Unit 1 D PDF
Unit 1 D PDF
3.1 INTRODUCTION
The concept of legal aid, as mentioned earlier, took birth on earth with the dawn
of civilization and with the emergence of the idea of thine and mine. Ancient India was
a land of plenitude and the traditional religion-oriented living and culture had helped the
It was in India that the philosophy of treating the entire humanity as a large family, with
the Creator as its head, had developed. It is by virtue of such attributes that there was
very little or almost no existence of the sort of competitive living that we observe in
contemporary world. The struggle for existence was at a reduced level and disputes
were comparatively minimal. Philosophy of life built upon the thesis of co-existence
had generated a high sense of morality which, in its turn, had regulated human conduct.
As a religious mandate, no one was prepared to enjoy the fruits of another‟s labour.
Therefore, many of the aberrations of human conduct, which are considered as offence
under the penal law, were not found. Life was clean, less complex and the spirit of co-
existence prevailed.1
As per the view of contractualists, which is accepted by the sociologists and the
jurists alike, the itinerant man decided to end his free life in the State of Nature to start
an orderly and a regulated life, under the control of a sovereign. At the time when man
1 Govt. of India Alternative Dispute Resolution, a paper by the Government of India for meeting of
Commonwealth Law Ministers at Christ Church, New Zealand from (23-27)th April 1990, Published
in the Legal Aid News-letter, New Delhi, May-August 1990, p.13.
54
walked into an orderly society from the State of Nature, there was a pledge that
everyone would do justice to the other and the realization of this culture again became a
way of life in India at a fairly early point of time. Life and religion were closely knit and
inter-woven and the scriptures were taken as a code of conduct. Social norms, therefore,
were mostly self-enforced and dependence on law, for regulating human conduct, was
not very much looked for. Life‟s activities were confined into pockets and, in view of
the prevailing high sense of bondage of affinity, fraternity and a sense of mutual well-
being, an attitude of sufferance2was the way of life. As and when individuals fell from
these standards and started raising disputes, those were quickly settled by the
intervention of elders whose services were readily available. This gave rise to a system
some areas these became standing boards while other such boards sprang up as and
and, therefore, the panches, who gave their verdicts, were gradually looked upon as
divine agents and their decisions were accepted without demur. By this process, a social
dispute resolution mechanism with acceptability base developed and became the pattern
in ancient India. And on account of its widely popular prevalence and continuance for a
long period, acceptance of the Panchayat System, as the traditional process of dispute
Hence, the formal concept of legal aid took birth at the Indian soil when the
system of courts, the appearance of lawyers and the institution of court fees was adopted
2 The theory of expiation prevailed in Indian Society. Chhabra, K.S., Quantum of Punishment in
Criminal Law in India, Punjab University, Chandigarh,1970, pp. 42-43
3 Gujarat Committee Report, op.cit., p.1
55
in India. However, its roots can be found in the retributive4 instinct of man and the
efforts of Indian society to deliver justice. And in that sense, we can trace the
philosophy of legal aid to the ancient society, which is known to have systematically
Therefore, this chapter discusses legal aid movement in India from Vedic Period to
Vedic Period.
Kautilyan Period.
Gupta Period.
Muslim Period.
Vikramaditya Period.
British Period.
Post-Independence Period.
Post-Constitution Period.
nd
42 Amendment to the Constitution, 1976, and
Vedas were regarded as the ultimate sources of knowledge from ancient times. It
is said that the contents of the Vedas are revelations of God Himself. There is no
4 Hegal, Studies in Hegelian Cosmology, quoted by Ewing, A.C, The Morality of Punishment, p.73,
puts the concept of retribution as-“Punishment is only the manifestation of crime, the second half of
which is necessarily presupposed in the first, retribution is the turning back of crime against itself.”
56
agreement as to the chronology of this period. Some sources accept it as existent since
some 6000 years ago whereas some others place its origin somewhere around 18th
century B.C. We can find traces of legal aid in the social practice and in the elements of
Dharma itself.
Rig Veda, the earliest of the four Vedas (viz, Rig, Sama, Yajur and Atharva)
th
does contain such elements of legal aid or social aid, as we may name it. The 36 and
nd 5
42 Slokas under Chapter I refer to the need of saving people from „rakshas‟ and
violent people, procuring strength for such protection alongside praying the Almighty to
bless those who donate. Therefore, we do find the existence of violence in the society,
or the foresight of its existence in the future societies. Rig Veda provides for mustering
strength, including monetary assistance, i.e. „Daan‟ for extending aid and assistance to
those fearing or facing the attacks. Sloka 103 of Chapter III clarifies that a king, who
gives money to one in such need, is the winner of the wealth of opponents and that God
always protects him. We therefore, can infer from such references in the Rig Veda that,
providing social aid and also King‟s (i.e. State) assistance to the one being or fearing to
During the Kautilyan era, Budhism was eclipsed and society again went under
the Vedic influence. But the developments during the Buddhist period did continue to
5 Singh, Govind., Hindi Translation of Important Parts of Rig Veda ,Sadna Pocket Books, New
Delhi,1992,pp. 31-36.
6 Vivekananda, Swami. ,Caste Culture and Socialism ,Advaita Ashram, Calcutta 1988,p. 88,
underscoring the quality of our rich writes- “It is culture that withstands shocks, not a simple mass of
knowledge…….. we all know, in modern times, of nations which have masses of knowledge, but
what of them? They are like tigers, they are like savages, because culture is not there”.
57
play a role. Social cohesion and Dharma emerged as the social ideals. In the social
sphere, the practice of slavery, under the later Kautilayan period known as the King
Ashoka‟s era, found its abrogation to a larger extent. The society experienced a secular
look and strengthened cohesion, arising out of the contentment of various sections of the
Indian society. This period is treated to be a golden period in the ancient Indian history
of jurisprudence.7
through the court. According to Kautilya each town was under the jurisdiction of a
Profect (Nagaraka)8. In Kautilya‟s Arthashastra, the realm has been divided into four
administrative units, called (1) Sthaniya, (2) Dronmukha, (3) Kharvatika and (4)
Sangrahana. „Sthaniya‟ was a fortress established in the center of eight hundred villages,
a „Dronmukh‟ in the center of four hundred villages, „Kharvatika‟ in the midst of two
hundred villages and a „Sangrahana‟ in the center of ten villages. In each of these places
laid down that the awarding of punishment must be regulated by a consideration of the
58
motive and the magnitude of the offence.12 However, the time and place of the offence,
age of the offender, his social and monetary positions were also taken into account. The
The system of Administration of Justice which was introduced during the reign
of King Ashoka continued and followed during the glorious reign of the Gupta
During the Muslim period14 the administration of justice was one of the most
important functions of the Sultans. The king‟s court exercised both original and
appellate jurisdictions. Two Muftis, who were highly qualified in law, assisted the
sultan. During that time in fact need for legal aid for the poor was not felt seriously. The
need for legal aid was felt only when a formal system of Administration of Justice came
into existence.
59
The British Rule, which followed the Muslim Period, further complicated the
judicial system by modifying the existing system and introducing English laws. They
gave further impetus to the need for legal aid for the poorest of the poor. The British
who ruled India for nearly two centuries formalized the judiciary. Complicated
formalities. The high lawyers‟ fees made litigation a costly affair. Moreover, the
instrument rested in the hands of the rich for harassing the poor. Gradually, the British
colonial system of judiciary became an inevitable and irrevocable part of the Indian
Society. In Britain, the history of the organized efforts on the part of the state to provide
legal services to the poor and needy dates back to 1944, when Lord Chancellor Viscount
Simon appointed the Rushcliffe Committee to enquire about the facilities existing in
England and Wales to provide legal advice to the poor and to make recommendations, is
deemed desirable, for ensuring that people in need of legal advice are provided the same
15
by the State.
During the time of the Vikramaditya Period, a judge of the highest court was
paid five thousand silver coins and was provided with a free furnished home. There was
an evolved law of pleading, very similar to the present one. Jurists of the stature of
Manu, Yagnabalka, Jaimini, Brihaspati and Narada did adorn the legal panorama of this
country in its golden age of history. Nonetheless, the common man was not required to
15 Sivakumar. S., (Lecturer Kerala Law Accademy Law College, Tiruvananthpurm) Legal Aid : How
effective Are Domestic Legal Aid Programmes?, Indian Bar Review Vol. 27(1) 2000, pp. 107-108
60
spend even a pittance for seeking justice. Through the village and community panchayat
In India in olden days‟ justice was rendered very cheaply without charging any
court fee or stamp duty. Pre-British India had practised “Constitutional Monarchy” and
the days of the Hindu and Muslim rulers had witnessed unsophisticated methodology of
dispensing justice to the poor, inexpensively and immediately. In short justice to the
citizens, high and low has been a creed in India since a long time ago. The British
brought with them an expensive system of Administration of Justice, which has made
The British rule of almost two hundred years, particularly the English model of
adjudicatory process, had the effect of formalizing the procedure. Technicalities were
introduced into the justice system. Litigation soon turned out to be costly on account of
the lawyers and court fees. It also became time-consuming. The net effect was that the
poor man found it difficult to enter the portals of the courts and the rich man was able to
The East India Company carried with it the concept of common law. The
colonies which they established in and around modern Bombay, Calcutta and Madras
and their gradual acquisition of other parts of the country came to be subjected to an
16 Johari ,S.N., “Programme and Movement of Legal Aid to Poor”. AIR 1981, Jour.28,available at
shodhganga.inflibnet.ac.in visited on 09/01/2015
17 Rao, Srinivasa Kotagiri., The Emergence of the concept of Legal Aid in India and its application in
contemporary Goa – A Legal Study, Chapter V, A Thesis submitted to Goa University for the award
of the Degree of Doctor of Philosophy in Law, p.80
18 14th Report of the Law Commission of India, Reforms in the Administration of Justice, 1958,
Appendix IV,p. 621.
61
admixture of common law and the local system of adjudication. They did not
immediately dislocate the system of the Kazi nor did they interfere with the Panchas.
But the establishment of the adjudicatory court, in course of time, brought about
The Muslim rulers were indigenous; the Englishmen brought with them the
concept of the ruler and the ruled and the sense of superiority over the local men. The
Englishman was, therefore, not subjected to the local laws and such a system of justice
kept him out of the purview of law that bound the local people. Gradually the
adjudicatory process became more and more formal with the introduction of the Angle-
Saxon system of jurisprudence and when India came to be a part of the British Empire
under the direct suzerainty of the crown, a full –fledged adjudicatory set-up came into
being.20
Furthermore, the British rule exposed the Indian leadership, majority of whom
were law students, to the British legal system. This proved to be a blessing in disguise.
The Indians could gauge the partial and discriminatory dealing being extended to them
The international developments in the area of legal aid like those of Bill of
Rights, the report prepared by the League of Nations on the existing legal aid facilities
in various countries in the year 1927 and the efforts of the United Nations on the subject
made their way to the minds of Indian people through British education. All the more,
the available benefits of legal aid in England in criminal cases and under the new forma-
19 Singh, Sujan., Legal Aid Human Right to Equality, Deep & Deep Publications, p. 84
20 Roma, Mukharjee., Women, Law and Free Legal Aid in India, Deep and Deep Publications Pvt .Ltd,
2000,New Dehi-110027, p. 31.
62
pauper is suit encouraged Indian people, much poorer than the Britishers, to demand
coverage under the protection of such legal aid benefits. The result was discernible, as
we find such provisions in the C.P.C. and Cr.P.C. which were enacted for Indians
during the British regime in India. The adversary system and the institution of court fees
For providing Legal Aid in the pre-independence phase the Bombay Legal Aid
Society (BLAS) was formed in 1924. The main objectives of the society were making
justice accessible to the poor and reducing the cost of litigation, providing lawyers to
the poor on the basis of need, rendering Legal Aid gratuitously and to make provision
for payment of court fees. To qualify for legal aid, an applicant had to satisfy the means
The question of legal aid to poor attracted the attention of the people even before
coming into force of the Constitution. In England, in 1944 a committee under the
exist in England and Wales for giving legal advice and assistance to the poor persons
and to make such recommendations as appeared to be desirable for the purpose securing
that poor persons in need of legal advice might have such facilities at their disposal and
for modifying and improving, so far as seemed expedient and existing in which they
63
3.9 THE RECOMMENDATION OF LORD RUSHCLIFFE
COMMITTEE 24
The Lord Rushcliffe Committee submitted its report in 1944. Its main
recommendations were -
Legal Aid should be available in all the courts and in such a manner so
that even the poorest of the people in the direst of the needs are enabled
This provision should not only be limited to those who are normally
Those who cannot afford to pay for legal aid should receive
this free of cost. There should also be a scope for different weighting and
scaling of contributions towards the legal aid fee based on the economic
The cost of the scheme should be borne by the state, but the scheme
authorities;
the scheme, except the part of it that deals with the Poor Prisoners‟
Defence Act;
services;
The term „poor person‟ should be discarded and the term „assisted
64
person‟should be adopted.
and as a result the Legal Aid Advice Act, 1949 was passed.
After the submission of the report of Rushchiffe, the Bombay Legal Aid Society
in 1945 invited the attention of the Government of India to the said Report and
legal aid to the poor and the needy. The Government of India wrote to the provincial
governments asking whether they would be able to provide greater facilities for legal aid
to poor people in both Civil and Criminal cases. The Provincial Governments, on
account of financial stringency were unwillingly to provide legal aid beyond what was
statutorily granted.25
On 27-12-1945, Bombay Legal Aid Society wrote to the Law Ministry of the
Government of India drawing their attention to the report of the Rushcliffe Committee
improving the system of Legal Aid in England. The letter suggested that a similar
The process of codification of laws in India began during the British period. A
Law Commission had been set up in 1834. The Criminal Procedure Code was enacted
in 1878. This Code recognized the right of the accused to be defended by a pleader.27
But the judicial interpretation did not come forward to incorporate legal aid to the poor
65
in this respect. Therefore, the relevant section lost its pertinence. Thus, the provision
continued to carry the meaning that the accused has to engage own counsel. It was the
redrafted Code in 1973 that spoke about legal aid. Thus, under section 304 of Cr.P.C.,
an accused facing a trial in the Court of Sessions and not represented by a pleader for
lack of sufficient means should be assigned counsel at the cost of the State. On the civil
side, the Code of Civil Procedure provided for pauper suits without payment of court
fees.28
latter could provide facilities for legal aid to the poor in civil and criminal cases. The
provincial governments were of the opinion that the existing provisions for legal aid in
civil cases was sufficient, but that the provisions for the grant of such aid in criminal
cases might be liberalized. But primarily due to financial constraints the provincial
government was not ready to undertake a scheme of free legal aid for the poor in
criminal cases. Thus the effort of the Bombay society, though not fully successful, made
the government and the public to think in getting justice for them.29 Thus, the only
assured solace to the poor was still the Panchayat system that continued to deliver
economic development and social equity were major political goals at that hour.
Consequently, legal aid was equally, or perhaps, even more relevant at that time since
28 Basu, D.D., Constitution of India, Prentice of India Pvt. Ltd., New Delhi, 1981, p.231.
29 Fourteenth Report of the Law Commission of India, p. 588
30 Sivakumar. S, (Lecturer, Kerala Law Accademy Law College, Thiruvananthpuram) Legal Aid : How
effective Are Domestic Legal Aid Programmes?, Indian Bar Review, Vol. 27(1) 2000 p. 109
66
legal aid has a direct co-relation with the development of the society as well as the
country, according to constitutional goals. In order to attain that goal, ambition and
aspiration, the seed of legal aid had already been germinated at the behest of Bombay
to adhere to the constitutional dictums of social equity and principles of natural justice
for all, and as a result of a certain resolutions moved by the Bombay Legislative
Committee in March 1949 under the Chairmanship of Hon‟ble Justice P.N. Bhagwati to
study in detail the issue of providing legal aid in civil and criminal proceeding to poor
people.
The Committee recommended the courts to provide people with limited income
and those belonging to backward classes with legal assistance to remit requisite justice
to those people. This committee was named as Bombay Legal Aid and Advice
Committee.
The recommendations of the Bombay Legal Aid and Advice committee were
The committee made very exhaustive examination of the question of legal aid
and submitted its report in 1949. The subject of legal aid was studied in-depth and as
such it is a very valuable document. The committee emphasized that legal aid is a
Under modern Welfare State, legal aids‟ conception should be the obligation of
the state and is to be treated on par with other social welfare schemes such as old age
67
pensions, free education and free medical relief and therefore the state must take upon
itself the responsibility of providing legal aid to the poor and people of limited means32.
On 23rd March 1949, the Government of Bombay appointed a committee under the
st
Chairmanship of Justice N.H. Bhagwati. In its report, submitted on 31 October 1949,
namely,
i. State level
b. The Committee suggested two tests for determining eligibility for legal aid,
namely ,
c. It was further proposed that no aid should be provided in trivial and trifling cases
“Disposable Capital”
32 State of Bombay Report of Committee on Legal Aid and Legal Advice, 1949, p.8.
33 Supra Note 17, pp. 109-110
68
f. A bond should be executed by the party that there is no sympathy and he will not
ii. The lawyer is entitled to get remuneration only after six cases.
Aid Fund and in case of his failure, cost should be paid out of Legal Aid
Fund.
The Committee recommended for “Partial Legal Aid” as suggested in the Report
of Rushcliffe Committee in England. It had also mentioned the scope and extent of
Legal Aid. Legal Aid may be given to plaintiff and defendant, complainants, petitioners,
institutional structure for delivery of Legal Aid Services. 34 Legal representation at state
expense however was available only where an indigent accused was being tried for an
offence punishable with a capital sentence. This was not a statutory right but was made
34 Ranjan Dwivedi vs. Union of India, AIR 1983 SCR (2) 982, 1983 SCC (3) 307.
35 State of Maharashtra vs. Manubhai Prayaji Vashi And Others , AIR 1989 Bom 296,(1989) 91
BOMLR 13,1989 MhLJ 344.
69
3.14 POST-CONSTITUTION PERIOD
republic with a written Constitution. Even during the period from 1947 to 1950,
Bombay Legal Aid Society tried to bring attention of the Government towards the legal
aid in 1949 in England. Legal Aid Advice Act was enacted considering the report of
1949. Mr. Justice Bhagwati headed this committee. The Committee studied thoroughly
the question of legal aid and a detailed report was submitted in October 1949 but the
Government did not act upon that report. In the same year Government of West Bengal
also set up a committee headed by Sir Arthur Trevor Harries, the then Chief Justice of
Calcutta High Court to recommend judicial reforms in the field of legal aid.36
The Central Government advised the State Government to make provisions for
legal aid in criminal cases with respect to offences of which punishment is not less than
five years imprisonment and appeals arising out of such offences.The Central
enumerated in the Seventh Schedule. The Seventh Schedule of the Constitution of India
contains three lists, which enumerate subjects on which the central and state
governments can legislate. Administration of justice comes under state list or list II.37
The state governments‟ responses were discouraging for they had excuses of
financial difficulties and constraints. This revealed the fact that the issue of legal aid to
the poor was not taken seriously by the government at that time.38
70
In 1956, for the third time, the Government of India tried to elicit the view of the
state government, advising them to consider the matter again, in the light of the Five
Year Plan scheme for granting of legal aid to the poor. The central government advised
the state government to include, the provision for legal aid in their budget but this
In 1957 the issue of legal aid was discussed at the law ministers‟ conference.
Each state would formulate a scheme for legal aid to the poor and
The services of the members of the Bar can be utilized in this regard.
Thus, the decision arrived at by the Law Ministry‟s Conference recognized the
necessity for establishing legal aid scheme by the state. But the tragic part of the story
71
advisory body to the Ministry of Law and Justice.Its major function is to work for legal
reform.41
Reviewing the efforts made in that behalf in this country up-to date and also the
“In India facilities for legal aid are very meagre. Apart from voluntary
organizations in a few towns like Bombay, Calcutta and Bangalore there is not much
organized effort either governmental or private to give to the poor benefit of law. As we
have already seen, the Governments of the states have not in general been very
enthusiastic about the proposals calculated to enlarge the scope of legal aid. Nor has the
legal profession with some creditable exceptions regarded the rendering of legal aid to
The commission strongly emphasized the need for rendering legal aid to poor
litigants. However, it did not offer any proposals and suggested for the adoption of
Bhagwati Committee Report of Bombay and the Trevor Harries Committee Report of
without the need of setting up elaborate legal aid organizations by amending the law of
41 https://en.m.wikipedia.org,visited on 12-03-2014.
42 Law Commission of India, 14th Report Reforms of Judicial Admiration, Vol.1, p.587 `
43 Supra Foot Note Number 42 p.692
44 Supra Foot Note Number 28 p.598
72
3.16 INTERNATIONAL COMMISSION OF JURISTS 45
A Committee on judicial and legal profession under the Rule of Law at New
Delhi Congress of International Commission of Jurists 1959 expressed the view that the
States have an obligation to provide legal aid to those who are unable to pay for it if the
rights and remedies of the individual under the rule of law were to be given practical
reality.
In 1960, the Central Government drew up an outline of scheme for legal aid and
forwarded it to various existing Legal Aid Organizations and states for their comment.
The State Governments in a Conference of State Law Ministers in 1962 again expressed
their inability to bear the financial burden for Central support of legal aid activities.
The question of legal aid was again considered by the Committee on Legal Aid
at the Third All India Law Conference in 1962. It accepted that the provision of legal
aid was an obligation of the state and both Centre and states should make funds
available for the same. The Committee made various recommendations to be adopted by
the Bar Association of India and the Local Bar Associations for providing legal aid and
until such measure is taken the state may adopt a comprehensive legal aid programme.
73
However, nothing was done by any Bar Association and no substantial measure
The problem of legal aid also attracted the attention of political leaders and
parliamentarians. They had gone a step further in its stride and suggested statutory
recognition of the legal aid. On March 13, 1970 a Bill to be known as “The Free Legal
Aid Act, 1970” was introduced in the Lok Sabha by Mr. Madhulimaye, Member of
Parliament. The objects and reasons of the Draft Bill were as follows-
liberties.
iii. In India also, in cases involving murder charges the courts sometimes provide
legal counsel, but this cannot be claimed by the accused as a right, and any way
this practice does not apply to a large number of cases not involving capital
punishment.
iv. For want of free legal aid, many of the accused cannot defend themselves
v. This Bill seeks to provide free legal aid to indigent persons. The provisions of
this Bill, while it will impose some financial burden on the state, will act as a
the ordinary citizens by the police. Even if this does not lead to a significant fall
in the total number of criminal cases, provision of free legal assistance will
ensure fair trial and better administration of Justice. Interestingly this bill has not
74
The National Conference on Legal Aid of 1970 held in New Delhi also discussed
the problems of legal aid and insisted for legislation to make it statutory obligation of
the State. The Conference focused on various view-points on the necessity of evolving a
comprehensive legal aid programme.It also called upon the courts, the bar, law faculties
in the Conference that there is a vast gap between the constitutional guarantee under
Article22 (1) and everyday reality faced by the people of no or insufficient means.
Article 22(1) of the Constitution of India provides that no person shall be denied the
criminal case can obtain a lawyer at the cost of the Government unless his crime is
punishable by the death sentence, and even then legal aid may not be easily available.48
The Advocates (Amendment) Bill was introduced in Rajya Sabha (Upper House
of the Parliament). This shifted the responsibility of legal aid upon the shoulder of the
Bar Council to work for poor without funds from Government.49 In 1972, the new Law
Minister Mr. H.R. Gokhale expressed Government‟s keen interest in implementing legal
Justice Krishna Iyer presided over a committee set up on 22nd October, 1972 and
highlighted the nexus between law and poverty. The 275 pages report dated 27th
May,1973, focused the concept of public interest litigation and stressed the requirement
48 Janardan Reddy And Others vs. State of Hyderabad, AIR 1951 SC 217.
49 State of Madhya Pradesh vs. Shobaram, AIR 1968 SC 1910
50 The Lex-Warrier ,Online Law Journal available at lex-warrier.in visited on 19-09-2016
75
for dynamic and widespread legal aid system that empowers law to reach the people,
The report of this committee urged upon the democratic obligation of the State
towards its subject to guarantee that the legal system becomes an effective tool in aiding
to secure the ends of social justice and an effort was made to characterize those classes
of persons who are most needing legal aid and the poor man‟s confidence in the legal
assistance.51
Some advancement in this course was made with the incorporation of Article 39-A
through the 42nd Amendment Act,1976,in view of the recommendations of the Expert
V.R.Krishna Iyer.
Article 39-A was added in the Constitution of India in the year 1976 by 42nd
Amendment Act, 1976 to ensure equal justice which has been promised to all citizens
by the Preamble and to further guarantee equality before law, which would have no
meaning to the poor so long as they are unable to pay for their legal admission.52
After the 42nd Amendment, both the State Government and the Central
Government of India took active steps towards the implementation of legal aid
programme.
76
The impact of Article 39-A read with Article 21 has been to reinforce the right
of a person involved in a criminal proceeding to legal aid .The provision has been thus
used to interpret the right conferred by section 304 of the Code of Criminal Procedure,
197353.
Article 39-A of the Constitution gives constitutional status to free legal services
to the poor. The objective of Article 39-A has been explained by Supreme Court as-
“… it is clear from the terms of Article 39-A that the objective of Constitution
is to ensure social and equal justice so that legal aid has to be implemented by
disharmony as both are aiming at the same goal of bringing about a social revolution
and the establishment of a welfare State, which is envisaged in the Preamble. Primarily
Article 39-A is addressed to the Legislature and Executive, but as far as the court of
justice can indulge in judicial law making, within the ambit of the Constitution, the
Right to free legal aid and speedy trial is a mandate under Article 21 and 39-A. It
also means that the State would have to give grant-in-aid to recognized private law
colleges, similar to other faculties, which are qualified for receipt of grant. It cannot be
doing injustice to the language. Such an interpretation would elongate the spirit and
purpose of the Constitution and make the previously mentioned rights to the workers a
77
reality, lest establishment of an egalitarian social order would be frustrated and our
Though Article 39-A of the Constitution provides rights to equal justice and free
legal aid and though the state provides amicus curiae to defend the indigent accused, he
would be meted out with inadequate defence, if the young inexperienced members from
the Bar are assigned to defend him. It is high time that senior counsel practising in the
professional duty. If these remedial steps are taken and an honest and objective
investigation carried out, it will enhance a sense of confidence of the public in the
investigating agency.57
SCHEMES
During the emergency in 1975, Prime Minister Mrs. Indira Gandhi launched the
20-point programme and made legal aid a part of it. Justice Bhagwati readily embraced
the concept. When Mrs. Gandhi‟s government came back to power in 1980, it set up a
committee under the Chairmanship of Justice Bhagwati for implementing Legal Aid
Schemes. Apart from the traditional court-oriented legal aid programmes, the schemes
The first strategy was promotion of legal literacy and creation of legal awareness
among the people. This was based on the fact that we have a lot of social welfare
legislation in this country but the beneficiaries of it, are not aware of the rights and
78
benefits conferred upon them. Unless the people are aware, they will never be able to
know that a legal wrong is capable of legal redress. To give the programmes necessary
thrust, small booklets were produced, radio and television were used and documentary
A second strategy was adopted to carry legal services to the doorstep of the
people by organizing legal aid camp in selected rural areas. Thousands of people
attended those camps. The legal problems of the people were used to be answered by a
lawyer and the financial problems were answered by various revenue authorities who
also attended such camps. People‟s courts were set up where retired judges, socially
committed lawyers and social activists were involved to mediate the pending cases .59
This system gradually deep rooted in our national soil and has become very
popular. The third strategy was organization of legal aid clinics in selected Universities
and Law Colleges. A course on „Law and Poverty‟ was introduced in the final year of
law courses. Legal Aid Clinics were opened in Universities where the students would
attend clients and give them advice under the guidance of a teacher. Also, under this
scheme, students were sent to the rural areas for the purpose of carrying out socio-legal
surveys.60
The fourth strategy that was adopted was a little bit conventional. In the words
“We felt that if we really wanted to reach the people then we had to work
through social action groups. We have a large number of young men and women, full of
idealism and enthusiasm, who have given up a life of comfort and luxury in order to go
59 Ibid
60 Supra Foot Note Number 17.
79
to the rural areas to work among the poor at the grass root level. We found they were
scattered, isolated and one group did not know what the other was doing. We started
forming centers where social action groups operating within a geographical area would
come together. My organization, the Committee for Implementing Legal Aid Schemes,
would find them and provide them with a lawyer. They carry out social-legal surveys
and we started holding camps for training of social workers as para-legals.” The strategy
The right to counsel is recognized because of the fact that ordinarily an accused
person does not have the knowledge of law and the professional skill to defend him
before the court of law wherein competent and experienced prosecutor conducts the
prosecution.62
counsel at the trial and this right is not lost even if he is released on bail or is tried by a
court.63
afford expenses for trial of the case then the High Court is empowered to appoint
80
Extending the concept of legal aid, Supreme Court held that the accused has a
right to legal counsel at the time of “custodial interrogation” as a part of the right to
When the counsel for accused is absent on the date of hearing, another counsel
to defend the accused has to be appointed or the case has to be adjourned. When neither
of the two courses is adopted, and prosecution witnesses are examined, here the
The First Law Commission was established during the British Raj era in 1834 by
the Charter Act of 1833.After that, three more Commissions were established in pre-
The First Law Commission of independent India under the Chairmanship of Mr.
M.C. Setalvad addressed more enthusiastically to the question of access to justice in the
stressing that rendering of legal aid to the poor litigants is not a minor problem of
procedural law but a question of fundamental character. The governments of the states
have not been enthusiastic about proposals calculated to expand the scope of legal aid.67
81
Mr. M.C. Setalvad made the following recommendations on legal aid-
The legal profession must at its core, accept the responsibility for the
divulged by the profession by organizing and by assisting the bodies which will render
legal aid, and by representing in courts poor people of limited means on the payment of
The legal profession owes a moral and social obligation to the weaker and
inferior sections of the society, which must be discharged by every member of the
profession doing a certain amount of legal work free for economically weaker section of
the society.
The scheme for legal aid to poor persons and persons of limited means outlined
by the Committee on Legal Aid and Advice appointed by the Government of Bombay in
1949 and the scheme outlined by the West Bengal Committee should, with suitable
modifications made in the light of local needs and conditions, be adopted by all states as
82
Measures in furtherance of legal aid should be adopted immediately. Bar
Associations should take immediate measures to render legal aid on a voluntary basis.70
The Law Commission therefore envisaged the need for legal aid when it stated
that-
The provision of legal aid was considered jointly by lawyers in Third All India
Lawyers Conference (1962) and they recommended the measures enlisted below-
expenses in all cases including proceeding under Section 488 of the Criminal
b. No court fee, authentication of copying fee or any other fee be levied upon
an accused.
83
d. The Explanation to Rule 1, Order XXXIII of the code of civil Procedure
sue as pauper.
enable a person not only to sue as pauper but also to defend suit or
proceeding as pauper.
that an assisted person is exempted not only from the payment of court fee
but also from the payment of process fee, witnesses diet money and
documents.
provide counsel to the poor persons in these courts and other subordinate
h. Various Bar Associations in the country should organize legal aid committee
forthwith at the Taluk, District, High Court and Supreme Court levels to
i. Bar Association of India should formulate the manner in which various Bar
84
3.22.3 GUJARAT COMMITTEE REPORT
P.N.Bhagwati and the terms of reference of the Gujrat Committee was to consider the
question of grant of legal aid civil ,criminal, revenue, labour and other proceedings to
poor people, to persons of limited means and to persons belonging to backward classes
encouragement and financial assistance to institutions engaged in the work of such legal
aid.72
The Gujarat Report, running into 271 pages and presented in 14 parts, dealt with
the subject of legal aid in all of its possible and conceivable lengths and breadths.
The Gujarat Report proved to be a milestone in the legal aid movement of the
country. After perusal of the report, the State of Gujarat initiated a programme for legal
aid to the poor and a pilot project was initiated in the state from 5th November, 1972.
Since then legal aid and advice schemes have been extended to the whole of the State of
Gujarat. The recommendations of this report not only stimulated the Government of
India to appoint an expert committee on legal aid in October, 1972 but also the Gujarat
Report proved to be a stepping stone for the Expert Committee which submitted its
Report in 1973.
85
th
Dated 27 October, 1972, the Government of India appointed an eleven
members Expert Committee with Justice V.R. Krishna Iyer as the Chairman.
important to note that it set to rest the controversy of liability of the government, which
hindered the implementation of legal aid services in India74. The Committee agreed with
the Gujarat Report on the involvement of Nyaya Panchayat, need for qualifying the
means test and the prima-facie case test before getting the benefit of legal aid during
trials as well as appellate stages of both civil and criminal cases and seeking legal
advice.75
The Report laid special emphasis on the requirements of legal aid for women,
workers and the dwellers of tribal areas.76 The Report suggested for the establishment of
the legal aid Centre‟s, employing lawyers for legal advice and to extend legal guidance
to villages among several other measures. In the opinion of the Expert Committee, such
advice may prevent litigation, local fights, family discords and even worse evils.
Justice Krishna Iyer Committee had shown special concern for legal aid
movement for remedying the agonies of the unorganized and agricultural works who are
The Gujarat Report suggested for a legal aid fund to meet the expenditure of
legal aid scheme. It recommended that the legal aid fund, created by a statute, would
74 Hussainara Khatoon and Others (iv) vs Home Secretary, State of Bihar, 1979 SCC 1819.
75 Supra note 17, p. 137
76 The Members were Dr L.M.Singhvi, Shri Jaisudh Lal Hathi, Shri M.K. Ramamurthi, Shri D.P.Singh,
Shri Harish Chandra, Mrs Lakshmi Raghuramaiya, Shri Gopi Nath Dixit, Dr N.R.Madhava Manon,
Shri Kanwar Lal Sharma and Shri P.B.Venkatasubramanian.
86
consist of money received from different sources for the legal service programme. The
RECOMMENDATIONS
The National Forum for Lawyers was established in 1975. It was a national
organization with its branches in each State and the Union Territory of India. The basic
objective of this forum was to provide infrastructural support for the implementation of
20 Point Economic Programme of Mrs. Indira Gandhi to ameliorate the lot of the
poorest of the poor in the country. Legal aid was a part of this programme.77
The forum, headed by a legal luminary, Mr. Rajni Patel, set up its branches at
state, district and tehsil levels. The forum organized state level conferences of lawyers
to involve them in legal aid programmes. Such conferences were held in Maharashtra,
Assam, Karnataka, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Orissa, Bihar, West
Bengal, Gujarat and Punjab. Through these conferences, the Forum recommended for
87
providing a constitutional status to legal aid. This recommendation was further
members from the National Forum for Lawyers, under the chairmanship of Mr. Swaran
Singh, a former Union Minister. This Committee made exhaustive recommendations for
amending the Constitution, which were incorporated by way of the 42nd Amendment to
the Constitution. The Amendment with its wide amplitude, also inserted legal aid in the
Indian Constitution.79
OF INDIA
for the payment of court fees and lawyer‟s fee and other
78 Dhyani, S.N., ''Law, Morality and Justice : Indian Development'', Metropolitan Book Co.Ltd, New
Delhi,1st Edition,1984, p.125
79 Supra Foot Note Number 78
88
The rendering of Legal Aid to the poor litigant is, therefore not a minor
ii. The Law Commission accepted partly the reports of both the Bombay
iii. It recommended that the legal aid be first extended to person accused of
S.C, S.T and legal aid should be given to really poor persons first and
The other recommendations made by the Law Commission were that there
should be representation by the lawyer at the State‟s expense for all accused persons
without means in cases coming before Session‟s Courts, to applicants for maintenance
under Section 488 of the Code of Criminal Procedure, and to convicts who had sent jail
appeals. The word pauper was recommended to be replaced by the words „poor person‟
or „assisted person‟.81
MOVEMENT82
The Bar Council of India is a statutory body established under Section 4 of the
Advocates Act, 1961 to regulate legal education and legal practice in India.83 The Bar
Council of India has recommended for setting up a Committee for organizing legal aid
89
A Bar Council may constitute one or more Legal Aid Committees, each of
which shall consist of such number of members, not exceeding nine but not less than
The qualifications, the method of selection and the term of office of the
also provides, that all the advocates will discharge their social responsibilities.
Rule 46 provides that every advocate shall in the practice of the profession of
law, bear in mind that any one genuinely in need of a lawyer, is entitled to legal
assistance even though he cannot pay for it fully or adequately and that within the limits
Advocates (Amendment) Bill was introduced in the Rajya Sabha on August 18,
1970, which made provisions for full responsibility for legal aid on the Bar Council but
made no provision for government funds. Instead, it sought to create a fund by raising
the enrolment fee of Rs.100/- paid by lawyers entering the legal profession and crediting
mid-1972. Broadly speaking, representatives of the National Legal Aid Association and
other witnesses urged for more extensive funding, wider membership on the governing
90
panels, and inclusion of law schools. There was a widespread feeling that the Bar
Councils were not the most appropriate institutional instruments for legal aid and hence
Two years after the Bill had been introduced, the Law Minister announced the
government‟s intention to go more deeply into the matter of legal services for the poor.
He stated that he would like to bring before the House a comprehensive scheme of legal
aid, not particularly by the High Courts or the Supreme Court alone. Because the real
platform where legal aid was necessary was the stage where the litigation started which
was at the Taluk level; the bottom level where the people were helpless and were at the
mercy of some unscrupulous lawyers or people with self-interest who would benefit
from forcing litigation on them. Therefore, there could be no other opinions that it was
The following are the main functions of the Legal Aid Committee-
To formulate policies for implementing the legal aid and advice scheme
and to see that formulated policies are properly followed by the State Bar
Council Legal Aid Committee, District and Tehsil Legal Aid Bodies and
law students ;
91
To arrange for protection of indigents in all cases of aggression ;
labourers;
To take all steps to make legal aid to poor masses meaningful and
To use the Fund i.e. “Bar Council of India Legal Aid Fund”. 88
(CILAS) 89
The Justice Bhagwati and Justice Krishna Iyer‟s reports on Legal Aid were
court. To build up the justice delivery mechanism, the Central Government on 26th
aid schemes, to monitor and implement comprehensive legal aid programme and to
work out mechanism which could operate at district, state and national level on uniform
basis.The said Committee was known as Committee for Implementing Legal Aid
Schemes (CILAS). This Committee was headed by Justice P.N. Bhagawati, the then
Chief Justice of Supreme Court of India. Justice Bhagwati stated that in view of “the
92
oriented programmes is wholly inadequate90. He then enumerated the following tasks of
community;
Organization of legal aid camps by the State Legal Aid Boards for
with the active support and co-operation of the Bar Council of India;
and of the use of law for the improvement of the lot of the common
awareness programme at grass root level, organization of legal aid camps to carry legal
services to the doorsteps of people, training of para-legal volunteer to support legal aid
93
programmes, establishing legal aid clinics in different Law Colleges and Universities,
and bringing the common man to participate by means of public interest litigation.
3.30 CONCLUSION
Thus, the study on origin and development of legal aid system in India from Vedic
Period to the present time has shown a gradual development of legal aid system in India.
It is a fact that present legal aid system is the cumulative result of past activities to
protect the rights of needy, poor, illiterate persons facing injustice in the justice delivery
system.
In fact, provisions of Criminal Procedure Code and Civil Procedure Code play an
important role in the practical applicability of legal aid in India till Legal Services
Authorities Act, 1987 came into force. The path for legal aid became more convenient
after the passing of various statutory laws which directly or indirectly dealing with free
legal aid.
Thus, this chapter helps to understand the past system of legal aid to predict the
present and helps in creating a system where everybody can secure justice irrespective
94