FACULTY OF LAW

JAMIA MILLIA ISLAMIA, NEW DELHI

TOPIC
LEGAL AID IN INDIA

Submitted by
MUDASSIR HASAN

B.A.LL.B (Hons). 2nd year

ROLL NO- 41

(REGULAR)
 CONTENTS

1. PROLOGUE
2. HISTORY OF LEGAL AID IN INDIA
3. CONSTITUTIONAL PROVISION REGARDING LEGAL AID
4. BODIES ESTABLISHED AND THEIR HIERARCHY
5. JUDICIAL DECISION
6. CONCLUSION
7. BIBLIOGRAPHY

 PROLOGUE
Section 2(1)(c) of The Legal Services Authorities Act, 1987 defines legal service as
“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 matter1.

Justice P.N.Bhagwati has said that "the poor and the 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 is the way of providing free legal service to the poor, destitute and needy per-
sons who cannot afford the fee payment of a lawyer for the conduct of a case or a legal
proceeding in any court, tribunal or before an authority. Article 39(A) of The Constitution
of India provides free legal aid2. Hence, legal aid is not a charity or bounty, but is a con-
stitutional onus or responsibility on the part of state and it is a right of the citizens. To
provide free and competent legal services to the weaker section of the society the gov-
ernment has enacted a special act called the legal service authority act, 1987. The pre-
amble of our Constitution uses the word justice-social economic and political. Article 14
said state shall not deny any person equality before law and protection of law within the
territory of India3. Article 15 which provide state shall not discriminate only on the
ground of religion, race, caste, sex, place of birth or any of them. Both the article aims to
provide equal justice. Section 304 of The Code of criminal Procedure contains provision
pertaining to the free legal aid. This section provides that if the accused is not represented
by a lawyer and it appears to the Court that the accused has not sufficient means to en-
gage a lawyer the Court shall assign a pleader for his defense at the expense of the

1 https://nalsa.gov.in/acts

2 https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

3 https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
State4. Thus to maintain equality, peace and prosperity in the society the government is
under constitutional and statutory obligation to provide free aid to the poor of the society.
Thus, legal aid aims to ensure that the constitutional undertaking is fulfilled in its letter
and spirit and equal justice is made available to the oppressed and depressed section of
the society. It is the obligation on the State to ensure that the legal system promotes jus-
tice on the basis of equal opportunity for all its citizens. It must therefore arrange to pro-
vide free legal aid to those who cannot access justice due to economic and other disabili-
ties. In a democracy, where rule of law is supreme; it is important to make unambiguous
that even the weakest amongst the weak, poorest among the poor, in the country does not
suffer injustice arising out of any abrasive action on the part of State or private person.

The supreme court of India early in the 1951 made it clear that if an accused due to
poverty unable to access justice then it will amount to negotiation in justice the supreme
court accordingly held that right to fair and reasonable trail also include right to have
lawyer of one’s choice.

“The Supreme Court of India elevated the right to fair trial as a basic structure
of the Constitution thus making it inalienable, unamendable and primordial.5
Thus in India where due to poverty Poor people are disabled to access to jus-
tice thus government is under obligation to provide the same.

4 https://indiankanoon.org/doc/690321/
5http://www.in.undp.org/content/dam/india/docs/DG/equitable-access-to-justice-legal-empower-
ment-legal-aid-and-making-it-work-for-the-poor-and-marginalised.p
 HISTORY OF LEGAL AID IN INDIA

In 1851 some enactment in France leads to the wake of movement for legal aid in India.
In 1944 Lord appointed Rushcliffe committee to enquire about facilities available to poor
people of England and whales for providing legal aid assistance to them. Since 1952 the
government of India has taken various initiatives like pro bono legal services, a tele law
service and ‘Nyaya Mitra’ scheme6 . which aims to provide quick and fast free legal aid
to poor of the society.

Legal aid board, societies and law department are the authorities which floated the legal
aid service. Under the chairmanship of Justice P N Bhagwati a national committee was
constituted in the 1980 to supervise the administer legal aid programme throughout the
India. This committee is also known as committee for implementing the legal aid service.
Accordingly this committee started monitoring the aid service throughout the territory of
India. Enactment of Legal Service Authority Act, 1987 was a significant step in the im-
provement of the legal aid service. This act constituted various bodies such as National
legal Service authority at Centre Level, State legal service authority at state level etc.

CONSTITUTIONAL PROVISIONS REGARDING LEGAL AID

42nd Amendment Act, 1976 added a new article 39 A in the constitution of India which
provides The 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

6 https://www.livemint.com/
legislation or schemes or in any other way, to ensure that opportunities for securing jus-
tice are not denied to any citizen by reason of economic or other disabilities7.

This article is ground of right of reasonable, fair and just liberty provided by article 21 of
the constitution of India.

To effectuate the constitutional mandate of article 14 and 39 A the government enacted a

legal service authority act, 1987.

BODIES UNDER LEGAL SERVICE AUTHORITY ACT 1987 AND THEIR HIERARCHY

Under legal service authority act, 1987 various authorities such as At national level Na-
tional level service authority and at state level state legal service authority And at district
level district legal service authority, has been created. These all authorities provide legal
assistance to the poor people of society.

To organize lok adalat, Taluk Legal Services Committees are 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. Senior judge of the talk jurisdiction is the ex officio chairman of
the committee.

Supreme Court of India has also set up Supreme Court Legal Services Committee
(SCLSC) to provide free legal assistance to poor, under privileged section of the society.

The Act prescribes the criteria for giving legal services to the eligible persons. It makes a
person eligible for assistance under the act if he is 8 -

7 https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

8 Section 12 of the Legal Services Authorities Act, 1987.

 1. (a) a member of a Scheduled Caste or Scheduled Tribe;

2. (b) a victim of trafficking in human beings or begar as referred to in

Article 23 of the Constitution;

3. (c) a woman or a child;

4. (d) a mentally ill or otherwise disabled person;

5. (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

6. (f) an industrial workman; or

7. (g) in custody, including custody in a protective home or in a juvenile

home

8. (h) of in a psychiatric hospital or psychiatric nursing home within the

meaning of clause (g) of section 2 of the Mental Health Act, 1987;

or

9. (i) A person whose annual income less than rupees fifty thousand or

such other higher amount as may be prescribed by the State Government



 JUDICIAL DECISIONS

M.H Hoskot v. State Of Maharashtra9

In this case for the first time legal aid is granted as a fundamental right.Justice KrishnaIy-
er observed that ensuring free legal aid to the poor of society is the State's onus and it is
not Government's charity. The court also held that a person has right to appeal against his/
her sentence and also has the right to ask for a counsel for the purpose to prepare and ar-
gue the appeal and it is government obligation to provide lawyer.

Hussainara khatoon v State of Bihar10

In this case many prisoners were under trail for a term maximium than the punishment.
The court held that free legal aid is the responsibility on centre and state.the court also
retreated that free legal aid the intrinsic element to just, reasonable and fair procedure
guaranteed under article 21 of the constitution of india. Legal aid guaranteed by 39 A is
inalienable from just fair and reasonable procedure. The state can’t avoid its constitution-
al onus to provide free and speedy assistance to the indigent or needy people of the soci-
ety.

Khatri v. State of Bihar11

the court in this case answered the question the right to free legal aid to poor and needy
accused who are not able to of engage a lawyers. It was held that the state is under consti-

9 1978 AIR 1548

10 AIR 1979 SC 1369.

11  1981 SCR (2) 408, 1981 SCC (1) 627

tutionally obligation to provide free 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. The right to free legal services is an important element
of reasonable, fair and just procedure provided in article 21. State is under a constitution-
al obligation to provide a lawyer to an accused person if the circumstances of the case
and the needs of justice so require.



Suk Das v. Union Territory of Arunachal Pradesh12

In this case it was held that the presiding judge is under responsibility to make the ac-
cused aware of his right to demand free legal aid from the State if he is not able to afford
lawyer himself and if the accused is convicted without being informed of his right to le-
gal aid and subsequently not having a lawyer to represent him at the trial, the conviction
would be set aside.

Indira Gandhi v. Raj Narain13

In this case the court held that rule of law is part of basic structure, so no one should be
condemned unheard and trial without legal representation would be vitiated.

 Maharashtra v. Manubhai Pragaji Pragaji vashi14

the Supreme Court has drawn special attention towards the prerequisite for capacity
building and held that in order to provide the free legal aid to indigent it is pivotal to have

12  AIR 1986 SC 991

13 1975 AIR 865.

14 1995 SCC (5) 730.

good lawyers in the country and this can only be achieved by establishing adequate num-
ber of law colleges with good infrastructure, better teachers and staff.

Mohd. Sukur Ali v. State of Assam 15

In this case the the supreme court of India held that it is violative of article 21 which
guarantees rights to life and personal liberty if the accused who is convicted under crimi-
nal case is sentenced without providing him a counsel for the purpose of defending his
case.The government is under duty to provide lawyer at any stage of prosecution whether
trail , Appel or revision petition.

AS Mohammed Rafi vs State of Tamil Nadu16

A person who is regarded as wicked, depraved, or repulsive by the members of the soci-
ety has also a right to be defended in a court of law and it is the responsibility of the
lawyer to defend his case in the court of law because every person has right to life and
liberty.

Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi17

The accused were denied legal assistance at trial level in this case.the court held it is the
duty of the courts to make it clear that the accused with whom the court is going to deal
has just and fair means to defend his case.the denial of just process is the denial of due
process of law and hence violative of judicial procedure.

15 (2011) 4 SCC 729.

16 AIR 2011 SC 308

17 (2012) 9 SCC 408.

 CONCLUSION

In a nutshell, the government of India is under obligation by article 39 (A), by Legal Ser-
vices Authorities Act, 1987, CRPC section 303 and 304 and section 41 (D) of the CRPC
For this purpose various bodies has been constituted under the act such as national, state
and district legal service authority. Judiciary by various pronouncement held that gov-
ernment is under onus to provide legal assistance to poor and indigent.
 BIBLIOGRAPHY

1. Legal Services Authorities Act, 1987, India, available at :

https://nalsa.gov.in/node/18 ( Visited on15 march, 2019).

2. The Constitution Of India, India, available at :

https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf (Visited on 15
march, 2019).

3.https://nalsa.gov.in

4. www.scconline.com

5. www.manupatra.com

6. www.lexisnexis.com