Report No. 14
Existing Facilities for Legal Aid
1. For criminal courts provisions exist in all States for the assignment of a lawyer for the defence of persons accused of offences punishable with death in all cases committed for trial to the High Court or a court of session. Similar provisions exist for the defence of accused in cases of confirmation of a sentence of death, references from the verdict of juries, appeals from acquittals and enhancement proceedings in revision in which any person is liable to be sentenced to death.
2. The statutory provisions for legal aid in civil matters are contained in Orders XXXIII and XLIV of the Code of Civil Procedure. Under Order XXXIII, provision is made for filing suits by paupers. A pauper is defined as a person who has not sufficient means to enable him to pay the fee prescribed by law or where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his wearing apparel and the subject-matter of the suit.
3. If the application to sue as a pauper is granted plaintiff is exempted from the payment of any court fee (other than fees payable for service of process) in respect of the plaint, appointment of the pleader or other proceedings connected with the suit. If the pauper plaintiffs succeeds, the amount of court fees which could have been otherwise paid by him is recoverable by the State Government from any party ordered by the decree to pay the same and is a first charge on the subject-matter of the suit.
If he fails in the suit or is dispaupered or his suit is withdrawn or dismissed for default the court may order him to pay the court fees which would have been otherwise payable by him. Order XLIV deals with appeals by paupers. Any person entitled to prefer an appeal who is unable to pay the fees prescribed for the memorandum of appeal may be allowed to appeal as a pauper subject to the provisions relating to suits by paupers.
The court has, however, the power to reject the application unless upon a perusal thereof and of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some other usage having the force of law or is otherwise erroneous or unjust. If the applicant had already been allowed to sue or appeal as a pauper in the court from whose decree the appeal is preferred no further enquiry as to his pauperism is necessary unless the appellate court order an enquiry.
4. In addition to these statutory and general provisions for legal aid, certain State Governments have made rules for further extension of grant of legal aid in Civil and Criminal proceedings. The following is a summary of such provisions:
The Government of Bihar have issued executive instructions to all district officers in Bihar that all cases in which the Harijans file applications under the Bihar Privileged Persons Homestead Tenancy Act of 1947 for the restoration of their house and lands, the Assistant Public Prosecutors should be directed to give to such applicants free legal advice and legal assistance.
In the State of Bombay, the scope of legal aid in criminal cases was further extended by certain resolutions of the Home Department to jail appeals. These provisions were first made on the 15th of August, 1945, and were continued from time to time upto 1948. It was provided that when an appeal preferred by a convict from jail is admitted by the High Court, the Registrar shall engage an advocate for him at Government's expense if no lawyer is engaged by the appellant himself and if he is not in a position to engage a lawyer. These orders were to remain in force for a period of three years with effect from the date of issue.
The Government of Bombay has also made three separate schemes for granting free legal assistance in civil and criminal proceedings to the members of the Scheduled Tribes in that State and also to the members of the ex-criminal tribes (Vimochit Jatis). Provisions of Rs. 2,000, Rs. 13,000 and Rs. 13,000 respectively were proposed for these schemes for the year-1956-57.
It is also learnt that the Government of India have been sanctioning grants-in-aid on 50 per cent basis for the first two schemes and on an entire basis for the third scheme. As a matter of fact the Government of India have not sanctioned any grants-in-aid to the State Government for legal aid as such. The State Governments get grants-in-aid from the Centre in respect of the schemes for the welfare of the Scheduled Castes and Tribes and it appears that in these schemes the Government of Bombay have also made provisions for granting legal aid to these classes.
For civil cases High Court of Bombay has enacted its own rules for grant of legal aid to poor persons in Civil matters. That High Court has added some rules (rules 17 and 18) to Order XXXIII which enable any person to defend a suit as a pauper either before or after he has entered appearance and all the rules in Order XXXIII relating to suits by plaintiffs in forma pauperis apply to him mutatis mutandis as if he was a plaintiff. On the Original Side of the High Court, the limit of Rs. 100 laid down in Order XXXIII, rule 1 has been raised to Rs. 500. Rules have also been made by that High Court for the assignment of an advocate or a pleader to any person who has been allowed to sue or defend as a pauper. The rules are to the following effect.-
(1) "When a person is admitted to sue or defend as a pauper, the Court may, if necessary, assign an advocate or pleader to assist him; an advocate or pleader so assigned shall not be at liberty to refuse his assistance, unless he satisfied the Court that he has good reason for refusing".
(2) "It shall be the duty of the Advocate or Pleader who may be assigned to a person admitted to sue or defend as a pauper, to take care that no notice is served, summonses issued, or petition presented without good cause, and to report to the Court every six months the progress of the suit or matter."
(3) "Whilst a person sues or defends as a pauper, no person shall take or agree to take, or seek to obtain from him, any fee, profit or reward, for the conduct of his business in the Court, and any person who takes, or agrees to take or seeks to obtain any such fee, profit or reward, shall be guilty of a contempt of Court:
Provided that, notwithstanding anything herein contained, the Court shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate or Pleader representing the pauper."
Such rules have been framed on the Original and Appellate Side of the High Court.
Statutory provision for legal aid is also found in section 26 of the Bombay Industrial Relations Act of 1946. It provides for legal aid to approved unions at Government's expense in certain important proceedings. Approved unions have been defined as unions on the approved list and section 26 enacts that any approved union entitled to appear (a) before a Labour Court in a proceeding for determining whether a strike, lock-out, closure, stoppage or change is illegal, or (b) before the Industrial Court in a proceeding involving, in the opinion of the Court, an important question of law or fact may apply to the Court for the grant of legal aid at the expense of the State Government. The Court after instituting the enquiry may either grant or refuse the application. For the purpose of this section, legal aid is inclusive of advice to the union and the appearance before a court, of a legal practitioner on behalf of the union.
The following is the scheme made by the Government of Kerala under the Kerala Legal Aid (to the Scheduled Castes and Scheduled Tribes and to the poor) Rules 1957.
Legal aid has been defined as the aid given by the State to a person by meeting the fees of counsel as may be presented from time to time and includes any other aid given in connection with the litigation for which Counsel is engaged which Government may decide from time to time. A person whose average monthly income is not more than Rs. 100 is considered to be a poor person for the purposes of these rules.
A poor person is given legal aid in the High Court, Courts of session and Courts of District Magistrates in all criminal trials, appeals and revisions and if a wife or a child in maintenance proceedings under section 488 of the Criminal Procedure Code. The Court is given the power to decide the question of the poverty of the applicant for legal aid on the basis of the report of a Tahsildar or other officer.
Members of the Scheduled Castes and Scheduled Tribes in the State are entitled to legal aid in all criminal courts in all types of cases. They are similarly entitled to legal aid in all civil cases, appeals and revisions either for prosecuting or for defending a proceeding.
In addition persons who are allowed to sue in forma pauperis (under the Civil Procedure Code) are also given legal aid as defined by these rules.
The rules further provide for legal aid in special cases. In suits, appeals, and revisions arising out of legislation intended to safeguard the interests of or confer benefits upon a section or class of people like workers, tenants etc., Government may, if they are satisfied on the representation of a Kisan or, a Trade Union organization, or in exceptional cases by the party himself that there is an important legal issues to be decided which may have far reaching consequences in a way opposed to the intendment of the legislation and that the party is unable to engage eminent counsel to conduct his case efficiently, direct the Government Pleader or the Advocate-General to appear on behalf of such persons in such suits, appeals or revisions.
Provision is also made for the preparation for court of panels of legal practitioners who are willing to act for the assisted parties, and the rules prescribe a scale of fees to be paid to those lawyers in Civil and Criminal cases. The lawyers receiving fees under these rules are forbidden to receive any fee from the party direct.
By an order issued by the Harijan Welfare department of the Government of Madras it has been directed that whenever a criminal case is launched against Harijans by caste Hindus or vice versa legal aid to the Harijans at Government cost may be given in specially deserving cases in the interests of justice.
The State Government provides legal aid at its own cost to members of the Scheduled Castes in cases arising out of the denial of right conferred on them by the Constitution of India.