Who Is Entitled to Legal Services, and on What Test

(e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster.

The words are "such as", so the list is illustrative and not closed. The governing idea is undeserved want: misfortune the person did not bring on themselves.

(f) An industrial workman.

(g) A person in custody, including custody in a protective home within the meaning of section 2(g) of the Immoral Traffic (Prevention) Act 1956, or in a juvenile home within the meaning of section 2(j) of the Juvenile Justice Act 1986, or in a psychiatric hospital or psychiatric nursing home within the meaning of section 2(g) of the Mental Health Act 1987.

Custody is not only jail. The clause is deliberately drafted to cover institutions where a person is held for their own protection or treatment, because a person in any of them is equally unable to reach a lawyer. Two of the three Acts named have since been replaced, by the Juvenile Justice (Care and Protection of Children) Act 2015 and the Mental Healthcare Act 2017, and again the clause has not been redrafted.

(h) A person in receipt of an annual income less than rupees nine thousand, or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court; and less than rupees twelve thousand, or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.

Do not quote nine thousand and twelve thousand as the operative limits. Those figures were written in 1994 and the clause expressly allows both Governments to prescribe higher amounts, which they have done. The correct statement of the law is that the limits are those prescribed for the relevant court, and the figures in the section are the floor from which prescription starts. Check the current prescribed limit for Maharashtra with the State Authority, and for the Supreme Court with the Supreme Court Legal Services Committee, before advising anybody.

Notice also the split: the State Government prescribes for all courts other than the Supreme Court, and the Central Government prescribes for the Supreme Court. That is why the limit can differ between States.

Section 13: entitlement, and the two things that go with it

Section 12 sets out who may qualify. Section 13 turns that into an entitlement and adds the only further condition.

Section 13(1): persons who satisfy all or any of the criteria specified in section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.

Two points, and both carry marks.

"All or any" means one clause is enough. A person does not have to satisfy several.

"Prima facie case" means a case that appears, on the face of it, to have some substance. It is not a finding that the person will win, and the Authority is not trying the case. It is a filter against using public money on a hopeless claim.

And the filter has an important qualification which is not in the Act but in NALSA's regulations, and which every answer on section 13 should carry: under regulation 7 of the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, a defendant in a civil case, and an accused or a convict in a criminal case, is deemed to have a prima facie case to defend or to appeal. That is right in principle. A person who is being sued or prosecuted did not choose to be in court, and cannot be told there is no point defending.

Section 13(2): an affidavit made by a person as to his income may be regarded as sufficient for making him eligible, unless the concerned Authority has reason to disbelieve such affidavit.

This is a deliberately low evidentiary bar and it exists for a practical reason: a person poor enough to need legal aid usually cannot produce an income certificate quickly. Regulation 5 of the 2010 Regulations goes further still and provides that a self-certificate, with self-attested copies of any relevant documents, shall ordinarily be sufficient proof that the applicant falls within section 12.

The safeguard against abuse is at the other end. Regulation 6 requires the applicant to be informed that if legal services are obtained by furnishing incorrect or false information, or fraudulently, the services will be stopped forthwith and the expenses incurred will be recoverable from him.

A worked example, and it is worth doing slowly

Four people come to the front office of a District Legal Services Authority on the same morning.

Sharmila, a schoolteacher earning fifty-five thousand rupees a month, wants to file a domestic violence complaint. She is entitled. Section 12(c) covers a woman, and there is no income condition in that clause. Her salary is irrelevant.

Devendra, a factory worker earning eighteen thousand a month, wants to sue his employer over an accident at work. He is entitled, under section 12(f), as an industrial workman. His income is above any prescribed limit, but clause (f) does not depend on income.

Yusuf, a retired clerk with a pension of eleven thousand a month, wants to sue his neighbour over a boundary. This one depends on the prescribed limit. He is not covered by clauses (a) to (g), so he falls to clause (h), and the question is whether his annual income is below the amount prescribed by the Maharashtra Government for courts other than the Supreme Court. Look the figure up; do not use nine thousand.

Nandini, a woman with a substantial business, wants to sue a former partner. She has a clear claim. She is entitled under clause (c), and the Authority's remaining question is only the section 13 one, whether she has a prima facie case. She does.

Three of those four surprise students, and all four are right on the text. Section 12 is a list of categories, not a means test with categories attached.

Now change the last fact. Nandini's claim is time-barred by eleven years and she admits it. The Authority may refuse under the proviso to section 13(1), because there is no prima facie case to prosecute. But if she were the defendant in that suit rather than the plaintiff, regulation 7 deems her to have a prima facie case to defend, and the filter does not apply.

Distinctions worth keeping straight

What beginners get wrong

Legal aid under this Act is not only for the poor. Seven of the eight clauses do not mention income. Writing "legal aid is available to persons whose income is below the prescribed limit" states clause (h) and omits the Act.

Nine thousand and twelve thousand are not the current limits. They are the figures printed in 1994, and clause (h) itself contemplates higher prescribed amounts.

The prima facie test is not a trial. The Authority is not deciding whether the applicant will win, and it cannot apply the filter at all to a defendant or an accused, who is deemed to have a case to defend under regulation 7.

Section 12 is about entitlement to services, not about who may go to a Lok Adalat. Anybody may take a dispute to a Lok Adalat under sections 19 and 20; that has nothing to do with section 12. This confusion is common and it costs marks.

A child is entitled in his or her own right under clause (c). The entitlement does not depend on the parents' income.

Quick revision

• Section 12, eight clauses: (a) Scheduled Caste or Scheduled Tribe; (b) victim of trafficking or begar under article 23; (c) a woman or a child; (d) a person with disability; (e) undeserved want, such as a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; (f) an industrial workman; (g) a person in custody, including a protective home, juvenile home, psychiatric hospital or nursing home; (h) income below the prescribed limit.
• Only clause (h) is a means test. The State Government prescribes for courts other than the Supreme Court; the Central Government for the Supreme Court.
• Section 13(1): satisfying all or any of the criteria gives an entitlement, provided the Authority is satisfied there is a prima facie case to prosecute or to defend.
• Regulation 7 of the 2010 Regulations: a defendant in a civil case, and an accused or convict in a criminal case, is deemed to have a prima facie case.
• Section 13(2): an affidavit as to income is sufficient unless the Authority has reason to disbelieve it. Regulation 5: a self-certificate ordinarily suffices. Regulation 6: services obtained by false information are stopped and the cost is recoverable.

Test yourself

1. A woman who is a company director earning thirty lakh rupees a year applies for legal services. Is she entitled? Yes. Section 12(c) covers a woman with no income condition attached, and section 13(1) requires only that she satisfy any one criterion and have a prima facie case. Her income is irrelevant to clause (c).

2. What exactly must the Authority be satisfied of under section 13, and what must it not do? That the applicant has a prima facie case to prosecute or to defend. It must not try the case or decide the merits, and under regulation 7 of the 2010 Regulations it cannot apply the filter to a defendant, accused or convict at all, since they are deemed to have a case to defend.

3. Is nine thousand rupees the income limit for legal aid? No. That is the figure printed in section 12(h), which itself provides for such other higher amount as may be prescribed by the State Government, or by the Central Government for Supreme Court matters. The operative limit is the prescribed one.

4. How does an illiterate applicant with no documents prove entitlement? Section 13(2) makes an affidavit as to income sufficient unless the Authority has reason to disbelieve it, and regulation 5 of the 2010 Regulations makes a self-certificate with self-attested documents ordinarily sufficient. Regulation 3(4) also requires the Legal Services Institution to help an illiterate applicant fill in the form.

5. Does section 12 decide who may take a dispute to a Lok Adalat? No. Sections 12 and 13 govern entitlement to legal services. Access to a Lok Adalat is governed by sections 19 and 20 and is open to the parties to a dispute regardless of whether they qualify under section 12.