Report No. 14
11. To what extent should the profession be called upon to play its part in rendering legal aid on a voluntary basis and without any payment of fees? An argument which is freely used to justify the putting of the responsibility on the legal profession of rendering this service to the community gratuitously is that the legal profession having been granted important privileges in regard to the administration of the law it is its obligation to look after the needy litigant, without charging fees. The very basis of this argument appears to us to be unsound. The profession of the law like any other profession can be adopted and practised by persons who have obtained the necessary qualifications and a license permitting its practice. It would thus appear to be no different from any other profession and it would be incorrect to assume that the profession has been granted any privileges in regard to the administration of law.
Further though the insistence on the universal conscription of the legal profession in this social service may at first sight appear to be attractive, it has great drawbacks. Legal assistance to the poor litigant may be rendered effectively by a member of the legal profession voluntarily undertaking such work. But such assistance given by an unwilling lawyer on whom this duty is compulsorily imposed may not be satisfactory. It may well be therefore that a system of conscripting lawyers for this work even if it could be based on some principle may fail of its true purpose. It is probably for this reason that we do not find in any of the Anglo-American and Continental States where provision for legal aid exists, a system of legal aid which throws the responsibility for it on the legal profession by making it obligatory on them to render free legal aid.
12. Conscription of lawyers or compulsion.-
The Bhagwati Committee while rejecting the suggestion that the profession should be compelled to do all legal aid work gratuitously recommended a certain amount of compulsion. It proposed that a maximum of six free cases every year should be done by every lawyer without payment of fees.1 An element of compulsion is also to be found in the rules of the Bombay High Court on its Original Side which provide for the assignment of an advocate or an attorney or both to assist a person who is permitted to sue or defend as a pauper and that the advocate or attorney so assigned shall not be at liberty to refuse his assistance unless he satisfied the Court or Judge that he has good reason for refusing.
We are on principle opposed to the imposition of any measure of compulsion in the matter of legal aid. A lawyer is in the same position as a qualified doctor or engineer permitted to practise his profession. If members of these latter professions or other professions may not be compelled to do professional work without payment for poor persons, there appears to be no reason why a discriminatory compulsion of any kind should be imposed on the legal profession.
1. Report of the Committee on Legal Aid and Legal Advice in the State of Bombay, p. 87.
13. Duty of Lawyers.-
But it by no means follows that the legal profession does not owe a moral and social obligation to poor members of society. In our view, every member of the profession including the busy senior members at its top should make it a rigid rule to do a certain number of cases of poor persons every year. This obligation is owed in a greater degree by the senior members of the Bar who can better afford the sacrifice involved and whose example in assisting poor persons is likely to be followed by the junior members. In this connection we might refer to the observations of Viscount Buckmaster, then Lord Chancellor:
"What steps are we to take to remove from our profession the reproach that the poor man cannot get the same even-handed justice as the rich? It does not mean that he does not get justice before the Bench. That I never heard said. That the scales of justice are heavily weighed against the poor litigant is not an accurate statement, but nobody can deny that the rich litigant by being able to get help of the best man has an advantage. How are we going to meet that. It is something that needs to be met. I believe myself it could be met both here and at home, if everybody engaged in law-either where the branches are divided into counsel and solicitors or where they are one, just simply as lawyers-if every person took a certain number of worthy poor person's cases in the course of a year and dealt with them exactly as he would with the case of a rich client and that we should have thus gone a long way to remove the reproach."1
1. Address delivered to the Canadian Bar Association on the 27th Aug, 1925.
Lawyers in India would not be worthy of the great traditions of the profession if they failed to render this social service which can be so usefully and appropriately rendered by them. A true welfare State can function only if every citizen renders some service at a sacrifice and the lawyer working in his professional capacity is not an exception.
14. Voluntary aid insufficient payment of reduced rates.-
It will be realised, however, that even if all lawyers performed this social duty and did a number of cases every year without charging fees there will yet remain a large mass of litigation of persons without adequate means for which advice and representation in court will be needed. Such cases will have to be distributed amongst the members of the profession who have volunteered to lend their services for legal aid and agreed to their names being put on panels maintained by legal organisations.
These lawyers will have to be remunerated for the work done by them on certain fixed scales which may be two thirds or half of the fees payable on taxation in civil cases and the fees prescribed by the appropriate authority in criminal cases. We have no doubt that a large number of members of the profession will readily come forward to be put on these panels and thus help to relieve the burden on the State of rendering legal aid to deserving poor persons.
15. Adoption of Bombay and West Bengal Schemes recommended.-
The comprehensive study made by the Bhagwati Committee of the problem of legal aid was undoubtedly made with special reference to the conditions prevailing in the State of Bombay. However in our view with certain modifications arising out of what has been said above and in regard to the suggested deductions in arriving at the disposable income and the disposable capital (paras 68 and 69 of the Report) the scheme laid down by the Committee can well serve as a working model which can be adapted to the local needs and conditions of each State.
A summary of the recommendations of the Committee is annexed as Appendix I to this chapter. We may also advert to the Report of the Trevor Harries Committee on legal aid in West Bengal which consists of concise recommendations under various heads. The scheme embodied in these recommendations though less comprehensive than the Bombay scheme is simple and capable of being quickly put into execution. We annex these recommendations as Appendix II to this chapter.
16. Financial aspects.-
While fully emphasising the great importance of a system of legal aid as a necessary complement to the efficient and equal administration of justice, we are conscious that the full implementation of a scheme such, for example, as has been recommended by the Bhagwati Committee will involve heavy financial burdens upon the States. We have not been able to assess even approximately the cost of working a fully comprehensive legal aid scheme on a countrywide scale, but it is obvious that it must be very substantial.
We are also conscious that as in other matters we must in the matter of legal aid proceed by gradual stages and lay down priorities. Legal aid will have first to be extended to personnel accused of crime, particularly crimes of serious nature. Members of Scheduled Castes and Scheduled Tribes who generally are without means will also have to receive preferential consideration. Legal aid will have next to be extended to really poor persons; and then gradually made available to persons of moderate means who are unable to bear the cost of litigation.
17. Immediate steps to be taken.-
Certain measures of legal aid are however capable of being implemented forthwith without the need of setting up elaborate Legal Aid Organizations by amending the law or the rules of the courts. The additional financial burden involved in giving effect to these measures will be very small and in our view these measures should be given effect to immediately. We therefore recommend that:
(1) Representation by a lawyer should be made available at Government expense to accused persons without means in all cases tried by a court of session;
(2) Representation by a lawyer should be made available at Government expense to applicants without means in proceedings under section 488 of the Criminal Procedure Code;
(3) Representation by a lawyer should be made available at Government expense to an accused person without means at the time of the final hearing of a jail appeal which has been admitted;
(4) The explanation to rule 1, Order XXXIII of the Civil Procedure Code should be amended so as to entitle a person who is not entitled to property worth Rs. 1,000 to sue as a pauper but alternatively so as to define a pauper as a person who is not possessed of sufficient means, other than the subject-matter of the suit, to enable him to pay the fee prescribed by law;
(5) Order XXXIII of the Civil Procedure Code should be amended so as to enable a person not only to sue as a pauper but to defend a suit or other proceeding as a pauper;
(6) The expression "pauper" used in Order XXXIII should be replaced by the expression "poor person" or "assisted person";
(7) Rules of the High Courts should give power to the High Courts and subordinate courts to provide, in proper cases, counsel to the pauper litigant, such counsel being chosen out of a panel of counsel who have expressed their willingness to be on the panel.
The recommendations made above can all be given effect to by appropriate changes made by the High Courts in their rules; in fact, some High Courts have already made changes in their rules in the direction indicated.
18. Formation of legal aid committee by Bar Associations.-
Apart from State and Governmental action it is essential that the members of the profession should with also forthwith take steps to adopt such measures of legal aid as can be achieved by their voluntary effort. Each Bar Association in the country may for this purpose form a Legal Aid Committee. The Committee will enlist such members of the Association as are agreeable to lend their assistance in rendering Legal aid to persons without means.
The Committee will have to frame rules for determining the type of cases in which such legal aid should be rendered and also the manner of rendering such legal aid. Members of the panel of lawyers may devote in turn an hour or two every week at the offices of the Association in looking into the cases of applicants for aid in order to decide whether their means are such as to entitle them to legal aid and whether their cases are such as to merit assistance.
If a person is considered to be eligible for legal aid, legal advice may be tendered to him either in the matter of prosecuting or defending a claim and assistance may be rendered to the person from time to time in the matter of proceedings to be taken in court and ultimately at the hearing of the cause or matter. We have no doubt that in every Bar Association there will be a substantial number of persons willing to render assistance to indigent litigants and work such voluntary schemes of legal aid.
19. Existing Associations.-
Members of the Bar in Bhagalpur in Bihar and in Bangalore in South India have associated themselves together for rendering legal aid and there probably are other bodies of lawyers who have been working in the same direction. There is no reason why an activity of this character should not be considered a duty to be performed by every Bar Association in the country. Indeed, members of the Bar may go further and register themselves in association with other interested persons into societies pledged to the rendering of legal aid, obtaining public and private funds for the purpose as has been done in West Bengal by the foundation in 1952 of the Legal Aid and Advice Society of West Bengal which has been doing useful work. The details of its working and of similar societies in other States may be found in Appendix IV.
20. Summary of Recommendations.-
We summarise our recommendations on legal aid as follows:-
(1) Free legal aid to poor persons and persons of limited means is a service which the modern State and in particular a Welfare State owes to its citizens. The State must, therefore, accept this obligation and make available funds for providing such legal aid to poor persons and persons of limited means;
(2) The legal profession must in the main, if not entirely, accept the responsibility for the administration and working of schemes of legal aid. This responsibility should be discharged by the profession by organising and by serving on bodies which will render legal aid, and representing in courts poor persons or persons of limited means on the payment of only a proportion of the fee payable on taxation;
(3) The legal profession owes a moral and social obligation to poor members of society which it must discharge by every member of the profession doing a certain amount of legal work free for poor persons;
(4) The scheme for legal aid to poor persons and persons of limited means outlined by the Committee on Legal Aid and Advice appointed by the Government of Bombay in 1949 and the scheme outlined by the West Bengal Committee should, with suitable modifications made in the light of local needs and conditions, be adopted by all States as soon as financial conditions permit;
(5) The States should, pending the implementation of such schemes, make provision for legal aid in gradual stages bearing in mind the priorities mentioned in paragraph 16 above;
(6) Measures in furtherance of legal aid mentioned in paragraph 17 above should be adopted immediately;
(7) Bar Associations should take immediate measures to render legal aid on a voluntary basis in the manner mentioned in paragraph 18 above.