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Report No. 14

V. Test to be applied before grant of Legal Aid

(i) Means test

'The eligibility of an applicant for the grant of legal aid must be determined with reference to his disposable income and disposable capital. In ascertaining his disposable income the following items should be excluded:

(1) Interest on debts;

(2) Premia on life insurance policies, if any;

(3) Compulsory contribution made by him to any provident fund or other schemes of social security:

provided, however, that the help which the applicant would reasonably receive from any organisation of which he is a member towards meeting of his expenses of litigation should be added to his disposable income.

Similarly, in determining the disposable capital, the following items may be excluded:-

(1) residential house,

(2) the necessary wearing apparel,

(3) cooking utensils and household furniture,

(4) tools of trade and implements of agriculture,

(5) compulsory deposit not liable to attachment under the Provident Fund Act of 1945,

(6) agricultural lands,

(7) running business and stock-in-trade,

(8) outstandings written off as bad debts,

(9) ornaments of women folk,

(10) the subject-matter of the claim:

Provided that the value of any property which he has disposed of within two months of the application in order to enable him to apply for legal aid shall be added to his disposable capital and no aid should be given to him who has entered into champertous claim in regard to the subject-matter.

The disposable income and disposable capital should be the aggregate income or capital of a family unit, namely, the applicant, his wife and two children.

In fixing the limits of disposable income and disposable capital the difference in the price levels and standards of living between large metropolitan areas like Bombay and industrial centres like Ahmedabad on the one hand and the rural areas should be borne in mind. With reference to the State of Bombay, the following limits of disposable income and disposable capital were recommended as entitling the applicant either to full or partial legal aid. It was not suggested that these figures should be rigidly adhered to. Considerable discretion and latitude was to be given to the legal aid committees in determining the applicant's claim.

Disposable Income

Greater Bombay

Industrial towns-Ahmedabad and Sholapur, Poona

Moffusil areas

Rs.

Rs.

Rs.

Full legal aid

90

75

60

per mensem

per mensem

per mensem

Partial legal aid 3 /4ths

115

95

80

per mensem

per mensem

per mensem

Partial legal aid 1/2

135

115

95

per mensem

per mensem

per mensem

Partial legal aid 1/4th

155

135

110

per mensem

per mensem

per mensem

No legal aid

175

150

125

per mensem and above

per mensem and above

per mensem and above

Disposable Income

Greater Bombay

Industrial towns-Ahmedabad, Poona and Sholapur

Moffusil areas

Rs.

Rs.

Rs.

Full legal aid

750

600

500

Partial legal aid 3/4ths

1,250

1,100

Partial legal aid 1/2

1,700

1,350

1,050

Partial legal aid 1/4ths

2,150

1,600

1,300

No legal aid

2,500

1,800

1,500

Those who are given full aid would not be required to make any contribution towards the cost of the litigation, while those to whom partial aid is given would be called upon to contribute to the extent of the excess over the partial aid given to them.

(ii) The test of prima facie case

In civil cases, before granting legal aid, whether full or partial, the legal aid committee must be satisfied that the applicant has a prima facie case for the prosecution or defence of the proceedings to which he is a party.

In first appeals the applicant must show from the judgment and decree appealed from that there is an arguable case for him. In second appeals all the requirements of section 100 of the Civil Procedure Code must be satisfied before sanctioning legal aid.

In civil revision applications and other miscellaneous proceedings legal aid should not be granted unless the committee considers it necessary in the interests of justice.

In criminal cases, in the case of complaints in non-cognizable cases and the accused in all other cases, the only test to be satisfied should be whether it is desirable in the interest of justice that legal aid should be granted. It is neither feasible nor necessary that the applicant, and more particularly the accused in a cognizable case, should make out a prima facie defence. It should be left to the discretion of the legal aid committee to decide whether in such cases the grant of legal aid is desirable in the interests of justice. These recommendations are without prejudice to the existing provision for grant of legal aid to persons accused of offences punishable with death. In cases where a doubt exists as to the applicant's means, the benefit of the doubt should be given to him.

(iii) Other tests and safeguards

Besides the means test and prima facie test, the following further safeguards were suggested against abuse of the scheme:-

(1) Legal Aid should be refused in cases where the subject-matter of the dispute is trivial or triffling and which no prudent and reasonable man would bring in a court of law or where the chances of obtaining satisfaction from the judgment-debtor are meagre or remote or where the defendant is admittedly in impecunious circumstances or on the verge of insolvency;

(2) A declaration of oath or solemn affirmation of the applicant at the foot of his application showing the extent of his disposable income and disposable capital;

(3) A certificate from a respectable citizen or responsible officer of the State regarding his means;

(4) A bond from him that he would diligently pursue the legal remedy and not enter into any champertous agreement regarding the property in dispute, nor compromise it except with the consent of the legal aid committee or the permission of the court; and

(5) Cancellation of the legal aid certificate in appropriate cases.

The committee also suggested that-

(1) In criminal cases if the accused is charged with petty offences not involving moral turpitude or offence's which are punishable with a more fine, legal aid should be refused. Only those cases where the accused is charged with offences punishable with a substantial sentence of imprisonment should be within the purview of the scheme of legal aid;

(2) In cases triable exclusively by a court of session legal aid need not be granted in the committal court. In the case of complaints in non-cognizable cases, legal aid committee will have discretion to grant the aid in proper cases in the interests of justice. It further recommended that in civil cases, the aid should be refused in actions of a personal nature such as defamation, malicious prosecution etc.

The committee has also made recommendations for:-

Assignment of lawyers

All members of the Bar, seniors as well as juniors, practising in any of the courts should be called upon to accept a minimum of six briefs per year of poor litigants without any remuneration. The remaining cases of persons who have been granted legal aid certificates should be distributed amongst the members of the legal profession whose names are enrolled on the panels maintained by the legal aid committees. These panels will be composed of lawyers who have volunteered their services for the purpose of legal aid to assist the litigants on payment of taxed costs in civil cases and such reasonable fees as may be prescribed by the legal aid committee in criminal cases.

No lawyer to whom such a case is assigned will be at liberty to refuse the same except for a sufficient cause, for example, having given advice to the opposite party or same other personal reason.

A lawyer enrolled on a panel aforesaid should ordinarily have experience of at least five years at the Bar. These panels will be framed by the respective Bar Association and furnished to the legal aid committee in the respective areas and will be revised every three years.

Remuneration of the lawyers

On the original and appellate side of the High Court the number of cases in excess of the minimum of six cases to be done by each attorney and advocate, should be distributed amongst the panel in rotation on payment of the full taxed costs. The same principle should apply in all other courts.

In criminal cases, the lawyers assigned by the legal aid committee should be paid at the same rate as the Government Pleader or the Assistant Government Pleader or the Public Prosecutor.

Costs

If the assisted litigant is unsuccessful an order for payment by him of the costs of the successful party should be limited to such amount as the court may in its discretion consider reasonable having regard to all the circumstances including financial means of the assisted litigant.

Where the assisted litigant is successful and the opposite party against whom the order of costs has been made is an unassisted litigant the amount of costs awarded should be recovered from the latter and credited to the legal aid fund.

Legal advice

Legal advice will be given by individual lawyers whose names are enrolled on the panels maintained by the legal aid committee. Drafting of documents will be excluded from the scope of legal advice.

Applicant for legal advice need not be required to satisfy the means test with the same strictness and rigidity as the applicant for grant of legal aid. A small fee of one or two rupees should be charged for each attendance to the applicant for legal advice. Thus fee would be exclusive of postage charges. The fee realised for giving legal advice should be credited to the legal aid fund.

Legal aid field

A legal aid fund should be created out of-

(1) monies provided by the State and Central Governments,

(2) contributions and donations from local bodies, trade associations and public charitable trusts and organizations,

(3) costs recovered from unsuccessful opponents,

(4) contributions made by partially assisted persons, and

(5) fees received from the applicants for legal advice.

The fund should be under the control of the State Legal Aid Committee and its accounts annually audited.

Private institutions engaged in the work of legal aid

Increased financial aid should be given by the State to private legal aid societies until such time as the legal aid scheme suggested in the Report comes into operation. The financial assistance should be commensurate with the needs of the society.

Publicity

In civil litigation, a slip containing information regarding the legal aid committee should be attached to the summons and notices which should be seen by the court. In criminal cases also such slips should be attached to the summons and notices. Information regarding the existence of the legal aid committee should be made available at every Police Station and every Civil and Criminal Courts.



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