The History Of Legal Aid Law Essay

The History Of Legal Aid Law Essay The earliest Legal Aid movement was started in the year 1851 when there was an enactment introduced in France for providing legal assistance to the indigent. In Britain the effort of the state to provide legal services to the poor and needy goes back to 1944, when lord chancellor, Viscount Simon appointed the Rushcliffe Committee headed by Lord Rushcliffe to enquire about the existing facilities in England and Wales for giving legal aid advice to the poor.  [1]  This committee also made the desirable recommendations ensuring that the persons in need of the legal advice are provided the same by the state. The recommendations of the Rushcliffe Committee were submitted to British Parliament, which resulted in the enactment of Legal Aid and Advice Act, 1949. In 1945, the Rushcliffe Committee report was brought to the attention of the Government of India. The credit for drawing the attention of the government of India to this important question goes to the Bombay Legal Aid Society who invited the attention of the Government of India to the report of the Rushcliffe Committee. The Bombay Legal Aid Society in their letter  [2]  suggested the appointment of a similar committee in India to examine the problem of Legal Aid. In 1946, the provincial government was of the opinion that the provisions for the grant of legal aid in civil cases were sufficient but the same for the criminal cases needed to be liberalized. After the correspondence between the Government of India and the Provincial Government the resolution was passed in the Bombay Legislative Council and the Bombay State Assembly. The Government of Bombay appointed a committee under the Chairmanship of Mr. Justice NH Bhagwati  [3]  to consider the question of grant of legal aid in civil and criminal proceedings to poor persons, persons of limited means and the persons of backward classes to make justice easily accessible to these persons. The committee threw responsibility on State to provide free lega l aid for those who could not have access to the Courts of Law due to scarcity of means and guidance. The committee also recommended a four-tier  [4]  machinery for giving legal aid. These recommendations could not be implemented. In the same year (1949), the Government of West Bengal also set up a committee on Legal Aid and Legal Advice under the chairmanship of Sir Arthur Trevor Harries  [5]  . The committee recommended to give legal assistance to the poor. The report of the committee could not be implemented due to lack of requisite funds. Since 1952, the Government of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. The first law commission, 1958 in its fourteenth report  [6]  presented a detailed thought of legal aid with a strong plea to implement the Bhagwati and Harries reports. 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, then they have no protective value and unless 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.  Ã‚  [7]   In 1960, the union government prepared an outline for legal aid scheme and forwarded it to various legal aid organisations and States for their comments. The state government in a conference of the State Law Ministers expressed their inability to allocate funds for the purpose of the legal aid schemes. The Third All India Lawyers conference in 1962, further considered the question of legal aid. It was suggested that legal aid was an obligation of both State and Central Government and for this purpose they should provide funds. In 1970, the National Conference was convened in New Delhhi on Legal Aid and Legal Advice. This conference emphasised that it was constitutional obligation of the state to make provision for Legal Aid to the weaker sections having no means. Justice P.N Bhagwati  [8]  was the chairman of the Legal Aid Committee which was appointed by the Government of Gujarat for the first time for suggesting ways and means of providing free legal aid and advice to the poor and weaker section of the community. The aim of the committee was to make recommendations so as to render legal advice more easily available and to make justice more easily accessible to such persons, including recommendations on the question of encouragements and financial assistance to institutions engaged in the work of such legal aid  [9]  . P.N Bhagwati observed even while retaining the adversary system, some changes may be effected whereby the judge is given a greater participatory role in the trail so as to place po or, as far as possible, on a footing of equality with the rich in the administration of justice.  [10]   The focus of the committee was the indigent person seeking to access justice. The report stated that there can be no rule of law unless the common man irrespective of the fact whether he is rich or poor is able to claim and justify to the rights given to him by the law. The machinery of law should be readily accessible to all. The poor must be placed in the same position as the rich by means of adequate legal service programme. It stated that the inequality between the rich and the poor in administration of the justice can be removed by establishing and developing effective system of the legal aid programme. Legal aid and advice should be regarded not as a matter of charity or bounty but as a matter of right.  [11]   The judicial attitude towards legal aid was not very progressive. In Janardhan Reddy v. State of Hyderabad  [12]  and Tara Singh v. State of Punjab  [13]  , the court, while taking a very restrictive interpretation of statutory provisions giving a person the right to lawyer, opined that this was, a privilege given to accused and it is his duty to ask for a lawyer if he wants to engage one or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity (to do so). Even in capital punishment cases the early Supreme Court seemed relentless when it declared that it cannot be laid down in every capital case where the accused is unrepresented the trial is vitiated. To revive the programme, the Government of India formed an Expert committee for Legal Aid in 1972, under the chairmanship of Justice Krishna Iyer  [14]  . The committee submitted a report in 1973 on Legal Aid known as the Processionals Justice to Poor  [15]  . This report came to mark the cornerstone of Legal Aid Development in India. The report  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 report clearly laid down that it is an obligation of the State to ensure that the legal system becomes an effective tool in helping secure the ends of social justice.  [16]   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]  Ã‚  He even said that Law and Justice cannot be regarded as two separate wings any longer and that it had become necessary that they together work towards restoring the faith of the poor man in the legal system by providing him with adequate legal assistance. Justice Krishna Iyer regarded the Legal Aid program as a catalyst which would enable the aggrieved masses to re-assert State responsibility under Part IV of the Constitution. He also said that poverty is a creation of unjust institutions and unjust society. Thus the legal aid programme aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind. He realised the fact that though the system had been flagged off under the term  We the people of India  it had no longer continued in the same direction want of procedural formalities had taken precedence over the people at the cost of which justice often suffered casualties The expert committee appointed under the chairmanship of justice Krishna Iyer has made significant contribution toward the development of the concept of legal aid in India. A national legal service authority accountable to the parliament but protected from official control was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down for determining eligibility: Means test- to determine people entitled to legal aid Prima facie test- to determine whether there was a prima facie case to give legal aid or not Reasonableness test- to see whether the defence sought by a person is ethical and moral. In criminal proceedings the committee is not in favour of guaranteeing legal aid to habitual offenders and in cases, which essentially involve private claims. Regular arrangement for aid and advice to the undertrials was to be provided. A liberalized bail policy which was not to be dependent on financial consideration Legal services were to be extended to investigation as well as post conviction stage. Legal services should also include rehabilitative services. In criminal legal aid, the committee was in favour of salaried lawyers. The report also encourages payment of compensation to victims in criminal cases. Family courts should be established for women and children with women judges this is specially required in slum areas and rural villages. Public defence council should be appointed in childrens court. 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. 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  [18]  and 22(1)  [19]  . 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 continuous examination of its utility and its responsiveness to the poor. The two judges joined forces as a two-member committee on juridicare, released its final report entitled Report on National Juridicare: equal justice- social justice, 1977 hereinafter, referred to as the 1977 report  [20]  . The report while emphasising 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 of the poor in our country. The report also included draft legislation for legal services and referred to Social Action Litigation. It 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. This report  [21]  also made an effort to classify those categories of persons who are most in need of legal aid are as follows-   Those persons belonging to the Scheduled Castes or Scheduled Tribes Those persons who either by reason of being inhabitants of backward areas or who are so geographically placed that their voice cannot reach the Courts of justice The poor in general The workman and the peasantry class who toil and labour to earn rewards for their hard work of which they are often deprived. Those soldiers and armed forces personnel Women and children who are deprived social justice on grounds of biological infirmity. Untouchables or those who are referred to as Harijans and who even after abolition of Untouchability under Article 17 of the Indian Constitution are shunned by the Administrative class on the ground of their unacceptance in the community. One of the purpose for setting up the committee was that the central government is of the view that an adequate and vigorous legal service program is necessary to be establish in all the states in the country on a uniform basis. The terms of reference of the Juridicare committee included making recommendations for the establishing and operating comprehensive and a dynamic legal service program for effective implementations of the socio economic measures taken or to be taken by the government including formulation of scheme (s) for legal services. The 1977 report focused on the infrastructure of the legal services of the organization and clearly stated that it was not to be a department of the government but an autonomous institution headed by the Judge of the Supreme Court. The body would have representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that there would be a multi tier set up for the legal aid organization. The 1977 report was an amalgamation of the 1971 Gujarat report and the 1973 report but absence of certain aspects of the legal services was noticeable. For instance, both the 1971 Report and the 1973 report dealt with the issues arising from the criminal justice separately. Hence it may be stated that except saying that it was continuation of the earlier reports, the 1977 Report made no reference to these aspects. The continuation with the earlier reports was also evident in the reiteration by the 1977 Report of the failures of the traditional legal services programme. The goals of the preventive legal services programme, advocated forcefully by the 1971 Report were recapuliated in this report, it stated that while the endeavor would be to launch a frontal attack on the problem of the poverty, the legal service programme would have to be directed towards providing representation to groups of social and economic protestand  must encourage group oriented and institution directed approach to the problem of poverty. The other goals that were reiterated were: the programme should not identify lawyers with the law but should even pose them against law, wherever law is the reflection of an unjust social order, it had to recognize the inter relatedness of social, legal, educational and psychological problems which beset the poor; the content of the legal services programme was to include spreading of awareness amongst the poor about their rights, tackling the class problems of the poor, initiating socio-legal research into the problems with a view to bringing about reform in law and administration and helping different groups of the poor to organize themselves.  [22]   The 1977 report envisaged several modes of delivery of legal services. The primary mode would be the providing of legal advice through various legal aid offices having both salaried lawyers and assigned lawyers. A whole Chapter was devoted to PIL: and legal aid. It was suggested that the Advocates Act, 1961 be amended to recognize and permit provision of legal aid by law teachers and students. The report clearly stated that the funding of the legal aid programme was the state responsibility and for this identified sources such as court fees collected from the litigants, legal aid steps, levy of special cess, donations and many more for the purpose of funding the legal aid programme and so on. Though the ideas as laid down by the Report was revolutionary but not much that was mentioned in the report was implemented as the government that had appointed the Juridicare committee was not in power when the 1977 report was submitted. The 1977 report remained on the shelf along with it the National legal Services Bill. Though the congress was voted back to power in 1980 but it was too enthusiastic about the 1977 Report. A committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Justice Bhagwati  [23]  . This committee came to be known as CILAS  [24]  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, the Legal Services Authorities Act was enacted, th us crystallising a uniform statutory base for the concept of legal aid throughout the country. Constitutional and Statutory Provisions on Legal Aid 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  [25]  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. Further in the case of Hussainara Khatoon Ors. (V) v. Home Secretary, State of Bihar  [26]  , 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. In the case of  Khatri Ors. (II) v. State of Bihar Ors  [27]  . , the court answered the question of 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, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal a id at the expense of the State. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may, however, be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal or child abuse and the like, where social justice may require that free legal services need not be provided by the State. 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. He repeated in  Suk Das v. Union Territory of Arunachal Pradesh  [28]  Ã‚  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.   Justice Krishna Iyer in  M.H. Hoskot v. State of Maharashtra  Ã‚  [29]  , 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. Justice Bhagwati in the case of Kara Aphasia v. State of Bihar  [30]  where the petitioners were young boys of 12-13 years when arrested, and were still languishing in jail for over 8 years. They also alleged to have been kept in leg irons and forced to do work outside the jail, directed that the petitioners must be provided legal representation by a fairly competent lawyer at the cost of the State, since legal aid in a criminal case is a fundamental right implicit in Article 21. In Centre for  Legal Research Anr. v. State of Kerala  [31]  Ã‚  , Chief Justice Bhagwati took a step further and laid down norms or guide-lines laid down for State to follow in giving support and cooperation to voluntary organizations and social action groups in operating legal aid programmers and organizing legal aid camps and lok adalats or niti melas. While delivering the judgment Bhagwati, C.J., stated that the writ petition raised a question as to whether voluntary organizations or social action groups engaged in the legal aid programmed should be supported by the State Government and if so to what extent and under what conditions. There can be no doubt that if the legal aid programme is to succeed it must involve public participation. The State Government undoubtedly has an obligation under Article 39-A of the Constitution which embodies a directive principle of State policy to set up a comprehensive and effective legal aid programme in order to ensure that the operation of the legal system promotes justice on the basis of equality. But we have no doubt that despite the sense of social commitment which animates many of our officers in the Administration, no legal aid programme can succeed in reaching the people if its operations remains confined in the hands of the Administration. It is absolutely essential that people should be involved in the legal aid programme because the legal aid programme is not charity or bounty but it is a social entitlement of the people and those in need of legal assistance cannot be looked upon as mere beneficiaries of the legal aid programme but they should be regarded as particip ants in it. If we want to secure peoples participation and involvement in the legal aid programme, we think the best way of securing it is to operate through voluntary organizations and social action groups. These organizations are working amongst the deprived and vulnerable sections of the community at the grass-root level and they know what are the problems and difficulties encountered by these neglected sections of Indian humanity. It is now acknowledged throughout the country that the legal aid programme which is needed for the purpose of reaching social justice to the people cannot afford to remain confined to the traditional or litigation oriented legal aid programme but it must, taking into account the socio-economic conditions prevailing in the country, adopt a more dynamic posture and take within its sweep what we may call strategic legal aid programme camps, encouragement of public interest litigation and holding of lok adalats or niti melas for bringing about settlements of disputes whether pending in courts or outside. The assistance of voluntary agencies and social action groups must therefore be taken by the State for the purpose of operating the legal aid programme in its widest and most comprehensive sense, and this is an obligation which flows directly from Article 39-A of the Constitution. It is also necessary to lay down norms which should guide the State in lending its encouragement and support to voluntary organizations and social action groups in operating legal aid programmes and organizing legal aid camps and lok adalats or niti melas. We are of the view that the following norms should provide sufficient guidance to the State in this behalf and we would direct that the State Government shall, in compliance with its obligations under Article 39-A of the Constitution extend its cooperation and support to the following categories of voluntary organizations and social action groups in running the legal aid programme and organizing legal aid camps and lok adalats or niti melas. In  Indira Gandhi v. Raj Narain  [32]  Ã‚  the Court said: Rule of Law is basic structure of constitution of india. Every individual is guaranteed Rule Of Law is basic structure of constitution of India. Every individual is guaranteed the rights given 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.