Subject Public Interest Litigation

Topic- LEGAL AID

(Back Paper Project)

Submitted to :

Submitted by
Pulkit Pareek

(Asst. Prof.)

B.A.LL.B(5th Sem)

DECLARATION
I declare that the dissertation entitled LEGAL AID is the outcome of my own work conducted
under the supervision of at Jaipur National University, Jaipur.
I further declare that to the best of my Knowledge the dissertation does not contain any part of
any work, which has been submitted for the award of any degree either in this University or in
any other University / Deemed University without proper citation.

Pulkit Pareek

CERTIFICATE OF THE SUPERVISOR

This is to certify that the research work entitled LEGAL AID is the work done by Pulkit
Pareek under my guidance and supervision for the Partial fulfilment of the requirement of B.A.,
LL.B. degree of Jaipur National University, Jaipur (Raj) India.
To the best of my Knowledge and belief the project: (i) embodies the work of the candidate
himself; (ii) has been duly completed; and (iii) is up to the standard both in respect of contents
and language for being referred to the examiner.

Assistant Professor

ACKNOWLEDGEMENT
I would like to express profound gratitude to, for his invaluable support, encouragement,
supervision and useful suggestions throughout this research work. His moral support and
continuous guidance enabled me to complete my work successfully. His intellectual thrust and
blessings motivated me to work rigorously on this study. In fact this study could not have seen
the light of the day if his contribution had not been available. It would be no exaggeration to say
that it is his unflinching faith and unquestioning support that has provided the sustenance
necessary to see it through to its present shape.
I am grateful to our Honble Director Prof. Dr. V.S. Mani for his evincing keen interest in
the B.A.LL.B course and continuous encouragement given during our period of study.
I must also thank and express my heartfelt gratitude to the library staff Jaipur National
University, for helping me out in carrying out the research necessary for the Project.
I express my deep sincere gratitude towards my parents for their blessing, patience, and moral
support in the successful completion of B.A.LL.B course.
I express my gratitude to my all teachers and friends who has supported and encouraged me
during my study at Jaipur National University, Jaipur

TABLE OF CONTENTS
1. Introduction..............................................................................
......................................... 2
1.1

The concept of legal

aid.................................................................................................
2
2. History of Legal Aid in
India........................................................................................... 4
2.1

Contributions Made By Justice V.R.Krishna Iyer To The

Development Of Legal
Aid......
7
2.2

Contributions Made By Justice P.N.Bhagwati To The

Development Of The Concept Of Legal AidReport

2.3

Supreme Court On Legal

Aid..................................................................................... 12
3. Major statutes and legal aid movements that promote legal aid
in India...18
4. Conclusion Future of Legal Aid in
India.................................................................... 19
5

5. References................................................................................
........................................ 20
5.1

Internet

Resources.......................................................................................
................ 20
5.2

Cases

Referred.........................................................................................
.................... 20

1. INTRODUCTION
Legal aid is the provision of assistance to people otherwise unable to afford legal representation
and access to the court system. Legal aid is regarded as central in providing access to justice by
ensuring equality before the law, the right to counsel and the right to a fair trial.

A number of delivery models for legal aid have emerged, including duty lawyers, community
legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to
legal aid.1

1.1The concept of legal aid

The concept of legal aid is in the form of Article 39A into our constitutional framework. Hence,
legal aid is not a charity or bounty, but is a constitutional obligation of the state and right of the
citizens. The problems of human law and justice, guided by the constitutional goals to the
solution of disparities, agonies, despairs, and handicaps of the weaker, yet larger brackets of
Bharats humanity is the prime object of the dogma of 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. It is the duty of the
State to see that the legal system promotes justice on the basis of equal opportunity for all its
citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due
to economic and other disabilities.2
Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in
various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were
drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated
through Legal Aid Boards, Societies and Law Departments.
In 1980, a Committee at the national level was constituted to oversee and supervise legal aid
programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati
1Retrived from http://www.expertlawyer.in/legal-aid-in-india.aspx/ dated on April 14, 2013, at 07: 34 pm
2Retrived from http://www.lawyersclubindia.com/articles/Free-Legal-Aid5166.asp#.UWpqLLVaZSg/ dated on April 14, 2013, at 08 :00 om
7

then a Judge of the Supreme Court of India. This Committee came to be known as CILAS
(Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities
throughout the country. The introduction of Lok Adalats added a new chapter to the justice
dispensation system of this country and succeeded in providing a supplementary forum to the
litigants for conciliatory settlement of their disputes. In 1987 Legal Services Authorities Act was
enacted to give a statutory base to legal aid programs throughout the country on a uniform
pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were
introduced therein by the Amendment Act of 1994.3

Contributions Made By Justice V.R.Krishna Iyer:

The contribution of justice Krishna Iyer towards the development and incorporation of the
concept of legal aid in the Indian legal system has been tremendous. His report titled
Processionals justice to poor has gone a step further in enabling the recognition of the poor for
the purpose of giving legal aid.
Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee
was formulated as on the 22nd day of October 1972. The Committee after conducting sample
surveys of large part of the country submitted a 275 page report to the Government on the 27th
day of May, 1973. This report came to mark the cornerstone of Legal Aid development in India.
The report clearly laid down that it is a democratic obligation of the State towards its subject to
ensure that the legal system becomes an effective tool in helping secure the ends of social
justice.4

3Retrived from http://www.legalserviceindia.com/articles/laid.htm/ dated on April 14, 2013, 09: 43 pm

4Retrived from http://www.lawyersclubindia.com/articles/Free-Legal-Aid5166.asp#.UWpqLLVaZSg/ dated on April 14, 2013, at 10: 20
8

The Legal Aid is not a matter of charity but it can be claimed as a matter of Right. In
Constitution of India, there was no express provision dealing with the concept of Legal Aid.
42nd Amendment Act, 1976, inserted a new Article 39 (A) in the Constitution of India this way a
significant step in the direction of Constitutionalisation of Legal Aid. The relevant provisions in
the Code of Criminal Procedure and the Code of Civil Procedure have also amended for securing
equal and social Justice in criminal as well as civil cases.5

2. HISTORY OF LEGAL AID IN INDIA

Legal aid is the provision of assistance to people otherwise unable to afford legal representation
and access to the court system. Legal aid is regarded as central in providing access to justice by
ensuring equality before the law, the right to counsel and the right to a fair trial.
A number of delivery models for legal aid have emerged, including duty lawyers, community
legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to
legal aid.
The earliest Legal Aid movement appears to be of the year 1851 when some enactment was
introduced in France for providing legal assistance to the indigent. In Britain, the history of the
organised efforts on the part of the State to provide legal services to the poor and needy dates
back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee to
enquire about the facilities existing in England and Wales for giving legal advice to the poor and
to make recommendations as appear to be desirable for ensuring that persons in need of legal
advice are provided the same by the State.
Legal aid has a close relationship with the welfare state and the provision of legal aid by a state
is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people
5Retrived from http://legalaidinindia.weebly.com/chapter-ii.html/ dated on April 14, 2013, on 10: 40 pm
9

who could otherwise not afford access to the legal system. Legal aid also helps to ensure that
providing people entitled to welfare provisions, such as social housing, with access to legal
advice and the courts, enforces welfare provisions. Historically legal aid has played a strong role
in ensuring respect for economic, social and cultural rights which are engaged in relation to
social security, housing, social care, health and education service provision, which may be
provided publicly or privately, as well as employment law and anti-discrimination legislation.
Jurists such as Mauro Cappelletti argue that legal aid is essential in providing individuals with
access to justice, by allowing the individual legal enforcement of economic, social and cultural
rights. His views developed in the second half of the 20th Century, when democracies with
capitalist economies established liberal welfare states that focused on the individual. States
established themselves as contractors and service providers within a market based philosophy
that emphasized the citizen as consumer. This led to an emphasis on individual enforcement to
achieve the realization of rights for all.6
Prior to the mid-20th Century literature on legal aid emphasized collective enforcement of
economic, social and cultural rights. As classic welfare states were built in the 1940s it was
assumed that citizens had collective responsibility for economic, social and cultural rights and
the state assumed responsibility for those unable to provide for themselves through illness and
unemployment. The enforcement of economic, social and cultural rights was to be collective,
through policies rather than individual legal action. Laws were enacted to support welfare
provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes
were established as it was assumed that the state had a responsible to assist those engaged in

6Regan, Francis (1999). The transformation of legal aid: comparative and historical studies. Oxford University
Press. pp. 8990.

10

legal disputes, but they initially focused primarily on family law and divorce. 7 In the 1950s and
1960s the role of the welfare state changed and social goals were no longer assumed to be
common goals. Individuals were free to pursue their own goals. The welfare state in this time
expanded along with legal aid provisions as concerns emerged over the power of welfare
providers and professionals. This led to increasing calls in the 1960s and 1970s for the right of
individuals to legally enforce economic, social and cultural rights and the welfare provisions they
as individuals were entitled to. Mechanisms emerged through which citizens could legally
enforce their economic, social and cultural rights and welfare lawyers used legal aid to advice
those on low income when dealing with state officials. Legal aid was extended from family law
to a wide range of economic, social and cultural rights.8
In the 1980s the role of the classic welfare state was no longer regarded as necessarily positive
and welfare was increasingly provided by private entities. This led to legal aid being increasingly
provided through private providers, but remained focused on providing assistance in court cases.
Citizens were increasingly regarded as consumers, who should be able to choose among services.
Where it was not possible to provide such a choice citizens were given the right to voice their
dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid
was not designed to offer advice to those seeking redress through administrative complaints
processes. Tensions also began to emerged as states which emphasised individual enforcement of
economic, social and cultural rights, rather than collective enforcement through polices, reduced
funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement
7Regan, Francis (1999). The transformation of legal aid: comparative and historical studies. Oxford
University Press. p. 90-91
8Regan, Francis (1999). The transformation of legal aid: comparative and historical studies. Oxford
University Press. p. 90-91
11

requires the kind of legal aid funding states emphasising collective enforcement were more likely
to provide.9
One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on
the road. Justice Blackmun in Jackson v. Bishop says that; "The concept of seeking justice
cannot be equated with the value of dollars. Money plays no role in seeking justice."10
Article 39A of the Constitution of India provides that 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 disability. Articles
14 and 22(1) also make 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. Sec. 304, Criminal Procedure Code:
The Constitutional duty to provide legal aid arises from the time the accused is produced before
the Magistrate for the first time and continues whenever he is produced for remand.11
Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in
various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were
drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated
through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at the national
9Regan, Francis (1999). The transformation of legal aid: comparative and historical studies. Oxford
University Press. p. 91
10Jackson v. Bishop, United States district court for the eastern district of Arkansas, pine bluff division.
268 f.supp. 804, 1967 u.s.dist.lexis 8276
11Retrieved from http://www.goforthelaw.com/articles/fromlawstu/article20.htm on 2nd april, 2013.
12

level was constituted to oversee and supervise legal aid programmes throughout the country
under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of
India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid
Schemes) and started monitoring legal aid activities throughout the country. The introduction of
Lok Adalats added a new chapter to the justice dispensation system of this country and
succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their
disputes. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid
programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th
of November 1995 after certain amendments were introduced therein by the Amendment Act of
1994.12

12Retrieved from http://nalsa.gov.in/ on 2nd april, 2013.

13

2.1Contributions Made By Justice V.R.Krishna Iyer To The Development Of

Legal Aid
The contribution of justice Krishna Iyer towards the development and incorporation of the
concept of legal aid in the Indian legal system has been tremendous. His report titled
Processionals justice to poor has gone a step further in enabling the recognition of the poor for
the purpose of giving legal aid.
In a report on Free Legal Aid in 1971, Justice Bhagwati observed " even while retaining the
adversary system, some changes may be effected whereby the judge is given greater
participatory role in the trail so as to place poor, as far as possible, on a footing of equality with
the rich in the administration of justice."

A similar report of the Committee on Legal Aid titled "processionals justice to poor" presided
over by Krishna Iyer in 1973, dealt with the nexus between law and poverty, and spoke of PIL in
this context. It emphasized the need for active and widespread legal aid system that enabled law
to reach the people, rather than requiring people to reach the law.
The two judges joined forces as a two member committee on juridicare, released its final report
in August 1977. The report while emphasizing the need for a new philosophy of legal service
programme cautioned that it must be framed in the light of socio-economic conditions
prevailing in the Country. It further noted that the traditional legal service programme which is
essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems

14

of the poor in our country. The report also included draft legislation for legal services and
referred to Social Action Litigation.13
Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee
was formulated as on the 22nd day of October 1972. The Committee after conducting sample
surveys of large part of the country submitted a 275 page report to the Government on the 27th
day of May, 1973.14 This report came to mark the cornerstone of Legal Aid development in India.
The report clearly laid down that it is a democratic obligation of the State towards its subject to
ensure that the legal system becomes an effective tool in helping secure the ends of social justice.
He coined the word "Juridicare" to cover a scheme of legal aid which brought justice to the
doorstep of the lowly and which was comprehensive in its coverage.15

The report clearly suggests the colonial hangover of the Indian legal system which has prevented
it from realising its true potential and extent. It also recognises the fact that much of our law was
created by the British to suit their convenience and as a result of this it is mostly insensitive to
the socio-economic problems of the masses it set out to govern and regulate.16
The 14th Law Commission Report stated the fact that if laws do not provide for an equality of
opportunity to seek justice to all segments of society the have no protective value and unless

13Jain, Shubham. Free Legal Aid. Retrieved from http://www.lawyersclubindia.com/articles/FreeLegal-Aid-5166.asp#.UWPj_4JMZsk on 2nd april, 2013.
14Ibid.
15Jain, Shubham. Free Legal Aid. Retrieved from http://www.lawyersclubindia.com/articles/FreeLegal-Aid-5166.asp#.UWPj_4JMZsk on 2nd april, 2013.
16Ibid.
15

some arrangement is made for providing a poor man the means to pay Court fees, advocates fees
and other incidental costs of litigation, he is denied an opportunity to seek justice.
Justice Krishna Iyer rightly observed that, "Such a consummation, a proposition to which we are
constitutionally dedicated is possible only through an activist scheme of legal aid, conceived
wisely and executed vigorously."17 He went on to state that Law and Justice cannot be regarded
as two separate wings any longer and that it had become necessary that they in unison work
towards resurrecting the faith of the poor man in the legal system by providing him with
adequate non- Governmental as well as Governmental assistance.18

In backward areas, legal advice bureau should be established in each development block. The
report encourages the involvement of law students in legal aid schemes particularly for
preventive legal services. Public law service should be an alternative available as against the
private bar and legal services authority should fix the fees payable to the lawyer.

2.2Contributions Made By Justice P.N.Bhagwati To The Development Of The

Concept Of Legal Aid-Report
Justice P.N. Bhagwati practiced at the High Court, Bombay; he became a Judge of the Gujarat
High Court on 21st July 1960, and became Chief Justice of Gujarat on 16th September 1967. On
17th July 1973, he became the judge of the Supreme Court of India. He was also Chairman of the
Legal Aid Committee appointed by the Government of Gujarat for suggesting ways and means of
17Iyear, Krishna and Krishna Swamy. VR Krishna Iyer-A Living Legend. Universal Law Publishing,
2008.
18Ibid.
16

providing free legal aid and advice to the poor and weaker section of the community; and also
acted as Chairman of the State Legal Aid Committee for running the Pilot Project of free Legal
Aid and Advice in Gujarat.19He worked successfully to build up an elaborate legal aid
programme. He is widely regarded as the originator of Indias legal aid programme, including
setting up of legal aid camps in rural areas, working with NGOs, establishing legal aid clinics
etc.20
There was unanimous decision of the Committee that the State should regard it as an obligation
to provide legal assistance to the poor and indigent. It stated that this obligation of the State was
not merely, socio-economic or political but is also constitutional by reason of Articles 14 and
22(1}.
Further the report stated that the legislation and rules so made by the government should not be
another piece of legislation made with the reference of any foreign legislation, as there is a
marked difference between socio-economic conditions prevailing in advanced countries and
those prevailing in developing countries like India.

It also emphasized on having legal aid programmes and that the organization for effectuating the
legal service programme must be responsive to the poor in giving legal service and must not be
mechanical and wooden in its approach. Even after, such a programme is introduced there must
be a continues examination of its utility and its responsiveness to the poor.
The report also in detail stated the constitution and the working of different legal committees:

19retrieved from http://advfazalabdali.blogspot.in/ on 2nd april, 2013.

20Ibid.
17

(a) The Taluka Legal aid Committee.- It was recommended that there shall be a Taluka Legal
Aid Committee in every Taluka having a court of Civil Judge (Junior Division) or Judicial
magistrate, It shall have power to deal with the applications for legal aid in proceedings before
the taluka court as also before the Tenancy Tribunal situated within the taluka.
The presiding Judge or Magistrate should be the ex-officio member and Chairman and the other
members of the Committee shall be (i) the President of the Taluka Bar Association ex-officio or a
senior lawyer practicing in the Taluka court,
(ii) one other lawyer practicing in the Taluka Court
(iii) one retired Judge or Magistrate, if available, and
(iv) one and if no retired Judge of or Magistrate is available, two social workers or public spirited
citizens. The members of the Taluka Legal Aid Committee would work in honorary capacity and
they would ordinarily hold office for a period of three years. Its accounts were also to be audited
annually by the Government auditor along with the audit of the accounts of the Taluka Court.
The Secretary of the Taluka Legal Aid Committee was to be appointed with the prior approval of
the District Legal Aid Committee.
(b) The District Legal aid Committee - The same provisions was applicable mutatis mutandis
in respect of the District Legal Committee. Apart from the District Judge and the president of the
District Bar Association, one more lawyer, a retired Judge or Magistrate or two social workers,
the other members of the Committee was to be the Government Pleader of the District Court exofficio, the President of the District Panchayat ex-officio and the Principal or a teacher of law
college selected by the district judge.
(c) The State Legal Aid Committee - It was to be at the apex of the entire Legal Aid
Organization and was suggested to be a High power Body composed of different social interests

18

dedicated to the cause of administration of legal aid. It was to have as its Chairman the Chief
Justice or a High Court Judge nominated by him. The other members of the Committee
constituted of the Advocate General, President of the High Court Bar Association or the VicePresident, Chairman of State Bar Councilor the Vice-Chairman, one senior member of the High
Court Bar, three members of the mofussil Bar, one District Government Pleader, District Judges
of Rajkot, Baroda and Surat, Secretary, Legal Department and Finance Secretary of the State
Government, two members of the State Legislative Assembly, Director of Backward Classes,
four social workers and a teacher of law. This Committee was to have mainly supervisory
functions and lay down policies and principles for the administration of the Legal Aid Scheme.
There was to be a State Director of Legal Aid responsible for the actual administration of the
Legal Aid Programme within the State and was to be the Chief Executive Officer of the State
Legal Aid Committee. The Committee was to exercise control over all the Legal Aid Committee
in the State, and similarly the Taluka Legal Aid Committees shall be under the control and
supervision of the District Legal Aid Committee.21

2.3

Supreme Court on Legal Aid

The linkage between Article 21 and the right to free legal aid was forged in the decision in
Hussainara Khatoon v. State of Bihar where the court was appalled at the plight of thousands of
undertrials languishing in the jails in Bihar for years on end without ever being represented by a
lawyer. The court declared that "there can be no doubt that speedy trial, and by speedy trial, we
mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life
and liberty enshrined in Article 21.22 " 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
21pathak, Varun. Retrieved from http://www.legalserviceindia.com/articles/laid.htm on 2nd april, 2013.
19

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".23
Further in the case of Hussainara Khatoon & Ors. (V) v. Home Secretary, State of Bihar,24 Patna
Justice Bhagwati held that: "its 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."25
In Khatri & Others v. St. of Bihar & others26Bhagmati J. observed;

22Retrieved from http://www.google.co.in/url?

sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0CEQQFjAC&url=http%3A%2F
%2Flawcommissionofindia.nic.in%2Freports%2F189th%2520Report%2520on%2520Revison%2520of
%2520Court%2520fee.pdf&ei=kdjUfnpLcLmrAe464HIBQ&usg=AFQjCNEueSr4qUzUl8f9IMSpEQQ16BWfGQ&sig2=A3UdXbwPdi8v
nLypM6x7EQ&bvm=bv.44990110,d.bmk on 2nd april, 2013.
23India Law Commission paper. Retrieved from http://www.docstoc.com/docs/42445543/India-LawCommission-paper on 2nd april, 2013.

241979 AIR 1369, 1979 SCR (3) 532

251979 AIR 1369, 1979 SCR (3) 532.
20

Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoons
Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is
arrested and is produced before a magistrate for it is at this stage that he gets the 1st opportunity
to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the
stage at which and accused person needs competent legal advice and representation. No
procedure can be said to be just, fair and reasonable which denies legal advice representation to
the accused at this stage. Thus, state is under a constitutional obligation to provide free to aid to
the accused not only at the stage of.... Every individual of the society are entitled as a matter of
prerogative.27
In Indira Gandhi v. Raj Narain28 the Court said:
"Rule of Law is basic structure of constitution of India. Every individual is guaranteed the give
to him under the constitution. No one so condemn unheard. Equality of justice. There ought to be
a violation to the fundamental right or prerogatives, or privileges, only then remedy go to Court
of Law. But also at the stage when he first is produced before the magistrate. In absence of legal
aid, trial is vitiated."29

The court should expand the jurisprudence of access to justice as an integral part of social justice
and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in
261981 SCR (2) 408, 1981 SCC (1) 627.
27Khatri & Others v. St. of Bihar & others, 1981 SCR (2) 408, 1981 SCC (1) 627, retrieved
from http://indiankanoon.org/doc/1122133/ on 2ndapril, 2013.

28AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347.

29AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347.

21

nation's constitution. If the state itself should travesty this basic principle, in the teeth of articles
14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The
court must give the benefit of doubt against levy of a price to enter the temple of justice until one
day the whole issue of the validity of profit-making through sale of civil justice, disguised as
curt-fee, is fully reviewed by the supreme court. Before parting with this point the court must
express 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 into force
by wilful default in fulfilling the conditio sine qua non. It is a 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. It is a 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.30

30pathak, Varun. Retrieved from http://www.legalserviceindia.com/articles/laid.htm on 2nd april, 2013.

22

3.

MAJOR

STATUTES

AND

LEGAL

AID

MOVMENTS

THAT

PROMOTE LEGAL AID IN INDIA

The National Legal Services Authority (NALSA) has been constituted under the Legal Services
Authorities Act, 198731to provide free Legal Services to the weaker sections of the society and to
organize Lok Adalats for amicable settlement of disputes.
Honble Mr. Justice Altamas Kabir, the Chief Justice of India is the Patron-in-Chief and Honble
Mr. Justice P. Sathasivam, Judge, Supreme Court of India is the Executive Chairperson of the
Authority. NALSA is housed at 12/11, Jam Nagar House, New Delhi-110011.
In every State, State Legal Services Authority has been constituted to give effect to the policies
and directions of the NALSA and to give free legal services to the people and conduct Lok
Adalats in the State. Honble the Chief Justice of the respective High Court who is the Patronin-Chief of the State Legal Services Authority heads the State Legal Services Authority.
In every District, District Legal Services Authority has been constituted to implement Legal
Services Programmes in the District. The District Legal Services Authority is situated in the
District Courts Complex in every District and chaired by the District Judge of the respective
district.

31nalsa.gov.in/
23

4. CONCLUSION
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,32 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 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. Thus legal aid to
the poor and weak person is necessary for the preservation of rule of law which is necessary for

32Khatri v. State of Bihar, A.I.R. 1981 SC 928

24

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.33

5. REFERENCES
5.1Bibliography
1. Regan, Francis (1999). The transformation of legal aid: comparative and historical studies.
Oxford University Press.
2. Jackson v. Bishop, United States district court for the eastern district of arkansas, pine bluff
division. 268 f.supp. 804, 1967 u.s.dist.lexis 8276
3. Iyer, Krishna and Krishna Swamy. VR Krishna Iyer-A Living Legend. Universal Law
Publishing, 2008.
4. Public Interest Litigation Legal Aid and Lok Adalats, Mamta Rao, Eastern Book company.
5. S.Muralidhar: Law, Poverty and Legal Aid Access to Criminal Justice.

5.2 Internet Resources

1.

www.legalserviceindia.com

2.

www.lawyrs.net

3.

www.legalserviceindia.com
33Rawls, John. A Theory of Justice: Universal Law Publishing Co. Pvt. Ltd. Delhi, 2000. Print.
25

4.

http://www.legalserviceindia.com/articles/laid.htm

5.

nalsa.gov.in/

6.

http://www.google.co.in/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0CEQQFjAC&url=http%3A%2F
%2Flawcommissionofindia.nic.in%2Freports%2F189th%2520Report%2520on%2520Revison
%2520of%2520Court%2520fee.pdf&ei=kdjUfnpLcLmrAe464HIBQ&usg=AFQjCNEueSr4qUzUl8f9IMSpEQQ16BWfGQ&sig2=A3UdX
bwPdi8vnLypM6x7EQ&bvm=bv.44990110,d.bmk on 2nd april, 2013.

7.

http://www.expertlawyer.in/legal-aid-in-india.aspx/

8.

http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.UWpqLLVaZSg/

9.

http://www.legalserviceindia.com/articles/laid.htm/

10. http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.UWpqLLVaZSg/
11. http://legalaidinindia.weebly.com/chapter-ii.html/
12. http://www.goforthelaw.com/articles/fromlawstu/article20.htm
13. http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#.UWPj_4JMZsk
14. http://advfazalabdali.blogspot.in/
15. http://www.legalserviceindia.com/articles/laid.htm
16. http://www.docstoc.com/docs/42445543/India-Law-Commission-paper
17. http://indiankanoon.org/doc/1122133/
18. http://las-letsgettalking.blogspot.in
5.3 Cases Referred
1.

AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347

2.

1979 AIR 1369, 1979 SCR (3) 532

26

3.

1979 AIR 1369, 1979 SCR (3) 532

4.

1981 SCR (2) 408, 1981 SCC (1) 627

5.

AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347

6.

AIR 1979 S.C. page 1371

7.

AIR 1981 S.C. at page 926

8.

AIR 1986 S.C. at page 991

9.

AIR (1978) 3 SCC 544

27