It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It musttherefore arrange to provide free legal aid to those who can not access justice due to economic and other disabilities...(Art.39 A of the Constitution of India)Under this concept the State has provided categories of persons who are entitled for legal services under this Act.
Entitlement to Legal Services
Following persons are entitled for free legal aid under the Act:----
(i) A member of scheduled caste or schedule tribes;
(ii) A person whose annual income is not more than Rs.50,000/-
for cases before Supreme Court and Rs. 25,000/- in other courts;
(iii) A person victim of trafficking in human beings or beggar;(iv)Disabled, including mentally disabled;
(v) A woman or child;
(vi) A victim of mass disaster, ethnic violence, caste atrocities,
flood, drought, earth quake, industrial disaster and other cases of
undeserved want;
(vii) An industrial workman;
(viii) A person in custody including protective custody;
(ix) A person facing charge which might result in his imprisonment;
(x) A person unable to engage a lawyer and secure legal services on account of reasons such as poverty and indigence.
In (Khatri II Vs. State of Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470) it has been held that the Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand. In (Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544)it has been held that a person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal.
Section 304 of Criminal Procedure Code also provides that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the expense of the state.
Beside this The Magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
In (Suk Das Vs.Union Territory ofArunachal Pradesh (1986) 2 SCC 401;1986 SCC (Cri) 166) it has been held that failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.
When can Legal services be rejected---
(i)If the applicant has adequate means to access justice; or
(ii) he does not fulfill the eligibility criteria; or
(iii) he has no merits in his application requiring legal action.
When can the legal services be withdrawn---
The legal services committee can withdraw the services if,
- the aid is obtained through misrepresentation or fraud;
-any material change occurs in the circumstances of the aided person;
-there is misconduct, misbehavior or negligence on the part of the aided person;
-the aided person does not cooperate with the allotted advocate;
-the aided persons appoints another legal practitioner;
-the aided person dies, except in civil cases;
-the proceedings amount to misusing the process of law or of legal service.
Cases for which legal aid is not available ---
-Cases in respect of defamation, malicious prosecution, contempt of court,
perjury etc.
-Proceedings relating to election;
-Cases where the fine imposed is not more than Rs.50/-;
-Economic offences and offences against social laws;
Cases where the person seeking legal aid is not directly concerned with the
proceedings and whose interests will not be affected, if not represented properly.
Whom to approach for free legal aid---
The person who needs free legal aid can approach the Legal Services Authority
at any level- national, state, district or taluq. The request can be made to:
the Senior Civil judge nominated as the chairperson of the Mandal/Taluq Legal
Services Authority; the Secretary, District Legal Services Authority at the district level;
the Secretary, High Court Legal Services Committee at the state level;
the Secretary, Supreme Court Legal Services Committee at the higher level;
the member secretary of the state legal services authority;
the magistrate before whom s/he is produced;
or the custodial authorities, if under detention.
How to Approach?
- A written application can be made to the concerned authority
– Where the person cannot read or write, the legal services authority will
record his/her statement along with thumb impression. Such a statement
is treated as an application.
– The person who claims legal aid has to file an affidavit of his income.
Steps involved in the process: The eligibility criteria and the merits of the
case are examined. If the application for legal aid is rejected, reasons shall
be duly recorded and also informed to the applicant.
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