1.

Legal Aid Meaning, Need and Significance

Legal Aid: Global Perspective
Origin and development in India
Constitutional Mandates
o Legal Aid as a Fundamental Right
o Legal Aid as a DPSP
Other Statutory Provisions
Amicus curiae

MEANING:
Legal aid in its literal sense means help, assistance, or free service in the field of law. Legal aid
denotes legal assistance to poor persons free of cost in any judicial proceedings before a court of
tribunal, in quasi judicial proceedings, in administrative proceedings or even simply as
consultation. the meaning of Legal Aid has been beautifully summed up by justice Bhagwati:
Legal Aid means providing an arrangement in the society so that the machinery administration of
Justice because easily accessible.

Legal Aid is to mean not only representation through lawyer at state expense in court
proceedings but will include legal advice, legal awareness, legal mobilization, PIL, law reform
and a variety of strategic and preventive services which instead of assisting each individual will
help them as a class to avoid injustice.

The concept of legal aid has been expanded considerably to include -

Representation by lawyer in civil, criminal and administrative proceedings.
Educating the poor of their rights.
Organizing the poor and mobilizing voluntary social action groups seeking legal reforms.
To provide affirmative State action to achieve effective equality.
Monitoring welfare administration.
Conducting PIL and innovating new strategic tools for cheap and expeditious justice to
poor.
NEED AND SIGNIFICANCE:

Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal
justice is made available to the poor, downtrodden and weaker sections of the society. The object
is to provide Access to Justice for all so that justice is not denied to citizens by reason of
economic or other disabilities. However in order to enable the citizens to avail the opportunities
under the Act in respect of grant of free legal aid, it is necessary that they are made aware of
their rights.
By the Constitutional 42nd Amendment Act of 1976, a new provision was incorporated in the
Constitution under Article 39-A, for providing free Legal Aid and enhancing the concept of
equal justice. However, the judicial attitude towards legal aid was not very progressive. In
Janardhan Reddy v. State of Hyderabad1 and Tara Singh v State of Punjab2 the court, while
taking a very restrictive interpretation of statutory provisions giving a person the right to lawyer,
opined that this was, a privilege given to accused and it is his duty to ask for a lawyer if he
wants to engage one or get his relations to engage one for him. The only duty cast on the
Magistrate is to afford him the necessary opportunity (to do so). For again trying to revive the
programme, the Government of India formed an expert committee, the Krishna Iyer Committee,
in 1973 to see as to how the states should go about devising and elaborating the legal aid scheme.
The committee came out with the most systematic and elaborates statement regarding
establishment of legal aid committees in each district, at state level and at the Centre. It was also
suggested that an autonomous corporation be set up, law clinics be established in Universities
and lawyers be urged to help. The Government of India also appointed a committee on judicature
under the chairmanship of Justice P.N. Bhagwati to effectively implement the legal aid scheme.
It encouraged the concept of legal aid camps and Nyayalayas in rural areas. The committee in its
report recommended the introduction of concept of legal aid in the Constitution of India.
Accepting this recommendation in the 1976, Article 39-A was introduced in the Directive
Principles of State Policy by 42nd Amendment of the Constitution. With the object of providing
free legal aid, the Government of India had, by a resolution dated 26th September, 1980
appointed a Committee known as Committee for Implementing Legal Aid Schemes (CILAS)

1
1951 AIR 217
2
1951 AIR 441
under the chairmanship of Chief. Justice P.N. Bhagwati to monitor and implement legal aid
programs on a uniform basis in all the States and Union Territories. CILAS evolved a model
scheme for legal aid programs applicable throughout the country by which several legal aid and
advice Boards were set up in the States and Union Territories.
Although legal aid was recognized by the Courts as a fundamental right under Article 21
reversing their earlier stance, the scope and ambit of the right was not clear till this time. The
step was taken in Sunil Batra v. Delhi Administration 3, where the two situations in which a
prisoner would be entitled for legal aid were given. First to seek justice from the prison
authorities and second, to challenge the decision of such authorities in the court. Thus, the
requirement of legal aid was brought about in not only judicial proceedings but also proceedings
before the prison authorities which were administrative in nature. The court has reiterated this
again in Hussainara Khatoon v. State of Bihar 4 and said: it is an essential ingredient of
reasonable, fair and just procedure to a prisoner who is to seek his liberation through the courts
process that he should have legal services available to him. Free legal service to the poor and the
needy is an essential element of any reasonable, fair and just procedure.

GLOBAL PERSPECTIVE:

England - the process of giving free legal aid was started by the Legal Aid Act, 1949 in
civil cases. In 1967, free legal aid was extended to criminal cases also.
USA - free legal aid was a judicial innovation. It was held in Powel v. Alabama5 that in a
capital case, where the defendant is unable to employ a counsel, it is the duty of the court,
whether requested or not, to assign a counsel for him as a necessary requisite of the due
process clause. In Gideon v. Wainwright 6 , Right to free legal aid was expanded and
extended to all felony trials without the requirement of any special circumstances. Right
to be heard was interpreted so as to include the right to get legal aid. Under the Sixth
Amendment of United States Constitution, it is provided that in any of the criminal
prosecutions, the accused shall enjoy the right of counsel.

3
(1978) 4 SCC 409
4
AIR 1979 SC 1360
5
287 US 45
6
372 US 335
 Canada - under section 2 (c) (ii) of the Canadian Bill of Rights, it is clearly provided that
no law amendment shall be so construed or be applied so as to deprive assistance to a
person who has been arrested or detained.
Universal Declaration of Human Rights. 1948 - The Universal Declaration of Human
Rights, approved by the United Nations General Assembly on December 10, 1948,
guarantees the right to a fair trial. Many justice systems around the world, and the United
Nations itself, have interpreted a right to counsel as a necessity for a fair trial.
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 - The
Convention for the Protection of Human Rights and Fundamental Freedoms, commonly
known as the European Convention on Human Rights, recognized the right to a fair trial,
including an explicit right to counsel, in 1950.
UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. 2012
- On December 20, 2012, the United Nations Economic and Social Council approved the
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems (the Legal Aid Guidelines. These Guidelines are the first direct, detailed
statement on Legal Aid.

ORIGIN AND DEVELOPMENT IN INDIA:

Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in
various conferences of Law Ministers and Law Commissions. In 1960, some guidelines were
drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated
through Legal Aid Boards, Societies and Law Departments.
However, the judicial attitude towards legal aid was not very progressive. In Janardhan Reddy v.
State of Hyderabad and Tara Singh v State of Punjab the court, while taking a very restrictive
interpretation of statutory provisions giving a person the right to lawyer, opined that this was, a
privilege given to accused and it is his duty to ask for a lawyer if he wants to engage one or get
his relations to engage one for him. The only duty cast on the Magistrate is to afford him the
necessary opportunity (to do so).
However, in a report on Free Legal Aid in 1971. Justice Bhagwati observed " even while
retaining the adversary system, some changes may be effected whereby the judge is given greater
participatory role in the trail so as to place poor, as far as possible, on a footing of equality with
the rich in the administration of justice."
A similar report of the Committee on Legal Aid titled "processionals justice to poor" presided
over by Krishna Iyer in 1973, dealt with the nexus between law and poverty, and spoke of PIL in
this context. It emphasized the need for active and widespread legal aid system that enabled law
to reach the people, rather than requiring people to reach the law.

By the Constitutional 42nd Amendment Act of 1976, a new provision was incorporated in the
Constitution under Article 39-A, for providing free Legal Aid and enhancing the concept of
equal justice.

The two judges joined forces as a two member committee on juridicare, released its final report
in August 1977. The report while emphasizing the need for a new philosophy of legal service
programme cautioned that it must be framed in the light of socio-economic conditions
prevailing in the Country. It further noted that the traditional legal service programme which is
essentially Court or litigation oriented, cannot meet the specific needs and the peculiar problems
of the poor in our country. The report also included draft legislation for legal services and
referred to Social Action Litigation.

Contribution of Justice Iyer -

Justice Krishna Iyer was appointed as the Chairman of Committee for Legal Aid. The Committee
was formulated as on the 22nd day of October 1972. The Committee after conducting sample
surveys of large part of the country submitted a 275 page report to the Government on the 27th
day of May, 1973. This report came to mark the cornerstone of Legal Aid development in India.
The report clearly laid down that it is a democratic obligation of the State towards its subject to
ensure that the legal system becomes an effective tool in helping secure the ends of social justice.
He coined the word "Juridicare" to cover a scheme of legal aid which brought justice to the
doorstep of the lowly and which was comprehensive in its coverage.

Contribution of Justice Bhagwati -

Justice P.N. Bhagwati practiced at the High Court, Bombay; he became a Judge of the Gujarat
High Court on 21st July 1960, and became Chief Justice of Gujarat on 16th September 1967. On
17th July 1973, he became the judge of the Supreme Court of India. He was also Chairman of the
Legal Aid Committee appointed by the Government of Gujarat for suggesting ways and means
of providing free legal aid and advice to the poor and weaker section of the community; and also
acted as Chairman of the State Legal Aid Committee for running the Pilot Project of free Legal
Aid and Advice in Gujarat.
In 1980, a Committee at the national level was constituted to oversee and supervise legal aid
programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati
then a Judge of the Supreme Court of India. This Committee came to be known as CILAS
(Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities
throughout the country. The introduction of Lok Adalats added a new chapter to the justice
dispensation system of this country and succeeded in providing a supplementary forum to the
litigants for conciliatory settlement of their disputes.

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid
programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th
of November 1995 after certain amendments were introduced therein by the Amendment Act of
1994.He worked successfully to build up an elaborate legal aid programme. He is widely
regarded as the originator of Indias legal aid programme, including setting up of legal aid camps
in rural areas, working with NGOs, establishing legal aid clinics etc.

LEGAL AID AND THE INDIAN CONSTITUTION:

Indian Constitution which came into force in 1950 sets out social justice, liberty and equality of
status as its main aim. The Fundamental Rights along with the Directive Principles of State
Policy aims to create an egalitarian social order where justice dwells in all walks of life be it,
social, political or economic.

FUNDAMENTAL RIGHTS -
Article 14 - Securing equality is a fundamental entitlement, set out in Article 14 of the
Constitution. Art.14 directs the State not to deny equality before the law and equal protection of
the laws to any person within the territory of India. Mr. M. C. Setalvad who was the first
Chairman of the Law Commission of India observed: "Art.14 of the Constitution provides that
the State shall not deny to any person equality before the law or the equal protection of the laws.
Equality in the administration of justice can thus be said to form the basis of our Constitution -
the essential need for legal aid can be based on yet another imperative consideration. No true
democracy can endure without the system of administration of justice of which the poorest are
able to take advantage. It would not be an exaggeration to ask that the very existence of free
Government depends upon malcing the machinery of justice available to the humblest of its
citizens."7
The Court should interpret Article 14 in such a way as to invoke its aid to the poor and direct the
State not to deny equality to those who have no ample means of representing themselves in the
courts of law.

Article 21 - Article 21 has been expanded by the Supreme Court to include the right to free Legal
Aid also. The Supreme Court through its power to interpret the law has put life and soul in
article 21 buy judicially expanding it to include a number of rights that flow directly from right
to life. Right to personal liberty is one of the cardinal principle of the Constitution is guaranteed
under Article 21. The Supreme Court of India has laid down that right to free legal services is an
essential ingredient of reasonable, fair and just procedure for a person accused of an offence and
it is implicit in the guarantee of Art.21. The state government cannot avoid its constitutional
obligation to provide free legal services to an underprivileged accused by pleading financial or
administrative liabilities.
In Hussainara Khatoons8 case, the SC laid down that right to free legal services is clearly an
essential ingredient of reasonable, fair and just procedure and hence implicit in Article 21.
In Khatri v State of Bihar9, the SC observed that the state is under a constitutional mandate to
provide free legal aid to an accused who is unable to secure legal services because of indigence
and whatever is necessary for this purpose has to be done by the state.
In Sukh Das v UT of Arunachal Pradesh10, the question before SC was that as to what is the
status of a proceeding where the accused did not make an application for free legal aid and the

7
Encyclopedia of Social Work in India (1968) 470
8
AIR 1979 SC 1360
9
AIR 1981 SC 928
court did not inform him of his right. The SC observed that in this case, the trial would be
vitiated as it is a violation of FR. If the accused does not ask for free legal aid, it is the duty of
the accused to inform him of his right.

Article 22 This Article is a significant part of the right to legal aid concept. It is very important
in so far as it guarantees the right to be represented by a counsel of ones choice. Clause (i) of
Art. 22 says that no person who is arrested shall be denied the right to consult and to be defended
by a legal practitioner of his choice.
In Francis Coralie Mullin v. U.T. of Delhi11, the SC expanded the applicability of FR beyond
citizens to India and allowed a British National to have legal counsel of her choice.

Article 32 This Article provides for approaching the SC directly in case of violation of a FR. In
case of denial of free legal aid or a right to be defended by counsel of choice, the SC can be
approached directly since legal aid is considered to be flowing from Right to Life under Article
21.

DPSP -
Article 39A provides for Equal Justice and free legal aid and states that "The 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 disabilities." Article 39A is added by the Constitution (42'1 Amendment) Act, 1976 to
ensure equal justice which has been promised to all citizens by the Preamble and to further
guarantee equality before law (Article 14) , which would have no meaning to the poor so long as
they are unable to pay for their legal admission:18 The impact of Article 39A read with Article
21 has been to reinforce the right of a person involved in a criminal proceeding to legal aid. The
provision has been thus used to interpret (and even expand) the right conferred by section 304 of
the Code of Criminal Procedure 1973.

10
1986 (2) RCR Criminal 437
11
AIR 1981 SC 746
Article 39A of the Constitution gives constitutional status to free legal services to the poor. The
objective of Article 39A has been explained by Supreme Court as "...it is clear from the terms of
Article 39A, the objective of Constitution is to ensure social and equal justice so that legal aid
has to be implemented by comprehensive schemes. Directive principles and fundamental rights
have no disharmony as both are aiming at the same goal of bringing about a social revolution and
the establishment of a welfare State, which is envisaged in the Preamble. Primarily Article 39A
is addressed to the Legislature and Executive, but as far as the court of justice can indulge in
judicial law making, within ambit of the Constitution, the courts too are bound by this
mandate."12
In Air India Statutory Corporation v. United Labour Union 13 , the SC while discussing the
significance of Article 39-A observed that justice should be done on the basis of equal
opportunity and no one be denied justice by reason of economic or other disabilities.

OTHER STATUTORY PROVISIONS:

Criminal law -
Section 303 of The Criminal Procedure Code provides that any person accused of an offence
before a Criminal Court or against whom proceedings are instituted under this code may of
right be defended by a pleader of his choice.
Section 304 of The Criminal Procedure Code provides that wherein a trial before the Court of
Sessions, the accused is not represented by a pleader and where it appears to the court that the
accused has not sufficient means to engage a pleader; the court shall assign a pleader for his
defence at the expense of the State.

The Lalhunpuia v. State of Mizoram 14 , the Guwahati High Court held that if the accused is
unable to engage a lawyer being poor, the court shall provide the help of a legal practitioner to
the accused is contemplated under section 304 of the Criminal Procedure Code. Such legal
assistance should be provided to the accused all throughout.

12
Rajan Dwivedi v. Union of India AIR 1983 SC 624
13
AIR 1997 SC 645
14
2004 (3) RCR (Criminal) 205 (Guwahati)
Civil law -
Order XXXIII of the Civil Procedure Code talks about suits by indigent persons. Rule 18
discusses in detail the manner in which an indigent person can file a suit.
Rule 8 says if the court decides that the applicant is actually a pauper, he shall be exempt from
court fees and fees for service of process on defendants.
Rule 9A provides that the court may, if circumstances so require, assign a pleader to a person
who has been allowed to sue as an indigent and is unrepresented.
Rule 17 provides that any defendant, who desires to plead a set-off or counterclaim may be
allowed to set up such claim as an indigent.
Rule 18 provides for the power of the government to provide free legal services to indigents.
Order XLIV of CPC talks about appeals by indigent persons.

Civil Services Rules -

The various Civil Services Rules which govern the conduct of disciplinary proceeding against
government officials specifically provides that in an enquiry proceeding against an employee, the
employee must be provided the assistance of a retired or serving government employee to assist
him in pleading his case before an enquiry officer.

AMICUS CURIAE:

Amicus curiae or amicus curi (plural amici curiae) is a legal Latin phrase, literally translated as
friend of the court, that refers to someone, not a party to a case, who volunteers to offer
information on a point of law or some other aspect of the case to assist the court in deciding a
matter before it. The information may be a legal opinion in the form of a brief, testimony that has
not been solicited by any of the parties, or a learned treatise on a matter that bears on the case.
The decision whether to admit the information lies with the discretion of the court.

The role of an amicus is often confused with that of an intervener who has a direct interest in the
outcome of the lawsuit. The role of an amicus is as stated by Salmon LJ (as Lord Salmon then
was) in Allen v. Sir Alfred Mc. Alpine & Sons Ltd15 where he said:

15
[1968] 2 QB 229 at p. 266 F-G
I had always understood that the role of an amicus curiae was to help the court by expounding
the law impartially, or if one of the parties were unrepresented, by advancing the legal argument
on his behalf.

The situation most often noted in the press is when an advocacy group files a brief in a case
before an appellate court to which it is not a litigant. Appellant cases are normally limited to the
factual record and arguments coming from the lower court case under appeal; attorneys focus on
the facts and arguments most favorable to their clients. Where a case may have broader
implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly
broad legal effects of court decisions will not depend solely on the parties directly involved n the
case.

In India, the courts have time and again welcomed the idea of permitting amicus curiae to
associate themselves with proceedings, generally involving public interest. By doing so, the
court is guided not only by the academic perspective required for the particular case, but also
enables the court to have an understanding which would allow them to do justice in its
entirety.The person who is usually allowed by the courts, in India, to act as amicus curiae are
people who represent the unbiased will and opinion of the society.

In innumerable cases in India, the courts have allowed, or, on its own motion, have asked various
people to act as amicus curiae to the proceedings. A very fine example of this is the famous, or
rather the infamous BMW hit and run case which had been in news due to the fact that both the
defense and the prosecution lawyers have been suspended by the Delhi High Court on charge of
driving the witnesses to turn hostile. In the said case, Advocate Arvind Nigam who was
appointed as the amicus curiae by the Delhi High Court has played a crucial part in securing
justice.

The importance of amicus curiae can be well seen considering the facts of the above-mentioned
case, in which both the prosecution and the defense have gone beyond ethical and professional
practices to murder justice.

In India, thus, if a petition is received from the jail or in any other criminal matter if the accused
is unrepresented, then, an Advocate is appointed as amicus curiae by the Court to defend and
argue the case of the accused. In civil matters also, the Court can appoint an Advocate as amicus
curiae if it thinks it is necessary in case of an unrepresented party; the Court can also appoint
amicus curiae in any matter of general public importance or in which the interest of the public at
large is involved.