Evolution of Legal Aid System: A critical analysis

Submitted to Dr. Dipak Das

(Subject: Professional Ethics)

Submitted by Anant ekka

Section A

Roll No: 26

Semester X

B.A.LL.B (Hons.)

Submitted on: 06/04/2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G.)

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 Acknowledgement
The successful completion of any task would be, but incomplete, without the mention of
people who made it possible and whose constant guidance and encouragement crowned my
effort with success.

I would like to thank my course teacher Dr. Dipak Das for providing me the topic of my
interest.

Secondly, I would like to thank for providing the best possible facilities of I.T and library in
the university.

I would also like to extend my warm and sincere thanks to all my colleagues, who
contributed in numerable ways in the accomplishment of this project.

Thanking you,

Anant Ekka
Semester X

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 Table of contents

1. Introduction.............................................................................................................4
2. Objectives................................................................................................................5
3. Research Methodology............................................................................................5
4. Chapterisation
Chapter I- Legal aid in pre-independence India....................................................6
Chapter II-Legal aid in post-independence India..................................................7
Chapter III-Legal aid in India: Statutory recognition............................................9
Chapter IV- Legal aid in law Schools...................................................................10
5. Conclusion...............................................................................................................12
6. Bibliography............................................................................................................13

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 Introduction

Looking at legal aid as one of the alternatives has been problematic in two senses.

Firstly, is the “problem of scope” which can be divided into two sub-categories. The first leg
of this is legal aid’s association with the formal adjudicatory system. Due to this, its efforts
have been largely restricted to securing representation in courts. The second leg of this is that
it has further been constrained by limiting its applicability to poverty-related issues.

Secondly, is the “problem of the institutions”. This too can be further sub-divided into two
parts. The first leg relates to State-sponsored Legal Aid which is largely the authorities
established under the Legal Services Authorities Act, 1987. While the original Act creating a
structure for the legal aid authorities, it has been unable to break out of the “problems of
scope”. While the introduction of Lok Adalats has to some extent addressed it, it has not been
able to break out of the poverty rubric. The second leg has been the lack of recognition of the
role of organizations outside the Legal Services Authorities Act, 1987 leading to legal aid
provided by law schools1 to be completely ignored.

Due to the lack of acknowledgement and a clear mandate, these Law School Legal Aid
Clinics have been unable to realize their full potential. It is my claim that clinical legal aid
can assist existing mechanisms such as Lok Adalats as well as be able to provide standalone
preventive and remedial solutions.

I have divided this paper into three parts. In the first part, I look at the evolution of legal aid
in pre-independence India. In the second part, I look at legal in post-independence India. In
the third part, I look at legal aid in law-schools.

1
For the purpose of this paper, by “law schools”, I mean those colleges and Universities offering 3 year and 5
year LLB Programmes, unless otherwise stated.

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 Research methodology

The method of research adopted is analytical &descriptive in nature. Secondary sources of

information have been used to give the research work a concrete structure. Websites &
articles have been extensively referred for relying on the data. Other relevant sources as
suggested by the faculty coordinator have been referred to. Footnotes have been provided
wherever required.

Objectives

1. To study about the history of legal aid in India.

2. To examine the legal provisions in place to provide legal aid to poor and destitute.
3. To review the effectiveness of laws in tacking the challenges.

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 CHAPTER I- LEGAL AID IN PRE-INDEPENDENCE INDIA

Legal aid is a concept which scholars trace back to the East India Company’s assuming
control of the criminal justice system from the hands of the Mughal rulers.2 The transition to
this system, was not by any means smooth. The British justice system, being alien to the
Indians, faced a severe credibility crisis. Even the lawyers who were licensed by the
government to practice in Indian courts were seen as mere tools of the British which used
them to quell any form of dissent.3

The problem of credibility manifested itself in several important political trials such as that of
Bahadur Shah Zafar right after the 1857 revolt wherein he was effectively denied the right to
legal representation and eventually exiled.4 Therefore, it is possible that the first conception
of legal aid comes as a measure to effectively control the Indian populace by restoring their
faith in the justice system.

It is for this purpose that the Code of Criminal Procedure, when first passed in 1898
contained a provision wherein the accused when on trial for a capital offence before the
sessions court, had the opportunity to be represented by a lawyer at the expense of the state.
Such sort of protection however, was discretionary and depended largely on the political
sensitivity of the case. However, considering the limited nature of protection afforded by
such legal aid, many sought to find solutions outside the legislative schemes for legal
representation for the economically worst off. Significant amongst such groups was the
Bombay Legal Aid Society which started in 1924 with the scope of its work being providing
free representation and paying court fees to enable access to justice to the poor. With meager
funding and industrial houses and the Bombay government, it took up the cases of indigent
persons before the Bombay High Court. It was infact this body that recommended that a
system of legal assistance and representation be introduced across India.5

The understanding of legal aid in this period clearly suffered from the problem of scope as it
is court-oriented and poverty-centric.

2
Jain (1989), pp. 134-135.
3
Murlidhar (2004), p. 32
4
Noorani (2005), p. 77. A day after his appointment and meeting Bahadur Shah Zafar, the lawyer was called as
a witness for the prosecution.
5
Murlidhar (2004), p. 36-37.

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 CHAPTER II- LEGAL AID IN POST-INDEPENDENCE INDIA

The newly formed nation of India had more than its fair share of problems. One of these was
the problem of crushing poverty. The story of legal aid in post-independence India therefore
is told through the reports prepared by the government and circulated across various
ministries. In this part, I shall be restricting myself only to the relevant portions of the
important reports on legal aid.

While efforts to increase the effectiveness started as early as 1950 in Bombay and Calcutta,
these efforts focused on the creation of a multi-tiered system of legal representation by the
judiciary but restricted its scope only to those persons who were indigent.6

A meeting of Law Ministers of various states in 1958 culminated into the creation of the
Kerala Legal Aid Rules in 1957 which extended the protection of legal aid to those persons
who were unable to afford access to courts.7

The Law Commission of India in 1958 in its 14th Report devoted a whole chapter to legal
aid. While uncritically consolidating previous initiatives, it called for a graded scheme of fees
for legal to those who were not indigent, but economically weak. 8 However, while
recognizing the role that legal aid clinics played in law schools in the United States, it did not
make any recommendations calling for law schools to be asked to start such clinics in India.

In 1970 the Bhagwati Committee constituted by the Gujarat Government recognized that the
traditional model of legal aid was quite unsuitable to conditions in India which is court
centric. However, it stated that poverty and legal aid could not be divorced from each other.
From the traditional model of “remedial legal aid”, it shifted its focus on “preventive legal
aid”.9 It was here for the first time that alternative dispute resolution was advocated through
the form of legal counselling in the nature of negotiated settlements and compromises.10 This

6
Ibid, p. 37-39
7
While, the scope was still heavily poverty-centric, it was seen as a part of the larger agenda of the Communist
Party’s in the eradication of inequality in society. It is interesting to note that these rues were framed under the
guidance of then Law Minister of Kerala, Mr.V.R. Krishna Iyer. (as he was then).
8
Austin (1999), p. 141.
9
This included within its ambit legal advice, education and representation. Also, it was felt that there is a need
to include those who handled legal aid cases and not just its clients.
10
Murlidhar (2004), p. 49

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is quite significant because the use of alternative dispute resolution mechanisms was for the
first time advocated in the provision of legal aid.
The two-member Juridicare Committee appointed by the Central Government in 1976
recommended that there be established a national-level legal aid programme and for the first
time recognized the role of the law schools in providing legal aid. Its emphasis too was on
preventive legal aid and at the pre-litigation stage by negotiating and conciliating disputes
outside the court. Further, it sought participation of law students and voluntary organisations
in carrying out its recommendations.11

However, to neutralize the effectiveness of this Committee, within 10 days of the Committee
being formed, the 42nd Amendment was passed which, amongst several changes, include
Article 39-A which asked the State to endeavour to provide legal aid. By this move, the
Emergency government largely nullified any real measures suggested by the Committee.12 To
make matters worse, when the Juridicare Committee submitted its report in 1977, the
Government which had appointed it was no longer the in power and while Article 39-A
remained only on paper, and the recommendations of the Committee remained, along with
the draft National Legal Services Bill on the shelf.

The issue was seriously considered again only in 1987 with the passing of the Legal Services
Authorities Act, 1987 (LSAA) was passed to further the State’s commitment under Article
39-A of the Constitution. 13 This act expanded legal aid beyond merely the poverty-based
notion to the disadvantaged groups. 14 Further with the establishment of Lok Adalats and
Permanent Lok Adalats in an Act meant ostensibly for the administering legal aid indicated a
shift away from the court-centric model. Therefore, quite clearly there necessarily has been a
change in the understanding of legal aid provided by the State.

Over the years, the problems of scope have been addressed to some extent as the thrust has
moved away from a mere poverty-centric understanding to a broader understanding of
“disadvantage”. Further, with institutions such as the Lok Adalats being established, there has
11
Murlidhar (2004), p. 49
12
Murlidhar, (2004), p. 65. This committee comprised of Justice P.N. Bhagwati, author of the Gujarat
Committee report and Justice Krishna Iyer, who spear-headed the Kerala Rules and the Expert Committee
reports which in 1976.
13
Murlidhar. p. 68
14
. Statement and Object of reasons of Legal Services Authorities Act, 1987. 14 ss. 12, 13 Legal Services
Authorities Act, 1987.

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been a shift away from the court-oriented model of legal aid reducing to some extent the
problems of scope. However, the, the role of clinical legal aid has been completely ignored
under the LSAA.

CHAPTER III-LEGAL AID IN INDIA: STATUTORY RECOGNITION

Though there was a statutory procedure providing free legal aid 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 beggar 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 Government. This limit on income can be increased by the state governments.
Limitation as to the income does not apply in the case of persons belonging to the scheduled
castes, scheduled tribes, women, children, handicapped, etc. Thus by this the Indian
Parliament took a step forward in making the legal aid possible in the country. According to
the Act the ‘court’ is a civil, criminal or revenue court and includes any tribunal or any other
authority constituted under any law for the time being in force, to exercise judicial or
quasijudicial functions. Under the Act ‘legal service’ includes the rendering of any service in
the conduct of any case or other legal proceeding before any court or other authority or
tribunal and the giving of advice on any legal matter. Legal Services Authorities after
examining the eligibility criteria of an applicant and the existence of a prima facie case in his
favour provide him counsel at State expense, pay the required Court Fee in the matter and

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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.

CHAPTER IV-LEGAL AID IN LAW SCHOOLS

The role which the law schools play in the provision of legal aid has been an aspect which
has largely been ignored in academic discourse. Lesser still has been written about their role
in alternative dispute resolution in India. It is due to the lack of recognition of the role that
Clinical Legal Aid plays that the problems of the institutions continue to plague legal aid in
India.

The role of law schools in training lawyers is a concept which is relatively new. Law schools
traditionally taught the theory of the law while the job of training of legal professionals was
left to the Bar in the form of apprenticeships. 15 This changed to some extent with the
introduction of the case-book method in the 1900s at Harvard. However, this was found to be
insufficient and a need was felt to counter-balance this with practical experience. 16 The
solution was found in the form of “legal dispensaries” or clinics, inspired by the model of
free medical aid in medical colleges. Here, poor persons could come for free consultation and
advice.17 While most of the work of these clinics focused on poverty-based issues, the bulk of
it was in the nature of counselling which was not court-centric.

With the growing demand for “relevance in education” legal education shifted its attention to
social issues. Over the years, due to the specializations in various areas of law, there has been
a diversification in the areas in which these clinics operate and range from areas as diverse as
taxation and intellectual property to a specialized branch called “street legal aid” wherein
day-to-day issues as well as poverty-centric issues are addressed. These clinics exist in many

15
15Dubin (1998), pp. 1463-1466.
16
“The clinic thus becomes a 'case book' - not, however, of dead letters descriptive of past controversies, but
always of living issues in the throbbing life of the day, the life the student is now living.", William Rowe,
quoted in Barry, Margaret et al.(2000), p. 7.
17
Dubin (1998), p. 1463.

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different forms, depending on local social and political circumstances and sometimes the
available sources of funding.18

The origins of legal education in India, however, are quite different. Legal education in India
followed the general colonial model of producing clerks, not managers. Its primary goal was
to support the existing financial interests of England, certainly not to reform the local legal
profession or promote some sense of social justice. While at the time of independence, there
were approximately 500 law schools operating in India and there was a real chance that they
could be used to promote social justice initiatives through the tool of legal aid. However, due
to the inability of the law schools as well as be body governing them, the Bar Council of
India, to provide professional and infrastructural support, this was not transformed into
reality.

However, this regulation remains largely on paper and has not been seriously implemented.
Whatever little has happened however, is that initiatives such as those by the Delhi
University which follow the traditional model of legal aid have been replicated. It is my claim
therefore, that there needs to be a serious rethinking about clinical legal aid as it has for the
most part failed capture the essence of the dynamism is the field of legal education which was
sought to be brought about by setting up of law schools across the country. Therefore, the
conflation which exists between Clinical Legal Aid and State-sponsored legal aid must be
resolved thereby setting to rest the problems of the institution because while State-sponsored
legal aid is statute-based and therefore heavily bureaucratic, Clinical Legal Aid due to the
lack of regulation offers much more flexibility which goes unutilized.

18
Bloch (2008), p. 123.

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 CONCLUSION

Through the course of this paper, I have tried to look at the role of legal aid in India and
development of alternative dispute resolution mechanisms. The conclusions which I have
come to at the end of this analysis are as follows.

Firstly, legal aid in India started as a means to quell political dissent under the British rule.
Subsequently too, the understanding of legal aid was restricted to that of representation
before the courts of persons who were unable to represent themselves.

Secondly, after independence, legal aid in India tried to address the problems of poverty
through the State institutions. The Juridicare Committee which brought forth some
revolutionary changes in this system was not seriously implemented.

Thirdly, legal aid offered by the law schools followed the poverty-centric court-oriented
model in the 1960s and this has been sought to be replicated over time. After the
establishment of various national law schools across the country, there has not been a serious
discussion of the role that legal aid clinics play.

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 Bibliography

 Austin, Granville, Working a Democratic Constitution, Oxford India Paperbacks,

New Delhi, 1999.
 Bar Council of India, Rules on Legal Education, 2008.
 Legal Services Authorities Act, 1987
 Noorani, A.G, Political Trials in India, Oxford University Press, New Delhi, 2005.
 Jain, M.P., Outlines of Indian Legal History, Fifth Edition, Wadhwa, Nagpur, 1989.
 Murlidhar, S., Law Poverty and Legal Aid, Lexis Nexis, Butterworth, New Delhi,
2004.
 Law Commission of India, 14th Report, Reforms of the Judicial Administration,
1958.
 Bloch, Frank and M.R.K. Prasad, “Institutionalizing a Social Justice Mission for
Clinical Legal Education: Cross-national Currents from India and the United States”,
2006, Clinical Law Review Volume 13, p.165.
 Barry, Margaret et al., “Clinical Education for this Millennium: The Third Wave”,
2000, Clinical Law Review, Volume 7, p. 1,
 Dubin John, “Clinical Design for Social Justice Imperatives”, 1998, Southern
Methodist University Law Review, Volume 51, 1461.
 Bloch, Frank, “New Directions in Clinical Legal Education- Access to Justice and
the Global Clinical Movement”, 2008, Washington University Journal of Law And
Policy, Volume 28, p. 111

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