By Dr. Sailaja Petikam
The concept of legal aid should not be considered as extraneous and foreign to our legal system but as an essential part of it. It is neither a charitable sentiment nor an idle dream or a utopian project. It is an organic and real function of the administration of justice.
It is an effective mode of imparting social justice, which means real justice in society. This must be considered vital for furtherance of social solidarity and national integration of different sections of Indian Community. It is to be seen as the legal commitment of the State to its citizens.
In formal sense legal aid is neither more nor less than the help given to a person concerned to maintain his or her right under the law. At its minimum, it is a phrase which means giving to persons of limited means grants, or for nominal fees, legal advice and legal assistance in court in civil and criminal matters.
But the upholding of a man’s right has to be seen in the light of social and economic conditions for that, the meaning of legal aid is to be re-understood. Legal aid reacts against inequitable conditions of life in society, which are maintained under the law.
It is an anti-monopolistic, socialistic or collectivist device calling for the proper distribution of the services of law. Legal aid in its wider meaning equalizes the fruits of justice in action in all social, economic and political fields. It makes imperative that no man shall be denied his right at law for lack of means.
In order to give statutory basis to legal services in India, the Parliament of India enacted a legislation in the year 1987, to be known as the Legal Services Authorities Act, 1987. Due to certain objections from the side of judiciary it could not be amended immediately and as result of which it was in the year of 1994 by Legal Services Authorities (Amendment) Act.
The Act came into operation on 9th November 1995 and that day is celebrated as Legal Service Day throughout the country. All the governmental and non-governmental activities and programmes are conducted on the eve of the legal services day.
The LSA Act, 1987 was passed 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.
The Act strives to fulfill the aims and objectives as envisaged under Article 39 of the Constitution of India.
Legal Aid under the Earlier Position
Before passing of the Legal Services Authorities Act, 1987, legal aid could not be provided in cases which involve fully or partially the following matters:
- Defamation.
- Malicious Prosecution.
- Contempt of Court.
- Breach of Oath.
- Election Proceedings.
- Cases of offence where pecuniary punishment is not more than Rs. 50/-.
- Any matter under Civil Rights Protection Act, 1955.
- Any matter under Immoral Traffic (Prohibition) Act, 1956.
- Any matter under social and economic offences.
In special cases the Chairman of the Supreme Court Legal Services Committee can provide legal services even in the above cases. Usually legal aid is not refused in the cases where a question of public importance is concerned.
Where legal services are provided as a special case, reasons are required to be recorded. Where the Authority or the Committee has assigned a legal services lawyer he cannot get any case of any kind or other benefit from the person aided by the Committee. The assigned lawyer is entitled for his honorarium as decided by the Committee.
After passing of the Act there is no ban to provide legal services in mentioned cases, therefore, the scope of legal services should not be restricted.
Meaning of Legal Service
Legal service means help or assistance or free service in the field of law. Apex Court of India from time to time asserted that legal aid is not a charity but a paramount duty of a welfare state. Now legal assistance from State can be claimed as a matter of right, therefore, the legal service is being used in place of legal aid (Section 2(1)(c) of LSA Act, 1987).
Modes of Legal Services
Legal services may be provided in any one or more of the following:
- Payment of Court Fee, Process Fee and all other charges payable or incurred in connection with any legal proceedings.
- Charges for drafting, preparing and filing of any legal proceedings and representation by legal practitioner in legal proceedings.
- Cost of obtaining and supply of certified copies of judgment, orders and other documents in legal proceedings.
- Cost of preparation of paper book, including paper, printing and translation of documents in legal proceedings and expenses incidental thereto.
The term “Legal Service” includes the rendering of any service in the conduct of any case or other legal proceeding before any Court or other authority or tribunal and the giving of advice on any legal matter.
Now the scope of legal services is increasing day by day. Broadly, legal services include Legal Aid or Assistance, Lok Adalat, and Public Interest Litigation.
It is significant to note that the Supreme Court of India in several landmark judicial pronouncements in Hussainara Khatoon v. Home Secretary, M.H. Hoskot v. State of Maharashtra, Khatri v. State of Bihar and Sukadas v. Union Territory of Arunachal Pradesh have ruled that right to free legal aid at the State cost is a part of the fundamental right and it is not confined to prisoners only.
Therefore, free legal aid and settlement of the disputes of the poor, needy and downtrodden who live in the lower economic margin of the society is an imperative need in a democratic state which aims at an egalitarian social order.
Section 12 of the LSA Act, 1987 provides that 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 the 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 undeserved want, such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster.
- An industrial workman.
- In custody, including custody in a protective home, juvenile home, psychiatric hospital or psychiatric nursing home within the meanings stated in the Act.
At the time of passing the Act legal aid could be available to the person who was 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.
Now the ceiling of income has been raised to Rs. 25,000 if the case is before a Court up to the level of High Court and Rs. 50,000 if the case is before the Supreme Court of India.
Entitlement of Legal Service
Persons who satisfy all or any of the criteria specified in the Act shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend, and that person has to submit an affidavit for making him eligible to the entitlement of legal services under this Act unless the concerned Authority has reason to disbelieve such affidavit.
Advantage to Settle the Dispute through Lok Adalat
Every award of the Lok Adalat shall be deemed to be a decree of a civil court, or, as the case may be, if any matter is referred from the court for settlement by compromise in Lok Adalat, the court fee paid at the time of institution of suit will be refunded.
Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.
Permanent Lok Adalat
Every State Authority shall, by notification, establish Permanent Lok Adalat at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification.
However, the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law and where the value of the property in dispute exceeds ten lakh rupees. The Central Government may, by notification, increase the limit of ten lakh rupees in consultation with the Central Authority.
Conclusion
Legal Aid is primarily the responsibility of the Bars and the persons belonging to the Legal Fraternity. The Scheme sponsored by the Government cannot be operative without full support of the Bars and Law Universities and Law Colleges and such support cannot come unless Lawyers come forward voluntarily.
The poor litigants in India are looking towards the members of the Bar that they will give a helping hand to uphold the noble tradition of the profession. Thus, providing legal aid to the needy cannot be vitiated whether it is a professional liability.