government. On appeal, the Supreme Court held that the nature of work done by the
legal aid advocates are different, and rejected the appeal stating that there was no
discrimination. This judgement is not proper and it shows that despite the several provisions
our legal system is not apt regarding legal aid. There are several problems faced by the
advocates working for legal aid. The first is improper fees, and they could not avail it timely.
So this also creates apathy among lawyers towards legal aid activity as no one would like to
work for freebies and lastly the ultimate sufferers are poor indigent persons and they have to
languish in the jail. The major obstacle to the legal aid 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.
Thus 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.
Because if the poor persons fail to enforce their rights etc. because of poverty, etc. they may
lose faith in the administration of justice and instead of knocking the door of law and Courts
to seek justice, they may try to settle their disputes on the streets or to protect their rights
through muscle power and in such condition there will be anarchy and complete dearth of the
rule of law.

28
Khatri v. State of Bihar, A.I.R. 1981 SC 928

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Thus legal aid to the poor and weak person 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 them opportunity to seek justice.

BIBLIOGRAPHY
BOOKS REFERRED

1. Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd.,
2. Takwani, C.K., ‘CIVIL PROCEDURE CODE, Eastern Book Company, Lucknow,
2008.
3. Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth
Edition, 2005.
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4. D.D. Basu, Shorter Constitution of India, (13th edn. Nagpur: Wadhwa & Company,
2001).
5. H.M. Seervai, Constitutional Law of India Vol. I-III (4th edn., New Delhi: Universal
Law Publishing Co. Pvt. Ltd., 2005).

WEBSITES:

www.legalserviceindia.com

www.indiankanoon.org

www.manupatra.com

CONVENTIONS USED
1. The International Covenant on Civil and Political Rights
2. The European Convention for the Protection of Human Rights and Fundamental
Freedoms (the European Convention)
3. The Convention on the Rights of the Child
4. United Nations Basic Principles on the Role of Lawyers
5. The United Nations Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.
6. United Nations Standard Minimum Rules for the Administration of Juvenile Justice
ARTICLES USED
1. Legal Aid Movement: Its Development and Present Scenario: Swati Vijayvergiya
2. A Brief History of Legal Aid: Varun Pathak
3. Working of Statute of Legal Aid in India: Ishan V Vyas

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