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    Role of advocate in providing legal aid services

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    4 views15 pages

    Role of Advocate in Providing Legal Aid Services

    Uploaded by

    Astha Joshi

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    of 15

    Role of Advocate in providing

    Legal Aid Services


    Introduction
    Concept of Welfare State
    equality before law and equal protection of laws
    Access to justice
    Meaning
    • Advocate
    • Legal Aid Services - Pro Bono Verito Services

    • According to The Encyclopedia Britannica Legal Aid means - “the


    professional legal assistance given, either free or for a nominal fee, to
    some indigent persons in need of such help.”
    •
    International background
    • International Covenant on Civil and Political Rights (ICCPR), 1966, Article 14 (3) (d) –
    “Everyone has the right to an effective remedy by the competent national tribunals for
    acts violating the fundamental rights granted by the constitution or the law.”

    • India has ratified this convention in 1976 . (Article 51 of the CoI)

    • The European Convention of Human Rights, 1953 - Article 6 (3) - Extends the right to legal
    aid to a person charged with criminal offence to defend himself - “to defend himself in
    person or through legal assistance of his own choosing or, if has not sufficient means to
    pay for the legal assistance to be given it free of cost when the interests of justice so
    require ”
    Multi-dimensional role of Advocate

    Mathew, J. –

    “A Counsel has a tripartite relationship: one with the public, another


    with the court, and the third with his client. That is a unique feature.
    Other professions or callings may include one or two of these
    relationships but no other has the triple duty.”
    Constitutional Frame Work
    • The Preamble of the Constitution of India

    • Justice - Social, Economic and Political to all citizens of the country


    • Sunil Batra v. Delhi Administration kalewa v state of uttrakhand

    • M.H Hoskot v. State of Maharastra


    • Hussain Ara Khatoon v. Home Sec., State of Bihar speedy trial

    • Khatri v. State of Bihar fair trial accused ko wakeel milna chaie

    • Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra


    eligible for a fair trial
    Equal Justice

    • Articles 14 - Equality before law


    indra sawhney v uoi

    “The State shall not deny to any person equality before the law or the
    equal protection of the laws within the territory of India.”

    • Article 21- Right to life and Personal liberty

    “No person shall be deprived of his life or personal liberty except


    according to procedure established by law.”
    navtez singh johar v uoi
    maneka gandhi v uoi
    olga tellis v bombay municipal corp.

    vishaka v state of rajasthan


    Article 22 (1) of the Constitution of India

    Protection against arrest and detention in certain cases:


    “No person who is arrested shall be detained in custody without being
    informed, as soon as may be, of the grounds for such arrest nor shall he
    be denied the right to consult, and to be defended by, a legal
    practitioner of his choice.”

    D K Basu v. State of West Bengal arrrest guidlines

    Nandini Sathpathy v. P. L. Dhani


    arbitrary detention and arrest
    Article 39-A
    • 42nd Constitutional Amendment, 1976

    • Directive principle of State policy - Part IV of the Constitution of India

    • It casts a duty on the state to apply these principles in making laws


    and these principles are fundamental in the governance of the
    country.

    • Concurrent list -
    • Administration of Justice
    • Legal Profession
    The Legal Services Authorities Act, 1987

    • Date of enforcement - 9th November 1995


    • Object:
    “To constitute legal services authorities to provide free and competent legal services to the
    weaker sections of the society to ensure that opportunities for securing justice are not denied to
    any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that
    the operation of the legal system promotes justice on a basis of equal opportunity.”

    Other statutory references –


    Order XXXIII, Rule 9A and Rule 18 of the Code of Civil Procedure, 1908.
    Section 304 of the Code of Criminal Procedure, 1973.
    Chapter IV - Entitlement to Legal Services
    • Section 12 - Criteria for giving legal services.

    • Every person who has to file or defend a case shall be entitled to legal services under this
    Act if that person is -

    • a member of a Scheduled Caste or Scheduled Tribe;

    • a victim of trafficking in human beings or beggar as referred in article 23 of the


    Constitution;

    • a woman or a child;

    • a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities
    (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
    • a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic
    violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

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

    • in receipt of annual income less than rupees nine thousand or such 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 rupees twelve thousand or such other higher amount as may be prescribed
    by the Central Government, if the case is before the Supreme Court.
    Rule 46 under Part VI of Bar Council of India Rules

    The Rule reads as under:

    "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 of an Advocate's economic condition, free legal
    assistance to the indigent and oppressed is one of the highest
    obligations an Advocate owes to society."
    Lawyer's Role in the Adversary System
    • The Search for Truth
    • Officers of the court

    Schemes –
    • LCI 14th report - M.C. Setalvad - Government of India in 1960
    prepared a national scheme of legal aid providing for legal aid in all
    courts.
    • Service for legal aid by Pro Bono Advocates is launched by
    Department of Justice (https://doj.gov.in/news/service-legal-aid-pro-
    bono-advocates-launched-department-justice-0)
    Statutory Provisions under the Advocate Act , 1961
    • Section 6(2)(b) - A State Bar Council may constitute one or more funds in the prescribed manner
    for the purpose of the giving legal aid or advice in accordance with the rules made in this behalf .
    • Section 7(1)(ib) - The functions of the Bar council of India shall be to organize legal aid to poor in
    the prescribed manner.
    • Section 7(2)(b) - Bar council of India may constitute one or more funds in the prescribed manner
    for the purpose of giving legal aid or advice in accordance with the rules made in this behalf .
    • Section 15(2)(ga) - A Bar Council of India may make rules so as to provide for the constitution of
    one or more funds by a bar council for the purpose of giving financial assistance or giving legal aid
    or advice referred to in sub section (2) of section 6 and sub-section (2) of section 7.
    • Section 15(2)(gb) - A Bar council may make rules to provide for organization of legal aid and advice
    to the poor , constitution and functions of committees and sub-committees for the purpose and
    description of proceedings in connection with which legal aid or advice may be given.
    • Section 9A - Constitution of legal aid committees
    Concluding points

    • Remuneration issue

    • Senior advocates?

    • Emphasis needed on ADR Mechanism

    • Social Justice point of view?

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