- Nishant Gokhale
Vth Year, NUJS
The concept of legal aid is much older that concept of the Indian nation. The vitality of the notion of legal aid has ensured that it survives well into the time when the idea of India has been deeply entrenched in many of the territories that it claims to encompass.
In this article, I shall examine the origins of legal aid in India and how it has evolved over the time into what it is today.
Section I: Legal Aid in Pre-Independence India
While the notion of legal aid existed for the poor in England, France and some other European countries since the 1800s, the introduction of legal aid in India is traced by scholars to the East India Company assuming control of the criminal justice administration from Mughals. The British system courts however, was alien to the Indians, and therefore, faced a severe credibility crisis when it first started. One only needs to see some of the historical cases where the lack of trust in the then alien British court-system became manifest. Due to the political turmoil surrounding the transition from the Mughals to the Company administration, there were seen a large number of political trials which many complained were heavily biased in favour of the Company. Emperor Bahadur Shah Zafar’s trial is an example of the defects of the system as his lawyer was called as a witness for the prosecution, to testify against him in the trial. Eventually found guilty and exiled, several such instances smacked of bias and eroded the already meager confidence which the Indian people reposed in this system of judicial administration.
Thus, the first demands for legal aid, or representation for clients in a court of law is believed to have arisen in order to effectively control the Indian populace by restoring their faith in the justice system.
For this reason, the Code of Criminal Procedure, 1898 (since replaced by the Code of Criminal Procedure, 1973) contained a provision wherein the Government would provide a lawyer at their cost, if a person was on trial for his life. However, this was discretionary and was often provided only when the case was politically sensitive. This did not address the problems of crushing poverty and illiteracy which many litigants, who were far removed from political movements, faced when trying to access the system of justice administration.
This task was taken up by various voluntary groups of lawyers, often sponsored by local governments and voluntary contributions. Significant amongst such groups was the Bombay Legal Aid Society which started in 1924 with the objective of providing free representation and paying court fees to enable access to justice to the poor. Even with the meager funds at its disposal, with the support of industrial houses and the Bombay government, it took up the cases of hundreds of cases indigent persons before the Bombay High Court. However, such voluntary legal aid societies existed only in the towns with large judicial setups and thereby ignored a vast number of India’s rural poor. It was this society which suggested to the Government of India that such a project be taken up across the country.
The attainment of independence did not make any sweeping changes to fate of India’s indigent litigants. The newly formed nation was plagued with more than its fair share of problems and turmoil. Thus, given the severe limitations on the resources which were available to the Government, much of the story of the evolution of legal aid has to be told through a series of reports which lay mostly unimplemented and ignored.
Following the British Government’s Rushcliffe Report in 1944 on Legal Aid, the Bombay Legal Aid Society had recommended that a similar study be done in India. However, it was only in 1949 that such an effort was undertaken in the Bombay High Court under the chairmanship of Justice N.H. Bhagwati, one of the many belonging to this eminent family who would have a profound influence on legal aid in India. In the Calcutta High Court too, a similar project was undertaken under the chairmanship of Chief Justice Sir A. T. Harries. The reports submitted by them recommended that a multi-tiered system of legal representation be developed by the judiciary for the indigent.
In 1957, a meeting of Law Ministers of various states in culminated into the creation of the Kerala Legal Aid Rules in 1957 in the Communist-ruled state of Kerala which extended the protection of legal aid to all those persons who were unable to access the courts by means of social conditions or poverty. The law minister then was Mr. V.R. Krishna Iyer, who later as a judge of the Supreme Court would fundamentally change the way the judiciary was viewed by the ordinary person.
In 1958, the Law Commission of India’s 14th Report, the Reforms in the Judicial Administration, devoted a whole chapter to legal aid. Despite uncritically listing out the previous legal aid initiatives, it recommended that a scheme of graded fees be drawn up for all those who were economically weak rather that restricting legal aid to only the indigent. They believed that given adequate remuneration, the lawyers providing legal aid services would be of fair quality. It is interesting to note, that while recognizing the role that legal aid clinics played in law schools in the United States, it did not make any recommendations calling for law schools to be asked to start such clinics in India.
A paradigm shift occurred in 1970 with the establishment of the Justice P.N. Bhagwati Committee by the Gujarat Government which recognized that the traditional court-centric model of legal aid unsuitable for the conditions prevalent in India as it barely even scratched the surface. It recognised that poverty and legal aid could not be separated, but what had been done by the legal aid initiatives till date, was to provide legal aid which was remedial in nature. By this it was meant, that it would provide legal assistance after the occurrence of some incident in the form of representation in courts. While, this was no doubt very important, what was ignored was “preventive legal aid” which took a more holistic approach to the legal problems faced by millions of Indians. Within its scope, it tried to reduce the importance given to the courts in providing legal aid and instead called for legal education, innovation and institutional changes whereby people would secure their rights without having to engage in protracted litigations. The focus of legal aid was shifted from merely the recipients to training those who would be agents of delivering it such as advocates and social workers. What is unique about this report other that the fresh perspective on legal aid it provided, was that it was adopted and a pilot project was initiated by the Gujarat Government.
Inspired by this experiment in Gujarat, the Central Government appointed the Expert Committee under the chairmanship of Justice V.R. Krishna Iyer, whose main contribution was the expansion of the understanding of the “clients of legal aid” who were now listed out as the “geographically deprived, women, children, harijans, agricultural and industrial workers as well as minorities and prisoners.” Following this, there were several State government reports which expanded the types of legal matters for which legal aid could be provided and to some extent the nature of advice which could be tendered.
The year 1976 saw what was hailed to be one of the most significant developments in legal aid in India, the formation of the Juridicare Committee which comprised of Justices P.N. Bhagwati and V.R. Krishna Iyer, who spear-headed the Kerala Rules and the Expert Committee reports. They recommended that a uniform legal aid programme be established on a nation-wide scale which was independent of government and would include within its ambit all aspects of the legal services programme including legal awareness, research and the participation of university law clinics. The actors in the scheme of the report were members of the bench and the bar, law students, voluntary agencies as well as social workers. A focal point of this programme was that of preventive action at the pre-litigation stage by negotiating and conciliating disputes outside the court. This report additionally prepared a draft of the National Legal Services Bill 1977.
The life of the Juridicare Committtee was marred by controversy as it was a time when the national emergency was in effect and both members of the Committee had given highly pro-government decisions in the ADM Jabalpur Case. Also, within 10 days of the Committee being formed, the 42nd Amendment was passed which amongst other very significant changes to the Constitution introduced into the non-enforceable Directive Principles of State Policy, Article 39-A, wherein the State would endeavour to provide Legal Aid. Therefore, this symbolic nature of this provision largely nullified the effects of the recommendations which this Committee was to make. Further, when the Committee made its recommendations, the Government which had appointed it was no longer the one in power at the Centre with the Janata Government replacing the Congress. In the power-struggles that followed, the Directive Principle relating to legal aid remained only on paper and the recommendations of the Committee remained, along with the draft National Legal Services Bill on the shelf.
It was only with a significantly weakened Congress Government coming to power that , significant weakened, in 1980 that when the Congress came back to power that the issue was broached again with the Centre for Implementation of Legal Aid Schemes being established under Justice P.N. Bhagwati. However, this was ridden with defects and, it was only in 1987, a full ten years after the Juridicare Committee submitted its report, the Parliament passed a much diluted Legal Services Authorities Act 1987 to further the State’s commitment under Article 39-A of the Constitution.
This Act has created a mechanism whereby a multi-tiered system of providing representation before courts has been provided. An amendment made in 1994 introduced the Lok Adalats or the Peoples Courts to provide an alternative to litigation which consumed time as well as resources of the parties involved. The Act has expanded the legal aid clients to persons such as victims of human trafficking, Scheduled Caste or Scheduled Tribes, victims of natural disasters or violent incidents as well as disabled persons and those with an annual income of less than a specified amount. However, the Legal Service Authorities Act, 1987 has largely been confined to the establishment of the administrative set-up for providing legal aid services. While it does permit the voluntary organisations to be affiliated with it and get access to Government funds, the scope is quite limited.
While there were efforts by several law colleges to establish legal aid programmes, notable amongst them being the Delhi University, Faculty of Law, these programmes have often lacked continuity and therefore, have ceased to function after some individuals associated with them have moved on. With the National Law Schools coming into being, there is a mandate for them to have a Legal Aid Clinic. However, it is still largely only on paper with very few law schools having a functional legal aid clinics. Even amongst those that do have clinics, it is not always taken very seriously by the administration, faculty or students thereby achieving results only on paper.
With the announcement recently by the National Legal Service Authority of India that it would introduce the programme of “bare-foot lawyers”, whereby volunteers from villages will be imparted basic knowledge of the law in order to ensure that the rural folk of India are not deprived of access to justice, legal aid seems to have come very far from its origins which were with the objective of providing legal representation to political cases.
Legal aid in India, therefore, has been almost a constant factor, but its nature has been ever-changing. From providing legal representation to politically sensitive cases, to having village-level legal access, it seems to have come a long way. However, it does not take any exceptional insight to gauge that there is still a very long way to go. How the various institutions which deal with legal aid, the Government, the judiciary, the Legal Service Authorities, the law colleges and voluntary organisations work together will determine the future course of how legal aid in India shall continue to evolve. Perhaps one way of ensuring the vitality of any legal aid mechanism is by involving newer talent into the field. To conclude, I quote William Pincus, a former president of the Council on Legal Education and Professional Responsibility in the United States who states:
..(T)he regular participants in the machinery of justice need incentives to spruce up their own performance and keep the machinery up to date. One of the best incentives would be the regular appearance on the scene of a fresh crop of law students.
For More Information refer to:
Murlidhar, S., Law Poverty and Legal Aid, Lexis Nexis, Butterworth, New Delhi, 2004.
Noorani, A.G, Political Trials in India, Oxford University Press, New Delhi, 2005.
Bar Council of India, Rules on Legal Education, 2008.
Legal Services Authorities Act, 1987.
Law Commission of India, 14th Report, Reforms of the Judicial Administration, 1958.
Day One commenced with the inaugural ceremony, with the opening address being delivered by Prof. (Dr.) Chintamani Routh, Head of the Department of Law at NEHU and presided over by the Hon’ble Vice Chancellor of NEHU Prof. (Dr.) Pramod Tandon, as well as the Dean (Social Sciences) Prof. Nikhilesh Kumar who, with encouraging words, announced that the Legal Aid Clinic at NEHU was formally established. Following this, presentations were made by the NUJS delegation, discussing various issues ranging from the constitutional mandate and social necessity for access to free legal aid and the historical evolution of legal aid in India to the modalities of running a legal aid society such as the management of finances and enlisting volunteers for various programmes. Further, the NUJS experience of various activities taken up by the Legal Aid Society in and around West Bengal were discussed, such as legal counseling, awareness camps, street plays, and disaster-relief, with the hope that the ideas and learnings of NUJS may prove useful to the NEHU Legal Aid Society as and when they conduct similar activities. The first day’s programme concluded with an interactive session about issues which the newly-formed NEHU Legal Aid Clinic might consider taking up. One suggestion was to try and get some locally produced specialized commodities such as a unique kind of honey or turmeric protected as a Geographical Indicator. Other pointers included highlighting the need for research of tribal laws on succession as well as the need to develop various areas of law such as sports law in light of the increased interest which scouts were showing in the state after the success of the football club, Shillong Lajong. Considering that Meghalaya is an area covered under the Sixth Schedule of the Constitution, there are several special laws which apply there which need to be understood in greater detail and therefore, there was a brief discussion about the need for the newly formed Legal Aid Clinic to generate awareness about these laws in various parts of the State.
