Abstract

Title

“Legal Aid: a boon for the Indian legal system”

“Without equal access to law, the system not only robs the poor of their only protection, but
it places in the hands of their oppressors the most powerful and the ruthless weapon ever
created.”
- Reginald Heber Smith, Justice & Poor, 1919

In the staggering lake of law people come for the search of justice and equity. But at the time
when even whole society has been shambled with the shrimps of various atrocities, it has
amidst shrilled the persons hope for justice and equity.
But as every time, when we think it is a doom, a conspicuous ray of hope enunciates from
some corner.

Legal aid is the accolade of freedom, to represent oneself in the way or manner which best
interest him. It is the technique of allowing access to one who is not aware of rights from
which he is infringed by the irrational elements of society. It is medium of the removing the
fetters from the stringent swagger conditions of society, which is regulated by the some
obnoxious persons who are high in stature.

The main aim of any modelled rational society would be to deliver to justice and equity to
every individual who comprises to be the part of that society. And legal aid is the medium
which allow the persons to go the court of law and represent oneself for the right from which
he is deprived.

But there are many issues which leads to the issue whether we been successful in
implementing this technique. The present stratum of the society is completely shallow if seek
the proper implementation of legal aid. For the purpose of the delivering the justice we have
formed the concrete base of legal aid but the concerns still arises that whether on the real
ground they are really existing and working.

Our society should focus on the fact that for being the rational society we have to make every
effort for achieving rationality, but at time it should always be kept in the back of mind that the
efforts should not be superfluous. They should be in that proposition only in which they are
needed.

And also we must not squander any opportunity which could lead to the growth of legal aid in
the society, thus focusing on the every critical aspect which will help us in its proper
implementation.

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Name - Prateek Tak
Phone no – 09099612537
Email – prateektak059@gmail.com
College – Institute of law, Nirma University, Ahmedabad.

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 Paper
Title
“Legal Aid: a boon for the Indian legal system”

“When people are deprived over the years of any recourse to the provisions of the civil
society as a means of seeking redress for their material and spiritual deprivations, they lose
the faculty of using the law, when at last, such a recourse is open to them. The result of this
conditioning now is fashionably called ‘The culture of violence’; an oxymoron, for future
implies enlightenment, an aim towards attaining the fullness of life, not its destruction.”
-Nadine Gordimir
Introduction
The world changes so rapidly that one is not able to judge what is happening around him. It is
like a nature that every second we are on this earth something new is going to be experienced
by us. Every time evolution happens, something it is noticed by us and sometime it is not.
But there is always a moment when you realize that something is changing around and you are
also a part of that change. This change could be of any nature sometimes very important for the
society as a whole or sometime to a person as an individual.
Legal Aid is also such an evolution which affects in both an individual capacity as well as the
society. For an individual it is like an impregnable thing which is needed at every time when he
is taking some step whether it is a step that he used to take everybody, but as saying goes,
“what may happen you never know”, the aid could be asked or needed that to special
preference to legal aid.
What is legal aid?
In laymen language it is a legal assistance to the person whenever he is in the trouble and that
to also in the legal perspective. This is because nowadays every act of yours is included in the
legislations of the state whether how to walk, what to speak and even where you move. And for
this purpose to keep oneself within the coordinates of the predefined legislations one needs
legal aid. It could be either charged or uncharged. But if it is charged for then, it will not be
included in the parameters of word “Aid”, so for this reason it should be uncharged.

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Now according to legal personnel, Legal aid denotes legal assistance to the poor persons free
of cost in any judicial proceedings before the court or tribunal. It is provided to those poor
persons who are not in a position to enforce their legal rights or involved by others in court
cases.
“Jus in bello: to protect and assist the victims of injustice”
Also the important features of legal aid is that it should for the people who are in real of it that
is, one who are not able afford it due to several reasons like that of the poverty, lack of
awareness, time consuming i.e., delay in access to justice.
“…..to prevent the strong from oppressing the weak”
Thus, from the very outset, the rationale behind Legal Aid is the supposition that in every
society there are individuals who are unable to participate in the Legal System. Therefore, it is
of prime importance for the system of justice and for the society as a whole to provide such
individuals voluntary services of advocates. In the beginning, legal services was not provided
on humanitarian grounds as a grant of legal services from advocates to poor clients who they
met by chance.
In a country like India with 200 billion population, only 75% literate that is could either read or
write (approx. according to Census 2011), with the 118 rank in Human index, with such a high
corruption rate and where with every second or two scam or scandal or crime taking place it is
very difficult to imagine the judicial system and its accessibility. And indeed it leaves a
question mark about the existence of legal aid.
Every society has got some loopholes, some are definite to be pointed out and others are
needed to be pulled out. But the concern or issue is that which society accepts the defect and
tries to work for its improvement or solution. There is no sense in boasting qualities or
defectiveness but one should know about the real situation so that the work could be done for
its improvement.
Legal aid – a movement
As tracking back the existence the first legal aid, it first took place in United States of America.
In the United States, an organized Legal Aid Movement for the poor began in 1876 with the
establishment of an organization for providing legal assistance for the then recently arrived
immigrants1 by the German Society of the New York.

1 M. Cappilletti: The Emergence of a Modern Theme in Cappilletti, Gordley and Johnson.

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Then Legal Aid was a diffused movement till 1919, when Reginald Heber Smith, an advocate
with the Boston Legal Aid Society, published a work- ‘Justice and the Poor’- which gave way
to some outstanding new ideas. The important idea was that there was a ‘collective social
responsibility’ on the Bar to provide opportunities for the unrepresented masses to secure
access to the justice system and it was indeed a crucial development in Public Interest Law.
Then came an organize form of Legal Aid in which there was an ‘independent private office’ –
separate from any commercial law firm- with salaried lawyers working full-time on the
problems of clients. This organization was, however, critical to the development of Public
Interest Law. It was a new kind of institution that moved away from the concept of individual
service performed on a voluntary contribution basis. It was a model that had been followed
because of its effectiveness. Under this model, those running the organization, the advocates
did not have to treat Public Interest service as an uneconomic enterprise, in contrast with an
otherwise lucrative commercial practice. It was indeed a radical beginning. However, Legal
Aid was too big an objective for charity to support. But, surely, the Legal Aid Movement
accomplished a great deal.
Legal Aid in India
The meaning and objects of the Legal Aid has been clearly explained by Justice P.N. Bhagwati.
According to him, legal aid means providing an arrangement in the society so that the
machinery of administration of justice becomes easily accessible and is not out of reach of
those who have to resort to it for enforcement of rights given to them by law. 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.
The rule of law plays an important role in administration of the country. In India the rule of law
is regarded as a part of the basic structure of the Constitution 2 and also of natural justice.3 Free
legal aid has been held to be necessary adjunct of the rule of law. The Supreme Court in
Hussainara Khaatoon’s case,4 which was decided as far back as 9th March, 1979, held that the

2 Indira Gandhi v. Rajnarain, AIR 1975 SC 2299.

3 Board of High School v. Chitra, (1970)1 SCC 121.

4 AIR 1979 SC 1369.

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right to free legal services is clearly as 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 of the constitution and the State is under a constitutional mandate to provide lawyer
to an accused person if the circumstances of the case and the needs of justice so require,
provide of course the accused person does not object to the provision of such lawyer.
In Khatri v. State of Bihar5 the Supreme Court after quoting Hussainara’s case observed that it
is unfortunate that though this court declared the right to legal aid as a fundamental right an
accused person by a process of judicial construction of Article 21, most of the states in the
country have not taken note of this decision and provided free legal services to a person
accused of an offence. It further observed that it regrets is regard of the decision of the highest
court of the land by many of the States despite the constitutional declaration in Article 141 of
the constitution that the law declared by this court shall be binding throughout the territory of
India.
India has also many committees for the purpose of development of the concept of Legal Aid.
India formed its first committee on ‘Legal Aid and Advice’ 1949 under the chairmanship of
Justice N.H. Bhagwati following the Rushcliffe Committee of England which set up free legal
aid for the benefit of the poor and needy during the Second World War through its ‘Legal Aid
and Advice Act 1949’. However it was only after 1952 that the Government of India undertook
systematic measures to counter the inadequacies of the system. Several Nyay Panchayats were
established ot bring justice to the needy and deprived.
Reports of N.H. Bhagwati Committee (1949), Trevour Harries Committee on Legal Aid and
Legal Advice, 14th Report by the first Law Commission (1958) came up but could not be
implemented due to inability to acquire and allocate funds. Similar was the fate and outcome
of the 1960 Union Government and the Third All India Lawyer’s Conference (1962),
National Conference on Legal Aid and Legal Advice (1971).
Some progress in this direction was made with the incorporation of Article 39(A) through the
42nd Amendment Act, 1976, based on the recommendations of the Expert Committee on Legal

5 AIR 1981 SC 928.

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Aid, 1973, on “Procedural Justice to the People” under Justice V.R. Krishna Iyer. The
Amendment added Directive Principles of State Policy which prescribed that:
“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.”6
For the purpose of effective delivery of legal aid Indian government has passed the legislation
Legal Services Authority Act, 1995. The act gives many recommendations for the development
of legal aid movement in India.
Area where legal aid needed
1. Over tapping of resources
2. Economic divides of class and region
3. High environmental pollution
4. Legal counseling
5. Lawsuit agent service
6. Penal defense
7. Non-lawsuit agent service
8. Long pending decisions
9. Poor person who is unaware of his legal rights
Legal Aid services have developed in the last decade and have been almost merged into the
mainstream judiciary so as to help and maintain judicial justice in an evolving society.
Providing Legal aid is an obligation incumbent upon the government in any society under
the rule of law. Given the enormous legal ignorance in society, high cost, uncertainties
during the long time gap to delivering a judgment and rampant corruption in judiciary, the
greatest guarantee for justice to the poor is in refining the procedures of access to justice
framework.
In India, the provision of legal aid has been written into the Constitution as a State
obligation7.

6 Expert C ommittee on Legal Aid, 1973, on “Procedural Justice to the People” under Justice V.R. Krishna Iyer.

7 Article 39, Section 1 of the Constitution of the Republic of India.

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The year 1987 proved to be very significant in the Legal Aid history of India, as the “Legal
Services Authorities Act” was enacted by the Parliament to give a statutory base to legal
Aid programs throughout the country and bring about a uniform pattern.
Setup of legal Aid organs in India
The legal aid organs in India are located in the building of the courts led by the sitting (also
include retired) senior judge. They are composed of judges and staff lawyers. In accordance
with The Legal Services Authorities Bill, India has set up legal aid authorities at four levels
including nation, state, region and Taluk. The legal aid authorities build the Court’s Legal
Services committee at different levels.
The function of legal aid organs is to provide legal services to people in accordance with
the regulations and conduct preventive and strategic legal aid campaigns etc.
India’s legal aid organs pay all the expenses of lawsuit when providing legal aid.
In India, every court’s Legal Services Committee employs full time legal aid lawyers who
can provide direct Legal Aid to the parties. There are some legal aid cases which are
handled by private lawyers and paralegals.
Legal Aid can be divided into two categories: one category embraces seven groups as
follows:
1. Members of SC/ST
2. Victims of trafficking in human beings or beggars as referred to in Article 23 of the
Constitution
3. Women and children
4. Mentally ill or otherwise disabled persons
5. Persons under circumstances of undeserved want such as being a victim of a mass
disaster, ethnic violence, caste violence, caste atrocity, flood, drought, earthquake or
industrial disaster
6. Industrial workmen
7. Persons in custody
The other category embraces people with economic difficulty, namely persons with an
annual income less than rupees nine thousand ($225) or such other higher amount as may

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 be prescribed by the State Government if the case is before a court other than Supreme
court and less than rupees 12000 or such other higher amount as may be prescribed by the
Central Government if the case is before the Supreme Court. In accordance with this Act
the number of people eligible for legal aid could be around 75% of the population.
Accessibility of Legal Aid to Poor
“Perhaps- and it is only a perhaps- there was once some justification for restricting access
to the courts to prevent their being bogged down in a morass of ineffectuality. But today’s
better-informed, better-educated, more literate and more politically-aware citizens should
certainly not be barred from the courts by tradition. The law can no longer be a close
shop.8The process of transformation of non-beings into human-beings and what it involved
is eloquently described in the beautiful lines of Rabindranath Tagore:
“Into the mouths of these dumb, pale and weak,
We have to infuse the language of the soul,
Into the hearts of these weary and worn, dry and forlorn,
We have to minstret the language of humanity.”
Poverty and lack of access to justice are intrinsically connected. Poverty, which creates a
vicious circle of disempowerment,9 is not merely an indicator of economic deprivation but also
an indicator of the social, political and above all legal deprivation of people. Poverty disables
people to approach the formal legal system for assertion of their rights and for seeking
remedial action in cases of violation of legal rights. Poverty compounds obstacles to access to
justice-ignorance of the legal provisions and one’s rights, procedural technicalities, lacking
awareness about the complexities of the legal system, very little or no access to legal services
of any kind, along with lack of resources to manage the high cost of litigation are some of the

8 Under a banner ‘Easier Access to Courts of Law’ quoted in AIR 1981 SC 300. The Australian, 16th November,
1977.

9 Poverty is a reflection of powerlessness and the powerful need to be challenged if change is to relieve
disadvantaged as mentioned in Ton Dietz in the Agenda in Neil Middleton, Philokeefeked Rob Visser (Ed.),
Negotiating Poverty New Direction Renewed Debate form B. Wisner 1988, Power and Need in Africa, London,
Earth scan, London, 2001, p.21.

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consequences of poverty.10 Mauro Cappelletti referred it to what he called the problem of
“legal poverty” and considered it as one of the most important obstacles to access to justice.11
Access to justice is not a clearly defined phrase. It covers a wide variety of matters including
accessibility to court, adequate legal representation, availability of legal aid,12 legal advice and
legal education (Parker 1999:3). All these approaches are merely facilitative in nature.
However it should rather refer to a system which is not only equally accessible to all but also
leads to results that are individually and socially just. Therefore mechanisms that merely pave
the way for approaching the justice delivery systems and are devoid of consequent substantive
justice are merely empty formalities.13
The raison d,etre of the legal Institutions14 is to secure legal justice for all on an equal basis.
Legal justice here implies deciding cases and imparting judgments in courts under the auspices
of law and Constitution wherein like cases are treated alike. It rests upon the three notions,
namely, rule of law, legal equality, and accessibility to the institutions of law (Parker 1999) and
relies heavily on the idea of supremacy of law and of legal institutions. However, the idea of
legal justice stops at this juncture. It seems to be satisfied with the prevalence of norms that
guarantee equal rights and liberty through the various mechanisms and institutions designed
for the purpose. It fails to realize that mere existence of law and legal institutions is not a
sufficient condition. The requirements of the freedom and justice have been so demanding and
complicated, and the procedures of the courts so slow and expensive, that only the people with

10 Anindita Pujari (2009), Poverty and Access to Justice- Dimensions of Public Interest Litigation, New Delhi:
Eastern Economy Edition.

11 The disadvantaged, he affirmed, lack basic information about their legal rights. The general problem of lack of
information encompasses many subsidiary ones: not knowing what rights one has; not knowing where to go and
what to do in order to demand one’s rights; not knowing the legal language and the legal procedures, etc.

12 Article 39A of the constitution of India provides free legal aid to the poor and weaker sections of the society.

13 Anindita Pujari (2009), Poverty and Access to Justice- Dimensions of Public Interest Litigation, New Delhi:
Eastern Economy Edition.

14 A legal institution is one by means of which the people of a society settle disputes that arise between one
another and counteract any gross and flagrant abuses or rules of other institutions of society.

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appropriate means and resources at their disposal are able to take advantage of these
arrangements. Thus, much more is required to enable the legal machinery to realize the goal of
equal justice to all and the protection of the weak and the underprivileged sections of the
society.15
Suggestions
For the purpose of making the Legal Aid as an effective tool following more could be done or
have been done:
1. Strengthening the Role of NGO’s.
2. Setting up the International body for the better regulation like in case of International
Humanitarian Law, International Committee of the Red Cross (ICRC) has been set
upped.
3. Preventing people from the abuses which they are subjected to while aware of their
rights.
4. Laying down the principles for restoring and preserving the contacts between the
digressed family members due to social abuses which they face.
5. Helping in restoring the contact between the detainees and their families.
Conclusion
India has done quite well in setting up the mechanisms which could help in efficient
dispensation of legal aid by introducing the concept of PIL (Public Interest Litigation), Nyay
Adalat, Lok Adalat etc. But like in every action something misses every time, the legal aid also
misses many things. And it should be accolade for this.
Firstly it is limited to very small universe of people, means to say that its scope should be
increased to the section of society like General category of people. This is because people from
this category also people are socially and economically poor.
Secondly, there should be setting up of International body for this area which could regulate
the affairs regarding legal aid.
And thirdly, the role and scope of NGO’s should be increased. They should be motivated to
enter into this area of law where they can help the general public because in present time they
are most near to the common people.
15 Pallavi Bahar (2009) : Revitalizing Judiciary- Enhancing access to the Poor, New Delhi : Eastern Economy
Edition.

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Like every other journey, this journey relating to the achievement of rational society through
Legal Aid should be “ceaseless and relentless”.
References
1. M. Cappilletti: The Emergence of a Modern Theme in Cappilletti, Gordley and
Johnson.
2. Anindita Pujari (2009), Poverty and Access to Justice- Dimensions of Public Interest
Litigation, New Delhi: Eastern Economy Edition
3. Pallavi Bahar (2009) : Revitalizing Judiciary- Enhancing access to the Poor, New Delhi :
Eastern Economy Edition.
4. NULJ (Nrma University Law Journal); Volume 1, Issue 1, July 2011.
5. International Humanitarian Law; Published by International Committee of the Red Cross
(ICRC); New Delhi.
6. Article 39, Section 1 of the Constitution of the Republic of India
7. Easier Access to Courts of Law’ quoted in AIR 1981 SC 300. The Australian, 16th November,
1977.
8. Philokeefeked Rob Visser (Ed.), Negotiating Poverty New Direction Renewed Debate form B.
Wisner 1988, Power and Need in Africa, London, Earth scan, London, 2001, p.21.
9. 42nd Amendment Act, 1976, based on the recommendations of the Expert Committee on Legal
Aid, 1973, on “Procedural Justice to the People” under Justice V.R. Krishna Iyer.
10. Indira Gandhi v. Rajnarain, AIR 1975 SC 2299.
11. Board of High School v. Chitra, (1970)1 SCC 121.
12. Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369.
13. Khatri v. State of Bihar AIR 1981 SC 928.
14. K.Ramaswamy; Ceaseless and Relentless Journey, New Delhi: Eastern Book Company.

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