"Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid Committee formed in 1971. According to him, the legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law" the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate. Legal aid as defined, deals with legal aid to poor, illiterate, who don't have access to courts. One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on the road.
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.
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. 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 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. Expert committees constituted, from 1950 onwards, to advise governments on providing legal aid to the poor have been unanimous that the formal legal system is unsuited to the needs of the poor. The 1977 report of the committee of Justices Krishna Iyer and P.N. Bhagwati, both of the Supreme Court, drew up a detailed scheme which envisaged public interest litigation (PIL) as a major tool in bringing about both institutional and law reform even while it enabled easy access to the judicial system for the poor. Their report, as those of the previous committees, was ignored. This explained partly the impatience of these two judges, in the post-emergency phase, in making the institution appear responsive to
the needs of the population that had stood distanced from it. The two judges played a major role in spearheading the PIL jurisdiction.
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. Hon. Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the enforcement of the Act.
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.
In October, 1998, His Lordship Hon. Dr. Justice A.S. Anand assumed the Office of the Chief Justice of India and thus became the Patron-in-Chief of National Legal Services Authority. His Lordship Hon. Mr. Justice S.P. Bharucha, the senior-most Judge of the Supreme Court of India assumed the office of the Executive Chairman, National Legal Services Authority.
Criterion for providing legal aid
Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-
Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is -
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause.
(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court."(Rules have already been amended to enhance this income ceiling).
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) (aaa) defines the '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.
Hierarchy of Bodies created under the Act
A nationwide network has been envisaged under the Act for providing legal aid and assistance. National Legal Services Authority is the apex body constituted to lay down policies and principles for making legal services available under the provisions of the Act and to frame most effective and economical schemes for legal services. It also disburses funds and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes and programmes.
In every State a State Legal Services Authority is constituted to give effect to the policies and directions of the Central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats in the State. State Legal Services Authority is headed by the Chief Justice of the State High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated as its Executive Chairman.
District Legal Services Authority is constituted in every District to implement Legal Aid Programmes and Schemes in the District. The District Judge of the District is its ex-officio Chairman.
Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organise Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman.
Supreme Court Legal Services Committee
The Central Authority shall constitute a Committee to be called the Supreme Court Legal Services Committee for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the Central Authority.
NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign. Almost all the State Legal Services Authorities are identifying suitable and trustworthy NGOs through whom legal literacy campaign may be taken to tribal, backward and far-flung areas in the country. The effort is to publicise legal aid schemes so that the target group, for whom Legal Services Authorities Act has provided for free legal aid, may come to know about the same and approach the concerned legal services functionaries.
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.
Certain Salient Features of the Act are enumerated below:- Section 2 Definitions.-
(1)... (c) 'legal service' includes the rendering of any service in the conduct any case or other legal proceeding before any court or other Authority or tribunal and the giving of advice on any legal matter;
(d) 'Lok Adalat' means a Lok Adalat organised under Chapter VI;
(g) 'scheme' means any scheme framed by the Central Authority, a State Authority or a District Authority for the purpose of giving effect to any of the provisions of this Act;
(h) 'State Authority' means a State Legal Services Authority constituted under Section 6;
(2) Any reference in this Act to any other enactment or any provision thereof shall, in relation to an area in which such enactment or provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
Section 19
1. Central, State, District and Taluk Legal Services Authority has been created who are responsible for organizing Lok Adalats at such intervals and place.
2. Conciliators for Lok Adalat comprise the following: -
A. A sitting or retired judicial officer.
B. other persons of repute as may be prescribed by the State Government in consultation with the Chief Justice of High Court.
Section 20: Reference of Cases
Cases can be referred for consideration of Lok Adalat as under:-
1. By consent of both the parties to the disputes.
2. One of the parties makes an application for reference.
3. Where the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.
4. Compromise settlement shall be guided by the principles of justice, equity, fair play and other legal principles.
5. Where no compromise has been arrived at through conciliation, the matter shall be returned to the concerned court for disposal in accordance with Law.
Section 21
After the agreement is arrived by the consent of the parties, award is passed by the conciliators. The matter need not be referred to the concerned Court for consent decree. The Act provisions envisages as under:
1. Every award of Lok Adalat shall be deemed as decree of Civil Court .
2. Every award made by the Lok Adalat shall be final and binding on all the parties to the dispute.
3. No appeal shall lie from the award of the Lok Adalat.
Section 22
Every proceedings of the Lok Adalat shall be deemed to be judicial proceedings for the purpose of :-
1. Summoning of Witnesses.
2. Discovery of documents.
3. Reception of evidences.
4. Requisitioning of Public record.
Hon'ble Delhi High Court has given a landmark decision highlighting the significance of Lok Adalat movement which has far reaching ramifications. Abdul Hasan and National Legal Services Authority Vs. Delhi Vidyut Board and others [2] -
Facts of the Case -
The petitioner filed a writ petition before Delhi High Court for restoration of electricity at his premises, which was disconnected by the Delhi Vidyut Board (DVB) on account of non-payment of Bill. Inter alia, the grievances of the citizens were not only confined to the DVB but also directed against the State agencies like DDA, Municipal Corporation, MTNL, GIC and other bodies, Court notices were directed to be issued to NALSA and Delhi State Legal Service Authority.
Court Held-
His lordship Hon'ble Mr. Justice Anil Dev Singh passed the order giving directions for setting up of permanent Lok Adalats. The scholarly observations of His Lordship Mr. Justice Anil Dev Singh deserve special commendations and are worthy of note. It will be profitable to reproduce the important text and abstract from this judgment, which should be an eye opener for all of us. It should also steer the conscience of all, as there is an increasing need to make Lok Adalat movement a permanent
feature.
Article 39A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity. The language of Article-39A is couched in mandatory terms. This is made more than clear by the use of the twice-occurring word "shall" in Art-39 A. It is emphasized that the legal system should be able to deliver justice expeditiously on the basis of equal opportunity and provide free legal aid to secure that opportunities for securing justice are not denied to any citizens by reasons of economic or other disabilities. It was in this context that the parliament enacted the Legal Services Authority Act-1987.
The need of the hour is frantically beckoning for setting up Lok-Adalats on permanent and continuous basis. What we do today will shape our tomorrow. Lok Adalat is between an ever-burdened Court System crushing the choice under its own weight and alternative dispute resolution machinery including an inexpensive and quick dispensation of justice. The Lok Adalat and alternative dispute resolution experiment must succeed otherwise the consequence for an over burdened court system would be disastrous. The system needs to inhale the life giving oxygen of justice through the note.
If we closely scrutinize the contents of the decision of Delhi High Court, there has been an alarming situation of docket-explosion and the ultimately remedy is the disposal of cases through the mechanism of Lok Adalat.
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 [3] 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." 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". He reiterated this in Suk Das v. Union Territory of Arunachal Pradesh [4] 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. InM.H. Hoskot v. State of Maharashtra [5], 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 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual 'for doing complete justice".
In Khatri & Others v. St. of Bihar & others [6] Bhagmati J. observed;
"Right to free legal aid, just, fail and reasonable procedures is a fundamental right (Khatoon's 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."
In Indira Gandhi v. Raj Narain [7] the Court:
"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 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."
Legal Aid under C.P.C and Cr.P.C
S. 304(1) Lays down that when accused facing a trial. Concept of free legal aid scheme under legal services Authority. Act is only when accused facing trial in court. When person is VV poor, then he can get legal aid. In the absence of lawyer, the entire trial becomes vitiated and then case to be remanded back to the trial court. Court to ask the accused, whether he has services to engage a lawyer or not. If not, the court is bound to give him lawyer from the bar, who should be well versed with the law and to be get paid by St. Govt. Court cannot sympathize with a lawyer. Lawyer must be a competent one. " is amicus curiae (friend of court). S. 304, CrPC plays V. imp. role." Order 33, rule 17, CPC :- Suit by or against an indigent person. When a plaint along with petition, that person unable to avail services of an lawyer, then court exempts him from court fees.
Amendments to made to the Legal Services Authorities Act, 1987
The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts.
However, the major drawback in the existing scheme of organization of the Lok Adalats under Chapter VI of the said Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the court of law or the parties are advised to seek remedy in a court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merits in case parties fails to arrive at any compromise or settlement, this problem can be tackled to a great extent. Further, the cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre-litigation stage and thus most of the petty cases which ought not to go in the regular courts would be settled at the pre-litigation stage itself which would result in reducing the workload of the regular courts to a great extent. It is, therefore, proposed to amend the Legal Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to public utility services.
The salient features of the amendment are as follows:
(i) to provide for the establishment of Permanent Lok Adalats which shall consist of a Chairman who is or has been a district judge or additional district judge or has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services;
(ii) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries; and insurance services;
(iii) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have not jurisdiction in respect of any matter relating to an offence not compoundable under any law;
(iv) it also provides that before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute;
(v) where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits; and
(vi) every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and shall be by a majority of the persons constituting the Permanent Lok Adalat.
Criticism by Krishna Iyer
The innovative part in the act is contained in Chapter VI. But there is considerable conceptual shrinkage in the statutory ideation of Lok Adalats. There is a Lok Adalat movement in the country which outstrips the conceptual limitations of Chapter VI. Many states have shown enthusiasm for this versatile phenomenon of informal justice with easy finality and community orientation. Gujarat has set a record in this experiment; thanks to the Chief Justice taking vigorous personal interest. Similarly, Andhra Pradesh has produced results in conciliation. Tamil Nadu also is doing good work and is a model in many respects. Why? Judges charged with the responsibility of organizing Lok Adalats in these States and in Maharastra, Rajsthan and elsewhere have worked with inspired zeal. In Karnatka, the Law Minister has dedicated himself with restless wanderlust and soulful commitment, to this task and is a sort of Lok Adalats personified in a few States like Kerala, state Legal Aid boards have proved disappointing in their Lok Adalats performance, although partly made up for by a voluntary agency (people's
Council for Social Justice), headed by a retired judge. The drive behind the Lok Adalats is the roused consciousness of the community to prevent disruption of local unity and to secure substantial equity and social justice, in a mood of human solidarity. In many places, Lok Adalats are transfigured as People's Festivals of Justice. The participants are not
merely judicial officers or lawyers as envisaged in Section 19(2), or justice, equity and fairplay. (vide Sec. 19(4) which means, again, common law) and the settlement are not necessarily according to legal principles, but with an eye on social goals like ending feuds, restoring family peace and providing for destitute, law or no law. One need not further elaborate the other provisions except to sum up and say that the defects above mentioned are cardinal and not peripheral, correctible and not irremediable. The philosophy of autonomy and accountability for statutory authorities with democratic composition and
social initiative must be accepted by the state. Such a postulate calls for the categorical imperative that free legal service in its wider sweep of semantics is the guaranteed right of every Indian and not the largess condescendingly extended by Government. The jurisprudence of judicature walks a different street paved with right, not grace.
Public interest litigation is part of the process of participate justice and 'standing' in civil litigation of that pattern must have liberal reception at the judicial doorsteps.
Accountability and democracy are close companions; a free legal service project affecting vast numbers of under privileged Indians must be accountable to the people. I wonder why there is no provision for the central or State authorities to present reports to parliament and the legislature so that there may be annual discussions at the highest levels and consequential changes brought in the system itself.
The State legal Service Authorities must face criticism more or less like what has been leveled earlier against the central authority. If the chief justice or his associate judge is to be in a committee which is to be organized Lok Adalat, [Sec 7 (2)(b)], if he is to grant legal aid by sitting and screening the means and the merits of the applicants and there cases [Sec 7(2)(a)] it may be wrong because there role may be misunderstood. The authority applies the merits test and the judge is the member of that counsel. Technically the authority therefore implicates the judge in the assessment of the merits of a case which is
to be filed. This is not right. If the judges are to be kept away from screening particular cases for eligibility for legal aid, there must be statutory indication to that effect. The presence on the authority is useful. But his being directly or vicariously involved in screening the merits of the cases, even prima facie, is fraught with risk to the confidence in the impartiality of the judges who hear the cases.
In the Municipal Council, Ratlam [8], a bench of this court observed:
It is procedural rules as this appeal proves, 'which infuse life into substantive rights, which activate them to make them effective'.... the truth is that a few profound issue of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of 'standing of British Indian vintage'. if the Centre of gravity of justice is to shift , as a preamble to the constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense the case before us between the Ratlam municipality and the citizens of the Ward is a pathfinder in the field of peoples involvement in the judicious process, sans which as Prof. Sikes points the system may crumble under the burden of its own insensitivity'
In the Fertilizer Corporation, Kamagar Union Case [9] the Supreme Court has made the following meaningful observations:
'We have no doubt that in competition between Courts and Streets as dispensers of justice, the rule of law must win the aggrieved person for the law Court and wesn him from the lawless street. In simple terms the locus standi must be liberalized to meet the challenges of the times. Ubi jus ibi remedium must be enlarged to embrace all in tersest of public minded citizens or organizations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets'.
The United States, through Chief justice Warren Burger and the American Bar Association, has been experimenting with and discussing non-judicial routes like arbitration and negotiation as well as simpler judicial alternatives to make justice a poor man's pragmatic hope. India, like America, suffers from 'litigation neuroses' the poor are the worst victims because the rich can afford forensic mountaineering while the needy freeze to death midway. It is therefore integral to any Statute under 39 A to discover imaginatively and innovatively all methodologies of getting inexpensive, early and easy justice. In the United States,
small claims Courts have been tried with success to resolve minor disputes fairly and more swiftly than any present judicial mechanisms make possible.
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Haider Ajaz
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