Subject Name Law

Paper Name Access to Justice

Module Name/Title
Pre-requisites
Access to Justice Developments: Post 1976
Understanding of the concept of justice and need of
Legal aid
• To analyse the Expert Committee Report(National
Judicare: Equal Justice-Social Justice)

· To comprehend the suggestions of Expert

Committee Report(National Judicare: Equal Justice-
Social Justice)

• To understand the working of Committee for

Implementing Legal Aid Scheme
Objectives
• To know the contribution of Committee for
Implementing Legal Aid Scheme in implementation
of Legal Services Authorities Act, 1987

• To highlight the conference of all the chairpersons of

State Legal Aid Committee under the Chairmanship
of the Hon'ble Chief Justice of India for amending the
Legal Services Authorities Act, 1987
Free legal aid, Legal aid committee, Pauper, Court
Keywords
fees, Legal aid advocate
Introduction

The access to justice concept was formally introduced in India by Bombay Legal Aid Society
and further developed by many other committees reports like Bombay Committee Report, West
Bengal Legal Aid Committee initiatives, Fourteenth Law Commission Report, Central
Government’s efforts from1952 to 1957, Outline of a Scheme for Legal Aid to the Poor (1960),
Report of Commission of Scheduled Castes and Scheduled Tribes and Free Legal Aid Bill, 1970,
Gujarat Committee report, Expert Committee Report (Processual Justice To The People),
Rajasthan Committee Report, National Forum for Lawyers, Swaran Singh Committee and The
Forty-Second Amendment till 1976. The concept of Access to Justice finally got its present
shape from the report of Expert Committee(National Judicare: Equal Justice-Social Justice)
constituted in the year 1977.The implementation of uniform legal aid program throughout India
was another challenge after the recognition of legal aid program. This task of uniform
implementation of legal aid program was taken up by Committee for Implementing Legal Aid
Scheme. Still there were certain hindrances which highlighted the need of statutory provisions
for uniform implementation of legal aid program in India. This led to the enactment of Legal
Services Authorities Act, 1987. Due to certain reasons Legal Services Authorities Act, 1987
could not be enforced immediately. To remove these reasons a conference of all the chairpersons
of State Legal Aid Committee under the Chairmanship of the Hon'ble Chief Justice of India was
convened for amending the Legal Services Authorities Act, 1987 and finally it could be enforced
in the year 1995 after certain amendments.

Expert Committee Report

(National Judicare: Equal Justice-Social Justice)

One more Expert Committee was constituted in 1977 by the Government of India. Themes and
issues of this committee stated that democracy cannot ignore the social, economic and political
imperatives. The active protection of equal laws and the socio-economic equality can become a
living reality only if free legal services to the weaker sections of the community are guaranteed
as a State responsibility. Access to justice without heavy court fee, logistic hurdles and early
litigative finality must be assured. The theme of panchyati justice must claim primary attention. 

The committee was of view that there should be considerable reduction in the rate of court fee
for all and a blanket exemption from payment of such fee for every one below the poverty line
when he seeks redressal before a court, tribunal or other authority. Illiterate, backward, socially
suppressed and geographically handicapped must be given special assistance like the
economically poor. Free legal services may have to be provided for Jawans families.
Independent treatment is necessary for the problem arising in the context of Legal Aid to labour.
Other categories deserving Legal Aid are women, children, religious, linguistic and other
minorities.

Role of NGO and Law Schools in Promoting Access to Justice

The committee suggested that the role of voluntary professional and social Welfare agencies
could not be ignored in the successful implementation of legal services programmes. Voluntary
wings of the Bar, willing to undertake legal services must be mobilised so that the totality of the
Legal Aid programme may have the full backing of the Bar. Law schools may fulfill a useful
function in the Legal Aid programme. It also stated that expenditure on Legal Aid was not likely
to be burdensome and every rupee laid out for legal aid was a revolutionary rupee spent on
upliftment of the poor through law and justice.

It stressed on the introduction of legal services clinics in law schools as part of curricular
instruction in professional education. It stated that there is need to reform the system of legal
education in the direction of making it poverty-oriented, multi disciplinary and related to actual
social conditions. It is of immense importance that there should be university and law college
schemes for conversion of the enthusiasm of the law student into a potent resources on behalf of
the poor and indigent. Participation of law students in the legal service programme would enable
the legal services organisation to serve the community at minimal cost. Through their
involvement in legal service activities as students during the formative period of their
professional career, they would develop a deep sense of personal responsibility to assist in
imparting justice. If the University or College management is not in a position to finance the
legal services clinic, the National Council of Legal Services Clinics or the State Council of Legal
Services Clinics should subsides its working by making suitable grants.

It also recommended that Suitable provision can be made in the Advocates Act. Students of the
third year L.L.B class who are participating in the activities of the legal services clinic and who
have been certified by the Dean or the Principal shall be entitled to appear in any court or
tribunal on behalf of a poor person, provided that such representation shall be under the
supervision of lawyers associated with the legal services clinic and with the approval of the
judge in whose court the student appears.

Underscoring the importance of implementation mechanism it suggested that it is necessary that

there should be a National Council of Legal Services Clinics at the National level and State
Council of Legal Services Clinics in each State which would promote the movement for setting
up legal services clinics, offer guidance to universities in establishing legal services clinics, assist
legal services clinics in resolving the difficulties which may arise in their working, prepare
programme-scripts for students working in legal services clinics, establish workshops for law
teachers and academicians operating legal services clinics and carry on research in improving the
objective realisation techniques.

Uniform Pattern of Legal Service Program

It suggested that the organisational set up of the legal services programme throughout the
country must conform to a uniform pattern subject to such modification and changes as may be
required having regard to the local and regional needs and conditions. At the apex of the legal
services organisation, there should be an independent and autonomous National Legal Services
Authority with legal authority conferred upon it. If the State Government is of the opinion that it
is necessary or expedient so to do, it may after consultation with the National Authority,
establish one or more Regional Boards for legal services and specify the area or areas on respect
of which the Regional Board shall operate. There should be Zonal Councils for the purpose of
co-ordinating the activities of State Boards functioning within a particular zone.

The committee was of view that the ultimate responsibility for the successful implementation of
the legal services programme would rest with the National Authority. The same functions as that
of the National Authority would also be the responsibility of the State Boards within the area of
their respective jurisdiction. The National Authority may also, in addition, take measures for
bringing about participation of law students in the legal services programme. The National
Authority, with the previous approval of the Central Government, and the State Boards with the
previous approval of the State Government, should have power to frame one or more schemes
for delivery of legal services within the area of their respective jurisdiction. The scheme may
make special provisions relating to legal services for the protection of the interest of minorities,
member of Armed Forces, ex-servicemen and members of their families. The National Authority
may also frame model schemes for guidance to the State Boards.

The committee further suggested that there should be a High Court Legal Services Committee
attached to the High Court in each State. There should also be a Supreme Court Legal Services
Committee with a sitting Supreme Court Judge or the President of the Supreme Court Bar
Association as its Chairman. The National Authority and State Boards should be exempted from
liability to income-tax and wealth-tax.

Role of Socio-economic Conditions in Legal Services Program:

The committee was of view that the Legal Services programme must be framed in the light of the
socio-economic conditions prevailing in our country and we should not blindly adopt the legal
services programme operating in another country where socio-economic conditions may be
different. It also stated that the traditional legal services programme which is essentially court or
litigation oriented, cannot meet the specific needs and the peculiar problems of the poor in our
country. The gross inequalities of income and wealth could be removed only by radical
transformation of the socio economic structure and it is in aid of this revolution that the legal
services programme had to be geared. It suggested that the legal services programme should aim
at prevention and eliminating various kinds of injustices which the poor as a class suffer and
should endeavour to launch a frontal attack on the problem of poverty. The legal services
programme should involve all segments of society.

It stated some of the services which may be rendered as part of the new legal services
programme are (i) spreading an awareness among the poor about the rights, benefits and
privileges conferred upon them (ii) socio-legal research into the legal and non-legal problems of
the poor, (iii) helping different groups of the poor and the weak to organise themselves so that
they can assert their rights (iv) devising of new legal techniques and methods to bring to the
court the problems of the poor. (vi) planning through the legal process to attack unjust
institutions and unjust practices and (vii) providing relief to groups and classes of poor at various
levels.

It opined that Legal Services Committee should set up an adjunct service for advising citizens
generally and not confine itself strictly to advice of a purely legal nature. Nagarik Salah Kendras
may be set up at the District level or, if feasible, at the Block or Sub-Divisional level.

It suggested that for dispensation of equal justice, workers should generally be eligible for free
legal services. Individual workers should be treated separately from unions in the matter of Legal
Aid. Settlement of industrial disputes should be one of the major concerns of Legal Aid cells and
lawyers. Legislative provisions be made for comprehensive Legal Aid to workers' families more
or less, on the lines of medical insurance and provident fund.

It stated that there is need of public interest litigation and class representative proceedings for
redressal of wrongs and assertion of rights. Certain instances which require such type of
proceeding are environmental pollution, drug adulteration and food adulteration, poisonous
alcohol, civil rights of mentally retarded, denial of fair wages to Harijan or refusal of equal
wages to women.

Role of Research in Development of Access to justice Concept

To stress on the importance of research in the development of any concept it suggessted that a
vast laboratory for purposeful research and law reform from the point of view of the poor and the
disadvantaged should be set up so that new dimensions of Legal Aid may be explored
successfully. It should also activate research institutes already in existence. It should maintain
liaison with the Law Commission and the Law Ministry at the Central and State levels. It must
have a Directorate possessing a legal knowledge with experts in various fields. Five divisions
under the Research Department dealing with (i) Statistics; (ii) Social and Economic problems of
the indigent and the disadvantaged; (iii) litigation research including test case litigation; (iv)
legislative research; (v) performance audit and evaluation should be set up. Legal aid
organisation in each State should have a Directorate of Research with statistician, sociologist and
lawyer to assist the Director in the performance of the five-fold functions of Research and
Evaluation outlined above. The State Research units should also undertake field studies in
consultation and collaboration with the research apparatus at the Central Headquarters. Common
research designs should be developed and comparative research should be promoted by means of
effective and continuous co-ordination by the Director of Research at the Central Headquarters.

Legal Awareness program

It was of view that in the formative phase of legal services movement it will be necessary for the
National Authority and the State Boards to organise programmes of public education. The legal
services organisation should devise a training programme for lawyers who are prepared to
dedicate their lives to the cause of legal services to the poor. The legal services programme
should enlist the services of official and voluntary agencies, the Bar and the judiciary,
universities and colleges, teachers and students, social workers, welfare organisations and public
spirited citizens to carry out the above programme.

The committee stated that judiciary must play a part wherever the cause of justice demands. It
pointed out that making citizens cognizant of their rights and creating the confidence in the
enforcement of such rights alone could clothe the due process of law with realism. The fiction
that every man is deemed to know the law should be translated into a fact that every man knows
to ask for his right and justice through the law. The State should ensure that its laws are
understandably available to laymen.

It recommended that the Bar Council of India may make rules whereby, its members are called
upon to conduct some cases free periodically. It should be obligatory for every law graduate
intending to join the Bar to spend at least six months of internship in a legal service organisation
on a monthly honorarium of Rs. 250 in order to be eligible for enrolment as an advocate.

Safeguards for Preventing misuse of Legal Services Program

In view of this committee the apprehension that the legal services program will encourage
litigation is unfounded. The applicant would have to satisfy a strict means test, prima facie case
test and reasonableness of suit test for availing the benefit of free Legal Aid. This safeguard
would to a large extent eliminate frivolous litigation and prevent possible abuse of the legal
services program. There would not be appreciable increase in litigation in courts if a conciliation
cell is attached to every legal services committee at all levels. Members of the Conciliation Cell
should be respectable persons who command the confidence of the people. When a person is
found eligible for legal services, the Conciliation Cell should first explore the possibilities of a
settlement. Provision should be made in the Scheme that settlement would have effect as if it
were a decree of a civil court. 

If a settlement suggested by the Conciliation Cell is unreasonably not accepted by the applicant
for Legal Aid, the certificate of eligibility issued to the applicant would stand cancelled and he
would be disentitled to Legal Aid. If it is the opposite party who refuses to accept the suggested
settlement, the Conciliation Cell should make a report of failure of conciliation to the legal
services committee and free legal services would then be made available to the applicant for
taking up proceedings in the court. If the Conciliation Cell is found to work satisfactorily the
scope of its jurisdiction can be expanded by a suitable amendment in the Code of Civil
Procedure. The strength of the Conciliation Cell could also be increased to keep pace with
enlargement of its jurisdiction.

Financial Assistance for Legal Aid program

For the financial assistance of Legal Aid programme, it suggested that State should provide
funds for legal services just as it provides for other welfare activities, including medicare. It was
of view that the existing pattern of court-fee is to be revised from this point of view. But court-
fee must not be allowed to become a tax on a litigation and the incidence of court-fee should not
fall heavily on those who can ill-afford it. Legal aid stamps in two denominations of one rupee
and fifty paise may be introduced. On every Vakalatnama filed in the High Court a Legal Aid
Stamp of the denomination of Rupee 1 and on every other vakalatnama, a Legal Aid Stamp of
fifty paise should be affixed.

A cess for purposes of legal services programme may also be collected. The cess would be
payable by every person making an application or appeal before any tribunal, local or other
authority or administrative agency at such rate not exceeding one percent of the amount or value
of the subject-matter in cases where it is capable of valuation and in other cases not exceeding
the fee payable on such application or appeal as the State Government may from time to time by
notification specify. The cess should be subject to a maximum of rupees 100. There may be
donations from individuals and associations, which may be made tax-free. Where costs are
awarded by court to a legally assisted person, the National Authority or the State Board should
be deemed to be the decree holder in relation to the amount of such costs and the amount so
recovered should form part of the National Authority or State Board, as the case may be.

The State Board should be authorised to recover the property or money decreed in favour of a
legally assisted person and while recovering the same the State Board should be entitled to retain
out of the property or money so recovered a particular percentage to be specified in the Scheme
by way of service charge. This amount should also form part of the Fund of the State Board.
Contributions by partially assisted persons would also be added to the Fund.

Committee for Implementing Legal Aid Scheme

On 26 September 1980, the Government of India constituted the committee for implementing
Legal Aid Schemes(CILAS). Its chairman was Hon’ble Justice P.N. Bhagwati, Judge Supreme
Court of India. CILAS evolved a model scheme for Legal Aid Programme applicable through
out the country by which several Legal Aid and advice boards was set up in the States and Union
Territories. The duty of Chairman was to monitor and implement Legal Aid Programmes on a
uniform basis in all the States and Union territories. CILAS was financed by Centre Government.
On the service of working of the CILAS, certain deficiencies came forward. So it was felt that
there should be statutory legal service authorities at the National, State and District Level for
effective implementation of Legal Aid programme in India. This finally led to the enactment of
Legal Service Authorities Act, 1987.

The above Act was found wanting in some respects. Therefore, a conference was held of all the
chairpersons of the State Legal Aid Committee under the Chairmanship of the Hon'ble Chief
Justice of India. Mr. Justice R.N. Misra, who was the then Executive Chairman of the CILAS,
moved the motion. On the basis of discussion at this conference a proposal for the amendment of
the Act was made. Consequent thereupon a bill was framed to amend the Act of 1987, but for
several reasons bill remained pending in Parliament and finally enforced in 1995. The 1987 Act
was later amended in 2002.

Conclusion:

To conclude it can be said that suggestions of Expert Committee Report(National Judicare:

Equal Justice-Social Justice) played very important role in giving shape to present Act of Legal
services Authorities Act, 1987 which promotes equal access to justice in India. Committee for
implementing Legal Aid Schemes(CILAS) further regulated uniform implementation of Legal
Aid Program in India and removed the hindrances found in the effective implementation of Legal
Services Authorities Act, 1987.