Report No. 14
27. Legal Aid
1. Equality before the law implied legal aid.-
The Preamble to the Constitution of India speaks of justice, social, economic and political and of equality of status and opportunity. Article 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 thus forms the basis of our Constitution. Such equality is the basis of all modern systems of jurisprudence and administration of justice.
Equality before the law necessarily involves the concept that all the parties to a proceeding in which justice is sought must have an equal opportunity of access to the Court and of presenting their cases to the Court. But access to the Courts is by law made dependent upon the payment of court-fees, and the assistance of skilled lawyers is in most cases necessary for the proper presentation of a party's case in a court of law. In so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose.
Unless some provision is made for assisting the poor man for the payment of court-fees and lawyer's fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice. The rendering of legal aid to the poor litigant is, therefore, not a minor problem of procedural law but a question of a fundamental character.
2. The movement for legal aid in India-History.-
The question of legal aid has been engaging the attention of the Government of India since 1945. The credit for drawing the attention of the Government of India to this important question goes to the Bombay Legal Aid Society which, as will be seen in Appendix IV, has done pioneer work and rendered great service to the cause of legal aid in the State of Bombay. In 1945, that Society invited the attention of the Government of India to the Report of the Committee on legal aid and legal advice in England and Wales appointed in 1944 by the Lord Chancellor under the chairmanship of Lord Rushcliffe.
That Committee was directed to enquire into the facilities existing in England and Wales for the grant of legal aid to poor persons and to make recommendations for making legal aid and legal advice available to such persons in the conduct of litigation, whether civil or criminal, in which they were concerned. In their letter to the Government of India, the Bombay Legal Aid Society suggested the appointment of a similar committee in India to examine the problem of legal aid. In 1946, the Government of India enquired from the Provincial Governments whether they would be able to provide greater facilities for legal aid to poor persons in both civil and criminal cases.
The Provincial Governments were then, in general, of the opinion that the existing provisions for legal aid in civil cases were sufficient but that the provisions for the grant of similar aid in criminal cases might be liberalised. On the ground of financial stringency, however, they were reluctant to undertake any scheme of free legal aid even to the limited extent of the further extension of such aid in criminal cases.
3. Previous enquiries.-
Partly as a result of the correspondence that had taken place between the Government of India and the Provincial Governments in regard to the question of legal aid and as a result of certain resolutions moved in the Bombay Legislative Council and the Bombay Legislative Assembly the Government of Bombay appointed a Committee in March 1949 under the Chairmanship of Mr. Justice Bhagwati (then a Judge of the Bombay High Court) to consider the question of the grant of legal aid in civil and criminal proceedings to poor persons, persons of limited means and persons belonging to the backward classes and to make recommendations for making justice more easily accessible to these persons. This Committee went exhaustively into the question of legal aid and made a detailed report in Oct 1949. That Report is perhaps the most informed study that has been so far produced in India on this subject.
In 1949, the Government of West Bengal also set up a Committee under the Chairmanship of Sir Arthur Trevor Harries, then Chief Justice of the Calcutta High Court to make recommendations in regard to judicial reform in the State and this Committee considered among other subjects the question of granting State aid to indigent litigants and made certain recommendations.
4. The attitude of the Governments-Central and State.-
It appears that the view of the Government of India at that time was that the provision of free legal aid to poor persons was primarily a State responsibility and that they would not take any action in the matter. In 1952, the Government of India again wrote to the State Governments requesting them to make further provision for legal aid in criminal cases in respect of offences punishable with not less than five years' rigorous imprisonment and appeals arising out of those cases. The reply from the States was that in view of their financial difficulties the State Governments were unable to grant further legal aid in criminal cases as suggested by the Government of India.
Thereafter, the West Bengal Government again considered it necessary to have the question of giving legal aid to persons having no resources enquired into by a committee under the Chairmanship of Sir Arthur Trevor Harries, retired Chief Justice of the Calcutta High Court. This Committee considered the question in detail and made valuable recommendations. These, however, do not appear to have been given effect to by the State Government presumably for reason of financial considerations.
In January, 1956, the Government of India for the third time addressed the State Governments advising them of their tentative view that there was a case for increasing the scope of legal assistance to the poor and that while the question of including in the Five Year Plan schemes for granting legal aid to the poor was under consideration, the State Governments Might examine the matter again and, if possible, include in their budgets some token provision for legal aid. This appeal, as in the past, failed to evoke an encouraging response. Most State Governments were reluctant to embark on schemes involving financial obligations. Some of them replied stating that they had made token provisions ranging from Rs. 1,000 to Rs. 2,000 in their budgets in respect of legal aid.
What has been stated above shows that though legal aid has been the subject of correspondence between the Government of India and State Governments, it has so far failed to arouse more than a casual interest in the State Governments except perhaps very recently in Kerala.1 The question of legal aid has unfortunately been regarded as of very minor importance compared with other projects and schemes under the Five Year Plans which have been given very high priority.
1. The Kerala Government has recently formed rules for the grant of legal aid. They are called Kerala Legal Aid (to the Scheduled Castes and Scheduled Tribes and to the Poor), Rules, 1957. Vide Appendix III.
5. Legal Aid in foreign countries: in the U.S.A-
The need for legal aid has increased enormously with the growth of industrialism and urban conditions of life. The large mass of legislation in the modem state with the inevitable technicalities of the law has occasioned a considerable increase in litigation. In the United States, the question of legal aid has, during the present century, received considerable attention. In spite of the disturbing influences of the two world wars, the movement for legal aid has gained considerable momentum. The spread of the legal aid movement in the United States has been due largely to the intense efforts of private voluntary organizations.
Government aid is looked upon with disfavour on the ground that it brings with it governmental control. Legal aid is given by various types of organisations such as the Legal Aid Societies, the Social Service Organisations, the Law School Clinics and the Bar Association Offices. In 1921, the American Bar Association took upon itself the duty of encouraging the establishment and maintenance of legal aid organisations. In course of time a partnership was formed between the legal aid organisations and the Bar and this combination provided effective national leadership to the legal aid movement. The undermentioned figures-showing the number of cases in which legal aid was granted in the United States are instructive.1
1. The American Lawyer, Albert P. Blaustein and Charles 0. Porter, 1954, p. 82. Fuller information about American Legal Aid Organisations is to be found in Availability of Legal Service, Ch. III, p. 64.
Year |
No. of cases |
Cost of operation |
Amounts collected for clients |
$ |
$ |
||
1876 |
212 |
1,060 |
1,000 |
1886 |
3,462 |
3,820 |
19,357 |
1896 |
15,017 |
13,450 |
76,695 |
1906 |
37,603 |
53,347 |
99,049 |
1916 |
1,17,201 |
1,81,408 |
3,40,199 |
1926 |
1,52,214 |
3,69,264 |
6,45,991 |
1936 |
2,60,400 |
5,77,220 |
5,26,903 |
1946 |
3,01,628 |
10,33,812 |
7,51,706 |
In Canada and Australia-"In Canada the term 'Legal Aid' embraces 'Legal Advice'. There is no unified Legal Aid in Canada. Each Bar Association has its own system. The Bar Association of Ontario has established a complete organisation. The Canadian Bar Association passed a resolution at its annual meeting held in 1950 advocating the establishment of a Legal Aid Organisation under the auspices of the Association. In ten provinces, Legal Aid is being given in one form or another. The community chests are not utilised, but lawyers individually or collectively bear the cost. Generally the courts appoint counsel to defend cases."1
1. The Lawyer, May 1957, pp. 18 and 19, para. 6.
"In South Australia, the members of the Bar voluntarily undertake the work of taking assignments under the scheme. The Council of the Law Society administers the scheme."1
1. The Lawyer, May 1957, p. 19, para. 6.
6. In the United Kingdom.-
Until the passing of the Legal Aid and Legal Advice Act of 1949 (12 & 13 Geo. 6, Ch. 51), the legal aid movement in England lagged far behind its counterpart in the United States. Realising that the task of acting gratuitously for poor persons imposed a heavy burden on the legal profession and that the position in regard to legal aid was unsatisfactory, in 1944 the Lord Chancellor appointed a Committee to report and make recommendations on the question. The Committee submitted its report in May, 1945, making the following recommendations:-
(1) Legal aid should be available in all courts and in such manner as will enable persons in need to have the help they require;
(2) The provision for legal aid should not be limited only to those who are normally classed as poor but should include a wider income group;
(3) Those who cannot afford to pay anything for legal aid should receive it free of cost. For those who can pay something towards the cost, a scale of contributions should be prescribed;
(4) The cost of the scheme should be borne by the State but it should not be administered either by a department of the State or by local authorities;
(5) The legal profession should be responsible for the administration of the scheme except that part of it which was dealt with under the Poor Prisoners Defence Act;
(6) Barristers and Solicitors should receive adequate remuneration for their services;
(7) The Law Society should be requested to frame a scheme for the establishment of legal centres in the country;
(8) The Law Society should be answerable to the Lord Chancellor for the administration of the scheme;
(9) The term "poor person" should be discarded and the term "assisted person" should be adopted.1
1. Rushcliffe Committee Report, p. 23. Report of the Committee on Legal Aid and Advice in England and Wales.
These recommendations were implemented by the enactment of the Legal Aid and Advice Act, 1949.
Under the English Act provision has been made for the giving of legal aid in all courts, civil and criminal, for all types of proceedings except personal actions. Such aid includes representation by solicitors and counsel and is not given unless the applicant shows that he has reasonable grounds for instituting or defending or being a party to any proceeding. It may also be refused if it appears unreasonable that he should receive it in the particular circumstances of the case. The question whether a person's financial circumstances are such as to entitle him to legal aid under the Act and if so whether he should receive such aid free, of all cost or should himself make a contribution towards the cost is determined by reference, to his disposable income and his disposable capital.
Legal aid is available to any person whose disposable income does not exceed £ 420 per annum. Persons with a disposable income over £ 156 or with a disposable capital exceeding £ 75 have to make contributions towards the costs. Disposable income and disposable capital are assessed after making deductions for maintenance of dependents, interests on loans, income-tax rent and other matters for which a person may reasonably provide. Panels of solicitors and barristers willing to act for assisted persons are maintained. The act also contains provision for legal advice being given on payment of a small fee.1
The lawyers representing the assisted persons are paid their fees and out-of-pocket costs out of the Legal Aid Fund. Counsel is paid eighty five per cent. of the amount allowed on taxation of costs in the House of Lords and the Supreme Court and his full fee in proceedings in the County Court. A solicitor is paid eighty five per cent., of the amount allowed on account of profit costs and the full amount allowed on taxation of the costs on account of disbursements in the Supreme Court and the full amounts of both profit and out-of-pocket costs in the County Courts.
The responsibility for administering the scheme is laid upon the Law Society. The functions of the Society which are performed by its council include the establishment and administration of the Legal Aid Fund. This Fund is constituted by moneys provided by Parliament, the contributions made by the assisted persons, the fees recovered for legal advice and the costs awarded to the assisted persons and recovered. The Act has also liberalised the provisions relating to legal aid in criminal courts under certain statutes.
1. The provisions relating to the grant of legal advice have not yet been brought into force.
Upto the end of the year 1956 about 10,000 assisted persons had been enabled to recover by way of damages seven million pounds sterling and about 70,000 persons had, with assistance rendered under the Act, successfully petitioned for divorce or defended divorce proceedings. The Report of the Select Committee of the House of Commons on Estimates reviewing the working of the scheme of legal aid stated that the scheme's greatest contribution had been to enhance the equality of all men before the Law and hence the dignity and prestige of the Law.
7. The position in India.-
In India, facilities for legal aid are very meagre Apart from voluntary organisations in a few towns like Bombay, Calcutta and Bangalore there is not much organised effort either governmental1 or private intentioned to give to the poor the benefit of the law. As we have already seen, the Governments of the States have not in general been very enthusiastic about proposals calculated to enlarge the scope of legal aid. Nor has the legal profession with some creditable exceptions regarded the rendering of legal aid to the poor litigant as its responsibility.
1. Kerala is an exception.
In Bombay, the High Court has made certain rules which provide for the assistance of a lawyer to a person allowed to sue or defend in forma pauperis. These rules have been made for the Original and Appellate Side of the High Court as well as for the City Civil Court. Rules have also been made on the Original Side of the Calcutta High Court which provide that in fit cases attorneys and counsel can be assigned to a pauper for the conduct of his case or appeal. Rules recently made by the Kerala Government provide for legal aid, in the main, to persons of the Scheduled Castes and Scheduled Tribes and to poor persons whose average monthly income is not more than Rs. 100.
These rules make a distinction between the members of the Scheduled Castes and the Scheduled Tribes on the one hand and other poor persons as defined therein on the other as regards the extent of the legal aid to be given in both civil and criminal cases. A budget provision of Rs. 35,000 has been made for this purpose.
In so far as the criminal courts are concerned provision has been made in all the States for the employment of a lawyer in the courts of session and the High Court for the defence of persons accused of offences punishable with death. Provision has also been made in some States for the employment of counsel for poor persons in references from the verdict of the Jury and appeals from acquittals.
So far as civil courts are concerned, speaking generally, in most of the States there are no statutory facilities for the grant of legal aid in civil courts other than those provided by Orders XXXIII and XLIV of the Civil Procedure Code.
The existing facilities for legal aid in the several States are set out in Appendix III.
Apart from the official agencies referred to above there exist in the States a few voluntary organisations like the Bombay Legal Aid Society and the Legal Aid and Advice Society of West Bengal. These organisations have not been able to make substantial progress for lack of funds.
8. The need for State assistance.-
It must be emphasised that private legal aid cannot make public legal aid superfluous and can never be an argument against the latter. The general principle that legal aid is a service which the modern welfare State owes to its citizens can no longer be disputed. "It is part of that protection of the citizen's individuality which, in our modern conception of the relation between the citizen and the State can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tried to protect the poorer classes against the common dangers of life such as unemployment, disease, old-age, social oppression etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection.
The State is not responsible for the outbreak of epidemics, for old-age, or economic crisis. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor."1 The Bhagwati Committee took the same view holding that the problem of legal aid is under the modern conception of the obligations of the State to be treated on a par with other social insurance schemes like old-age pensions, free education and free medical relief and that, therefore, the State must take upon itself the responsibility of providing legal aid to poor persons and persons of limited means.2
1. Legal Aid for the Poor by E.J. Cohn, Law Quarterly Review, Vol. LIX, p. 250-256.
2. Report of the Committee on Legal Aid and Legal Advice in the State of Bombay, p. 8, para. 19.
9. The case against State aid.-
Several arguments have been advanced by critics against the acceptance of the principle that it is the obligation of the State to provide legal aid. It is contented that legal aid to the poor might make people more litigious and increase litigation, that the scheme would be liable to abuse by dishonest and unscrupulous people and that a scheme of legal aid would impose a disproportionately heavy financial burden on the State. The fears of the abuse of the scheme and increase in litigation do not appear to be well-founded and seem to proceed upon a misconception of the practical working of legal aid organisations.
The Bhagwati Committee has pointed out that these apprehensions proceed from a want of faith in the proper working of legal aid schemes. With proper safeguards for scrutinising the financial position of the applicant and for determining the fitness of the causes for which aid is given there would appear to be no room for apprehension of a possible misuse of the scheme. Undoubtedly schemes of legal aid would impose heavy financial liabilities or the State. This consideration would, however, be irrelevant once the principle is accepted that the rendering of legal aid is a State obligation to be treated on a par with other schemes of social security in a welfare State.
It is true that legal aid schemes are being worked by voluntary organisations in countries like the United States, Canada and Australia as noticed above. There is nothing, however, to indicate that legal aid rendered in these countries is commensurate with the needs of the citizens requiring assistance. In our view the method adopted in England of State aid is definitely to be preferred, the more so when our aim is to render our State a social welfare State.
10. The role of lawyers in Legal Aid.-
While it should be the duty of the State to provide funds for legal aid schemes in the largest possible measure, it must be the task of the legal profession to shoulder the main, if not the entire, responsibility for the working of the scheme. The training and equipment of the lawyer, his close association with the machinery for administration of justice and his knowledge of its procedures tend to make him the fittest instrument for administering a scheme of legal aid. Therefore though the State may provide funds for the purpose, the day-to-day administration of the scheme will have to be looked after by bodies which are wholly or preponderatingly composed of lawyers.
Back
