Free Legal Aid in Indian Constitution

The Indian Constitution assures justice and fairness to all, but is this right accessible to each and everyone without any socio-economic barriers? Can the marginalized section of society approach the courts to enforce their basic rights? 

A survey by Legal Aid Authority estimated that approximately 70% of the Indian population is entitled to free legal aid, which makes the Indian Legal Aid System one of the largest in the world. Thus, the State introduced the concept of Free Legal Aid to make justice accessible to all.

The present article deals with the concept of Free Legal Aid, its constitutional provisions, and about who, whom and how to apply.

History of Free Legal Aid in India

• The Law Commission of India in its report on “Reform of Judicial Administration,” published in 1958, observed that the rendering of legal aid to the poor litigant is not a minor problem of procedural law but a question of a fundamental character.

• In 1960, some guidelines were drawn by the Government for legal aid schemes. 

• In the year 1976, Constitution (Forty-second Amendment) Act, 1976 was introduced which inserted Article 39-A. 

• In 1980, a Committee for Implementing Legal Aid Schemes was constituted to oversee and supervise legal aid programmes under the Chairmanship of Hon. Justice P.N. Bhagwati.

• The Legal Services Authorities Act was passed in 1987 to provide legal assistance programmes across the nation with a statutory framework and a standardized structure.

• National Legal Services Authority was constituted on 5th December, 1995 which is the statutory body established to formulate policies and guidelines for making legal assistance available in accordance with the statutory provisions and to develop the most efficient and cost-effective legal service schemes. 

Constitutional Provisions for Free Legal Aid 

The Constitution encourages the people and the government to work towards the objective of full and equal justice for everyone. It is obvious that fair treatment by the courts is a crucial element in the battle for justice. 

• Delivering justice is the entire premise of the judicial system. As a result, the assurance of equal and impartial treatment in court becomes a pillar of the society that the directive principles of state policy foresee. 

• Articles 14 and 21 which form part of Fundamental Rights, make it obligatory for the State to ensure equality before the law and a legal system promoting justice based on equal opportunity for all.   

• The Apex Court, in the case of Hussainara Khatoon v. State of Bihar, highlighted that Free and effective legal aid is part and parcel of Right to Life under Article 21. In this landmark judgment, Justice P.N. Bhagwati observed that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair and just.

What is Article 39-A of the Indian Constitution?

• The right to legal representation goes hand in hand with the right to a fair trial, one of the fundamental human rights.  Thus, in the year 1976, Constitution (Forty-second Amendment) Act, 1976 was introduced, which inserted Article 39-A. 

• This provision of ‘Directive Principles of State Policy’ directs the State to introduce appropriate legislation and schemes for providing free legal aid.

• The primary objective for introducing such an amendment was to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 

Eligibility Criteria for Availing Free Legal Aid 

At this juncture, it is valid to consider to whom all can avail the benefit of free legal aid. Is it for everyone or a particular section of the society? Obviously, this provision is enacted for the marginalized section of society who cannot afford access to justice. 

Section 12 of the Legal Services Authorities Act, 1987 lists the persons who are entitled to free legal aid, and it includes: 

• a member of a Scheduled Caste or Scheduled Tribe;

• a victim of trafficking in human beings or beggars;

•  a woman or a child; 

• a person with disability as defined in Section 2 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

• a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic, violence, caste atrocity, flood, drought, earthquake or industrial disaster; 

• an industrial workman; 

• in custody, including custody in a protective home

• If the case is before Supreme Court - in receipt of annual income less than Rs 5 Lakh and if the case is before a court other than the Supreme Court than in receipt of annual income as may be prescribed by the State Government. 

What legal services are included within the ambit of free legal aid? 

The people who are entitled to free legal aid are provided various legal assistance at the expense of the State. According to Section 2(c) of the Legal Services Authorities Act, 1987, “legal services” includes any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and giving advice on any legal matter. 

Some of the basic legal assistance covered under the free legal assistance include- 

1. Representation by an Advocate in legal proceedings.

2. Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases;

3. Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;

4. Drafting of legal documents, special leave petitions etc.

5. Giving of advice on any legal matter. 

Procedure to Apply for Free Legal Aid

There are various authorities wherein an individual can apply for legal assistance depending upon the territorial and subject matter jurisdiction of the case. The authorities listed are:

1. Taluk Legal Services Committee

2. District Legal Services Authority 

3. State Legal Services Authority

4. The High Court Legal Services Committee 

5. The Supreme Court Legal Services Committee for cases before the Hon’ble Supreme Court.

An application can be made for both criminal and civil cases before any court or tribunal. The procedure prescribed is that 

1. An application can be made either online or can be sent through post to the concerned authority.

2. To apply online, either send an email to NALSA at nalsa-dla@nic.in or visit NALSA website and then apply online.

Click on this link for online application

3. Online Applications can be made before any of the authorities listed above. 

4. Herein, you need to fill in details about legal aid you need case details and upload the necessary documents. 

5. For offline application, fill up the ready-made form/application form that is available at your nearest Legal Services Authority and submit the same at either the Authority physically or post the application to the Authority.

6. For such offline application, provide the necessary details such as employment status, nationality, whether SC/ST (with proof in support), income per month (with affidavit), the case for which legal aid is required, reason for seeking legal aid, etc.

FAQs on Free Legal Aid 

1. Free legal aid is availed for what kind of cases? 

Answer - All kinds of cases are included and there is no bar as long as the individual satisfies the eligibility under Section 12 of the Act. 

2. Which amendment inserted Article 39-A to the Indian Constitution? 

Answer- The constitution (Forty-second Amendment) Act, 1976 was introduced that inserted Article 39-A.

3. Free legal aid is available for which courts? 

Answer - Legal Aid is provided to the marginalized section for legal assistance from the lowest Court to the Supreme Court of India. Thus, it can be availed before any court or tribunal. 

4. Is free legal aid provided under CrPC? 

Answer - Section 304 of CrPC provides that the Court of Session for a case before itself shall assign a pleader to the accused to defend himself at the expense of State.  

5. At what stage can free legal aid be availed? 

Answer – Free Legal Aid can be availed at any stage of the case, including the stage of appeal.  

Free Legal Aid is fundamental for achieving the goal of justice for all. Comment below to share your views or suggestions to improve the present system of providing free legal aid.