Proposed Study

RESEARCH PROPOSAL LEGAL AID AS AN ELEMENT OF RIGHT TO LIFE AND PERSONAL LIBERTY; A STUDY IN NATIONAL PERESPECTIVE

A Research proposal submitted for the Award of degree of Ph.D.

Submitted by Komal Prasad Yadav LL.M, NET Faculty of law University of Lucknow Lucknow

INTRODEUCTION

We can define legal aid as free legal assistance to the poor persons in any judicial proceedings before the court or Tribunals. We can find the earliest legal aid movement appears to be of the years 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain the history of the organized efforts an the part of the state to provide legal services to the poor and needy dates back to 1944 When Lord chancellor Viscount Simon appointed Rushcliffe committee to enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make recommendation as appear to be desirable for ensuring that person in need of legal advice are provided the same by the state. Since 1952 the Government of India also started addressing to the question of legal aid for the poor in various conferences of Law ministers and Low Commissions in the 1960, some guidelines were drawn by the Govt. for legal aid schemes. In different state legal aid schemes were floated through Legal Aid Board, societies and the Law Departments. In 1980 a committee at the national level was Constituted to oversee and supervise Legal aid programmes throughout the country under the chairmanship of Hon. Mr. Justice P.N. Bhagwati. This committee came to be known as CILAS (Committee for Implementing Legal Aid Scheme) and started monitoring Legal aid activities throughout the country. The Introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes. In 1987 Legal services Authorities Act was enacted to give a statuary base to legal aid programmes throughout the country a uniform pattern. This act was finally enforced an 9th of November 1995 after certain amendments were introduced

therein by the Amendments Act of 1994 Hon. Mr. Justice R.N. Mishra then Chief Justice of India played a key role in the enforcement of the Act. A national wide network has been envisaged under the act for providing legal aid and assistance National Legal Service Authority is the Apex Body Constituted to lay down policies and principles for making legal services available under the provisions of the act and to frame most effective and economical scheme for legal services at also disburse funds and grants to state Legal Services Authorities and NGO,s for implementing legal aid scheme and programmes.

STATEMENT OF THE PROBLEM Legal aid is the method adopted to ensure that no one is debarred from professional advice and help because of lack of funds. Blake’s Law Dictionary defines “Legal aid free or inexpensive legal services provided to these who can no afford to pay full price. The Encyclopedia Britannica defines Legal aid as phrase which acquired by usage and court decisions, a specific meaning of giving to person of limited means grants or for nominal fees, advice or counsel to represent them in court in civil or criminal matters.1 Thus the provisions of Legal aid to the poor are based an humanitarian considerations and the main aim of these provisions is to help the poverty-stricken people who are socially and economically backward.2 It can be said that the spiritual ensure immanence of social justice in the jural order an the substantive and the processual planes of low.3 Lord Denning while observing that legal aid is a system of government funding for those who cannot afford to pay for advice assistance and representation said: “the greatest revolution in the Law since past second world war has been the evaluation of the mechanism of the system for legal aid. It means that in many cases the lawyers fees and expenses are paid for by the state and not by the party concerned. It is subject of suit importance that I venture to look at the law. About casts - as it was-as it is – and as it should be.” 4 The International concern for human rights found expression, after the first world war in covenants of league of nations and further in he united nations. Though right to legal aid does not expressly find mention in the declaration of human rights, the convention which followed specifically incorporated the concept of legal aid. 1. Part 13 at p. 871, Quoted in legal aid programme in India-A constitutional Guarantee-Alka Shrivastav. 2. Scott, C.H.Legal aid past & Present, A Brief Bleak Picture pp-4,5 3. Law Freedom & change- J.Krishna Iyer 4.What Next in the law: Lord Denning, Londan Butterworths,1982

The United Nations Conference an the prevention of crime and treatment of offenders 1965 recognized the right to free legal aid in criminal cases and as a tool of social justice. The covenants of civil & political rights, 1966 provides that in the determination of any Criminal charge everyone shall be entitled.5 The International conference an human rights or the Tehran conference, 1968 was the first global conference an human right held in connection with the observance of the International year for Human Rights and marked the twentieth anniversary of the Universal Declaration of Human right. The Tehran conference passed 26 resolution. It asked the state, Inter alia, to device standard for granting financial, Professional and other legal assistance in appropriate cases where fundamental rights appear to have been violated the governments, the conference noted, should also consider ways and means of defraying expenses involved in developing in comprehensive legal aid system. Thus we can find a paradigm shift in the approach of the Supreme Court towards the concept of legal aid from a duty of the accused to ask for a lawyers to a fundamental right of an accused to seek free legal aid. But inspite of fact that free legal aid has been held to necessary adjunct of the rule of law.6 the legal aid movement not active its goals. There is wide gap b/w the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor. Thus it is the need of the hour that the poor illiterate people should be imported with legal knowledge and should be educated and their basic rights which should be done from the grass root level of the country. Because if the 5. Art 14 (3) (d) the covenant of civil & political right 1966 6. Khatri Vs State of Bihar, Air 1981 SC 928.

poor persons fails to enforce their right etc, Because of poverty etc. They may loose faith in administration of justice and instead of knocking the door of law and court to seek justice. They may try to settle disputes an the streets or to protect their rights through muscle power and in such condition there will be anarchy poor illiterate man is not legally assisted, he is denied equality in the opportunity to seek justice. Hence in this area we have a huge number of laws in the form of judgment as well as legislations but their ineffective implementation. Thus the need of the hour is that we need to focus an effective and proper implementation of the laws which we already passes instead of passing new legislations to make legal aid in the country a reality instead of passing new legislation to make legal aid in the country a reality instead of just a myth in he minds of the countrymen.

OBJECT OF THE STUDY The object of the study is to achieve the Constitutional mandate provided in our Constitution under article 21 which deals with life and liberty clause as well as preamble to the Constitution provide justice to all. Article 39-A says-“the state shall secured that the operation of the legal system promotes justice an the basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for screening justice are not denied to any citizen by reason of economic as other disabilities.” Although legal aid was recognized by the courts as a fundamental right under act 21 reversing their earlier stance, the scope and ambit of the right was not made clear. In Hussainara Khatoon Vs State of Bihar,7 the court in this case said, it is essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him Free Legal Services to poor and the needy is an essential element of any reasonable, fair and just procedure. M.H. Hoskot Vs state of Maharshtra,8 the Supreme Court laidown some banning prescription for free legal aid to prisoners which are to be followed by all courts in India. Such as furnishing of free, transcript of Judgment in time to the sentence where the prisoners seeks to file an appeal or revision, every facilities for exercising such right shall be made available by the jail administration and if a prisoner is unable to exercise his Constitutional & statutory rights of appeal including special leave to appeal for want of legal assistance, there is implicit in the court under Art 142 read with Art 21 and 39-A of the constitution the power to assign counsel to the prisoner provided he does not object to the lawyer named by the court. 7. (1980) I SCC 98 : (1979) 3 SCR 532 : 1980 SCC (Cri) 40 8. (1978) 3 SCC 544

Khatri Vs State of Bihar9 the S.C. 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 continue whenever he is produced for remand. Sukdas Vs Union Territory of Arunanchal Pradesh,10 In this case it was held “ It is now well established as a result of the decision of this court in Husainara Khatoon case11 that the right to free legal services is clearly a essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held to be implicit in the guarantee of Art 21 This is a Constitutional right of every accused person who is unable to engage a lawyer and secure legal services an account of reason of poverty. K.K. Desai Vs A.K. Desai,

12

“the judicial officers are equally

responsible for the non availability of these benefits to this class of litigants. In each case where a women or child is a party, it is equally the duty of judicial officer concerned to let them know that they are entitled to free legal aid. The object of legal aid is to ensure equal justice. Legal aid is provided to ensure that the opportunities for screening justice are not denied to any person by reason of poverty, illiteracy etc.

9. (1981) I SCC : 1981 SCC (Cri)228 10. (1986) 2 SCC 401 11. Hassainara Khatoon Vs Stat of Bihar (1981) I SCC 98 12. Air 2000 Gujrat 232

RESEARCH METHODOLOGY The presented research study is based on theoretical approach. By theoretical approach the problem of Legal Aid and its remedies will be also discussed in detail and data and models will be collected from the various sources. The provision regarding to the legal aid in perspect of national and International will also explained with its merits and demerits and there will be also a light will be through on remedial measures which can eliminate the agony of the poor so weaker section of the society.

SOURCES OF THE STUDY Mathews and Outton : Legal Aid & Advice London Butterworth

1.

1971 2.

Srivastav Alka: Quated in Legal Aid programme in India- A constitutional Guarantee, part-13 at P. 871.

3.

Justice Krishna Iyer: Legal Aid to the poor.

4.

John Rawls : A theory of Justice, Universal Law Publishing co.pvt.ltd Delhi 2000.

5.

Scott, C.H. : Legal Aid past & presents-A Brief Bleak Picture, PP,4-5

6.

Lord Denning : What next in the law, London Edition P-902 Butterworths 1982.

7.

Rao Mamta : Public Interest Litigation, Legal Aid and Lok Adalats second edition.

8.

Mukherjee Roma : Woman, Law & Free Legal Aid1998.

9.

Menon N.R. Madhav : Legal Aid and Justice for the poor 1988 page-366.

10.

Juneja P.C. : “Equal Access to Justice” The Bright Law house Rohtak 1993-304.

11.

Bhatt. J. N. : Profile of English Legal Aid.

12.

Rajeev Dhawan : Law as struggle : Public Interest litigation in India, Ed. 36 JILI 325 (1997)

13.

Jain. M.P. : Indian Constitutional Law. Fifth edition 2007

14.

Rai Kailash : Public interest Litigation, Legal Aid Lok Adalat.2009

15.

Pandey J.N. : Constitution Of India. 40th edition 2007

PROPOSED CHAPTERISATION

Introduction CHAPTER-I Meaning, Definition, Nature, & Scope of Legal Aid CHAPTER-II Historical Retrospect of Legal Aid CHAPTER-III Provisions Regarding Legal Aid Under National Law CHAPTER- IV Legal Aid Under International Law CHAPTER-V Judicial Verdicts on Legal Aid CHAPTER-VI Legal Aid and Its Utilization to Society

Conclusion and Suggestion