Saibal Chandra Pal
The Legal Services Authority Act, 1987 (`LSA’) was enforced with effect from 9th November,1995 after certain amendments were introduced by the Amendment Act of 1994 to the main act. The Act provides for scope of legal aid support for the economically weak, backward section and disabled persons . Legal Aid scheme was introduced by Justice P.N.Bhagawati under the Legal Aid Committee formed in 1971. Justice R.N. Mishra, Chief Justice of India contributed to the enforcement of LSA and the establishment of the National Legal Services Authority on 5th December, 1995 for enforcement of LSA. ‘Legal aid’ has been defined and includes provision for legal assistance to the poor, illiterate, physically challenged persons who do not have access to courts due to ignorance of law and financial handicap. The Act provides that any one who is eligible to avail of legal aid as per S 12 of LSA can seek assistance under the enactment. LSA owes its origin to the Constitution. 9th November, 2009, the day the Act came to be enforced has been declared National Legal Service Day (`NLSD’). The Act is meant to imbibe re-dedication to ensure equal opportunity and justice to all by provision of legal aid through the State, District and Taluk Legal Service Authorities/ Committees formed through out the country. NLSD symbolises equal opportunity and justice to all by imparting legal aid and assistance through different forms of legal service authorities across the country.
2. Vision of LSA reads that ‘no one shall be denied of access to Justice for the reasons of economic or other disabilities.’ LSA aims at providing legal awareness, free legal aid and establishment of Lok Adalats. Introduction of Lok Adalats added a new chapter to the justice dispensation system in the country. It succeeded in providing a supplementary forum for conciliatory settlement of disputes to litigants. The country is burdened with pending cases which continue to pile up in the Courts. The Government has already tried various means to reduce the number of piled up cases.
3. Indian Constitution was adopted on 26th November, 1949 and came into force on 26th January,1950. The constitution is stated to have drawn up relationship between:
(a) various institutions and the areas of government,(b) executive, legislative and judiciary,
(b) Central Government, State Government and the Local Government,(d) people and the Government, and (e) political, social and economic issues.
4. India has the longest written constitution in the world. There a XXII (22) Parts with 395 Articles (total number of Articles 444). Out of these Articles, many contain number of exceptions and limitations and it is added with 12 schedules. Upto April, 2006 there have been 93 amendments. The preamble states that people are the ultimate authority and the constitution emerges from them. Our constitution aims to secure to all citizens:
(i) Justice – social, economic and political.(ii) Liberty – of thought, expression, belief, faith and worship.(iii) Equality – of status and opportunity and promotion among all fraternity assuming the dignity of the individual, unity and integrity of the nation. Constitution is a machinery by which laws are made and is not a mere law. A constitution is a living and organic thing which of all instruments has the greatest claim to be constructed broadly and liberally. (Goodyear India v State of Haryana AIR, 1990 AC 781 ; (1990) 2 SCC 71,paragraph 17). Articles 14 and 16(4) of the Constitution intend to remove social and economic disparity for the citizens and provide equal opportunities available to all. Right to social and economic justice envisaged in the preamble of the Constitution and elongated in the Fundamental Rights and Directive Principles of the State Policy of the Constitution, particularly Articles 14, 15, 16, 21, 38, 39 and 46 are to make the equality of the life of the poor, disadvantaged and disabled citizens of the society meaningful (Valsamma Paul vs Cochin University,AIR 1996 SC 1011,paragraph 6: (1996) 3 SCC 545). Indian Constitution follows the federal form. Constitution is the supreme. There is division of power between the Union and State Governments as envisaged in the federal system of government. Judiciary is independent. Procedure of amendment of the constitution is rigid and can be done only with the approval of two-third of the members of the Parliament present and voting in favour of the amendment.
5. Fundamental Rights of citizens are included in Articles 12 to 35 under Part III and the Directive Principles of State Policy enshrined under Articles 36 to 51 under Part IV. Together they form the conscience or core of the constitution (AIR 1986 SC 1322) meant for the citizens. While the fundamental rights occupy a pride of place, the directive principles of state policy holds a `place of purpose.’
6. Article 14 provides that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 39A states that the state shall ensure operation of the legal system , promote justice on the basis of equal opportunity and shall in particular provide free legal aid by suitable legislature or schemes or in any other way to ensure opportunities for securing justice and citizens are not denied justice by reason of economic or other disabilities.
7. The important impact of Article 39A read with Article 21 is the reinforcement of the right of a person involved in a criminal proceeding, to receive legal aid. Article 39A intends to interpret ( and even expand) the right conferred by S 304 of the Code of Criminal Procedure, 1973. Legal aid may be treated as a part of the right created under Article 21. (Kishore v State of Himachal Pradesh (1991) 1 SCC 286; AIR 1990 2140; 1990 Cri LJ 2289).
8. Persons eligible for legal aid under LSA
S 12 of LSA prescribes criteria under which legal aid will be granted to persons. The persons stated in S 12 are entitled to legal aid. S 12 of the Act states that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is:
a) a member of a Scheduled Caste or Scheduled Tribe; b) a victim of trafficking in human beings or beggar as referred to in Art.23 of the Constitution; c) a woman or a child; d) a mentally ill or is otherwise disabled person; e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, drought, earthquake or industrial disaster; or f) an industrial workman; or g) in custody, including custody in protective home within the meaning of clause (g) of Section 2 of the Immortal Traffic (Prevention) Act,1956 or in a juvenile home within the meaning of clause; h) of Section 2 of the Juvenile Justice Act,1986 or in a psychiatric nursing home within the scope clause (g) of section of the Mental Health Act,1987; or (i) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State 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.
9. Structural Organisation under LSA.
LSA prescribed the formation of a National Legal Services Authority (NALSA) the apex body regulating legal aid provision of the Act. Powers of NALSA are delegated to the State Legal Services Authority (SALSA) for implementation at the state level which delegates further to several groups. The movement is a combination of the State, Social Action Groups including individuals and NGOs having presence starting from the grass root, state level to the Supreme Court. The structure as prescribed under the Act is given below:
*National Legal Service Authority (NALSA)
(Apex Body to Augment Legal Aid Movement).
Source : Study material of LASWEB.
NALSA provides for free legal aid to the persons covered by S 12 of LSA and includes persons in custody and in psychiatric hospitals, victims of trafficking in human beings, victims of disasters, ethnic violence, caste atrocities, flood, drought, earthquake or industrial disaster. Nature of services provided include advocates’ fees, payment of court fee for filing case before a court, expenses for typing and preparation of petition and documents, expenses for summoning witnesses and meeting expenses incidental to litigation. NALSA also provides for preventive and strategic legal aid by undertaking legal awareness programmes and transforming villages into litigation free.
To take the concept of legal aid to the door-step of those who are intended to be covered by LSA, legal aid clinics are formed and manner of their operation are given as under:
*LEGAL AID CLINIC
(To carry the legal aid project to the door steps)
- Source : Study material of LASWEB
10. Legal aid movement is being implemented as per the scope provided by LSA and the other relevant enactments. Awareness is the fundamental to the success of the objective of LSA. This involves undertaking awareness programmes, district level aid measures by the State, additionally setting up Counselling Centres. It also involves preparation for legal action in the form of public interest litigation. Legal aid movement its scope and methodology is depicted as under:
*LEGAL AID MOVEMENT
- Source: Study material of LASWEB.
11. LSA also provides for establishment of permanent and continuous Lok Adalats in all districts for disposal of pending matters, disputes at the pre-litigative stage and also establish permanent and continuous Lok Adalats for Government Departments, Statutory Authorities and Public Sector for speedy disposal of the pending cases, disputes at the pre-litigative stage. Matters taken up by the Lok Adalats include matrimonial cases, motor accident cases, civil cases, criminal (compounding offences) cases, redressing senior citizens’ grievances, labour disputes, Bank recovery cases, disputes with mobile cellular companies, land acquisition cases, pension cases, workmen’s compensation matters, consumer grievance cases, electricity matters, telephone bill disputes, Municipal matters including House Tax cases, NREGA matters, grievances of labourers in the unorganized sector and cases pending before the Supreme Court of India and High Courts.
12. Awareness on Legal Aid
Legal aid facility has been implemented for over 10 years, but the information of such scope of assistance is not with majority of those who really need such assistance. The law for such aid is in place but lacks implementation in the manner it was envisaged. The apex body overseeing the implementation of the scheme is situated at New Delhi as follows: Member Secretaty,NALSA,12/11,Jamnagar House,Shahjahan Road,New Delhi 110011. Telephone no.011-23386176,23382778. Each state has its office and the scheme is monitored by the State Legal Services Authorities.
13. To do justice to those who have taken the pains to support litigants who do not have the means to approach the Court for redressel, it is important to spread information of such schemes for the benefit of the low or middle income group.
15. Legal Aid Movement – an example
Legal aid movement started 22 years ago under the aegis of Justice D.K.Basu (Retd) of the High Court at Calcutta. Justice Basu spearheaded the movement to take it to dizzy heights duly assisted by Gita Nath Ganguli, Advocate, Justice Moloy Sengupta (Retd). High Court at Calcutta and a host of others. LASWEB (Legal Aid Services- West Bengal) formed to fulfill the objective of LSA provides legal aid to the persons for whom the act is meant. The organization is the only of its kind in the country that conducts a certificate course and has produced over 1000 counsellors through the course module, ‘Counselling, a mode of Resolution of Disputes.’ The 22nd batch numbering 50 heads completed their training on 19th December,2009 . The legal fraternity in the state supports the endeavours of LASWEB in a very big way. LASWEB has done tremendous work in the field of providing legal aid to those who needed it most. It is continuing to serve through its network under the guidance of competent and dedicated people. In his address on the occasion one of the sitting judges of the High Court Bench of Calcutta said that the aim of the legal aid movement started on its enactment, was to present to the society, `bare footed lawyers’ who would take the facility of legal aid initiated by the Government to the door step of those who need it most. LASWEB claims to have achieved making a village in the state of West Bengal, litigation free which is one of the objectives of LSA. If the accomplishment is spread all over the country even in a small way, the achievement would be remarkable. The crusade of Justice D. Basu and his team have already borne results and is set to achieve greater heights in the days ahead where each person is required to play its role also.
16. Coming back to training conducted by LASWEB for counsellors, successful candidates are required to take oath on the last day when they are declared Family Counsellors and Legal Aid Activists. The oath reads as follows:
` I, ………………………….. ,swear in the name of the Almighty that I shall make every endeavour to ensure protection and presentation of the Institution of Family and promotion of the welfare of children and social welfare and I shall remain true to the oath in discharging my duties and obligations as a Family Counsellor and Legal aid activist.’
17. Conclusion
A single person or factor cannot contribute to the success of a movement. Each citizen has to come forward. The concept for legislation for free legal aid to the needy was inititiated by Justice P.N.Bhagawati, continued by others and the Act was implemented by Justice R.N.Mishra. The movement aiming the implemention of the LSA in letter and spirit is being carried on by Justice D. Basu, Gitanath Ganguli , Justice M.Sengupta and others of their team in West Bengal. Other states have also tried to adopt their model. Company Secretaries cannot remain silent spectators they have a significant role to play. With only absolute necessary litigations, the country can direct its energy in removing in equality in the society .Company Secretaries can directly and indirectly help the likes of Justice D.Basu in fulfilling the objective of the LSA as envisaged by the framers of the law. The profession can be an active participant in the movement which aims at providing legal aid to those who require it the most.
Email: saibal2004@rediffmail.com
Sir
We are privileged to know such a Regulation unheard by many professionals like us.
It was definitely a valuable reading.
Thank You
CS SUHITA MUKHOPADHYAY