GOOD QUALITY FREE LEGAL AID IN INDIA A

DISTANT DREAM
Mr. Hrishikesh Jaiswal1
Student
B.A.L.L.B. (Hons)
National Law Institute University, Bhopal, MP, India

Abstract: Free Legal Aid is professional legal service provided free or at minimal cost to deprived persons who need help. It is
very important to maintain rule of law and constancy in the society. The aim of this article is to analyze the problem of lack of
education, poverty, and economic and lack of awareness among the underprivileged groups and whether the free legal services are
appropriately delivering to the needy or not. The major concern is internal obstacles like lack of knowledge of law, incompetence
in dealing with the cases, corruption, immorality etc. It is essential that government must take the necessary steps to ensure legal
aid services to needy sections are executed properly and encourage lawyers to serve poor. Legal Aid is not bounty it is the
obligation of state and legal right of citizens, hence it should be such that it safeguards the Constitutional pledge of equal justice
to inferior and needy section of society. The present paper studies the constitutional and statutory provision for legal aid. The
paper deals with study of right to legal aid as a social right, various provisions of legal aid and the snags of practical execution of
right to free legal aid.
Index Terms- Free legal aid, Legal Aid Counsel, rule of law, Lok Adalat, NALSA

“Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of
discretion.” - Justice. Wiley Rutledge (US. SC)

INTRODUCTION
India as a state has approved and acknowledged the concept of ‘welfare state’. The Constitution’s preamble endeavours to
provide justice of all kinds “social, economic and political; liberty of thought expression, belief faith and opportunity.” 2 As it is a
welfare state it has to work for the wellbeing of the common people. The benefits of progress and growth of the nation should
trickle down to even the remotest village giving the disadvantaged access to development.
In today’s world, the law is acting as an instrument for both ‘social control’ and ‘social change. One of the features of
contemporary and advanced society is the increasing use of law as a mode of social change. The Predominant theme of the
Sociological jurisprudence is to promote Socio-economic good of society through law.3
The Government should enact just laws thus providing everyone with an equivalent chance to grow. All the democratic states
should remove social and religious disparities among its people. This promotes social justice and liberty in society. Social justice
as a concept means that every individual of the society is assured fair deal of remedial injury. The expression social justice is best
explained by the first PM Dr Jawaharlal Nehru uttered on the eve of attainment of India’s freedom: “The services of India means
the services of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity.
The ambition of the greatest man of our generation (Mahatma Gandhi) has been to wipe every tear from every eye.” 4
The Justice Dispensation mechanism in every state should have the underlying principle of social justice in the administration
of justice and equity to its subjects. Lack of education, ignorance, increasing corruption, desperation are some of the main factors
which have kept the oppressed and disadvantaged hidden from the official legal system. To the poor, the courts are a maze.
Justice in India is very expensive for the poor in need which results in their inability to get protection of the laws. Equal
protection of law5 has been enshrined in Article 14 of the Constitution of India but it seems that it is applies only to the rich &
advantaged and the poor is losing faith in rule of law and democracy. If this continues then it will pose a great danger to the
democratic framework of the country. The entire legal system of the country is based on the hypothesis that the individuals who
1
NLIU Bhopal
2
The Constitution of India, 1950, Preamble (Justice, social, economic and political).
3
. Dr Vijendar Negi, “Law as A Means of Social Change: A Sociological Philosophy”, Volume 5 Issue 4, Indian Journal of Research, April 2016.
4
Dadasaheb Salunke, “Pandit Jawaharlal Nehru’s speech ‘Tryst with Destiny’: Some Implications”, Scholar Journal of Arts, Humanities and Social Sciences,
January 2014.
5
The Constitution of India, 1950, Art. 14.
are governed by it are aware of their rights. As Cappelletti and Growth observe “The possession of rights is meaningless without
mechanism for effective vindication6.It was rightly observed by Y.K.Sabharwal .That access to justice will come by spreading
awareness both about the rights and remedies; it has to be accessible to all” 7.
Free legal aid has a close connection with the principle of the ‘welfare state’. Legal aid comes to rescue for the people who
somehow could not bear the cost of access to lawful framework. Legal aid also helps to make sure that people are entitled to
welfare provisions, such as social housing, with access to legal advice and the courts, enforces welfare provisions.8 Legal aid
services are treated as judicial arm of the War on Want and campaign for social justice. 9 The free legal aid programme is aimed at
doing social justice by removing the socially and economically unjust institutions. The Constitution aimed of a society based upon
the philosophy of equity and dignity of manhood. For the preservation of an orderly society ‘rule of law’ is mandatory. This
cannot be fulfilled unless the last person of the nation is denied proper access to justice delivery mechanism. If a person in need is
not legally represented, he is being denied equal chance to get justice. Historically, legal aid has played a strong role in ensuring
respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and
education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination
legislation.10
The judiciary which is also a pillar of democracy, has taken an active interest in making the legal service serve the
individuals in need. The Constitution of India provides for an independent judiciary which has the goal of providing justice
to every person irrespective of their economic status. The judiciary should protect the rights of the poor and this has been
duly highlighted in the Directive Principles in the Constitution of India. Public Interest Litigation is one of the bright spots in
the history of Indian judiciary. This shows dedication of the judiciary in acting as a vanguard of the rights of the weakest
sections of the society. After tremendous pressure from the judiciary and the legal community, the Executive and Legislature
had to enact legislations to bring justice at the doorsteps of the poorest section of the community. The State must ensure that,
the judicial system provides justice based on equal oppurtunities for all its people. Thus, it should provide free legal aid to
those who do not have enough means to access justice due to social and economic disabilities.With ‘N’ number of laws
passed, statutory regulations and judicial decisions, Court has become a maze for both the poor and the people who may not
be poor but are unaware to the relevant legislations and procedures to obtain justice thereof. Thus to make accessible the
doors of justice to the weak, free legal aid has been induced in the judicial system.

WHAT IS THE CONCEPT OF FREE LEGAL AID?

After independence, the newly born India was suffering from the colonial hangover .The British system of justice was
insensitive to the socio-economic problems of the majority of the society. To end this tyrannical and ignorant attitude of law, the
Constitution of India has incorporated various provisions to protect and promote the social economic and political welfare of its
people. It is noteworthy to mention that the Constitution of India provides11that “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 disability”. Constitution of India also makes it obligatory for the State to ensure equality before law and equal
opportunity to all and a legal system which promotes social justice12. Legal aid is considered as a social value, quintessential
component of the Constitution and a potent weapon to amend the quandary of the impoverished. 13 The main aim of legal aid is to
make the law reach the individuals and not making the people to reach law. Legal aid for a layman means to provide cheap or free
legal service to the disadvantaged and poor who have empty pockets and cannot engage a lawyer to defend themselves in a
tribunal or court. Legal service literally means free service to the individuals in need. The Apex Court in its various judgements
have asserted that legal aid is the obligation of the state and should not be considered as charity. The state ensures that no person
is deprived of good legal representation due to lack of monetary resources. Therefore, the primary goal is to provide equal justice
to the disadvantaged, downtrodden and weaker lot of society. In this regard, Justice P.N. Bhagwati rightly observed that: 14
“The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily
accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and
illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their
6
Kamala Sakaran, Ujjwal Kumar Singh: Towards Legal Literacy an Introduction to law In India, Upendra Baxi,, “why legal literacy? Awake up call” p 1-9.
7
The Hindu Legal Education, November, 15, 2006.
8
http://hdl.handle.net/10603/237482
9
G .Narayanan Reddy: “Delivering Legal Aid To the Rural poor in India: Role of Voluntary Organisations”, The Indian journal of Social work, volume I Issue
No3, July 1990 p. 529.
10
S Jain, Free Legal aid; available at http://www.lawyersclubindia.com/articles/Free-Legal-Aid-5166.asp#. Accessed on 24 May 2020.
11
The Constitution of India, 1950, Article 39A.
12
The Constitution of India, 1950, Articles 14 and 22(1).
13
Prof (Dr) Ranbir Singh, (PDF) “An Assessment of The Functioning of Legal Services Authorities in India: A Theoretical Perspective”. Available from:
“https://www.researchgate.net/publication/318748545An_Assessment_of_The_Functioning_of_Legal_Services_Authorities_in_India_A_Theoretical_Perspective
” [accessed May 14 2020].
14
Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman, Mr. P.N. Bhagwati along with its members,
Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal
College, Ahmedabad. His Lord ship answered to the question of inequality in the administration of justice between the rich and the poor.
obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don't have access to courts.
Therefore, legal aid is to be made available to the poor and needy by providing a system of government funding for those who
cannot afford the cost of litigation. One need not be a litigant to seek aid by means of legal aid”. Legal aid is not limited to
litigation and representation in the court but also includes legal advice, awareness, legal literacy and pre-litigation settlement etc.
Legal awareness also known as ‘Public legal education ‘is the process of making people aware of different legal issues. If the
people are legally aware they can demand justice and accountability from those in power. Legal awareness promotes participation
in law-making and instils legal consciousness among the masses.
Legal Aid is a free legal service. The basic objectives15 of legal aid are:
 “No person should be denied of Justice only on the ground of poverty and other social disability.
 There should be operation of quality in dispensation of Justice.
 Political democracy should give effect to social democracy.
 All the persons should be able to reap the fruits of democracy.
 There should be an easy and guaranteed access to Justice
 The poor should not face the painful side of law.
 Due regard must be given to the principles of natural Justice, and no person should be condemned unheard.
 The rigor of law should be softened in favour of indigent people.
 The law should additional support to vulnerable, downtrodden and backward masses of the society.
 The state should become a welfare institution and should provide social Justice to all.”
The Other classification16 of objectives of legal aid are
1) “Not to deprive any person, man, woman or child of equal protection of the law.
2) To promote the knowledge of law among the indigent and ignorant persons.”
Constitution of India likewise makes it compulsory for the Government to guarantee equity under the watchful eye of law and a
legitimate framework which advances equity on a premise of an equivalent chance to all. Free Legal aid aims to make sure that
constitutional provisions are fulfilled in its letter and spirit by ensuring equal justice to all segments of the society.
DEVELOPMENT OF LEGAL AID IN INDIA
The legal aid movement in India has a rich history. This is not a sudden whimsical thought of a few legal thinkers. The idea of
social justice was not unknown in ancient times. It has its roots in the Vedic period. Legal aid traces can be found in the elements
of dharma. The Vedas were divided into four parts, namely Rigveda, Yajurveda, Samveda and Atharvaveda and the elements of
legal aid can be traced in Rigveda. During Vedic Period17the concept of Dharma was considered very important. The 36th and
42nd shlokas under Chapter one18 refer to “the need for saving people from `rakshas' and violent people, procuring strength for
such protection alongside praying the Almighty to bless those who donate”.
In medieval times, the ‘Manusmriti’ empowered king to do equity without minding his wimps stressing on the religion. The
first genuine example of equal justice can be traced back to the Mughal times. Emperor Jahangir is being credited to do justice
irrespective of birth, profession and official rank. The non-Islamic people were allowed to administer their personal laws in
deciding civil and religious matters. This method of fair justice is called ‘Jahangiri Nyaya’ 19. In modern times, the earliest legal
aid movement started to develop in France and later in United States20 & Britain. In England, the movement got a major
acceleration when Lord Chancellor, Simon appointed ‘Rushcliffe Committee’ to make recommendations on the matter of free
legal service.21
In India, the question of free legal aid was addressed soon after independence. In 1952, the problem of lack of legal aid
was raised in various meetings and conferences of Law Ministers and Law commissions. As a concrete step, the government
had issued certain guidelines in the matter of legal aid schemes and the states were open to amend and mould it as per their
convenience. In 1952, Government of India directed the State Governments to make provisions for legal aid in criminal
cases in respect of offences punishable with not less than five years rigorous imprisonment and further appeals 22. In several
states of the nation, boost to legal aid program was given by various Law Boards, Legal Aid Societies and Departments.
With changing times, the commons were free to pursue their own goals and social goals were no longer synonymous to
common goals. The society became more complex and materialistic which led to an increasing need for legal enforcement of

15
Report of the Committee on Legal Aid and Advice in State of Bombay, 1987 (1950).
16
Altaf Hussain, “Legal Aid to the weaker sections of the society in Commercial Law Gazette”, 10th August, 1981 p 4.
17
Dr S. Siva Kumar Legal Aid: “How Effective are Domestic legal Aid Programme” IBR volume 27(1) 2000 p.107.
18
Singh Govind , “Hindi Translation of Important Parts of Rig Veda” (Sadna Pocket Books, New Delhi,1992)pp. 31-36.
19
“Introduction on Legal aid services”: NALSA, New Delhi available at web site of the NALSA
20
Regan, Francis “The transformation of legal aid: comparative and historical studies”. Oxford University Press.
1990 pp. 89–90.
21
Ibid p 91.
22
“Report of the Preparatory Committee for Legal Aid Scheme”, Government of Madhya Pradesh 1975.
social, financial and legal rights of the citizens. Further, legal aid was extended from family law to a wide range of
economic, social and cultural rights11. The article will further deal with the major committees which had their contribution in
this field.

 Law Commission Report (1958) chaired by Mr. MC Setalwad.

The 14th Law commission report had a dedicated chapter in the matter of legal aid. The report highlighted the
increased need for legal aid due to industrialization and upgraded lifestyle. Further, it read that it was the State’s
obligation to provide legal aid and also rejected the criticism that it makes citizens more litigious. The report also
recommended the legal professionals to consider it their social responsibility for implementing legal aid to the
needy. The Commission made certain recommendations on legal aid.23
 “Free Legal Aid to poor person and persons of limited means is a service which the modern state and in
particular a welfare state owes to its citizens. The Government must, therefore, accept this obligation and
make available funds for providing such legal aid to poor persons and individuals of limited means.
 The legal profession if not entirely, accepts the responsibility for the administration and working of
schemes of legal aid.
 The Legal profession owes a moral and social obligation to poor members of society which should be
discharged by every member of the profession doing a certain amount of legal work free for poor persons.
 The Scheme of Bombay Legal Aid and Advice Committee, 1949 and West Bengal Committee to be
adopted with some modifications by all States as soon as financial conditions permit.
 Bar Association should take immediate measures to render legal aid on a voluntary basis”.

 PN Bhagwati Committee Report (1971) chaired by Justice PN Bhagwati.

The Committee was formed in the year 1970, by the Gujarat government. It consisted of Justice P.N. Bhagwati as
the chairman, the then Gujarat High Court Chief Justice and other members.24 In the report, Justice Bhagwati
observed that “even while retaining the adversary system some changes may be effected where the judges be given
participatory role in the trial so for poor, placing them in equal footing with the rich in the Administration of
justice”25. The committee stated that obligation of the government was not only social or political but is also backed
by the reason of Articles 14 and 22(1). Three tests were evolved to check whether a person is eligible to free legal
aid these were Means test, Prima facie test and Reasonability test.
 Krishna Iyer Committee Report (1972) chaired by Justice Iyer.
The 273 page report of the committee named “processionals justice to poor” was released in the year 1973. The
committee discussions revolved around law and panchayat system as a means of dispute resolution. The Report 26
also made an effort to classify those categories of persons who are most in need of Legal Aid, they are as follows:
 “The poor in general;
 Those persons belonging to the Scheduled Castes or Scheduled Tribes, i.e. that category of persons who
have been both economically as well as socially exploited by the cultural elitists since time immemorial.
 Those persons who either by reason of being inhabitants of backward areas or who are so geographically
placed that their voice cannot reach the Courts of Justice, e.g. People who are inhabitants of Scheduled
Areas, Mountainous terrain’s, landlocked regions etc.
 The workman and the peasantry class who toil and labour to earn rewards for their hard work of which
they are often deprived.
 Those soldiers and armed forces personnel who in order to protect the borders are stationed at the edge of
the land for long periods.
 Children and woman who are deprived of social Justice on grounds of biological infirmity.
 Untouchables or those who are referred to as Harijans and who even after the abolition of Administrative
class on the ground of their unacceptance in the community”.
 Juridicare Committee Report (1977)
Justices Krishnan Iyer and P.N. Bhagwati had jointly worked on this project. The committee recommended the
establishment of National Legal Services Authority (NALSA). The report primarily focused on the infrastructure of
the law services of the organization and stated that it was not to be a department of the government but an
autonomous institution headed by the Justice of the Supreme Court. The body would have representations from
23
XIV Report of Law Commission, at 597.
24
Gujarat Report (1972).Official Synopsis of Parliamentary Debates, Aug.8, 1972.
25
Committee of Justice Bhagwati on Free Legal Aid constituted in the year 1971.
26
Report of the Expert Committee on Legal Aid (Processual) Justice to the people (1973). P 241.
 different Bar Associations, the Government, the Parliament and the Judiciary as well as voluntary associations and
social workers and that there would be a multi-tier set up for the legal aid organization 27. Justices Bhagwati and
Krishnan are the pioneers of the legal aid movement in India. This part of the paper dealt with the growth and
evolution of the free legal aid movement in India from ancient times to the present times.

CONTRIBUTION OF THE JUDICIARY

India has changed a lot since independence but the problems of illiteracy, poverty and joblessness still exist in society. The
government has taken a lot of measures to uplift the deprived sections of the society, but inequality still plagues the country. On
paper, India is a welfare state but we have not been able to fulfil the constitutional promises of equality and public good to the
fullest. The judiciary through its significant interventions has compelled as well as guided the legislature to come up with the
suitable laws to bring justice to the doorsteps of the poorest sections of the society 28. The top court has actively participated in the
protection of Human rights. The Constitution of India mandates the 3 organs of the state i.e. Legislature, Executive and Judiciary
to realize the objectives in the Fundamental Rights and Directive Principles of State Policy 29. We will discuss landmark Supreme
Court judgements dealing with the concept of ‘right to free legal aid’.

 Hussainara Khatoon and Others vs. Home Secretary, State of Bihar30

In this case, it was argued that most of the prisoners in Bihar had to undergo excess punishment due to lack of legal
representation and procedural delays. The Apex court, had thus pointed out that Article 39A made free legal service an
inalienable element of ‘reasonable, fair and just’ procedure implied in Article 21 of the Constitution of India.
 Khatri v. State of Bihar31
The court reiterated the principle that free legal aid is an essential element of Article 21. It opined that it is the State’s
duty to provide a lawyer to the accused if the circumstances require so. It held that provision of free legal aid should start
from the very stage when the accused is first produced before the magistrate, also the state cannot avoid its duty pleading
financial or monetary inability because this duty has been endowed upon them by the Constitution.
 Madhav Hayawadanrao Hoskot vs. State of Maharastra32
The court, in this case, evolved the ‘Right to counsel’ principle. It held that right to appeal is an integral part of the
reasonable and fair procedure under Article 21 an that ‘Right to counsel’ falls under the ambit of ‘Right to appeal’
guaranteed by the Constitution of India under Article 21. Justice Iyer observed-

-“…A prisoner who has been deprived of his liberty by a sentence of the court and who has the right to appeal against
the sentence, can claim the services of a counsel to argue his appeal as the necessary commitment of his statutory right to
appeal which is implicitly embodied in Article 21 of the Constitution of India.”
-“…Where the prisoner is disabled from engaging lawyer on reasonable ground and if the circumstances of the case, the
gravity of the substance and ends of justice so require, the Court assign competent counsel for the prisoner, provided that
the party does not object to that lawyer.”33
 Sunil Batra vs. Delhi Administration34
Here, the court observed that poor and helpless people in the prisons should be helped with legal aid especially in the
matter of appeals.
 Suk Das v. Union Territory of Arunachal Pradesh35
The Supreme Court emphasized that the majority of India still lives in its villages and there is an urgent need to create
awareness among the poor and illiterate as they are not aware of their rights and constitutional guarantees. The judgment
talked about ‘right to legal education’ being a part of ‘right to education’.
The Judiciary has made a wide interpretation of the Constitution to fit the right to free legal aid into its existing provisions. Article
39A has enlarged the scope of free legal aid movement in India. The Top Court of India made use of its position and power to
direct the Government at the Centre and the State to formulate and implement legal aid schemes for the deprived sections of the
society.36
Statutory acceptance of legal aid

27
Report on National Juridicare, Equal Justice –Social Justice (1977) at 87
28
G. Mallikarjun (Assistant Professor, NALSAR University of Law, Hyderabad) - Legal Aid in India and the Judicial Contribution, NALSAR Law Review,
Vol.7, No1, 2013.
29
Vijay V. Muradande (Assistant Professor, KLE Society’s B.V. Bellad Law College, Belgaum) Legal Aid is an Instrument to Achieve, Social Justice – Judicial
Response ‟available at www.academia.edu/9885625/, accessed on 19-09-2014.
30
AIR 1979 SC 1360.
31
AIR 1981 SC 262.
32
AIR 1978 SC 1548.
33
AIR 1978, SC 1548 :( 1978) 3 SCC 544:1978 Cri LJ 1678.
34
AIR1980 SC 1579.
35
AIR 1986 SC 991.
36
Singh .Sujan, Legal Aid Human Right to Equality, Deep and Deep Publications F-159, Rajouri Garden, New Delhi-110027, First Edition, 1998, pp.238-239.
 After the independence, the government realised that poor and unprivileged had suffered the most because of the justice
delivery system in India. As mentioned earlier, legal aid is considered as a fundamental right under articles 39-A 37 and 21 of the
Constitution of India. No dearth statutory enactments are making free legal aid as a fundamental right in India, but to fulfil the
constitutional goal certain ancillary enactments have been passed by the legislature, these are Legal Services Authorities Act,
1987, the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, National Legal Services
Authority (Legal Aid Clinics) Regulations, 2011, Order 33 of the Code of Civil Procedure, 1908 and Section 304 of the Criminal
Procedure Code, 1973. The government has been spending a lot on this mission but the results have not been very satisfactory and
motivating.
 The Legal Services Authority Act, 1987
To accomplish the objectives encompassed in Article 39A of the Constitution the LSA was implemented.38 The Act aims
to set up a countrywide network to provide free legal services to the poor sections. It makes it an obligation for the State
to ensure equal protection for all and equality before law. The Legal Services Authorities Act provides for creation of
legal services authorities at various levels which would make sure that fair and free legal service is given to every person
who needs so. The main priority of the Act is to provide social justice to the people who due to social or economic
disability are not able to approach the relevant authorities. Legal aid service is provided in almost all the Courts,
Tribunals and Commissions throughout the country. Section 2(1) (a) 39 defines court as a civil, criminal or revenue court
and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial
or quasi-judicial functions. As per Section 2(1)(c)40 ‘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. Under the act, National Legal Services Authority (NALSA) has been setup as a statutory body to implement the
aims and objectives of the act. The Legal Services Authorities Act, 1987 also provides for formation of the legal services
authority at State, District and Taluk levels.41
 National Legal Services Authority(NALSA)
It was constituted in the year 1995, under the aegis of The Legal Services Authority Act, 1987. It is a
statutory body, which has been created to implement and monitor the legal aid policies of the government.
‘NALSA’ receives grants from the central government which they, in turn, disburses to the State
authorities and NGOs working in this program. The legal aid program by ‘NALSA’ includes conducting
‘Lok Adalats’, LAC in colleges and legal literacy camps etc. The law prescribes the criteria for giving free
legal services to the eligible persons. It makes a person eligible for assistance under the act if he is – “(a) a
member of a Scheduled Caste or Scheduled Tribe;(b) a victim of trafficking in human beings or begar as
referred to in Article 23 of the Constitution;(c) a woman or a child; (d) a mentally ill or otherwise
disabled person; (e) 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 (f) an
industrial workman; or (g) in custody, including custody in a protective home or in a juvenile home (h) of
in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the
Mental Health Act, 1987; or (i) A person whose annual income less than rupees fifty thousand or such
other higher amount as may be prescribed by the State Government”.42 The legal services authority, after
strict scrutiny of the applicant provides him an advocate, pays the Court fee and pay all the other expenses
concerning the suit.
 State Legal Services Authority(SLSA)
Every state has been directed to set up its own State Legal Services Authority to implement the directions of
‘NALSA’. ‘SLSA’ is chaired by the Chief Justice of the State’s High Court while a serving or retired judge is
the Executive Chairman. The main function of the body is to conduct ‘Lok Adalats’.
 District Legal Services Authority(DLSA)
Every District of the country has been asked to set up District Legal Services to implement the legal aid
schemes of the government. With the 1994 amendment act, Taluk Legal Services have been added to the
principal act. The chairman of ‘DLSA’ is a District judge.
 Taluk Legal Services Authority(TLSA)
Every state has formed its own rules for the governing and management of ‘TLSA’. It is headed by a
senior Civil Judge. The states have set up TLSA in different ‘mandals’ and ‘taluks’ to implement legal aid
programs and organize ‘Lok Adalats’.

 NALSA Regulations, 2010

37
The Constitution of India, Article 39A.
38
Act No. 39 of 1987; w e f October 11, 1987.
39
The Legal Service Authority Act, 1987, s. 2(1) (a).
40
The Legal Service Authority Act, 1987, s. 2(1) (c).
41
Supra at 2
42
Legal Services Authorities Act, 1987, s. 12.
 In 2010, ‘NALSA’ under section 29 of the 1987 Act43 executed the National Legal Services Authority (Free and
Competent Legal Services) Regulations. The rules laid down under the Act are applicable on Legal Service
Committees of the Supreme Court, High Courts, the States and taluks.
 Selection of the panel
The respective legal services authority invites applications from legal professionals and lawyers with
mandatory proficient knowledge. The legal practitioner requires a compulsory practice of 3 years to be
eligible to apply for the empanelment procedure, also the integrity, experience, competence are the
parameters while appointment for the panel. The panel will be set up by the Executive Chairman of the
institution in counsel with the Attorney-General for the Apex Court, Advocate General for High Courts,
Government pleader for districts and the Bar association President. The empanelled lawyers are not
allowed to take any remuneration from the client and if found doing so, then the panel lawyer might be
removed from the case or his name expelled from the panel.
 Advocate Fee
The regulations suggest that the fees to the empanelled lawyers should be paid immediately after the
fulfilment of all the procedures. The lawyers cannot ask the client for any direct or indirect remuneration.
The honorarium is revised regularly.
 Senior Counsels
The administrations of senior lawyers might be profited if the Chairman of the legal service institutions
shapes an assessment to that impact in instances of great public importance and where a genuine danger to
life and liberty of the individual exists.44
 Monitoring committee
The state is required to set up a monitoring committee. The committee’s job is to assess the functioning
and keep a proper record of the empanelled advocates and volunteers, which is to be submitted to the
Chairman of the committee every month.

 Order 33 of Code of Civil Procedure, 1908

“Order 33 of the Civil Procedure Code enables an indigent person to institute suits, before a civil court, without
requiring such a person to pay the court fees.31 Further, where the person is unable to make such arrangements due
to various reasons, civil court has the discretion to assign a legal practitioner to such indigent person”.32

 The Criminal Procedure Code, 1973

Section 30445 of the CrPC mandates the state to provide the accused with free legal aid is he is poor enough to
afford a lawyer. It is the discretion of the state to extend the application of the section to any class or trials before
the courts. If during the trial the accused had not engaged any lawyer for his defence, then the decision of the court
is considered as null & void.

 Universal Declaration of Human Rights

According to Article 8 of the Universal Declaration of Human Rights everyone has the right or an effective remedy
by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law. 46

 International Covenant on Civil and Political Right(ICCPR)

Article 14(3)47 of the ICCPR “guarantees to everyone the right to be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right;
and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment
by him any such case if he does not have enough means to pay for it”.

ISSUES WITH LEGAL AID IN INDIA

43
Legal Services Authorities Act, 1987, s. 29.
44
Raman Mittal , K.V. Sreemithun (eds), “Legal Aid Catalyst for Social Change Aid”(Satyam Law International) <https://books.google.co.in/books?
id=al6y7aEqgzsC&pg=PA3&source=gbs_toc_r&cad=4#v=onepage&q&f=false >accessed on 8 May 2020
45
The Code of Criminal Procedure, s. 304.
46
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
https://www.refworld.org/docid/3ae6b3712c.html [accessed 21 May 2020].
47
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at:
https://www.refworld.org/docid/3ae6b3aa0.html [accessed 21 May 2020].
 Free legal aid is a constitutional obligation on the state and it should not be considered as a charity or bounty. Legal aid is a
fundamental element of rule of law, but the movement has failed to achieve its objectives. There is a huge difference between the
goals set and goals met. Attorney General Robert Kennedy once said “The Poor man looks upon the law as an enemy, not as a
friend. For him the law is always taking something away.” Common people are still not aware of their rudimentary legal rights
and this leads to their exploitation. Majority of the population is still uninformed about the availability of free legal aid services.
Another major impediment to the legal aid movement in the country is that the delivery system for legal aid is far too inefficient.
More legal professionals must be inspired to deliver free legal aid and a movement should be launched to inform people about the
existence of free legal aid. The legal aid model adopted by India has proven ineffective. In this part of the article, we will deal
with the issues and challenges faced by the legal aid system in India.
 Lack of devotion- It is observed that Legal aid counsels are not serious about the work allotted to them. This lack of
devotion has hampered the quality of services offered by them. The beneficiaries lose faith in the legal aid system and
prefer private lawyers over legal aid counsels. The litigants complain about lack of interaction, late appearance in courts
and unwary arguments by the LACs.
 Poor quality LACs- Entire legal aid movement is dependent upon the legal aid counsels, they are the frontline service
providers and pilots of the legal aid services. Competency is the most essential component in any profession. If the legal
professionals are demotivated and incompetent, then the entire movement is at risk of failure. Though the LACs are
strictly scrutinised during the induction process, it has been observed that in practical courtroom situations they fail to
deliver. Lack of proficiency of the empanelled advocates has gravely affected the quality of legal services.
 Difference between the quality of services offered by a private practitioner and LAC- In various studies, It has been
confirmed that there is a wide gap between the abilities and skills of a private advocate and a Legal Aid Counsel. The
argumentative and drafting skills of private lawyers are considered superior over the LACs. This difference between the
services encourages the poor to opt for private lawyers even if they have to spend a fortune over it.
 Lack of staunchness among the LACs- According to the NALSA guidelines, LACs receive the honorarium as soon as the
case gets concluded in the court. Thus most of the LACs want to close the case as soon as possible to get their fees.
Result and time period of trial of the case is not so pertinent in making payment to the LACs. Majority of the panel
lawyers also practice privately and thus they are not interested in the protection of the interest of beneficiaries. Further, it
is seen that most of the lawyers who cannot succeed in litigation join the legal services to develop contacts and consider
it as an entry point to a Senior lawyer’s chamber.
 Undue payment delays- Though, the act provides for immediate payment of the honorarium but in actuality, this hardly
happens. The reimbursement process is very complicated, technical and cumbersome and the honorarium is rarely paid
on time. This unwarranted delay leads to frustration of commitment of the LACs. According to the law, all the expenses
incurred during the case duration are met by the LACs and no advance is paid to them for this purpose. Most of the
advocates come from not-so-good backgrounds and undue delays create a lot of hardships for them.
 Lack of legal education among the people- About 70 per cent of the Indian population still reside in the villages and
approximately 50 per cent of people in India are illiterate. Lack of legal knowledge is indirectly making people more
litigious. Due to legal illiteracy, the benefits of the laws are not reaching the needy. The government has launched a lot
of schemes for the poor but the benefits are not reaching them. The people are not aware of their basic rights which
makes them victims of social atrocities.
 Dearth of accountability- It is important to mention that the current rules for accountability are not insufficient in
totality, but the problem lies in its implementation. In the current system, the methods used for regulating the LACs are
warning, replacing or removing the LACs from the assigned case. But, there is hardly any strict action taken against
them. The current rules prescribe to constitute a monitoring committee to monitor the progress of the allotted cases but in
practice, such monitoring committees have not been formed in many states. According to the NALSA rules, the Legal
Aid Counsels can withdraw from an allotted case at any pint during the duration of the case which creates serious
hardships for the litigants. Due to lack of supervision and scrutiny, the LACs have developed a casual approach towards
the service.
 Lack of control over the Legal Aid lawyers- Para 15 of the 2010 regulations state that a LAC shall be disqualified and
punished for the demanding money from the beneficiaries48, but in the past few years, no such actions have been taken
by NALSA or any other legal service authorities. The LACs are having a non-serious attitude towards the work which
leads to a compromise in the quality of the services offered by them.
 Recording of complaints- The NALSA regulations, 2010 has a provision of filing complaints against the lawyers by the
litigants and judges but in practice, no such complaint records have been maintained. It is apposite to note that as per
Para 10 of the National Legal Services Act (Free and Competent Legal Services) Regulations 2010, every legal services
Institution for monitoring the activities of the legal aid services including the functions of the LACs, shall constitute a
monitoring Committee. Even if such complaints are filed, the DLSA is known to be very sluggish in their approach. The
existing system of empanelment of the LACs neither penalizes the non-performer Legal Aid Counsels nor rewards the
performer Legal Aid Counsel for the promotion of legal aid services. It seems that performers and non-performers
lawyers are being treated at par. The rules nowhere talk about a support mechanism for the LACs for their help and
assistance during the course of litigation.

48
NALSA (Free and Competent Legal Services) Regulations, 2010, Para (15).
SUGGESTIONS AND RECOMMENDATIONS
 In India, a lot of people are still not aware of the constitutional provisions such as Article 39A and because of this, the
benefits of legal aid and free legal services are not reaching the targeted mass. Successful legal aid delivery requires the
government to embark on a campaign to inform and educate the public of its right to free legal aid. The poor and
underprivileged should be educated about the basic rights given to them by the constitutional makers and this can be
effectively done by legal literacy programmes. Law students, paralegal workers, Women and Children NGOs should
volunteer for creating legal awareness by conducting workshops, seminars, nukkad nataks and street plays etc. Further,
the government must employ more effective processes to improve legal aid delivery such as increased funding to the
NGOs and improved remuneration for legal aid lawyers. Best way to create legal awareness is through legal aid camps
and this can be done with the help of law students and lawyers along with the assistance of the police and district
administration.
 More and more ADR mechanisms should be utilized to provide cheap justice to the masses. The glaring example in front
of us is the Lok Adalat system which has and is being used to reduce the burden of the overstained courts in India. Lack
of knowledge about Alternate Dispute Resolution acts as a roadblock for the poor to realize the benefit of the NALSA,
Lok Adalat Scheme. The Bar Council and University Grants Commission should coordinate and introduce diploma
courses in Alternate Dispute Resolution and Consumer Protection Act. The students should be allowed to opt these
courses and the classes for these courses can be conducted in the afternoon after the regular college gets over.
 The untapped resource by NALSA is law students especially the final years, this fresh talent can be utilised by allowing
them to represent clients in the courts and tribunals through a college-based legal aid clinic. It is a win-win situation as
the clients’ get better representation as the students have deep knowledge about the subject and the actual court
appearance is the highest form of clinical experience that professional education can offer. There is an imminent
necessity in implementation of recommendation made by the National Juridicare committee regarding, the amendment of
the Advocates Act to allow senior students under supervision to represent clients in courts in certain matters needs to be
recognized. Further, The Committee recommended Section 37-A has to be added after Section 37 of the Advocates Act 49
.The permanent legal aid scheme by the government mandates all the law schools to establish in-house legal aid clinics,
but some universities have still not established Legal aid clinics and even after establishment many of them are defunct.
 The Legal Services Authorities should focus not only on the quantity but quality also. The paralegal volunteers and
NGOs should visit the prospective areas and help the poor rather than waiting for them to approach the authorities. The
teachers and advocates should be given tax considerations if they involve in imparting free legal services. The measure
of success in the profession of a lawyer shall not be on the monetary basis but the criteria shall be accountability and
service to the poor litigants.
 One of the most effective solutions can be the imparting of legal education to school students. The Education boards
such as CBSE and IB should include basic legal topics such as Family Law, RTI and Consumer laws in their curriculum.
This will make the coming generation legally aware and socially empowered. The Bar Council of India should introduce
special subjects relating to free legal aid and social justice for the undergraduate LLB courses. Mediation should be made
a compulsory part of the law curriculum as it teaches the students the necessary skills of the profession. Curricular
diversity may help in shooting up the lawyer’s faith in law. Law Universities and colleges may be recognized as
Mediation centres and professors as Mediators and legal recognition may be given to them.
 Social media can act as a powerful weapon in creating legal awareness. Online entertainment platforms such as Tik Tok
and YouTube can act as modes of creating awareness among the people. These online platforms have millions of
downloads and it is accessible to almost every person in India. The authorities should leave the old school methods of
awareness dispensation and start their own channels on these platforms. This will, in turn, motivate other creators to shift
to knowledge-driven and socially important content.
 The government and college authorities should have an altered grading system for the students with special emphasis on
legal aid work. As most of the National Law University students are academics driven, this can act as an incentive for
them to work in the legal aid field. For completion of the degree, one internship under any National, State or District
Legal Services Authority or NGOs should be made compulsory. This will make the law students aware of the ground
realities of the justice system in India. Most of the NLUs have an internal assessment system, the academics department
of the college should make it mandatory for the students to have at least one research project on the topic of free legal aid
throughout their 3/5 year course. In the medical profession, there is a compulsory rural posting for 12 months at the
beginning of practice. Similarly, the Bar Council should make it a compulsion for fresh graduates to give their services
to the society through NGOs or legal service authorities on a humble stipend.
 Assuming that most of the households in India have a television connection or an FM radio, the government should start
special programmes on the topic of fundamental and other legal rights on these mass media platforms. Currently in the
period of lockdown, as most of the people are at their homes, special shows on the topic of free legal aid and social
reform schemes by the government should be telecasted on the television.
 Most of the colleges, still don’t have a dedicated Legal Aid Centre for the common public to come and get their
grievances resolved. Here, the colleges who are newly established or the colleges who still don’t have a LAC can follow

49
Section 37-A:Legal Aid by Law Teachers and Students : Not Withstanding anything contained in the preceding section, the following categories of persons may
appear in any court or tribunal on behalf of an indigent person, if the person on whose behalf an appearance is to be made has requested in writing to that effect:
** For an example of one such curriculum in India, see N.R. Madhava Menon & V. Nagaraj, Development of Clinical Teaching at the National Law School of
India: An Experiment in Imparting Value Oriented Skills Training, in Handbook on Clinical Legal Education.
 the National Law Institute University Bhopal Legal Aid Clinic model. NLIU Bhopal has a college- approved and
student-run cell named as ‘Legal Aid Clinic Bhopal’. It is a leading Legal Aid Clinic in the state of Madhya Pradesh and
has various achievements to its name. LAC NLIU Bhopal has about 60-70 student volunteers across the five batches and
the Executive committee is comprising of students from the fourth and fifth year. The Legal Aid Clinic also has a faculty
advisor who acts as a bridge between the administration and students. The body gets regular funding from the college
administration. The cell conducts different types of events throughout the year these include sensitisation programs in
villages, nukkad nataks, seminars and workshops for school level children etc. NLIU LAC also collaborates with other
private college LACs to conduct different surveys and competitions.
 Panchayats since time immemorial have acted as an efficient tool of Alternate Dispute Resolution. The states should
revive the Panchayat culture and give them a modern flavour by mandating them to keep proper records and training the
panchayat staff in the basics of law. Also, the system should be provided with proper infrastructure and electronic
support. This method can effectively act as a decongestion mechanism for the overburdened judiciary.

CONCLUSION
As mentioned earlier, legal aid is an obligation of the state and it should not be given the name of bounty or charity. The idea
of legal aid is an age-old concept and it has its mention in the Magna Carta, 1215 but still, the way we comprehend it today is a
late marvel. The idea should be to provide hassle-free and convenient justice to the weaker sections of the society especially the
women, children and people from the backward community etc. Thus, legal aid strives to ensure that the constitutional pledge is
fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society. But in
spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law 50. In the past seventy years, a lot has
been done in this regard, but unfortunately, the efforts are not bearing the desired fruits. The legal aid programme in India has a
long road to cover. The Government and judiciary are doing their part to fulfil the dream of the constitutional makers, of good
quality free legal aid being available to the remotest village in India but still, a lot needs to be done. The concept of free legal aid
is not a myth but its proper implementation can be considered so, but if every capable person contributes in this mission then the
dream of the founding father will soon turn into a reality.

50
Supra note at 34