Equal justice and free legal aid are both provisions that are included in Article 39-A of the Directive Principles of State Policy book. In accordance with Section 12 of the Legal Services Authorities (LSA) Act, 1987, the prospective interpretation of Article 39A establishes qualifying requirements for the award of legal aid to certain groups of disadvantaged individuals in accordance with the conditions that are anticipated. On the civil side, Order 33 of the CPC, 1908 allows destitute individuals to initiate lawsuits in “forma pauperis.” This is in contrast to Section 304 of the Criminal Procedure Code, 1973, which stipulates that the court may appoint a Pleader for the purpose of defending the accused person.
Review of the Laws:
Article 39A in Constitution of India
To achieve this, the government must provide free legal assistance to citizens who may face economic or other disadvantages, either through legislation, schemes, or other means. The goal is to ensure that all citizens have the same opportunities to access justice. (Article 39A in Constitution of India, 1950).
Order – XXXIII: CPC, 1908
‘Suits by Indigent Persons’
Individuals who are unable to pay their bills might file lawsuits.
In the event that the following criteria are met, a destitute individual is permitted to initiate any kind of legal action.
a) if he does not have sufficient resources (other than property that is immune from attachment in the execution of a decree and the subject matter of the action) to allow him to pay the fee provided by law for the plaint in such a suit, or b) if he is unable to pay the fee, his case will be dismissed.
(b) in the event that there is no such fee stipulated, if he does not have the right to property that is worth one thousand rupees, other than the property that is immune from attachment in the execution of a decision, and the subject matter of the action.
According to the second explanation, in cases where the plaintiff filed a lawsuit in a representative capacity, the issue of whether or not he is an impoverished person will be decided by taking into consideration the means that he has in such a capacity. [The previous explanation was replaced by Section 72 of the Code of Civil Procedure (Amendment) Act of 1976, which took effect on January 1, 1977.] (Order XXXIII of the Code of Civil Procedure, 1908, Act 5 of 1908)
Section 49 in The Advocates Act, 1961:
Section 49 grants the Bar Council of India the authority to formulate regulations in general.
- Item (1) By Act 60 of 1973, Section 38, Section 49 was renumbered as sub-Section (1) of that section, and it became effective on 31 January 1974. It is possible for the Bar Council of India to formulate regulations in order to carry out its duties in accordance with this Act. These regulations may, in particular, specify
c) the code of ethics and proper behavior that advocates are expected to adhere to throughout their professional careers (Section 49 in The Advocates Act, 1961)
Section VI – Duty to Render Legal Aid
Furthermore, within the constraints of an advocate’s financial situation, providing free legal assistance to those who are impoverished and oppressed is one of the most important obligations that an advocate owes to society. (Rule 46 framed under Section 49 (1) (c) of the Advocates Act, 1961 read with the Proviso thereto))
Research Question:
One of the questions that has been posed is whether or not the qualifying standards that were established in the LSA Act of 1987 have been modified to reflect the pragmatic realities of oppression that litigants who are unable to receive legal services have encountered.
Discussion:
The newly declared income tax slabs reveal that assessees with incomes of up to INR Rs. 500,000 per year are exempt from paying income tax. However, these individuals would not be able to afford the cost of prolonged litigation due to inflation in the economy, which prevents them from redirecting their living expenses towards litigation expenses.
Judgments:
Anil Gaur v. State of UP, 2022 SCC OnLine All 623, decided on 12.09.2022
In a bail application filed by the applicant for committing offence under Section 302 of Penal Code, 1860, Ajay Bhanot, J. has held that the instances of “undeserved want” depicted in Section 12(e) of the Legal Services Authorities (‘LSA’) Act, 1987, is not a fixed concept but an evolutionary exercise. Further, the State Legal Services Authority is mandated to enquire whether the circumstances of a person being considered for legal aid fall within the sweep of “undeserved want” and directed the SLSA to devise certain schemes for providing legal aid to prisoners and for timely filing of bail application (SCC OnlineBlog, 2022).
Further, in the same judgment, the Allahabad High Court cited Rajoo v. State of M.P., (2012) 8 SCC 553, wherein it was held that “eligible persons are entitled to legal services at any stage of proceedings (whether pretrial, trial or appeal or revisional) which he or she is prosecuting or defending”, and observed that for the grant of legal aid, the legislature has made no distinction between persons who are imprisoned for heinous offences or non-heinous crimes (SCC OnlineBlog, 2022).
Conclusion:
According to the findings, economic progress has resulted in the formation of a new category of litigants who make a decent income but find it unable to reinvest their earnings in protracted litigation.
This newly constituted group of litigants with “limited income” whose demands of covering litigation costs would necessitate a welfare interpretation of the eligibility criteria in order to ameliorate the non-inclusivity of needy individuals for the purpose of ascribing to legal aid at the expense of the state.
Proposed Policy Amendment:
A socio-economic review of the groups that are eligible would be required if the suggested change were to be implemented.
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
