Legal Aid

In the High Court. He argued that the trial was vitiated because he had not been provided free legal aid. The High Court upheld the conviction on the ground that HE HAD NEVER APPLIED FOR IT.

The question. Is the fundamental right to free legal assistance conditional on the accused asking for it?

Held. It is not, and the conviction and sentence were SET ASIDE.

The reasoning, which is the part MU sets. About seventy per cent of the people living in rural areas are illiterate and even more are unaware of the rights the law confers on them; even literate people do not know their entitlements. It is this ABSENCE OF LEGAL AWARENESS that is responsible for the deception, exploitation and deprivation from which the poor suffer. Their legal needs become CRISIS ORIENTED, because ignorance prevents them from anticipating trouble and consulting a lawyer in time, and poverty magnifies the trouble when it comes; and because of ignorance they cannot even help themselves, so the law CEASES TO BE THEIR PROTECTOR. That is why promoting LEGAL LITERACY has always been a principal item of the legal aid movement. In those circumstances it would make a MOCKERY OF LEGAL AID to leave it to a poor, ignorant and illiterate accused to ask for free legal services; legal aid would become MERELY A PAPER PROMISE and would fail of its purpose.

Applied. The trial court neither informed the appellant that he was entitled to free legal assistance nor asked whether he wanted a lawyer at State cost. He remained unrepresented and was convicted. That was a violation of article 21, and the trial was vitiated by a FATAL CONSTITUTIONAL INFIRMITY.

The qualification, taken from Khatri and repeated here. The right attaches where the offence charged is such that ON CONVICTION IT WOULD RESULT IN A SENTENCE OF IMPRISONMENT and is of such a nature that the circumstances of the case and the needs of social justice require that the accused be given free legal representation; and it does not apply where the accused is unwilling to take advantage of it. So it is not every prosecution, and it is not aid forced on a man who does not want it.

Why the case matters. Khatri stated the duty; Suk Das attached a consequence to breaking it. A conviction obtained after a trial in which the court did not inform the accused of the right is liable to be set aside, which is what makes the duty real for a trial court.

The Legal Services Authorities Act 1987

Section 1. Short title, extent to the whole of India, and commencement on such date as the Central Government appoints, with different dates permitted for different provisions AND FOR DIFFERENT STATES. Chapter II was brought into force on 9 November 1995.

Section 2, the definitions that matter. COURT means a civil, criminal or revenue court and includes any tribunal or authority exercising judicial or quasi-judicial functions, so the Act reaches far beyond the ordinary courts. LEGAL SERVICE includes the rendering of any service in the conduct of any case or other legal proceeding before any court, authority or tribunal AND THE GIVING OF ADVICE on any legal matter, so it is not confined to representation in litigation. CASE includes a suit or any proceeding before a court.

The four tiers and the three committees

Section 3, the National Legal Services Authority. Constituted by the Central Government. The CHIEF JUSTICE OF INDIA is Patron-in-Chief; a serving or retired Judge of the Supreme Court, nominated by the President in consultation with the Chief Justice, is the EXECUTIVE CHAIRMAN; and other members are nominated by the Central Government in consultation with the Chief Justice. The Member-Secretary is appointed by the Central Government in consultation with the Chief Justice. The administrative expenses are charged on the CONSOLIDATED FUND OF INDIA, and by section 3(9) no act or proceeding is invalid merely because of a vacancy or a defect in constitution.

Section 3A, the Supreme Court Legal Services Committee, constituted by the Central Authority, with a SITTING JUDGE of the Supreme Court as Chairman and members nominated by the Chief Justice of India.

Section 4, the functions of the Central Authority. Fourteen clauses. Lay down policies and principles; frame the most effective and economical schemes; allocate funds to State and District Authorities; take steps by way of SOCIAL JUSTICE LITIGATION on consumer protection, environmental protection or other matters of special concern to the weaker sections, and train social workers in legal skills; organise LEGAL AID CAMPS, especially in rural areas, slums and labour colonies, with the dual purpose of educating the weaker sections about their rights and encouraging settlement through Lok Adalats; encourage settlement by negotiation, arbitration and conciliation; promote research; do all things necessary to ensure commitment to the FUNDAMENTAL DUTIES under Part IVA; monitor and evaluate the legal aid programmes and provide for INDEPENDENT EVALUATION; give grants-in-aid to voluntary social service institutions; develop, IN CONSULTATION WITH THE BAR COUNCIL OF INDIA, programmes for CLINICAL LEGAL EDUCATION and supervise legal services clinics in universities and law colleges; spread LEGAL LITERACY AND LEGAL AWARENESS, particularly about social welfare legislation; enlist voluntary institutions working at the grass roots, particularly among the Scheduled Castes and Scheduled Tribes, women and rural and urban labour; and coordinate and monitor the whole structure.

Read clause (l) against Suk Das. The Act makes legal literacy a statutory function precisely because the Court had held that the right is worthless to a person who does not know he has it. Clause (k), clinical legal education, is why a law college legal aid clinic exists at all.

Section 5. The Central Authority is to act in coordination with governmental and non-governmental agencies, universities and others promoting the cause of legal services to the poor.

Section 6, the State Legal Services Authority. Every State Government constitutes one. The CHIEF JUSTICE OF THE HIGH COURT is Patron-in-Chief; a serving or retired Judge of the High Court, nominated by the Governor in consultation with the Chief Justice, is Executive Chairman; the Member-Secretary must belong to the State Higher Judicial Service and be NOT LOWER IN RANK THAN A DISTRICT JUDGE.

Section 7, functions of the State Authority. A duty to give effect to the policy and directions of the Central Authority; to give legal service to those who satisfy the criteria; to conduct LOK ADALATS, INCLUDING FOR HIGH COURT CASES; and to undertake PREVENTIVE AND STRATEGIC LEGAL AID PROGRAMMES.

Section 8 and section 8A. Coordination and subjection to the Central Authority's written directions; and the HIGH COURT LEGAL SERVICES COMMITTEE for every High Court, with a sitting Judge as Chairman.

Section 9, the District Legal Services Authority, constituted by the State Government in consultation with the Chief Justice of the High Court for EVERY DISTRICT, with the DISTRICT JUDGE as Chairman and a Secretary not lower in rank than a Subordinate Judge or Civil Judge at the seat of the district judiciary.

Section 10 and section 11. The District Authority performs such functions of the State Authority as are delegated, coordinates the Taluk Committee and other legal services, and ORGANISES LOK ADALATS in the district; and acts in coordination with others and under written directions.

Sections 11A and 11B, the Taluk Legal Services Committee, which the State Authority MAY constitute for each taluk or mandal or group of them, with the SENIOR-MOST JUDICIAL OFFICER in the jurisdiction as ex officio Chairman, to coordinate legal services and organise Lok Adalats in the taluk. Its expenses come out of the District Legal Aid Fund.

So the ladder is National, State, District and Taluk, with three court-attached Committees at the Supreme Court, each High Court and, through section 11A, the taluk level. Every tier is headed by a judge. That is deliberate: the machinery is placed inside the judiciary rather than under the executive, which is what keeps it independent of the government that is the opposing party in a great many legal aid cases.

Who is entitled

Section 12, the criteria. Every person who has to FILE OR DEFEND a case is entitled to legal services if he is: a member of a SCHEDULED CASTE OR SCHEDULED TRIBE; a victim of TRAFFICKING IN HUMAN BEINGS OR BEGAR under article 23; a WOMAN OR A CHILD; a PERSON WITH DISABILITY; a person in circumstances of UNDESERVED WANT, such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; an INDUSTRIAL WORKMAN; a person IN CUSTODY, including in a protective home, a juvenile home, or a psychiatric hospital or nursing home; or a person whose ANNUAL INCOME is less than the prescribed limit, the figure in the Act being nine thousand rupees, and twelve thousand for a case before the Supreme Court, in each case subject to a higher amount prescribed by the State Government or the Central Government respectively.

Two things a student should notice about section 12. FIRST, the means test in clause (h) is only one of eight routes: a woman, a child, a member of a Scheduled Caste or Tribe, an industrial workman and every person in custody qualify WHATEVER THEIR INCOME. SECOND, taken together the categories cover a very large part of the population, so the practical limit on legal aid in India is not the eligibility rule but the number and the quality of the lawyers on the panels and the fact that most of those eligible do not know they are.

Section 13, entitlement. A person satisfying any of the criteria is entitled to receive legal services PROVIDED the Authority is satisfied that he has a PRIMA FACIE CASE to prosecute or defend; and an AFFIDAVIT as to income may be regarded as sufficient unless the Authority has reason to disbelieve it.

The prima facie case filter is the one real gate, and it is the provision that could be used to refuse aid in a weak case. The affidavit rule is the opposite: it removes the documentary proof of poverty that would otherwise defeat the very applicants the Act exists for.

Money, and the rest of the Act

Sections 14 to 18. GRANTS by the Central Government after appropriation by Parliament; the NATIONAL, STATE and DISTRICT LEGAL AID FUNDS, credited with those grants, with donations, and with any amount received under the orders of a court, and applied to the cost of the legal services provided at each level; and ACCOUNTS AND AUDIT, the accounts of every Authority being audited by the COMPTROLLER AND AUDITOR-GENERAL OF INDIA with the rights he has in auditing government accounts.

Section 23. The members, Member-Secretaries, Secretaries, officers and employees of the Authorities and Committees, and the members of Lok Adalats and the persons constituting Permanent Lok Adalats, are DEEMED PUBLIC SERVANTS within section 21 of the Indian Penal Code.

Section 24. No suit, prosecution or other legal proceeding lies against the Governments, the office-holders of the Authorities and Committees or persons authorised by them for anything done IN GOOD FAITH under the Act.

Section 25. The Act has OVERRIDING EFFECT notwithstanding anything inconsistent in any other law or instrument.

Section 26. Power to remove difficulties by order published in the Gazette, not exercisable after TWO YEARS from the President's assent, every order to be laid before each House of Parliament.

Sections 27 to 30. Rules by the Central Government IN CONSULTATION WITH THE CHIEF JUSTICE OF INDIA and by a State Government in consultation with the Chief Justice of the High Court; regulations by the Central Authority under section 29 and by the State Authority under section 29A; and the laying of every rule and central regulation before each House of Parliament for thirty days, with State rules and regulations laid before the State Legislature.

The consultation requirement in sections 27 and 28 is worth a line. Even the rule-making power over legal aid is not left to the executive alone.

What legal aid actually gets a person

Representation by a panel advocate, the fees paid by the Authority; the court fee, process fee and the cost of paper book and typing; the cost of obtaining certified copies; and legal advice and drafting, since section 2(1)(c) covers advice. It also covers the front-line services the Authorities run under sections 4 and 7: legal aid clinics, the panel lawyer attached to a jail, para-legal volunteers, legal literacy camps, and the front office at a District Authority.

What it does not get him is a lawyer of his choosing, or the continuing attention that a paying client commands. That is the honest criticism, and it is the reason the quality of panel representation, rather than eligibility, is where the argument about legal aid now sits.

A worked example

A woman working as a domestic worker in Mumbai is arrested on a charge of theft under section 303 of the Bharatiya Nyaya Sanhita. She earns about nine thousand rupees a month. She is produced before a magistrate, who remands her. Nobody asks her anything about a lawyer.

Is she entitled to legal services? Yes, on THREE separate grounds under section 12, and she needs only one: she is a WOMAN under clause (c); she is IN CUSTODY under clause (g); and she may qualify on INCOME under clause (h). Her wages are irrelevant to the first two.

What must the magistrate have done? Khatri (II) holds that the obligation arises not only at trial but when the accused is FIRST PRODUCED and at EVERY REMAND, and that the magistrate must INFORM her that if poverty prevents her engaging a lawyer she is entitled to free legal services at the cost of the State.

She did not ask. Does that matter? No. Suk Das holds the right is not conditional on an application, because it would make a mockery of legal aid to leave it to a poor and illiterate accused to ask.

She is convicted after a trial in which she was unrepresented. What follows? Suk Das: the trial is vitiated by a FATAL CONSTITUTIONAL INFIRMITY and the conviction and sentence are liable to be SET ASIDE, the offence being one that on conviction entails imprisonment.

The State says its legal aid budget is exhausted. Khatri (II): the State cannot avoid its constitutional obligation by pleading FINANCIAL OR ADMINISTRATIVE INABILITY.

Who is she to apply to, and what will she be asked for? The District Legal Services Authority under section 9, whose Chairman is the District Judge, or the Taluk Committee under section 11A. Under section 13(1) the Authority must be satisfied she has a PRIMA FACIE CASE to defend, and under section 13(2) an AFFIDAVIT of her income is sufficient unless there is reason to disbelieve it.

And if she had been an accused before a Gram Nyayalaya instead? Section 21(3) of the Gram Nyayalayas Act 2008 requires the State Legal Services Authority to attach AT LEAST TWO panel advocates to every Gram Nyayalaya for exactly this purpose.

Criticism

Awareness. Suk Das said the right is worthless to a man who does not know he has it, and the Act answered with legal literacy as a statutory function; forty years later the gap remains the principal one.

Quality. A panel advocate is paid a scheduled fee that is far below the market rate for the same work, and the incentive to settle or to plead guilty rather than to fight is structural, not personal.

The stage at which it arrives. Khatri fixed the duty at first production and at every remand precisely because that is where an unrepresented accused loses his liberty, and it is the stage at which representation is most often absent.

Civil legal aid. Almost all the case law is criminal. A tenant, a widow claiming maintenance or a worker whose wages are withheld is within section 12, but the machinery mobilises far less readily for them.

And the measure of success. The Authorities report cases disposed of and camps held. Neither is a measure of whether a person got a competent defence.

What this does NOT mean

It does not mean article 39A is enforceable. It is not, under article 37. The enforceable right is under article 21, and article 39A is what the courts used to put it there.

It does not mean every accused person gets a lawyer. Suk Das states the qualification: the offence must be one that on conviction would result in imprisonment and of such a nature that the circumstances and the needs of social justice require representation, and the accused must not be unwilling.

It does not mean the accused must ask. That was the High Court's error in Suk Das, and it is the proposition the Supreme Court rejected.

And it does not mean poverty is the only route in. Section 12 admits a woman, a child, a member of a Scheduled Caste or Tribe, an industrial workman and every person in custody regardless of income.

Quick revision

CONSTITUTIONAL ROUTE: article 39A, 42nd Amendment 1976, equal opportunity and free legal aid, unenforceable under article 37; M.H. Hoskot, a copy of the judgment in time to appeal and free legal services to an indigent prisoner, both State responsibilities under article 21; Hussainara Khatoon, speedy trial and free legal services as ingredients of reasonable, fair and just procedure; Khatri (II), no plea of FINANCIAL OR ADMINISTRATIVE INABILITY, the duty arising at FIRST PRODUCTION and at EVERY REMAND, and a DUTY ON THE MAGISTRATE TO INFORM; Suk Das, the right is NOT conditional on an application, a trial without the information is vitiated by a FATAL CONSTITUTIONAL INFIRMITY, and the conviction is set aside, the qualification being an offence entailing imprisonment where the needs of social justice require representation and the accused is willing.

THE ACT OF 1987, MACHINERY: s.1 different dates for different provisions and different States; s.2 COURT includes any tribunal or quasi-judicial authority and LEGAL SERVICE includes ADVICE; s.3 NALSA, the Chief Justice of India as Patron-in-Chief and a Supreme Court Judge as Executive Chairman, expenses on the Consolidated Fund; s.3A the Supreme Court Committee under a sitting Judge; s.4 fourteen functions, including social justice litigation, legal aid camps, CLINICAL LEGAL EDUCATION with the Bar Council of India, and LEGAL LITERACY; s.5 coordination; s.6 the State Authority under the Chief Justice of the High Court, Member-Secretary not below a District Judge; s.7 policy, legal service, LOK ADALATS INCLUDING FOR HIGH COURT CASES, and preventive and strategic programmes; s.8A the High Court Committee; s.9 a District Authority for EVERY DISTRICT under the District Judge; s.10 and s.11 delegated functions and district Lok Adalats; ss.11A and 11B the Taluk Committee under the senior-most judicial officer.

THE ACT, ENTITLEMENT AND THE REST: s.12 the eight criteria, Scheduled Caste or Tribe, victim of trafficking or begar under article 23, WOMAN OR CHILD, person with disability, undeserved want including mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake and industrial disaster, INDUSTRIAL WORKMAN, person IN CUSTODY, and income below the prescribed limit, nine thousand rupees, twelve thousand for the Supreme Court, subject to higher amounts prescribed; s.13 a PRIMA FACIE CASE required, an AFFIDAVIT of income sufficient unless disbelieved; ss.14 to 18 central grants, the National, State and District Legal Aid Funds, and audit by the COMPTROLLER AND AUDITOR-GENERAL; s.23 members and Lok Adalat members are PUBLIC SERVANTS; s.24 protection for acts in good faith; s.25 OVERRIDING EFFECT; s.26 removal of difficulties within two years; ss.27 and 28 rules made in consultation with the Chief Justice of India and of the High Court; s.29 and s.29A regulations by the Central and State Authorities; s.30 laying before Parliament and the State Legislature.

Test yourself

1. How did free legal aid become an enforceable right? Article 39A is a directive principle and unenforceable under article 37. In M.H. Hoskot and Hussainara Khatoon the Supreme Court held free legal services to be an essential ingredient of the reasonable, fair and just procedure required by article 21, and in Khatri (II) and Suk Das it fixed the duty on the State and on the trial court.

2. Can the State plead want of funds? No. Khatri (II) holds that the State cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability.

3. Must the accused apply for legal aid? No. Suk Das holds that the right is not conditional on an application, that it would make a mockery of legal aid to leave a poor, ignorant and illiterate accused to ask for it, and that the magistrate or judge must inform him and enquire whether he wants a lawyer at State cost. A trial conducted without that is vitiated and the conviction is liable to be set aside.

4. Who is entitled to legal services under section 12? A member of a Scheduled Caste or Scheduled Tribe; a victim of trafficking in human beings or begar; a woman or a child; a person with disability; a person in circumstances of undeserved want such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; an industrial workman; a person in custody, including in a protective home, juvenile home or psychiatric hospital; and a person whose annual income is below the prescribed limit. Only the last is a means test.

5. Describe the machinery of the Act. NALSA under section 3, with the Chief Justice of India as Patron-in-Chief and a Supreme Court Judge as Executive Chairman; a State Legal Services Authority under section 6 headed by the Chief Justice of the High Court; a District Legal Services Authority under section 9 for every district under the District Judge; a Taluk Legal Services Committee under section 11A under the senior-most judicial officer; and the Supreme Court and High Court Legal Services Committees under sections 3A and 8A. Funded by central grants under section 14 through the three Legal Aid Funds under sections 15 to 17 and audited by the Comptroller and Auditor-General under section 18.