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Legal Aid an Imperative Social Need
by V.G. Ramachandran
Cite as : (1970) 2 SCC (Jour) 44
It is indeed heartening that the national consciousness has been fairly roused in respect of Legal Aid as a social necessity and as a constitutional obligation on the part of the State, by the very well-organized National Conference on Legal Aid by the Centre for the Study of Law and Society of the Institute of Constitutional and Parliamentary studies. The Nation must indeed be proud that in Dr L.M. Singhvi, Executive Chairman of the Institute and Chairman of the newly-born National Legal Aid Association of India, we have a young, dynamic and progressive personality, who is out to organise, foster, nourish and propel a network of Legal Aid branches all over the country so that Equality before Law may become a reality sans all discrimination between the rich and the poor before Courts of Justice.
The aforesaid National Conference held on 28th and 29th of March, 1970, in Vigyan Bhavan, New Delhi, was attended by Judges, Jurists, Lawyers, Professors of Law, Social Workers and others from all over the country.
Law and social welfare are the twin objectives of any developing country as Bharat. Unless there is due emphasis on and implementation of social welfare schemes to help the underdog in a democratic society, the Rule of Law cannot be a reality. 'Is Justice being sold?' was the poignant question put by Justice K.S. Hegde to the Conference. That robust and well-meaning Judge was indeed forthright in focussing National attention on the unbecoming concept of sale of Justice in Bharat. Sale in what manner? Needless to say the question must not be misconstrued as to suggest that the Judiciary is corrupt. It is one of the fortunes of Bharat that we have a well-organised and fairly efficient Judiciary without any trace of corruption on the whole. The Justice answered the above question by vividly portraying how court-fees was exhorbitant, as also Lawyers fees and the cost of litigation occasioned by that Constant menace called 'Law's delays'. If access to court is denied to umpteen poor citizens on account of the aforesaid factors and the rich citizen is enabled to have a good deal in obtaining legal redress, is not the slogan 'Justice being sold' only too true!
The Constitution of India has been in force these twenty years and yet Judiciary, the Legislative and the Executive appear to have ignored the basic Principles enshrined in Articles 14 and 38 of the Constitution. The quarantee in Article 14 is clear. It postulates "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". The Instrument of Instruction to the Government (in the words of the Late Dr Ambedkar) contained in the Directive Principle of State Policy in Article 38 is indeed very clear. It says "The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which Justice, social, economic and political shall inform all the Institutions of national life".
The Institutions of national life are primarily three — The Judiciary, the Legislative and the Executive. The Directive in Article 38 is to all the three wings of Government. The Judiciary has to interpret all laws in the light in the guarantee in Article 14 read with the directive in Article 38. Have they done it so far. Assuredly not. Yet again the Legislative had this problem of Legal Aid focussed on them from the days of Justice Bhaghavanthy Report. But Parliament and the State Legislative who have concurrent power in this respect have magnificently slept over it all these years. As far the Executive, the fashion set by all political parties in power is to consider that courts of law are no hindrance to their political and economic objectives. Ergo if you help the poor litigant, litigation will only be on the increase resulting in the thriving of courts of Justice and Lawyers.
The Politician thinks he has all the wisdom and what he thinks and says must be the Law. The Lawyer thinks he is helping law by merely filing his appearances in Court for a good consideration in the shape of fabulous fees. His mental make-up is to make money out of litigation. It is as rare to find a Lawyer in India who is out to appear free of fees for a poor litigant as indeed to find one lawyer who is deeply concerned with the development of Legal Jurisprudence. The best that could be said of a successful lawyer is that he is a "walking library" (in the words of Eardley Norton) who is out to sell his knowledge for a good price and nothing short of it. He is verily becoming a money-making machine so much so he is being regarded by the common man as a vested interest that is as dangerous to society as the big capitalists. The finer aspects of the lawyer, as a social instrument of progress has yet not been brought home to the common man. The fault is entirely of the Lawyer. It is betimes he shows greater awareness to the social problems of the poor litigant.
He should also (particularly the affluent Lawyer) devote his time and energies in developing Legal Jurisprudence. If rich lawyers cannot find the time to attend to the above two aspects, how can anyone expect the struggling lawyers (of whom there are very many hundreds in India) to give a helping hand in these matters.
Yet again the Judiciary has in their interpretative Jurisdiction reduced Article 14 to a nearby 'nothing'. They found there was no denial of the Equality clause in umpteen instances on the score that there can be discrimination outside a particular class. The dotrine of reasonable classification being applied too liberally has only rendered Article 14 ineffective. Yet again the Judiciary has thought fit not strike down any or interfere in any case where on account of proverty a litigant has not had a fair deal.
It is sometimes said that Article 14 is not a positive guarantee of Legal Aid to the deserving citizens. We fail to see how the doctrine of Equality before Law or the equal protection of laws can be guarantee under Article 14 without vouchsafing equal access to Courts of Justice. In the matter of breach of a fundamental right by State action a millionaire as well as a pauper are affected, the former can rush to court at all lavels, engage the best lawyer and wins his case despite all law's delays and laws's heavy cost. But the latter, the poor chap cannot afford to do so. Even if he engages some lawyer within his means, he is at a great disadvantage when pitted against the able advocacy of a Senior Counsel at fabulous fees engaged by the other side. This is more glaring at the higher levels of courts. The High Courts and the Supreme Court. Huge court-fees and other costs of litigation is another hurdle the poor litigant has to cross.
The Courts could have in certain glaring cases helped the poor litigant on the score of denial of fair hearing, i.e. the poor litigant should be deemed as not properly heard when he could ill-afford engaging any counsel or could afford only to employ a mediocre counsel with his moderate means especially when the opposite side has the services of a well-paid Senior Counsel. Critics may say 'How could courts do this? Can they legislate in this area'. The answer is that where the State does not carry out the guarantee in Article 14 and the directive in Article 38, courts can in appropriate cases come to the rescue of the poor litigant who has been denied equal access and equal justice for want of means to engage counsel, etc. It is for the State, in such an event to provide a machinery for solving this problem of Legal Aid for the poor on a national basis applying the means test. Can the litigant afford to get through the litigation on his slender resources? If he cannot, how much can the State help him financially? It may be other organizations as the legal profusion of social welfare committees come to his aid also. We wish to add that the primary responsibility is on the part of the State. It cannot shirk this responsibility if Articles 14 and 38 are not dead letters.
Even, if Article 14 is construed as only impliedly assuring some equal aid and treatment to a litigant, it appears very necessary for the State to take the initiative in finding the necessary resources for promoting Legal Aid. Even if one argue that there is not even this implied assurance in Article 14, the State cannot shut its eyes to the great imbalances between the different classes of society in Bharat. The directive in Article 38 enjoins Justice, social and economic. It is the State that has to promote such a social order to ward off unrests and prevent the war by poverty against opulence. It is the fashion nowadays to preach a socialistic society which is out to wage war against poverty. From whatever angle we may study the problem it is crystal clear that the State has a legal and moral obligation to place its resources for promoting legal aid to the poor and well deserving.
This is not to say that the State alone should finance legal aid. It is also clear that the resources of the State are not so stupendous as to solve the financial problem all by itself. There is a clear moral obligation on the Legal Profession, the Capitalists (Industrialists, Bankers, etc.) and all welfare organizations and Trust Funds to come to the rescue of the Legal Aid Programme. The Aid has to be on a nationwide scale and without strings. For this very reason, it is necessary that the duty of the State ends with affording resources and creating a machinery under a statute for Legal Aid The actual management of the fund and programme must be in the hands of the private sector organizations composed primarily of the Legal Profession, Professors of Law, Social Welfare bodies and philanthropists of liberal views.
It matters not to argue whether there is any specific guarantee enjoined by the Constitution on the State to provide Legal Aid. Suffice to recognize that there is a wide awakening in the country as regards the big gap between the rich and the poor. One of the ways to reduce the gap is to afford legal aid to the poor. This ranks first in priority along with land reforms and the green revolution. There can be no two opinions in this area and all legislators of all political parties can well insist on the party in power to legislate for this purpose. In fact at the conference Members of Parliament such as Shri Madhu Limaye and Shri Bandhare recognised the urgency of the problem. Legislators so eloquent in their slogans of 'War against Poverty' cannot fail to get the Legal Aid Programme sanctioned by Parliament.
The Times of India in its editorial under the caption Price of Justice in its issue of 2nd April, 1970, adverts to the importance of the National Conference on Legal Aid thus:
"To the extent that a person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.
It is therefore, a mistake to suppose that providing legal aid is something which can be left entirely to the charitable impulses of voluntary organisations of lawyers. This point has to be emphasised since the Law Minister, Mr Govinda Menon, seemed to argue at the New Delhi conference that it would nor be 'realistic' to expect the State to bear responsibility. He thought there should be a minimum of State interference or assistance. It is no doubt true that in countries like the U.S.A. and Canada the legal profession has taken upon itself the task of maintaining systems of legal aid. But in Indian conditions this would be too great a burden to be thrown upon the profession. Even in England the State bears by far the largest portion of the cost of legal aid. The pattern of aid which is based on the recommendations of the Rushcliffe Committee depends on three sources of income; a contribution from the people assisted, wherever they are able to afford it, costs recovered from the opposite parties in litigation and a grant from the exchequer. The legal profession, through its various organisations, is responsible mainly for the administration of the scheme. This also seems to be the pattern envisaged at the New Delhi Conference. Even if State assistance remains the principal element in a scheme of legal aid, there will still be scope for voluntary effort. If doctors can be found to serve in an honorary capacity in hospitals, so can lawyers in the courts. But a system of conscription is hardly likely to work."
We should also cite the editorial of the Hindustan Times of 5th April, 1970, under Caption "Bringing Justice within Reach":
"Himself a former judge, Mr Chagla put it even more strongly. The equality of access to the courts that a democratic Constitution provides is rendered meaningless, he maintained unless the right to proper representation for the needy litigant is also guaranteed. A former Attorney-General Mr C.K. Daphtary, said litigation had become a luxury that the poor litigant could hardly afford. Legal aid was, therefore, primarily the Government's duty. A senior Supreme Court advocate, Mr Mohan Kumaramangalam, felt that the case of the poor coming to court without a proper counsel was like their entering the lists in an unequal (gladiatorial?) contest. The Attorney-General, Mr Niren De, was no less emphatic. He also made a good practical suggestion: the Government could for a start help by declaring any voluntary donations to legal aid bodies to be free of income tax. The Director of the Institute of Constitutional and Parliamentary Studies, Dr L.M. Singhvi, in his summing up of the consensus, called for a 'partnership' between the Union Government, the State Governments, the legal profession and voluntary civic bodies for urgent action on the question.
The degree of unanimity of judicial and legal opinion on the introduction of a system of legal aid in the country is impressive. And the Union Government would do well to examine seriously the seminar's recommendations. An organised basis for legal aid hardly exists in India today. In the U.K., U.S., Canada, Australia, Sweden and West Germany on the other hand, the last two decades have seen remarkable progress. One reason for this disparity, no doubt, is that the impulse for voluntary community service in this country has always been somewhat weak. None of its seven largest cities can boast of having an adequate citizens' advisory or legal assistance bureau financed by public-spirited citizens and run with voluntary help from the members of the legal profession and even perhaps law students. The tendency to leave all initiative in the hands of government is endemic.
Governments too, to be sure, have displayed a deplorable apathy. As Dr Singhvi said, they miss no opportunity to raise periodically the rates of 'court fees' levied on litigants in civil suits. No attempt has been made, however, to earmark some of this for the benefit of economically weaker litigants. The Union Government's outlook, reflected in Mr Menon's speech, also suffers from another grave weakness. It fails to distinguish between cases where legal aid is a necessity and those where it may well be discretionary. For a poor person defending himself against a criminal charge, for instance, the absence of adequate legal representation may mean the end of his liberty and even his life. Nor is that the only case where having a good lawyer can make all the difference. A large number of cases in the higher courts arise out of writ petitions filed by citizens for justice against the arbitrary decisions of a proliferating bureaucracy. The absence of a well-organised system of legal aid can, therefore, only mean that whereas the well-to-do are able to protect themselves against State tyranny, the poor must quite often allow their cases to go unheard and unchallenged."
We may advert to some resources worthy of tapping for financing the Legal Aid Programme:
(i) Ten per cent of the court fees realised may be allocated by the States to the Legal Aid Fund.
(ii) Five per cent of the taxed costs in a court decree should be remitted for the Legal Aid Fund. To enable this to be done:
(a) No decree can be executed through Court unless 5% of the taxed costs is deposited in court by the decree-holder for the aforesaid fund.
(b) No settlement out of court of any decree can be certified to court unless the 5% amount is paid.
(c) Where lawyers receive the decree amount it is their duty to deposit the 5% amount. They will be liable for breach of professional etiquette if they fail to do so.
(iii) In Criminal Courts
(a) For each complaint a legal aid fee of Rs 2 must be paid into court.
(b) A memo of appearance for accused by Counsel must also bear a fee of Re 1 for that Fund.
(c) In the matter of charge-sheets filed by the Police they must deposit a Revenue Coupon for Rs 5 or Rs 3 for major cases and for Re 1 for petty offences.
(iv) In Revenue Courts each application should have a legal aid fee of Rs 2.
(v) The funds so collected through courts and the treasuries should be transmitted to the National Legal Aid Association of India who can further augment the same by collecting donations, running raffles, etc. The Association's Board of Governors must allocate the funds to each branch in the several States.
We may further state that it may be difficult to give Legal Aid in all cases at the same time throughout the country. A plethora of social workers, junior and senior counsel who will work gratis or on a small honorarium and a team of efficient organisers are all necessary. To begin with in order to gain experience in the field of Legal Aid it may be useful to run pilot projects of various types in specified places fit for that project spread over many States, e.g.:
(i) Matrimonial cases
(ii) Tenancy cases
(iii) Labour
(iv) Arbitration and Conciliation
(v) Indebtedness
(vi) Criminal cases for serious offences.
One useful suggestion may be that Preventive Legal Aid is also essential. This can be ensured by having advisory centres in each Talkas. This will also adviser proper drafting of deeds and conveyances. The defender type of Legal Aid programme is necessary in all places where serious cases are tried. These should be composed of efficient investigators who will investigate the defence plea and get the appropriate evidence just as the prosecution has its investigating agency. The Professors and students can do the propoganda for the cause and be helpful to the litigant in initial stages. But at the later stages competent panel of counsel junior and senior must be had for each court. It would be advisable for seniors to take no fees but the juniors must be paid a fair honorarium. Where the Local Committee assigns a particular case to a counsel, refusal on the latter's part for insufficient reasons must be deemed as Professional misconduct. The Advocates Act and the Bar Council Act may have to be amended to carry out the aforesaid objectives, as to taxed costs, professional misconduct, etc.
All the existing Associations of Legal Aid must be affiliated and into the National Legal Aid Association of India. It be necessary to correct all the necessary statistics and also carry out certain research programmes on Legal Aid. All this means huge manpower and money power as a National scale.
We wish all success to the efforts of the National Legal Aid Association of India, born on 28th March, 1970. It will be very advisable for a central statute is passed by Parliament as the National Legal Aid Association Act of 1970 formulating its power, jurisdiction, sources of funds, administration of the funds, etc.
Dr L.M. Singhvi has been lucky getting Rastrapathy V.V. Giri to light the inaugural lamp of Legal Aid. Giriji has the reputation of a benevolent patriarch whose touch gives real life to all good causes. May the National Legal Aid Association of India be blessed with complete success in the near future. That is our fervent prayer.
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