Legal Services Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Introduction

Legal aid is a system of providing advice and counsel to people of limited means at either no or nominal cost, in order to ensure equal access to justice in court. 

• This is based on the idea of Rawls' first principle of justice, which ensures that everyone has an equal right to the same basic liberties. 
• Reinald Eber Smith first proposed the concept of free legal assistance for the poor in his 1919 book Justice and the Poor, emphasizing the importance of equal access to the law for everyone, regardless of their ability to pay.

Brief History of Legal Services

• Social engineering is the science and art of making adjustments to human relationships to promote the welfare of a community. 
• The growth of the legal aid movement is seen as a conscious effort in this process, following the slow and unconscious process of social engineering in the past. 
• The purpose of social engineering is to prevent the strong from oppressing the weak, as stated by King Hammurabi of Babylon in the 20th century B.C. 
• The Mosaic Law and ancient Egyptian laws aimed to aid the poor by giving them privileges and ensuring access to justice without cost. However, court costs still presented a challenge for poor individuals seeking justice. 
• The Hebrew courts initially provided free and easy access, but the prophets spoke out against the sale of justice for heavy costs. 
• In the United States, legal aid for the poor began in 1876 in New York City with the formation of the Legal Aid Society. 
• By 1965, most major cities had similar programs, but there was no national program. 
• In India, the government started addressing the issue of legal aid in 1952 and drew guidelines for legal aid schemes in 1960, which were implemented through legal aid boards, societies, and law departments. 
• Despite the principle of equality before the law, some citizens were still denied access to justice due to economic or other disabilities. 
• To address this issue, Article 39A of the Constitution was inserted in 1976, directing the state to provide free legal aid and ensuring that opportunities for justice are not denied to any citizen.

Legal Background 

• In a participatory democracy, the judicial system plays a crucial role in maintaining the trust and confidence of citizens. 
• The judicial system must be impartial, independent, and provide access to justice for all citizens, regardless of their caste, creed, religion, or geographical position. 
• The stability of society depends on the ability of people to access the court system to peacefully resolve disputes. 
• The Indian constitution prohibits discrimination against citizens on the grounds of religion, race, caste, sex, or place of birth, and provides for equality before the law and equal protection of the laws. 
• The principles of human rights and dignity form the basis for free legal aid and the recognition of the principle of equality and access to justice. These principles are reflected in international treaties, regional treaties, and national legal systems.

Free legal aid under International Law 

• International law requires that free legal services be provided as part of human rights. 
• The International Covenant on Civil and Political Rights (ICCPR) explicitly provides for legal services, and India, having ratified the ICCPR, is bound by its obligation to provide free legal assistance. 
• The Supreme Court of India has recognized international legal obligations as part of the law of the land and has given effect to these obligations in its decisions. 
• Other international treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on Elimination of Discrimination Against Women (CEDAW), and International Convention on Elimination of All Forms of Racial Discrimination also implicitly refer to the need for free legal services. 
• The United Nations has adopted several declarations and principles that refer to effective legal remedy, of which free legal services form an essential component. 
• For example, Article 8 of the Universal Declaration on Human Rights provides for the right to an effective remedy through national tribunals for violations of fundamental rights.

The Indian Legal System 

• The adversarial system introduced during colonial rule made access to justice difficult in India as it replaced the pre-British informal dispute settlement system. 
• The pre-British system was more accessible due to its informal and non-technical nature and conducted in a language known to the parties. 
• However, the adversarial system is characterized by its technical and formal nature, requiring pleadings and court fees. 
• Complexities such as bribery and poverty among the masses in India make access to justice highly problematic. 
• This results in unequal dispensation of justice, where the wealthy have an advantage over the poor.

Free Legal Aid under Criminal Law 

• Section 340(1) of the Code of Criminal Procedure, 1898 provided for a court to appoint a counsel for a person charged with an offence punishable by death, but the Supreme Court in the case of Tara Singh v. State (1951) interpreted it as a privilege rather than a duty of the court. 
• However, in the Code of Criminal Procedure, 1973, the statutory provision for free legal aid was implemented through Section 304(1), which requires the court to assign a pleader for the defense of an accused who does not have sufficient means to hire one, at the expense of the state.

Legal Aid by the State 

• The 14th Report of the Law Commission of India proposed the provision of free legal aid for the poor by the state. 
• The national legal aid scheme was initiated in 1960 but faced financial challenges. In 1973, a committee under the chairmanship of Justice Krishna Iyer was constituted to develop a legal aid scheme for states, with legal aid committees at the district, state, and national levels. 
• The committee on judicature, led by Justice P N Bhagwati, suggested legal aid camps and nyayalayas in rural areas and the inclusion of free legal aid in the Constitution. 
• In 1980, a Committee on National Implementation of Legal Aid, headed by Justice Bhagwati, was established. 
• This led to the enacting of the Legal Services Authorities Act, 1987 by the Parliament.

Legal Aid under the Indian Constitution 

• Article 39-A of the 1976 Constitution amendment provides for equal opportunity and free legal aid to ensure access to justice for all citizens. 
• However, the implementation of this constitutional guarantee has often been violated. 
• The right to a fair and just procedure, as clarified in Maneka Gandhi V. Union of India, is a requirement for the adversarial system to ensure fairness in legal representation. 
• The court's observation in M H Hoskot case highlights the importance of professional expertise in ensuring equal justice under the law. 
• The inadequacy of the legal system to provide an effective forum for the indigent is a failure to retain equality.

NALSA Regulations, 2010 

• The National Legal Services Authority (NALSA) of India adopted regulations in 2010 to provide free and competent legal services to the weaker sections of society, as mandated by the Legal Services Authorities Act of 1987. 
• The regulations outline the selection process of panel lawyers, payment of fees, and the use of senior advocates in important cases. 
• The regulations ensure that panel lawyers are selected based on competence, integrity, suitability, and experience and are barred from receiving fees from clients. 
• The regulations also specify the rules for payment of fees to panel lawyers and allow the use of senior advocates in cases of great public importance and where there is a threat to life and liberty. 
• The preamble of the Act emphasizes the importance of ensuring equal access to justice for all, regardless of economic or other disabilities.

Criteria for Giving Free 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 (1 of 1996); 
• 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 in a protective home within the meaning of clause 
• of section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a Juvenile home within the meaning of clause 
• of section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital or psychiatric nursing home within the meaning of clause 
• of section 2 of the Mental Health Act, 1987. 

The Legal Services Authorities Act of 1987 provides free legal aid to certain categories of citizens, including the weaker sections of society, to ensure equal access to justice. However, there is a question of whether wealthy and economically sound individuals who fall into these categories should also be allowed to seek free legal aid. The concern is that the public treasury is being exhausted for individuals who can afford their own lawyers, which goes against the spirit of the statute. The need for a functional system is emphasized, with a focus on identifying and fixing any flaws to ensure the public resources are used for those in real need of legal assistance.

Legal services are of two types:

• Pre-litigation legal services
• Post-litigation legal services.

Hierarchy of Legal Aid Service Authorities 

The Central Authority 

• The National Legal Services Authority (NLSA) and the Supreme Court Legal Services Committee (SCLSC) are constituted by the Central Government to exercise powers and functions as determined by the Central Authority. 
• The NLSA is composed of the CJI as the Patron-in-Chief, a Supreme Court Judge nominated by the President as Executive Chairman, and other members nominated by the government and CJI. 
• The SCLSC is composed of a Supreme Court Judge as Chairman, and other members prescribed by the government and nominated by the CJI.

Functions of the Central Authority 

The Central Authority is responsible for carrying out the following functions:

• Establish policies and principles for providing legal services under this act.
• Develop effective and economical schemes for providing legal services under this act.
• Allocate funds from its own resources to State and District Authorities.
• Take steps to address social justice issues through litigation, specifically in areas such as consumer protection, environmental protection, and other concerns affecting marginalized communities.
• Hold legal aid camps, particularly in rural, slum, and labor areas.
• Encourage dispute resolution through negotiation, arbitration, and conciliation.
• Conduct research on the need for legal services among the poor. 
• Ensure adherence to the fundamental duties of citizens as outlined in Part IV A of the Constitution.
• Periodically monitor and evaluate the implementation of legal aid programs.
• Provide grants to voluntary social service institutions and state and district authorities for specific schemes.
• Develop clinical legal education programs in consultation with the Bar Council of India and promote guidance.
• Raise legal literacy and awareness among the public, particularly among marginalized communities.
• Work with local voluntary social welfare institutions.
• Coordinate and monitor the functions of State Authorities, District Authorities, Supreme Court Legal Services Committee, High Court Legal Services Committees, Taluka Legal Services Committees, and other legal services organizations, and provide general guidance for proper implementation of legal services programs.

The High Court Legal Services Committee

• The High Court Legal Services Committee is established by the State Authority for each High Court. 
• The Committee is responsible for carrying out the functions determined by regulations made by the State Authority. 
• It consists of a sitting judge of the High Court as the chairman, and members nominated by the Chief Justice of the High Court. 
• The Committee has a Secretary appointed by the Chief Justice of the High Court and can appoint officers and employees as determined by the State Government and Chief Justice of the High Court. 
• The terms of office, salary, and conditions of service for the members and employees are determined by the State Authority.

The State Authority 

• The State Authority establishes the State Legal Services Authority (SLSA) and the High Court Legal Services Committee (HCLSC) to carry out their designated powers and functions. 
• The SLSA is headed by the Chief Justice of the High Court as Patron-in-Chief and has a Judge of the High Court as Executive Chairman nominated by the Governor, along with other members nominated by the State Government and Chief Justice of the High Court. 
• The HCLSC is led by a Judge of the High Court as Chairman and has other members nominated by the State Authority and Chief Justice of the High Court.

Functions of the State Authority

• The State Authority is responsible for implementing the policies and guidelines set by the Central Authority. 
• It offers legal services similar to the Central Authority and organizes Lok Adalats. 
• In addition to carrying out legal aid programs, it also performs other duties as specified in regulations made in consultation with the Central Authority. 
• It is the obligation of the State Authority to enforce the policies and instructions of the Central Authority.

Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any of the following functions, namely- 

• Give legal service to persons who satisfy the criteria laid down under this Act. 
• Conduct Lok Adalats, including Lok Adalates for High Court cases, 
• Undertake preventive and strategic legal aid programmes; and 
• Perform such other functions as the State Authority may in consultation with the Central Authority, fix by regulations. 

The District Authority 

• The State Government establishes the District Legal Services Authority (DLSA) for each district, consisting of the District Judge as Chairman and members nominated by the State Government with the Chief Justice of High Court. 
• The DLSA performs the functions of the State Authority in the district, coordinates the activities of the Taluk Legal Services Committee and other legal services, organizes Lok Adalats, and performs other functions set by regulations. 
• The Taluk Legal Services Committee (TLSC) is established for each taluk/mandal and consists of the senior-most Judicial Officer as ex-officio Chairman and members prescribed by the State Government with the Chief Justice of High Court. 
• The TLSC organizes Lok Adalats, coordinates legal services in the taluk, and performs other functions assigned by the District Authority. 
• The District Authority is established for each district in the State, with the powers and functions assigned by the Legal Services Authorities Act, and is constituted in consultation with the Chief Justice of the High Court.

Functions of the District Authority 

Without prejudice to the generality of the functions referred to in subsection (1) the District Authority may perform all or any of the following functions, namely

• Co-ordinate the activities of the Taluk Legal Services Committee and other legal services in the District, 
• Organized Lok Adalats within the District; and 
• Perform such other functions as the State Authority may fix by regulations.

Taluk Legal Services Committee 

• The State Authority may establish the Taluk Legal Services Committee (TLSC) for each Taluk or Mandal or for a group of Taluks or Mandals. 
• The TLSC consists of the senior Civil Judge within its jurisdiction as the ex-officio Chairman and other members determined by the State Government in consultation with the Chief Justice of the High Court. 
• The Taluk Legal Services Committee may perform all or any of the following functions, namely-
  a) Co-ordinate the activities of legal services in the Taluk;
  b) Organize Lok Adalats within the Taluk; and
  c) Perform such other functions as the District Authority may assign to it. 

Entitlement to Legal Services 

Section 12 and 13 of the Legal Services Authorities Act, deal with the criteria of eligibility to the legal services and its procedure. 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 to in Article 23 of the Constitution; 
• A women or a child; 
• A mentally ill or otherwise disabled person; 
• A person under circumstances of under circumstances of underserved want such as being a victim of a mass disaster, ethic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
• An industrial workman; or 
• In custody, including custody in protective home within the meaning of clause (g) of Section 2 of the immoral Traffic (prevention) Act, 1956 (104 of 1956); or in a Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of Mental Health Act, 1987 (14 of 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 if before a court 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. 

Lok Adalats

• Lok Adalats are legal forums organized by various legal organizations, such as State Authorities, District Authorities, Supreme Court Legal Services Committee, High Court Legal Services Committees, and Taluk Legal Services Committees. 
• The frequency, location, and jurisdiction of these forums are determined by the organizing body. 
• A case can be referred to a Lok Adalat if the parties involved agree or if one of the parties applies to the court for its resolution.

Powers of Lok Adalats 

• The summoning and enforcing the attendance of any witness and examining him on oath. 
• The discovery and production of any document. 
• The reception of evidence on affidavits; 
• The requisitioning of any public record or document or copy of such record or document from any court or office; and 
• Such other matters as may be prescribed. 

The Legal Services Authorities (Amendment) Act, 2012 

• The Parliament of India passed the Legal Services Authorities (Amendments) Act, 2002 to promote pre-litigation legal services in public utility services. 
• This amendment aimed to bring changes to the Legal Services Act, 1987 for the establishment of permanent Lok Adalats to settle disputes related to public utility services before they reach the litigation stage. 
• This was done in recognition of the fact that a litigation-oriented approach to legal services may not yield the desired results.
• Section 22A provides that in this Chapter and two the purpose of section 22 and 23 unless the context otherwise requires: "permanent Lok Adalant" means a permanent Lok Adalat established under sub-section (1) of Section 22 B. "Public utility service" means any-
  1) Transport service for the carriage of passengers of goods by air, road or water; or
  2) Postal, telegraph or telephone service; or
  3) Supply of power, light or water to the public by any establishment; or
  4) System of public conservancy or sanitations; or
  5) Service in hospital or dispensary; or
  6) Insurance service. 

Legal Aid in Context of Social Justice and Human Rights 

• Legal aid is essential in ensuring that human rights are not just theoretical but also enforceable, particularly for those who cannot afford the cost of enforcement due to poverty. 
• Access to justice is one of the most basic human rights and without it, many other human rights become difficult to realize. 
• Legal aid is considered a first among human rights, as mere declaration of human rights is not enough; they need to be enforced. 
• In many countries, justice is sold, not given, and poverty is a barrier to obtaining it. 
• Legal aid provides social justice to all and is an integral part of human rights. 
• Without it, there is a risk of the poor becoming frustrated and endangering world peace.

Funding

The central government provides funding to the central authority for legal services through grants, while the state government similarly provides funding to the state and district authorities for the same purpose.

The National Legal Aid Fund

• The National Legal Aid Fund, established by the Central Authority, is comprised of grants from the Central Government, donations from others for legal services, and amounts ordered by courts. 
• This fund is used to cover the cost of legal services provided by the SCLSC, grants to state authorities, and other expenses of the Central Authority.

The State Legal Aid Fund 

• The State Legal Aid Fund, established by the State Authority, consists of grants from the Central Authority, donations from others for legal services, and amounts ordered by courts. 
• This fund is used to pay for the functions of the State Authority, the cost of legal services provided by the HCLSC, and other expenses of the State Authority.

The District Legal Aid Fund

• The District Legal Aid Fund, established by the District Authority, includes grants from the State Authority, donations from others for legal services, and amounts ordered by courts. 
• This fund is used for the cost of the functions of the District Authority and the Taluk Legal Services Committee, as well as other expenses of the District Authority.