Abstract
The book is a reproduction of the report of the Expert Committee on Legal Aid chaired by Justice V.R. Krishna Iyer in 1973. The Expert Committee on Legal Aid (hereafter the Committee) was constituted against the backdrop of the silver jubilee of Indian Independence. The basic terms of reference of the Report were to make legal aid available to weaker sections of the community with limited means, with special emphasis on socially and educationally backward classes, and to formulate a financially feasible scheme for legal aid in the country in a time bound manner.
At the outset, one can say that the report is one of the most systematic and elaborate documents on the machinery for legal aid. The report is organised into 22 chapters dealing with various aspects of legal aid, such as the Constitutional position, Juridicare, scope of legal aid, legal aid for various sections of the population such as SC/STs (Scheduled Castes/Scheduled Tribes), children, persons living in special areas and panchayati justice. The report also discusses the role of law schools and the legal profession in providing legal aid. The financial aspects and machinery are also suggested.
The first four chapters deal with the need and scope of legal aid. It begins by stating the constitutional provisions on legal aid, the most important being Article 14 (equality before Law) and Article 22 (right for access to legal aid). It calls for the establishment of a grassroots organisation which recognises legal aid as a right, not charity. The organisation to be created both at National (National Legal Service Authority) and State level will have sufficient autonomy. The Committee identifies clients of legal aid as follows: geographically deprived, villagers, agricultural labourers, industrial workers (also identified as working class), women, children, Harijans, minorities and prisoners. Emphasising on the scope of legal aid, the Committee observes that the underlying idea of legal aid is that no person should suffer injustice on account of lack of financial resources. Thus, financial assistance coupled with skilled professional counsel is a prerequisite. It also does not exclude legal aid for claims against the State.
In Chapter 5, the Committee recognises the need for legal advice for non-litigation and prevention of litigation. The Committee recommends non-litigation aid as paramount for any legal aid. It is recommended that legal aid be provided even for the drafting of documents so that litigation may be prevented. This is considered essential in a country with scarce human and material resources. In Chapters 6 and 7, the Committee dwells at length on the modalities of providing legal aid in civil and criminal proceedings. In both the cases, the basic assumption is that, often, the unequal and discriminatory style of functioning of the legal system works in favour of the rich and powerful as compared to indigent persons. It is in this context that systematic provisions for legal aid both in civil and criminal proceedings are dealt with. In terms of civil cases, it ranges from inadequacies of the existing provisions to emphasising on the desirability of setting up panchayat courts to deal with small claims, importance of special forums (claims tribunals), objection to encouraging frivolous litigation, exemptions (electoral disputes, defamation, breach of promise of marriage), costs to be payable to legal aid fund, and so on. In case of criminal proceedings, four aspects of legal aid are considered—who, what category of offences, at what stage (pre-trial, trial, post-conviction), the type and nature of legal services and the institutional arrangements for these. In terms of eligibility, as mentioned earlier, the test of indigence was to be applied. With regard to ineligibility, it was left to the wise counsel of the respective committees set up for legal aid. Aid after arrest and before trial, liberal policy of non-monetary bail and conditional release with restrain on mobility were suggested. The right to be informed about the reason for arrest, right to bail as well as right and access to legal counsel at any point of time of the investigation was stressed with respect to pre-trial aid. Plea of guilty was also recommended as desirable to shorten inordinate delays in investigation and harassment. Post-trial acquittal was also recommended with programmes for rehabilitation and counseling emphasised.
Chapters 8 to 10 deal with provision of legal aid to disadvantaged groups—working class, scheduled castes, scheduled tribes, defence services, women, children and other disabled groups, other minorities, special areas and geographically deprived (Andaman and Nicobar, Lakshadweep and Minicoy Islands). For the working class, there is a blanket provision for any worker certified by any recognised Union or Labour Officer to be entitled to free legal aid irrespective of wages. Legal aid should primarily assist in hastening court decisions and should also be extended to workers and their families in terms of accessing non-industrial and fringe benefits which they are entitled to. The report recommends the industry to bear worker–management disputes as well as litigation of labour through the establishment of a litigation fund. There is to be no appeal against award in case of public sectors and a means test would not be applicable for the individual worker. The latter would also be applicable in case of SC/STs. In terms of representation in the Legal Aid Committees, it is recommended that the Advisory Body at national level should consist of the highest officer in charge of the welfare of the SC/STs along with the Commissioner. Similar inclusions at state level were also envisaged. In all civil cases, legal aid is to be absolutely free except when they were tax assesses. In criminal cases, apart from legal services, even travel expenses to the police station or court is to be met. Trials under the Untouchability Act or other notified statutes are to be summary procedure. Most importantly, the Committee suggests socio-legal studies be undertaken under the Research and Development cell at state level, to research into issues concerned with legal aid.
The Committee also seeks free legal aid to defence personnel including pre-litigative and non-litigative assistance. With respect to women, creation of family conciliation agencies offering free legal service by skilled lawyers from legal aid centres are to be set up along with separate family and children’s courts in slums and rural areas. Free legal aid to women in criminal cases is also recommended along with grant of bail even in graver offences. It also suggests the establishment of women police, a 24 hour helpline to report and thereby prevent and track sex crimes against women and higher representation of women in judiciary and legal aid centres. It also envisages establishment of legal clinics for women. In case of minorities and other groups too, the Committee suggests legal aid with no means test. In case of Andaman and Nicobar, establishment of a legal bureau at each development block, duty counsel in each court and a legal aid committee in general is recommended. Special privileges for counsels who settle in Islands for professional reasons should be given subsidy. In case of absence of lawyers in Lakshadweep and Minicoy, it is suggested to introduce the system of nyaya panchayats in every island to provide legal aid to the poor.
In Chapter 11, the Committee calls for devising a simple practical system of dispensing justice at the village level to sort out small disputes, civil and criminal, to avoid the severity of a sophisticated urban court process. In Chapter 12, provisions are given for legal aid to cover tribunals, landlord vs. tenant disputes, land reform litigation, revenue court litigation and departmental enquiries. It also sets individuals with annual income less than ₹ 2500 eligible for legal aid.
Chapters 13 and 14 deal with legal education and reforms. The Committee recommends introduction of legal clinics as part of their academic programme, which would enable senior law students and clinical law professors to represent indigent clients in court. Legal reforms envisaged are the constitution of national, state and district level Consultative Councils to review the legal aid activities within their purview and make necessary recommendations. The Committee also visualises research and evaluation programmes to be undertaken in collaboration with social science research institutes to promote interdisciplinary research in Law. The role of ICSSR (Indian Council of Social Science Research) in promoting legal aid research programmes deserves mention.
Chapter 15 emphasises on the need for information, education and communication about legal aid to create awareness among the clients. Emphasis on publicity through audio and visual media and training material on legal aid literature by intellectuals cutting across the society is envisioned. Eight week intensive training for full time legal aid lawyers and para professionals is recommended. Chapters 16 and 17 focus on the role of the legal profession and voluntary organisations in effective provision of legal aid. Some suggestions as the association of senior counsel at lower fee, statute to make rendering of legal aid mandatory, assignment of cases, sanctions for failure to take up legal aid cases and the association of bar council and law students and teachers with the legal aid machinery. Similarly, provision to bring in voluntary agencies highlighting the role of legal aid as a supplement to welfare activities is envisioned.
The criteria for eligibility and the administrative machinery for legal aid is dealt in detail in Chapters 18 and 19. Family income rather than individual income is used for determining means (unless they are antagonists in the particular legal matter). The upper limit (fixed at ₹ 2400 per annum), in those days, accounted for 40–50 per cent of the entire population and thus were eligible for full legal assistance. The poverty line for special categories (at ₹ 5000 per annum) was also included. The eligibility was applicable to both civil and criminal litigation. Provision for special eligibility criteria is available for geographically deprived persons living outside of Port Blair, Lakshadweep, Lahaul, Spiti (₹ 5000–10000: 50 per cent subsidy; less than ₹ 5000 would receive free legal aid). The Committee also laid out regulations pertaining to certification of the income and assets by either revenue officer or gazetted officer or Member of Parliament or legislative assembly and so on.
With respect to administrative set-up, neither government department, nor bar council, nor registered society or company is favoured. Instead, a statutory corporation with separate legal entity is envisaged. The All-India body is to be styled as the National Legal Services Authority with similar corporations at the state level. Below the state body, there would be committees at the district and local level with the local unit being in charge of legal aid services on a day-to-day basis. At the district level, three Functional bodies to assist the District Committee are recommended to be stepped up—for labour; women and children and Scheduled Castes and Tribes. The Report also dwells at length on the composition of national authorities, the High Court and Supreme Court Committees, State Board, Executive Committee and so on.
Chapters 20 and 21 deal with financial aspects and phasing of the programme for legal aid. Detailed estimates are not made due to unavailability of statistics. Nonetheless, based on the then central pay scales, the total expenditure for the administrative machinery was expected to be at ₹ 3.5 crores. With respect to funding, even though taxing litigants was an option, the Committee was of the opinion that grants for this purpose would have to be made by the Centre or State government. The fees for legal advice and costs awarded are supposed to go to the legal aid fund along with donations from private parties. Legal Insurance scheme is also suggested as part of fund raising. With regard to implementation of the scheme, the Committee felt that immediate implementation was difficult and hence phased intervention was preferable. It was to be introduced and experimented in one taluk in each district before extending to others. To hasten the process of administrative set up, the Committee recommends amendments to the Criminal Procedure Code and the Advocate’s Act. The committee, however, was of the opinion that establishment of a network of legal centres can be done without delay. To enable other recommendations, it was envisioned to bring in a comprehensive Legal Aid and Advice Act.
It is clear from the above that the report of the committee is one of its kind. It is an interesting document which can be considered as a pioneering work that links social justice with delivery of justice. It has been one of the most comprehensive and elaborate pieces of literature on legal aid. Nonetheless, the report has been severely criticised for its approach—lack of comprehensive survey or evidence from public and for being idealistic and utopian. Even though the Legal Aid Machinery has been envisioned to be at the grass root level, the Committee did not make concrete proposals for financial resources which are necessary for making the programme a reality. On this end, the phased implementation of the programme also has been a disappointment in terms of lack of tangible outcomes. In addition, by focusing only on the working class, the Committee completely ignores the workers in the unorganised sector who still account for the majority of workers in India. Nonetheless, as a consequence of the report of the Committee, a new Article 39A was added in the Directive principles of State Policy of the Constitution by the 42nd Constitutional Amendment Act, 1976, making provision for free Legal Aid to ensure that opportunities for securing Justice should not be denied to any citizen by reason of economic or other disabilities. The National Legal Service Authority and its counterparts in states owe their establishment to the 1973 Report. Thus, the Report remains highly relevant given the fact that legal aid still remain elusive to the vast majority of the population, especially the marginalised communities.