Report No. 14
An Outline of Scheme of Legal Aid as Proposed by The Committee on Legal Aid and Legal Advice in The State of Bombay
I. Administrative Machinery
The administration of the scheme of legal aid should be in the hands of legal aid committees formed for specified areas all over the States. These Committees will be of the following orders:-
(1) A Taluka (or Tehsil) Legal Aid Committee having its office at the headquarters of the Taluka Civil and Criminal courts,
(2) A District Legal Aid Committee at the headquarters of the District Court.
(3) Legal Aid Committees for the appellate and original side of the High Court, the City Civil Court, the Court of Small Causes in Presidency towns and for the Courts of the Presidency Magistrates;
(4) The State Legal Aid Committees having its office at the headquarters of the State High Court.
Constitution of Committees
The Taluka Legal Aid Committee should consist of the following members:-
(1) A Sub Government Pleader;
(2) A retired judicial officer, if available;
(3) A social worker, if available;
(4) & (5) Two members of the Local Bar Association.
The retired judicial officer, the social worker and the lawyer should all be nominated by the District Judge in consultation with the President of the Taluka Bar Association. The members would work in an honorary capacity and would normally hold office for a period of three years.
The retired judicial officer, if available, would be the ex-officio Chairman of the Committee, otherwise the sub-Government pleader would be the Chairman. The Nazir or other ministerial officer of the Taluka Court as may be appointed by the Civil Judge should act as Secretary of the Committee on such extra remuneration as may be fixed by the Committee in consultation with the Judge.
The functions of this committee would be-
(a) to receive and investigate applications for legal aid in all matters in the area within the territorial jurisdiction of the Court;
(b) to provide for legal advice to the applicants in the area;
(c) to maintain panels of lawyers for giving legal aid and advice;
(d) to decide all questions as to the grant or withdrawal of legal aid;
(e) to issue legal aid certificates and to assign lawyers;
(f) to assess costs and permit payment of the amounts assessed by instalments in the case of partially assisted persons;
(g) to make payments to assigned lawyers on account of disbursements and generally to provide for costs for legal aid out of the funds placed at its disposal by the State Legal Aid Committee and to take proceedings for recovery of costs awarded to the assisted persons.
(1) The District Legal Aid Committee would be similarly constituted of-
(2) the Government Pleader,
(3) a retired judicial officer, if available,
(4) a social worker, if available,
(4) (5) (6) & (7) four lawyers who are members of the Bar Association.
All members except the Government Pleader would be nominated by the District Judge in consultation with the President of the Bar Association. The functions of the District Committee are similar to those of the Taluka Committee. The District Court Nazir or such other officer of the Court as may be appointed by the District Judge should act as Secretary of the Committee on such remuneration as may be fixed by the District Committee in consultation with the District Judge.
The composition of the committees for the High Court and other Courts located at the headquarters of the State High Court are also on similar lines.
At the apex stands the State Legal Aid Committee which is to be a corporation and may sue or be sued in its corporate name. It should consist of the following members:-
(1) A Judge of the High Court nominated by the Chief Justice,
(2) The Advocate-General or a member of the Original Side of the Bar (if any) nominated by the High Court,
(3) The Government Pleader or a member of the appellate side of the Bar nominated by the High Court,
(4) A representative of the Legal Department of the Government,
(5) A representative of the Finance Department of the Government,
(6) A representative of the Bar Council,
(7) & (8) Two members of the High Court Bar, (9, 10 & 11) Three members of the Moffusil Bar,
(9, 10 & 11) Three social workers, one of whom may be a lady social worker, nominated by the State Government.
(12, 13 & 14)The functions of the Committee would b.-
(a) to supervise, direct and control the work of the legal aid committees all over the State and the operation and administration of the scheme throughout the State;
(b) to dissolve any local legal aid committee or to remove any member thereof from membership;
(c) to submit to Government a statement of accounts for the financial years and statements of budget or supplementary budget for each year;
(d) to be in charge of and administer the legal aid scheme;
(e) to sanction expenditure for the administration of legal aid;
(f ) to allocate the grant for legal aid amongst the local committees and to make disbursements out of the funds placed at its disposal by Government;
(g) to take proceedings for recovery and recover costs awarded to assisted persons;
(h) to receive donations for legal aid;
(i) to call for periodical reports from the committees;
(j) to submit recommendations to Government regarding the working of the scheme and improvements in the practice and procedure of the courts so as to reduce the costs and delays in litigation;
(k) to give general or special directions to the local legal aid committees for the proper discharge of their duties and functions;
(l) to make regulations for carrying out of the scheme;
(m) to prescribe the forms in which accounts should be kept and the reports and returns to be made by the local committees;
(n) to submit to government an annual report of its work and the work of the local committees.
The local legal aid committees should be invested with the sole discretion to judge the sufficiency or otherwise of the material placed before them by the applicants for legal aid.
There should be no appeal from the decision of the local committee granting or refusing legal aid.
II. Scope and Extent of Legal Aid
The costs which a litigant has to incur in the Civil Court, in the first instance, comprise of the following main items which are allowable on taxation.
(1) Court fees;
(2) Process fees;
(3) Taxable out-of-pocket costs such as diet money to witnesses, costs of obtaining certified copies etc; and
(4) Pleader's fees.
In the Appellate Court provision has again to be made for-
(1) Court fees,
(2) Costs of obtaining certified copies of judgments, and decrees,
(3) Costs of preparation of appeal paper-books,
(4) Where the appeal is before the High Court, costs of printing and translation of documents, and
(5) Pleader's fees.
In all such cases, Court fees and process fees must be remitted by the State, either in full or in part, in the case of all persons who are certified by the legal aid committee as deserving of full legal aid or partial legal aid.
Similarly, taxable out-of-pocket costs such as diet money for the witnesses examined before the Court and costs of certified copies of documents in the registry or of Government records which are necessarily to be filed must also be provided. Similar provision must be made in respect of the costs incurred in appeal for supplying certified copies of judgments and decrees and appeal paper-books etc.
The question of court fees, process fees etc., as may be required in Criminal Courts must be treated on the same footing as similar costs in the Civil Courts. Similarly the assisted persons must be supplied, free of costs, with certified copies of the relevant documents, notes of evidence etc.
III. Classes of persons to be aided-Backward Classes and Scheduled Tribes
In the extended scheme of legal aid, persons belonging to the Backward and other Scheduled Tribes should not be subjected to the usual 'means test' but should be presumed to be prima facie entitled to legal aid at State's costs. The presumption may, however, be rebutted by tangible evidence, in which case the legal aid should be refused. In either case so far as the means test is concerned, a certificate from the local executive officer of the rank of a Deputy Collector or other Backward Class Officer should be a sufficient proof of his eligibility to the grant of legal aid.
IV. parties to whom legal aid should be granted
Legal aid should be given not only to the plaintiffs or petitioners or complainants but also to the defendants, respondents and accused in all courts.