UNIVERSITY INSTITUTE OF LAWS

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

TOPIC: Challenges and Solution for free legal aid

Submitted By: Submitted To:
(Group 5) Dr. Vaishali Thakur
Arjun (49) Ms Sumanpreet Kaur
Chavi (50)
Jyoti (56)
Kapil (57)
Komal (58)
Lakhwinder (59)
Monika (60)

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WHAT IS LEGAL AID
Legal Aid means giving free legal assistance to needy, poor and weaker section of
society who cannot afford the services of a lawyer in a legal proceeding before any
court, tribunal, or before any other authority. Legal aid should be provided to any
person seeking justice irrespective of race, caste, religion, gender.
Right to Free legal aid is a fundamental right guaranteed to all citizens of the country
under Article 21. Preamble of constitution of India provides for social, economic and
political justice to all citizens of India so legal aid is one of the means which ensures
that the opportunities for obtaining justice are not denied to any person by reason of
being indigent.
Providing right to access to speedy and economical justice for the downtrodden strata of
the society is one of the main mandates of such legal aid services.
P.N. Bhagwati said that the poor and illiterate should be able to approach court and
their ignorance and poverty should not be hindrance in way of obtaining justice from
courts.
Article 39A of the Constitution-: 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 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 disabilities.
Section 304 of the Code of Criminal Procedure-: If the accused does not have sufficient
means to engage a lawyer, the court must provide one for the defense of the accused at
the expense of the state.
The free legal services are governed by the Legal Services Authority Act, 1987 and
headed by the National Legal Services Authority (NALSA).
The Act entails for creating legal awareness by spreading legal literacy through legal
awareness camps, print and digital media, and organize Lok Adalats for the amicable
settlement of disputes.
Legal Services also encompasses facilitating the beneficiaries to get their entitlements
under various government schemes, policies and legislations.

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BACKGROUND OF LEGAL AID:

Legal aid is a stride to assist the poor to and squash the denial of justice on the footsteps
of the foundation stone of all legal systems, the Constitution of India. It is defined in
section 2(c)of the Legal Services Authorities Act,1987 as rendering of any service in
the conduct of any case in any court or tribunal and the giving of advice on any legal
matter. However, the concept is not new in India the origin can traced back in 1949.
In 1949 Bombay government set up a Bombay committee on legal aid and advise,
under the chairmanship of Justice NM Bhagwati. The committee took cognizance of
the issues of existence of poverty, and measures to provide legal aid to the citizens. The
committee proposed the concept of Dharma wherein the state is duty bound and under
obligation to take care of the welfare of the individuals in his jurisdiction. As a result
the committee gave three suggestions:
• Legal aid is a service and not charity. It is an obligation on the state.
• Legal aid is equally important.
• Legal aid should be given to both the parties in the proceedings.

In 1950, the Government of West Bengal set up Bengal committee to discuss various
ways to implement legal aid, on the same line committee submitted the report. Between
1952-1956 the Central Government asked the states to legislate for the implementation
of legal services. This was due to the entry of the subject (legal aid) in the state list
under schedule VII of the Constitution of India. The states are now empowered to
legislate but the state government did not have sufficient funds to implement the same.

Then in 1958 the issue was recognized and 14th law Commission Report on Reform of
Judicial Administration, headed by Mr. MC Setalvad gave suggestion on legal aid:
• State owes duty to provide free legal aid to persons of limited means
• The duty or obligation not only binds the state but also the members of legal
fraternity
• There should be Access to Justice.

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In 1959, the International Commission by Jurists Committee on Judicial and Legal
Profession under Rule of Law said that under the rule of law the state is under
obligation to provide access to free legal aid to limited persons such as women, children
or poor persons etc.

In 1960, three issues taken up by Central Government Scheme,

• Legal aid should be given statutory force
• It should be available to both the parties
• It is obligation of the state.

Then, Gujarat committee report came under the chairmanship of Justice PN Bhagwati
in 1970. The committee gave few suggestions such as:
• State is under constitutional obligation to provide legal services under Article 14
and Article 22(1)
• Committee was in favour of free legal aid not only in civil or criminal courts but
also in tribunals. Thereafter, legal aid scheme should be provided at all levels-
state, district and taluk.
• Creation of legal funds
• Ambit of the term ‘legal aid’- proper legal advice, preventive services,
representation by lawyers, preventive measures.

Further in 1973, an Expert Committee under the chairmanship of Krishna Iyer said that
the legal aid is indispensable postulate of legal system and not matter of charity. Then,
in consequence, in 1976 Article 39A of the Indian Constitution was enacted wherein the
state was under the obligation to provide legal aid to the weaker sections of the society.
Finally, in 1980 legal aid was drafted by a committee headed by Justice PN Bhagwati.
The draft gained the position of an act in 1987 called The Legal Services Authorities
Act, 1987. One of the objectives of the Act was to provide free and competent legal
services and to ensure opportunity for securing justice to the downtrodden class of the
society.
Until now, the Act has undergone two amendments:
• The Legal Services Authorities (Amendment) Act, 1994
• The Legal Services Authorities (Amendment) Act, 2002

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THE NEED FOR LEGAL AID:
There are various reasons why legal aid is needed in India:
Maintaining Rule of Law: Rule of Law and equality before law are the cornerstones
of democracy. It is necessary to maintain order among chaos by keeping law above
every individual. However, there would be no Rule of law unless the common man,
irrespective of the financial capacity, is able to assert and vindicate the rights given to
him by law, which is why the provision of Legal aid is necessary to maintain equality
before law.
Following audi alteram partem: In a free and fair trial, both the parties in a case are
heard in order to decide the guilty in a case. Legal aid makes sure that every person in
the Country gets a Legal representative to voice his/her case in the Court.
Removing the inequality: Inequalities are there in almost all the aspects of the society
whether financial, social or cultural. However, to remove this barrier in the legal aspect,
provision of free legal aid is necessary so that every person belonging to any caste,
religion or place can get justice.
Ethical duty: It is the ethical duty of a lawyer to make sure that Money is not a barrier
in the way of perceiving Justice.

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WHO ARE ENTITLED TO FREE LEGAL AID SERVICES?
The sections of the society as enlisted under Section 12 of the Legal Services
Authorities Act are entitled for free legal services, they are –

• A member of a Scheduled Caste or Scheduled Tribe;

• A victim of trafficking in human beings or beggar as referred to in Article 23 of
the Constitution;
• A woman or a child;
• A mentally ill or otherwise disabled person;
• A person under circumstances of underserved want such as being a victim of a
mass disaster, ethnic violence, caste atrocity, flood, draught, earthquake or
industrial disaster; or
• An industrial workman; or
• In custody, including custody in a protective home within the meaning of clause
(g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956; or in a juvenile
home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act,
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; or
• A person in receipt of annual income less than the amount mentioned in the
following schedule (or any other higher amount as may be prescribed by the State
Government), if the case is before a Court other than the Supreme Court, and less
than Rs. 5 Lakh, if the case is before the Supreme Court.

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MACHINERY WHICH PROVIDES LEGAL AID

Lok Adalats:
Lok Adalats are judicial bodies set up for the purpose of facilitating peaceful resolution
of disputes between the litigating parties. They have the powers of an ordinary civil
court, like summoning, examining evidence etc. Its orders are like any court orders, but
the parties cannot appeal against such orders. Lok Adalats can resolve all matters,
except criminal cases that are non-compoundable. Either one or both the parties to
litigation can make an application to the court for transferring the case to a lok adalat.
Where no compromise or settlement is made by the lok adalat, such a case is transferred
to the court and that court deals with the litigation from the stage the lok adalat had
reached.

Lok Adalats have proved to be an effective mechanism for resolution of disputes

through conciliatory methods. Up to 31 December 1997, about 17633 Lok Adalats have
been held in different parts of the country where about 68.86 lakh cases were settled. In
about 349710 motor vehicles accident claims cases, compensation amounting to over
1,160.07 crore rupees were awarded. Under the Legal Services Authorities Act, Lok
Adalat has been given the status of a Civil Court and every award made by Lok Adalat
is final and binding on all parties and no appeal lies to any court against its award.
Under Chapter VI-A of the Legal Services Authorities Act, 1987, there is the provision
of Lok Adalats. Up to December 2004, over 2 lakh 52 thousand Lok Adalats have been
organized which have settled over 1 crore 74 lakh cases. For more effective use of
provisions of this act, the conference will deliberate on the feasibility of setting up
permanent Lok Adalats in the states.

The constitution of the Committee for the Implementation of Legal Aid Schemes
(CILAS) in 1980 was a major step in institutionalizing legal aid. The Legal Services
Authorities Act, 1987, displaced the ‘CILAS’ and introduced a hierarchy of judicial and
administrative agencies. The ‘LSAA’ began to be enforced only eight years later, under
the directions of the Supreme Court. It led to the constitution of the National Legal
Services Authority (NALSA) at the Centre and a State Legal Services Authority in the
States to give effect to its directions.

National Legal Services Authority (NALSA):

The National Legal Services Authority is a statutory body which has been set up for
implementing and monitoring legal aid programs in the country. The legal aid program
adopted by ‘NALSA’ include promoting of legal literacy, setting up of legal aid clinics
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in universities and law colleges, training of paralegals, and holding of legal aid camps
and Lok Adalats. 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 programs.

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. A nationwide network has been envisaged under the Act
for providing legal aid and assistance.

National Legal Services Authority was constituted on 5th December, 1995. According
to Section 3 (1) under the Chapter II of the Act, the Central Government is instructed to
constitute a body at the National level known as the National Legal Services Authority,
to exercise powers and perform functions conferred on it or assigned to it under the Act.
His Lordship Dr. Justice A.S. Anand, Judge, of The 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.

‘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. The Government has sanctioned Rs 4 crores as grant-in-aid for ‘NALSA’ for
1998-99 for allocating funds to the State, District authorities, etc. The ‘NALSA’ is also
monitoring and evaluating the implementation of the legal aid programs in the country.
Up to December 1997 about 23.88 lakh persons were benefited through court-oriented
legal aid programs provided by the State Legal Aid and Advice Boards/ State Legal
Services Authorities. Of them, 3.73 lakh persons belonged to the scheduled castes,
about 2.14 lakh to the scheduled tribes, 240485 were women and 8578 were children.

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Supreme Court Legal Services Committee:
The Supreme Court Legal Services Committee has been enacted under the Legal
Services Authorities Act, 1987 for the effective rendering of justice in the apex court. If
a person belongs to the poor section of the society having annual income of less than
Rs. 18,000/- or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural
calamity, is a woman or a child or a mentally ill or otherwise disabled person or an
industrial workman, or is in custody including custody in protective home, he/she is
entitled to get free legal aid from the Supreme Court Legal Aid Committee. The aid so
granted by the Committee includes cost of preparation of the matter and all applications
connected therewith, in addition to providing an Advocate for preparing and arguing the
case. Any person desirous of availing legal service through the Committee has to make
an application to the Secretary and hand over all necessary documents concerning his
case to it. The Committee after ascertaining the eligibility of the person provides
necessary legal aid to him/her.

Persons belonging to middle income group i.e. with income above Rs. 18000/- but
under Rs. 120000/- per annum are eligible to get legal aid from the Supreme Court
Middle Income Group Society, on nominal payments.

Taluk Legal Services Committee:

Sections 11-A and 11-B were inserted by the Act 59 of 1994 whereby provisions
relating to Taluk Legal Services were added in the Legal Services Authorities Act,
1987.The Taluk Legal Services Committee work under the rules made by the different
States. Relating to its composition, conditions of services in certain States, additional
functions have also been assigned, example in Andhra Pradesh where the functions
are subject to superintendence of the District and the State Authority. Apart from the
abovementioned four-tier machinery the Legal Services Authorities Act also provides
for the Supreme Court Legal Services Committee to perform functions as may be
determined by the Central Authority and State Authority respectively.

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WHETHER LEGAL AID CAN BE CLAIMED AS A MATTER
OF RIGHT?

Yes, legal right can be claimed as a matter of right if a person is eligible to attain free
legal services as per section 12 of the Legal Services Authorities Act, 1987.
Political philosopher Charles de Montesquieu said, “In the state of nature...all men are
born equal, but they cannot continue in this equality. Society makes them lose it, and
they recover it only by the protection of the law.” The concept of legal aid and
constitutional rights circumscribe reflections of peoples’ basic necessities. Legal aid
and constitutional rights are intricately related for the realisation of equality before law.
Sometimes, a question arises as to whether legal aid is or accrues to a constitutional
right.
The concept of legal aid has been recognised in international documents on human
rights including the Universal Declaration on Human Rights (UDHR), International
Covenant on Civil and Political Rights (ICCPR), Commonwealth of Independent States
(CIS) Convention on Human Rights and Fundamental Freedoms, Arab Charter, African
Charter etc. These instruments set out specific obligations of states to provide state-
funded counsel for indigent persons. On a domestic level, the concept of legal aid may
be construed as a requirement for the achievement of a socialist society as enshrined in
the Constitution. Furthermore, laws such as the Code of Criminal Procedure (CrPC),
Code of Civil Procedure (CPC) and Legal Aid Act of 2000 prescribe statefunded legal
assistance to appropriate persons.
Legal aid is not a constitutional right but a right created under legislative enactment. It
is the result of the governmental responsibility and a gateway to ensure access to
justice. Legal aid can only be executed by the institution created thereof, such as, the
legal aid office. To be specific, refusal to legal aid cannot be questioned before a court
of law. A complaint to the district legal aid Committee is the only remedy for such
refusal.
Free legal aid is one of the fundamental rights guaranteed to all the citizens of the
country.
Article 14 of the constitution demands equality before law and legal aid aims to
remove the inequality between various segments by providing equal opportunity to
represent their case, whatever the situation might be.
Article 21 of the Constitution of India states, “No person shall be deprived of his life
or personal liberty except according to procedure established by law”. Hence ensuring
legal aid to everyone is necessary for ensuring substantive equality.

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Article 39A of the Constitution of India provides for free legal aid to the poor and
weaker sections of the society, to promote justice on the basis of equal opportunity.
Section 304 of CrPC states that if the accused is unable to procure a legal advisor, the
court must provide one to represent the accused on the bearing of the state.
Order 33 rule 17 of CPC states that if an indigent person is not able to avail legal
services, then the court shall exempt him from paying court fees.
The Legal Services Authorities Act,1987 was enacted by Parliament, which came into
force on 9 November, 1995 to establish a nationwide uniform network for providing
free and competent legal services to the weaker sections of the society.

The Right to legal aid services, across the globe, has been recognized as an integral part
of human rights and fundamental rights. In the era where both rich and poor exists,
everyone doesn’t have the ability to approach the court of law through a good lawyer if
they face any complexities because it is highly expensive to incur extra expenses where
elementary facilities of life is hard to maintain. To convey proper legitimate
administrations to the rustic and tribal communities, conveyance framework with an
alternate model of legal service providers must be provided for which the concept of
legal aid is established. Legal aid is the procurement of aid to persons who are
incapable to bear the cost of lawful representation and access to the court framework.
Legal aid is viewed as focal in giving access to equality under the watchful eye of the
law, the right to counsel and the right to a fair trial. The Judiciary has been in the
forefront in promoting free legal aid services to poor people, who cannot afford to
engage a legal practitioner to protect the interests in courts. Providing right to access to
speedy and economical justice for the downtrodden strata of the society is one of the
main mandates of such legal aid services.
So, we can say right to free legal aid is a fundamental right implicit in Article 21. Such
a right cannot be denied on the grounds of financial constraints or administrative
inability or that the accused did not ask for it. It is the duty of a magistrate or session
judge to inform the accused of such a right.

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TYPES OF FREE LEGAL SERVICES

Legal services are often thought to be one of the more expensive things a person may
need during their life - next to emergency medical care and the costs of buying a
home. Fortunately, there are many different places you can turn to for free or low-cost
legal services, including free legal services provided by the government, law firms, and
even law schools.
Below are the types of free legal services that are available:

1. Public Defenders: If you have been arrested and charged with a crime, you may
be dreading heading to court, especially if you do not have the resources to
afford a lawyer. You may be entitled to obtain legal services without charge,
however. Under the United States Constitution, you have the right to free legal
services for your criminal trial if you cannot afford an attorney of your own.
Often, these attorneys are appointed by a judge from a public defender's office
when you are formally charged with criminal counts. This attorney will be
assigned to your case for the duration of your criminal trial, as well as your first
appeal if you lose the initial criminal case. To find out more, you can contact
your local public defender's office.

2. Legal Aid Clinics: If you think that you need to file a lawsuit to protect your
interests, but are unable to afford a private lawyer, you may be able to qualify
for legal aid, often called legal services. Legal aid organizations and attorneys
often receive funds from the government and are normally tasked with taking
on cases concerning the poor and impoverished. Because of their limited
funding, however, legal aid societies and lawyers can usually only take on a
select few cases. The lawsuits that legal aid attorneys normally litigate are ones
involving denial of unemployment benefits, social security benefits, consumer
credit issues, and eviction and other landlord tenant lawsuits.
Before you begin looking to obtain services from a legal aid organization, you should
make sure you qualify. Often times, legal aid organizations only take cases from those
who make less than a certain amount of money each year. You can look in the phone
book or contact a local bar association in order to get in touch with a legal aid society
to see if you may qualify for free legal services. Government funding to these
organizations is usually limited, and because of this, they may not be able to take your
case, or you may be in for a long wait.
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 3. Personal Injury Attorneys on Contingency: Many personal injury attorneys take
cases on a contingency fee basis, which means that you do not pay anything to
the attorney up front and the lawyer only gets paid if you get paid. Contingency
fee arrangements are great for those who have winning cases but no real means
of paying an hourly fee to an attorney.
The way a contingency fee basis works is that you and your attorney will decide on a
percentage amount of the reward that the attorney will get upon a successful lawsuit
or settlement. This percentage is often in the neighbourhood of 30-40%, but can vary
depending upon your state and the laws governing these arrangements where you
live. Keep in mind that this percentage does not cover the costs incurred by an
attorney, such as filing and court fees. If your case does go to trial, however, and you
are successful in your lawsuit, judges often award the costs of the lawsuit in addition
to the judgment amount for your injury.

4. Pro Bono Services: Attorneys working in private practice and in firms often set
aside a portion of their time to work on pro bono cases. As with community
legal aid clinics, pro bono services typically are offered to individuals whose
combined household income is less than 125 percent of the federal poverty
level. There are some exceptions to these income limits, which you would need
to learn about from each pro bono program.

5. Social Justice Organizations: Often times you may find an attorney willing to
provide free legal services if your case involves some issue of social justice.
Social justice issues are easy to spot as they will have implications that extend
well beyond the scope of your case and include things like sexual harassment in
the workplace or freedom of speech. For example, if you are attempting to sue
your landlord for racially discriminating against you, you may be able to find an
attorney willing to work for you on a pro bono basis as this case may have a
broader influence on the community than just your specific problem.
There are a number of organizations that have legal teams dedicated to providing free
legal services on social justice issues, including organizations such as the National
Association for the Advancement of Coloured People (NAACP), American Civil Liberties
Union (ACLU) and the National Centre for Lesbian Rights.

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 6. Law School Legal Clinics: You can find free legal services at many law school
legal clinics that provide free legal services to low income clients by law
students under the supervision of an attorney (usually a clinical professor).
Generally, this type of pro bono work is offered in one or more particular areas,
including family law, elder law, landlord-tenant issues, health care law, and
financial assistance. Moreover, law students can provide a range of legal
services including, but not limited to, research and writing, drafting legal
documents, client interviews, negotiation, and court preparation.

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CHALLENGES FOR FREE LEGAL AID
The legal aid system in India has largely proven ineffective. There are many reasons
why the National Legal Services Authorities has not been able to deliver real legal aid:

• There is a general lack of awareness of the availability of legal aid: These legal
aid services are for the poor and illiterate people, and the major issue is that they are
not educated. They are not aware of their basic rights and legal rights. Due to lack of
awareness people are not getting the benefit of free legal aid services and which
sometimes also lead to denial of justice.

• There is a perception that free service is incompatible with quality service:

Perception plays a significant role in shaping people decision It is firmly believed by
the people that free service is incompatible as the counsel will not provide them
good service with regard to their case. People believed that the lawyers assigned to
provide legal aid and paid with public funds may not faithfully represent their
clients, casting serious doubt on the credibility of the scheme of legal aid provided to
weaker sections of society It is also precepts by the people that they will not get
decision based on equity and justice.

• There are not enough lawyers delivered by the legal services authorities:
In free legal aid services there are not enough lawyers delivered by the legal services
authorities. More lawyers must be encouraged to deliver free legal aid. So, that more
and more people can access to justice.

• Lawyers generally are uninterested in providing competent legal assistance

because of financial constraints: lawyers generally are uninterested in providing
competent legal assistance because of financial constraints. Moreover, too often
lawyers assigned to provide legal aid and paid with public funds do not faithfully
represent their clients, casting serious doubt on the credibility of the scheme of legal
aid provided to weaker sections of society. Some lawyers engaged by legal aid
committees hold their client’s cases for ransom by employing delay tactics. These
lawyers compel their clients, many innocent, to pay additional amounts of money to
them, even though they are supposed to obtain their fee from the legal aid
committee. One factor that may be contributing to this is that the remuneration paid
to lawyers by the legal aid committee is very low and does not even meet the
lawyer’s incidental expenses. All lawyers and advocates nowadays want a fair price
for their services, and the majority of them are unwilling to participate in such social

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 services. Although there are a small number of lawyers that provide these services,
the dearth of high-quality legal representation impedes the delivery of justice.

• Delivery system for legal aid is inefficient: Delivery system for legal aid is
inefficient. As there are not enough lawyers delivered by the legal services
authorities. More lawyers must be encouraged to deliver free legal aid. So, that more
and more people can access to justice.

• Underutilization of Para-Legal Volunteers: The basic role of these para-legal

volunteers is to promote legal aid camps, schemes and to reach to the poor and
weaker sections of the society. But there is a lack of proper training, monitoring,
verification, of these para legal volunteers. And these volunteers are also very less in
number as compared to the population which is to be served.

• Free legal aid challenges during COVID-19 pandemic: The pandemic has
severely affected the poor and marginalized and hence the ordeal for justice for them
is also at stake. It has caused more poverty and a new class of poor have emerged.
NALSA has an enormous task to assist those people for whom access to justice is
tough due to social status and financial strains. The legal aid services have been in a
compromised state especially recently as the resources provided were limited and
justice administration was generalized without special provisions for the weaker
sections of the society.

The budget allocation for the law and justice ministry and especially for the
NALSA is witnessing a downward trend. In 2018, the grants allocated to NALSA
were 150 crores to discharge its functions, and in the subsequent year of 2019 it fell
to 140 crores and in the year of 2020-2021 to only 100 crores. The population is on a
rise and so is the poverty, but the fund allocation to one of the most important
functionaries of state which ensures justice to the poor and needy is shrinking. The
NALSA also conducts Lok Adalats at district levels and it is firmly believed that
reducing the funds for inexpensive resolution of disputes is no less good than denial
of justice.

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SOLUTIONS FOR FREE LEGAL AID
The goal of legal aid would be achieved when all the needy and poor people are aware
and are getting benefits from it, as it is their fundamental right. So, there are some
improvements to be made to fill those lacunas in the legal aid system. These are the
following solutions:
• Role of NGOs: Involving and increasing the role of non-governmental
organisations to create awareness amongst the people about their rights and
effective justice delivery

• . Legal aid programmes and legal awareness: There should be an organisation

of legal aid camps and Lok Adalats at a mass level to spread awareness about the
rights of the people and awareness about the free legal aid programmes for the
needy ones. There should be the establishment of the entitlement centres at
various backward areas to make them aware of the rights, laws and encourage
them to opt for free legal services by solving disputes through Alternative
Dispute Arbitration, Lok Adalats, etc.

• Legal Literacy Mission: Other developed countries have missions of 2 years or

5year plans to inform people about the laws and rights. India can also introduce
a 5-year plan to educate people about their rights and laws.

• Better remuneration to the lawyers: Nowadays, a good representation for

lawyers is difficult to find because they are not interested in giving free legal
services, and expect certain fees for the services. So, there should be an increase
in remuneration paid to the lawyers by the courts or government, appearing or
defending the accused for free.

• Feedback approach: The monitoring of the work of the counsels should be

evaluated through the feedback approach, that is, by asking the people about the
feedback of the work of the counsel and then there should be proper progress
reports of every advocate. This all could be done by setting up a proper
monitoring committee.

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ROLE OF INDIAN JUDICIARY

Judiciary has always been a major supporter and a proponent of free legal aid in
India. It is evident from the past that Hon’ble Justice P.N. Bhagwati and Hon’ble
Justice Krishna Iyer have played a very important role in the legal aid movement,
and have emphasized the importance of free legal aid in India.
Various Cases are:

Hussainara Khatoon v. Home Secretary, State of Bihar [ (1980)1SCC 98]

The petitioner brought to the notice of Supreme Court that most of the under
trials 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 court held that Article 39-A emphasized 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.
The Supreme Court further held that the state cannot be permitted to deny the
constitutional right of speedy trial to the accused on the ground that the State has
no adequate financial resources to incur the necessary expenditure needed for
improving the administrative and judicial apparatus with a view to improving
speedy trial.

Khatri & Others v. State of Bihar & others (AIR 1981 SC 262)
In this case, court held that no procedure can be said to be just, fair and
reasonable which denies free legal aid to poor or indigent. Thus, state is under a
constitutional obligation to provide free legal aid to the accused not only at the
stage of trial but also when they are first produced before the magistrate or
remanded from time to time and such right cannot be denied on the ground of
financial constraints.
The court held that the right to legal aid is a fundamental right of an accused
person by a process of judicial construction of Article 21 and most of the States
in the country have not provided free legal services to a person accused of an
offence. It is mandatory for the State to provide free legal aid to an accused
person who is unable to secure legal services on account of indigence, and
whatever is necessary for this purpose has to be done by the State as per the
constitution. The State may have its financial constraints and its priorities in
expenditure but the law does not permit any Government to deprive its citizens of
constitutional rights on the plea of poverty.

Indira Gandhi v. Raj Narain (AIR 1977 SC 69)

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 “It was held that rule of law is the basic structure of the constitution of India.
Every individual is guaranteed the rights given to him under the Constitution,
equality of justice should be given to everyone. When there is violation of the
fundamental right or prerogatives, or privileges, then remedy goes to Court of
Law. Remedy starts at the stage when he first is produced before the magistrate.
In absence of legal aid, trial is vitiated."

State of Maharashtra v. Manubhai Pragaji Vashi (AIR 1995, 5 SCC 730)

The court widened the scope of the right to free legal aid. The right to free legal
aid is guaranteed fundamental right under Article 21 and 39A which provides
“equal justice” and “free legal aid”.

Centre for Legal Research V. State of Kerala (AIR 1986 SC 1322)

In order to achieve the objective of article 39A, the state must encourage and
support the participation of voluntary organizations and social action groups in
operating the legal aid programme. The government setup a “suitors fund” to
meet the cost of defending a poor or indigent. The Court held that although the
mandate in article 39A is addressed to the legislature and executive, yet the
courts too are bound by the mandate contained therein.

M.H.Hoskot v. State of Maharashtra [(1978)3SCC81]

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.

Sheela Barse v. State of Maharashtra [(1983)2SCC 96]

The court issued directions on the need to provide legal assistance to all
prisoners lodged in jails in Maharashtra. The court reiterated the constitutional
imperative of providing legal aid to poor accused that face deprivation of life or
personal liberty. It emphasised the importance of this right to restore faith in the
justice system, to protect rights of prisoners against torture and ill-treatment and
especially when their incarceration may prevent access to legal assistance. To
ensure that prisoners have access to legal aid, the court directed the Maharashtra
prisons to send a list of all undertrial prisoners to the Legal Aid Committee of the
district and to facilitate interactions between lawyers nominated by these Legal
Aid Committees and prisoners who desire legal assistance.

Ramakant v. State of Madhya Pradesh [(2012)8 SCC 553]

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 The primary question discussed is the right to legal representation at the appellate
stage. Recounting the legislative and judicial history of the right to legal aid, the
court noted that there is no distinction in the Constitution of India, 1950 or the
Legal Services Authority Act, 1987 between a trial and an appeal for the
purposes of providing free legal aid to an accused or a person in custody. An
eligible person is entitled to legal services at any stage of the proceedings which
he or she is prosecuting or defending. Therefore, the High Court was obligated to
enquire whether he required legal assistance, and if he did, to provide it to him at
State expense.
Mohd. Hussain v. The State (AIR 2012 SC 750)
The court found that the legal aid counsel appointed failed to appear for much of
the trial and failed to cross-examine multiple witnesses against the accused. The
court noted that the Sessions Judge did not ask the accused whether he was able
to appoint counsel or wished to have counsel appointed. Another lawyer was
appointed, but only at the end of the trial. The representation provided was such
that it was a denial of effective and substantial assistance of counsel and was
found to be a violation of the right to due process and a fair trial. The matter was
referred to three judge bench to determine whether it should be directed for de
novo consideration by the trial court, which the court held in favour of in light of
the serious nature of the crime.

Anokhilal v. State of Madhya Pradesh (AIR 2020 SC 232)

The court found that the amicus curiae in this case was not given sufficient time
to prepare, which was a denial of the right to legal aid, since it could not be said
to be real and meaningful. The court set aside the conviction and sentence and
directed for de novo consideration of the case. The court then laid down norms to
prevent such a situation from emerging again: in cases where there is a possibility
of life sentence or death sentence, advocates with minimum of10 years of
experience alone should be appointed as legal aid counsel; in the High Court
during confirmation of death sentence, Senior Advocates must first be considered
for appointment as amicus curiae; and counsel must be given sufficient time to
prepare.

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