Legal Background on Judicial Access and Equality

● Participatory Democracy: Citizens must trust their judicial institutions to

uphold the principles of equality and ensure proper representation.
● Impartial Judiciary: An independent judiciary is the guardian of individual
rights, ensuring fair access to courts and justice for all.
● Social Contract: Citizens exchange some freedom for peaceful
coexistence and expect independent dispute resolution from courts.
● State Responsibility: It is the duty of the state to ensure that justice is
accessible to the poor and marginalized, free of discrimination or cost.
● Access to Courts: Readily available access to courts prevents vigilantism
and promotes peaceful conflict resolution.
● Human Rights Premises: Human dignity and equality are fundamental to
ensuring free legal aid, supported by national and international legal
systems.
The Indian Legal System and Access to Justice
● Adversarial System: Introduced during the colonial era, this system made
justice less accessible, replacing informal dispute resolution in Indian society.
● Pre-British System: Accessible and informal, conducted in local languages,
ensuring easier access to justice for the masses.
● Supreme Court Observation: In M.H. Hoskot v. State of Maharashtra (1978),
the Supreme Court acknowledged that the Anglo-American model requires
lawyer collaboration and highlights the challenges poor people face in
accessing justice.
● Challenges for the Poor: Formalities like pleadings and court fees make it
difficult for the economically disadvantaged to access justice.
● Equal Representation: Government-appointed advocates represent the poor
in the adversarial system, promoting equality in legal representation—a key
democratic principle.
Legal Aid under the Indian Constitution
● Article 39-A (42nd Amendment Act, 1976):
○ Ensures equal justice and free legal aid.
○ The State is responsible for promoting justice on the basis of equal opportunity.
○ Free legal aid must be provided to ensure that economic or other disabilities do not
prevent access to justice.
● Equality Principle:
○ Article 39-A emphasizes that access to justice should be available to all through
equal opportunities.
○ Fair procedures are essential to uphold this equality, as mere technical application of
laws is inadequate.
● Non-Discrimination:
○ Article 15: No citizen shall be discriminated against based on religion, race, caste,
sex, or place of birth.
○ Article 14: Guarantees equality before the law and equal protection of the laws for all
citizens.
Free Legal Aid under Criminal Law
● Historical Provision:
○ Under Section 340 (1) of the Code of Criminal Procedure, 1898, a man
charged with an offence punishable by death could request
court-appointed counsel.
● Criminal Procedure Code, 1973:
○ Section 304 (1) mandates that in trials before a Sessions Judge, if the
accused lacks sufficient means to hire a lawyer, the court must appoint
one at the State's expense for their defense.
● Statutory Implementation:
○ The amendment facilitated the provision of free legal aid, ensuring that
indigent defendants are not denied legal representation due to financial
limitations.
Free Legal Aid under International Law
● Human Rights Perspective: International law emphasizes free legal services as a
fundamental human right.
● International Covenant on Civil and Political Rights (ICCPR):
○ India, having ratified the ICCPR, is bound by its obligation to provide free legal
assistance.
○ The Indian Supreme Court enforces these obligations when harmonizing
international law with Indian law.
● Other International Treaties:
○ Treaties like ICESCR, CEDAW, and the International Convention on Racial
Discrimination imply the need for free legal services for effective legal remedies.
● Universal Declaration of Human Rights (UDHR):
○ Article 8 affirms the right to an effective remedy for violations of fundamental rights.
○ Though considered "soft law," the UDHR promotes norm-setting obligations
regarding access to justice.
The Legal Services Authorities Act of 1987
● Brief History:
○ The idea of free legal aid was introduced in the 14th Law Commission Report (1958),
stressing the State's responsibility to fund legal representation for the poor.
○ Multiple legal aid schemes followed, with the most significant being the formation of the
Committee for Implementing Legal Aid Schemes (CILAS) under Justice P.N. Bhagwati in
1980.
● The 1987 Act:
○ Enacted to provide a statutory base for legal aid programs across India.
○ Aimed to ensure free and competent legal services to weaker sections, ensuring access to
justice for all.
● Lok Adalats:
○ Introduced as an alternative dispute resolution mechanism to promote justice through
conciliatory settlement of disputes.
● Preamble Focus:
○ The Act addresses the need for equal opportunity in justice and ensures that economic or
social barriers do not prevent anyone from accessing justice.
Entitlement to Legal Services under The Legal Services Authorities Act, 1987
● Eligibility Criteria (Section 12):
○ Individuals entitled to legal services include:
■ Members of Scheduled Castes/Scheduled Tribes.
■ Victims of trafficking or forced labor (Article 23 of the Constitution).
■ Women and children.
■ Persons with disabilities (as per the 1995 Act).
■ Victims of disasters, violence, or industrial incidents.
■ Industrial workmen.
■ Persons in custody, including juvenile homes or psychiatric facilities.
■ Individuals with annual income below the prescribed limits.
● Income Limits (Section 13):
○ Legal aid eligibility based on income:
■ Less than ₹9,000 for lower courts (state-specific limits may apply).
■ Less than ₹12,000 for cases before the Supreme Court.
● Senior Citizens:
○ Eligibility based on state-specific rules (e.g., in Delhi, citizens above 60 years can apply).
Legal Services – Meaning and Types

● Free Legal Services Include:

○ Payment of court fees, process fees, and other charges in legal
proceedings.
○ Providing legal representation through appointed lawyers.
○ Obtaining and supplying certified copies of orders and legal documents.
○ Preparation of appeals, paper books, including document translation and
printing.
● Pre-Litigation Services:
○ Introduced to discourage unnecessary litigation and provide advice before
filing cases.
● Aid in Welfare Schemes:
○ Assistance is provided to beneficiaries for accessing benefits under
government welfare statutes and schemes.
Legal Services Overview
1. Pre-Litigation Legal Services

● Importance: Increasing litigations highlight the need for proactive measures.

● Key Components:
○ Legal Education: Enhancing knowledge of legal rights and obligations.
○ Legal Advice: Providing counsel to prevent disputes.
○ Legal Awareness: Informing clients about their legal options.
○ Pre-Litigation Settlement: Encouraging resolution before formal
proceedings.

2. Post-Litigation Legal Services

● Definition: Services provided by advocates after litigation has commenced.

● Purpose: Assisting clients through the litigation process.
National Legal Services Authority (NALSA)
Constitutional Framework

● Article 39A: Provides free legal aid to the poor and weaker sections, ensuring
justice for all.
● Articles 14 & 22(1): Obligate the State to ensure equality before the law and a
just legal system.

Establishment of NALSA

● Legal Services Authorities Act, 1987: Enacted to establish a nationwide

network for free legal services.
● Effective Date: Came into force on 9th November 1995.
● Objective: Ensure legal aid based on equal opportunity for weaker sections.
Functions and Structure of NALSA
Organizational Structure

● Constitution of Authorities:
○ State Legal Services Authority: In every state.
○ High Court Legal Services Committee: In every High Court.
○ District Legal Services Authorities & Taluk Legal Services
Committees: Established to implement policies and provide services.

Key Functions of NALSA

1. Provide Free and Competent Legal Services: To eligible persons.

2. Organize Lok Adalats: For amicable dispute settlement.
3. Conduct Legal Awareness Camps: In rural areas to educate the public.
NALSA Regulations, 2010
Overview

● Adoption: NALSA adopted the National Legal Services Authority (Free and Competent Legal
Services) Regulations in 2010 under Section 29 of the Legal Services Authorities Act, 1987.
● Applicability: Relevant to Legal Service Committees at the Supreme Court, High Courts,
States, districts, and taluks.

Key Features of the Regulations

1. Selection of Panel Lawyers:

○ Application Process: Legal practitioners can apply indicating case types they wish to
handle.
○ Panel Preparation: By the Executive Chairman in consultation with key legal authorities
and Bar Association President.
○ Experience Requirement: Minimum of three years at the bar.
○ Criteria for Selection: Competence, integrity, suitability, and experience.
Key Provisions of NALSA Regulations, 2010
Panel Lawyers Management

● Separate Panels: Maintained for different types of cases.

● Retainer Lawyers: Provision for lawyers retained for ongoing cases.
● Withdrawal Process: Panel lawyers must inform the Member Secretary to withdraw from
cases.
● Prohibition on Fees: Panel lawyers cannot accept fees or remuneration for services
rendered under the Regulations.

Payment of Fee & Senior Advocates

● Fee Payment Rules: Payments for panel lawyers are specified by state regulations,
ensuring timely compensation upon case completion.
● Senior Advocates: Engaged in cases of public importance or serious threats to life and
liberty, as deemed necessary by the Chairman.
Legal Services Authorities (Amendment) Act, 2002
Overview

● Purpose of the Amendment: Recognizing the limitations of litigation-oriented legal

services, the Parliament aimed to promote pre-litigation legal services, especially in public
utility sectors.
● Background: Amendments were made to the Legal Services Authorities Act, 1987
(Principal Act).

Key Objectives of the Amendment

1. Establishment of Permanent Lok Adalats:

○ Focused on settling disputes related to public utility services at the pre-litigation
stage.
2. Pre-Litigation Conciliation and Settlement:
○ Aimed at facilitating amicable resolutions in matters concerning public utility services
before formal litigation arises.
Implications of the Amendment

Significance of the Amendment

● Enhanced Access to Justice: By promoting pre-litigation
services, the Act seeks to reduce the burden on courts and
provide quicker resolutions for the public.
● Encouragement of Alternative Dispute Resolution: The
establishment of Lok Adalats fosters a culture of negotiation
and settlement, particularly for public utility issues.
Definition of Public Utility Service
Public Utility Service

Definition: A public utility service refers to any service that meets the following criteria:

1. Transport Services:Carriage of passengers or goods by air, road, or water.

2. Communication Services:Postal, telegraph, or telephone services.
3. Utility Supply:supply of power, light, or water to the public by any establishment.
4. Sanitation Services:Systems of public conservancy or sanitation.
5. Healthcare Services:Services in hospitals or dispensaries.
6. Insurance Services:Any insurance service provided to the public.

Additional Note:

● Government Notification: The Central or State Government may declare

additional services as public utility services in the public interest.
Permanent Lok Adalat - Important Provisions
Key Provisions

1. Conciliation Assistance:
○ The Permanent Lok Adalat (PLA) assists parties in reaching amicable settlements
impartially.
2. Cooperation Requirement:
○ All parties must cooperate in good faith and comply with requests to present evidence and
documents.
3. Settlement Agreement:
○ If an agreement is reached, it is signed by the parties, and PLA passes an award
accordingly. If not, PLA decides the dispute.
4. Guiding Principles:
○ PLA follows natural justice, objectivity, fair play, and equity. It is not bound by the Code of
Civil Procedure, 1908, or the Indian Evidence Act, 1872.
5. Final Award:
○ The award is final and treated as a decree of a civil court.
Other Initiatives for Access to Justice
1. Legal Services Mobile App

● Purpose: To provide equitable access to justice.

● Availability: Launched for Android and iOS, facilitating easy access to legal aid for
citizens.

2. DISHA Scheme

● Full Name: Designing Innovative Solutions for Holistic Access to Justice (DISHA).
● Implementation: Launched by the Department of Justice (DoJ) for the period
2021-2026.
● Features:
○ Comprehensive and systemic solution for access to justice across India.
○ All Access to Justice Programs merged under DISHA and upscaled nationwide.
Conditions for Denial or Withdrawal of Legal Aid
Legal Aid Denial or Withdrawal

Legal Aid can be denied at the initial stage or withdrawn later under the following circumstances:

1. Ineligibility:
○ Denied if the person is found ineligible under Section 12 of the Legal Services Authorities Act, 1987.
2. Financial Means:
○ Withdrawn if the aided person possesses sufficient means after applying under the income category.
3. Fraudulent Obtaining:
○ Withdrawn if legal services were obtained through misrepresentation or fraud.
4. Lack of Cooperation:
○ Withdrawn if the aided person does not cooperate with the Legal Services Authority/Committee or advocate.
5. Engagement of Other Counsel:
○ Withdrawn if the person engages a legal practitioner other than the one assigned.
6. Death of Aided Person:
○ Withdrawn upon the death of the aided person, except in civil proceedings where rights or liabilities survive.
7. Abuse of Legal Process:
○ Withdrawn if the application or matter is found to be an abuse of the process of law or legal services.
Legal Aid in Context of Social Justice and Human Rights
The Importance of Legal Aid

● Denial of Rights:
○ Millions are denied human rights due to inability to afford legal enforcement.
● Social Justice:
○ Legal aid is essential for making human rights meaningful and achieving social
justice.
● Access to Justice:
○ Access to justice is a fundamental human right; without it, the realization of
other rights is compromised.
● Judicial Creativity:
○ The right to access legal aid has evolved to assist the poor, emphasizing that it
cannot be isolated from human rights.
Legal Aid as a Fundamental Right
● Enforcement of Rights:
○ Mere declarations of rights are insufficient; enforcement guarantees
are crucial.
● Combatting Poverty:
○ Poverty obstructs justice, making legal aid vital for achieving social
equity.
● Current Legal Systems:
○ Justice is often commodified, with the poor suffering from social
injustice due to high legal costs.
● Urgency of Legal Aid:
○ Legal aid is integral to human rights; its neglect could lead to social
unrest and threaten global peace.
Thank You