INTRODUCTION

MEANING AND CONCEPT

Legal aid to the poor and weak is necessary for the preservation of rule of law which is
necessary for the existence of the orderly society. Until and unless poor illiterate man is not
legally assisted, he is denied equality in the opportunity to seek justice. Therefore as a step
towards making the legal service serve the poor and the deprived; the judiciary has taken
active interest in providing legal aid to the needy in the recent past. The Indian Constitution
provides for an independent and impartial judiciary and the courts are given power to protect
the constitution and safeguard the rights of people irrespective of their financial status. Since
the aim of the constitution is to provide justice to all and the directive principles are in its
integral part of the constitution, the constitution dictates that judiciary has duty to protect
rights of the poor as also society as a whole. The judiciary through its significant judicial
interventions has compelled as well as guided the legislature to come up with the suitable
legislations to bring justice to the doorsteps of the weakest sections of the society.

Legal Aid implies giving free legal services to the poor and needy who cannot afford the
services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or
before an authority. Legal Aid is the method adopted to ensure that no one is deprived of
professional advice and help because of lack of funds. Therefore, the main object is to
provide equal justice is to be made available to the poor, down trodden and weaker section of
society. In this regard Justice P.N. Bhagwati rightly observed that:

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, who don't have access to courts. One need not be a litigant to seek aid by
means of legal aid.

Therefore, legal aid is to be made available to the poor and needy by providing a system of
government funding for those who cannot afford the cost of litigation.
 FREE LEGAL AID IN INDIA: THE JUDICIARY’S CONTRIBUTION

The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of Hussainara Khatoon1 where the
petitioner brought to the notice of Supreme Court that most of the under trails have already
under gone the punishment much more than what they would have got had they been
convicted without any delay. The delay was caused due to inability of the persons involved to
engage a legal counsel to defend them in the court and the main reason behind their inability
was their poverty. Thus, in this case the court pointed out that Article 39-Aemphasized 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.

Two years later, in the case of Khatri v. State of Bihar2, the court answered the question the
right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It
held that the state is constitutionally bound to provide such aid not only at the stage of trial
but also when they are first produced before the magistrate or remanded from time to time
and that such a right cannot be denied on the ground of financial constraints or administrative
inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform
the accused of such rights. The right to free legal services is an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21 and the State is under a constitutional mandate to
provide a lawyer to an accused person if the circumstances of the case and the needs of
justice so require…The State cannot avoid this obligation by pleading financial or
administrative inability or that none of the aggrieved prisoners asked for any legal aid.

In Suk Das v. Union Territory of Arunachal Pradesh 3 , Justice P.N. Bhagwati, emphasized
the need of the creating the legal awareness to the poor as they do not know their rights more
particularly right to free legal aid and further observed that in India most of the people are
living in rural areas are illiterates and are not aware of the rights conferred upon them by law.
Even literate people do not know what are their rights and entitlements under the law. It is
this absence of legal awareness they are not approaching a lawyer for consultation and
advise. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant
and they cannot even help themselves. That is why promotion of legal literacy has always

1
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
2
Khatri v. State of Bihar, AIR 1981 SC 262.
3
Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991
been recognized as one of the principal items of the program of the legal aid movement in the
country. Even right to education would not fulfil its real objective if education about legal
entitlements is not made accessible to people and our constitutional promise of bringing
justice to the doorsteps of the people would remain an illusion.

Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that ‗if a
prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and
statutory right of appeal inclusive of special leave 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, the power to assign counsel for such imprisoned individual for doing
complete justice.4

4
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
 ELIGIBILITY CRITERIA FOR LEGAL SERVICES VIS-À-VIS SECTION 12

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
prescribed under Section 12 of the act. 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 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 or in a juvenile home
h) 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 quasi-judicial functions.5 Under the Act 'legal service' includes the rendering of

5
Section 2(1) (a) of the Legal Service Authority Act,1987.
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.6

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.

AWARENESS OF LEGAL RIGHT FOR FREE LEGAL SERVICES TO WOMAN

In the instant case it was held that it was the duty of members of Bar and Benches to make
litigants of this class, i.e. woman be made known of their legal right under the LSA Act
observed in Rajeshreeben Dharmendrabhai Patadia v. State of Gujarat.7

DISENTITLEMENT FROM GETTING LEGAL AID

As per rules the following persons are not entitled to the legal aid unless the Chairman of the
Committee approves it as a special case

1. Proceedings wholly or partly in respect of defamation or malicious prosecution or any

incidental proceedings thereto;
2. A person charged with contempt of court proceedings or any incidental proceedings
thereto;
3. A person charged with perjury;
4. Proceedings relating to any election.
5. Proceedings in respect of offences where the fine imposed is not more than Rs. 50/-.
6. Proceedings in respect of economic offences and offences against social laws, such as,
the protection of Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act,
1956 unless in such cases the aid is sought by the victim :
The legal aid is also denied where the person seeking the legal services.
1. is concerned with the proceedings only in a representative or official capacity; or
2. if a formal party to the proceedings, not materially concerned in the outcome of
the proceedings and his interests are not likely to be prejudiced on account of the
absence of proper representation.

6
Section 2(1)(c) of the Legal Service Authority Act,1987.
7
2002 Cri LJ NOC 5 (Guj.).
SETTLEMENT- PETITION FOR REFERRING MATTER

Where disputed question of facts were involved, legal services committee was of opinion that
same could not be decided before Lok Adalat. In such circumstances, it would have been
appropriate to give liberty to petitioner to invoke appropriate remedy instead of closing the
petition as observed in Jatavath Sali v. Mandal Parishad Development Officer,
Peddavoora.8

OBLIGATION ON THE COURT

A court is under obligation to ask the accused or any person coming under Section 12 of
Legal Services Authority Act that he is entitled a free legal service and unless this is done and
failure to do so is sufficient ground for remand, retrial or re-hearing of the case in question.

In the present case the accused was not defended by a lawyer and the accused took a plea that
the theft was committed in the studio/shop but the charge shows that the offence was
committed in the house. It is up to the learned Chief Judicial Magistrate to rectify the error or
to frame a fresh charge. Learned Chief Judicial Magistrate shall also enquire from the
accused as to whether he comes under any of the provisions of Section 12 of the State Legal
Services Authority Acts and Rules and if it appears that the accused comes under any of the
provisions, he is entitled to legal aid at the cost of State as observed in Anand Bardewa v.
State of Sikkim.9

8
AIR 2006 (NOC) 1119 (AP).
9
1999 Cri LJ 1804 at 1807 (Sikkim)