January 27, 2019

How to apply for free legal aid ?

Free Legal Aid And Its Significance

In this country, maximum of the prisoners belong to the lower and uneducated class, so they suffer a silent loss of liberty caused by the unreasonable, arbitrary and unfair procedures behind the ‘iron bars’ and ‘stone walls’. Therefore, it becomes essential that these people are made aware of their right to free legal aid.

Because the inception of the Legal Services Authorities Act, a total of 1,58,88,621 have helped through the Legal services and the advice provided by the State Legal Services Act under Legal Services Authorities as of November 2017. And in the past 1 year, a total of 8,22,856 no. of people have been benefited.

Meaning of Free Legal Aid

The meaning of legal aid is to provide free legal services to the feeble and indigent who are incapable of affording the services of an advocate for the preparation and representation of a case or a legal proceeding in any court, tribunal or before a judicial authority.

Right to Legal Aid

Article 21 guarantees for ‘Protection of life and personal liberty’-

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

An advocate’s assistance is the most important ingredient of fair procedure to a prisoner, who has to seek his freedom through the court process. Legal justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and it will be a failure of equal justice if an advocate’s supportive skills and inputs are not present for the accused.

Article 39A, a directive principle of state policy, provides for ‘Equal Justice and free legal aid’-

“The State shall secure that the operation of the legal system promotes justice, on a 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 securing justice are not denied to any citizen by reason of economic or other disabilities.”

This article is an interpretative tool for Article 21.

Remnants of lawful application of the mandate can be seen in Section 304, Criminal Procedure Code: “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.”

Article 8 of the Universal Declaration of Human Rights contends on free legal aid, where liberty is endangered:

“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.”

Article 14(3) of the International Covenant on Civil and Political Rights guarantees to everyone :

“The right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

Madav Hayavadanrao Hoskot vs.State of Maharashtra

An individual who is qualified to appeal against his or her sentence has the legitimate right to ask for an advocate, to prepare and argue the appeal.

Khatri II vs.State of Bihar

It is the constitutional responsibility of the magistrate to notify and furnish legal aid to the accused and this duty emerges from the time the accused is brought before the magistrate for the first time and continues whenever he is produced for remand.

Consequently, it is the duty of the Magistrate or the Sessions Judge, before whom the poor or indigent accused person has been produced, to make knowledgeable that if such person is not able to engage any lawyer due to his indigence or poverty, he can do so by obtaining free legal services at the cost of the State.

Nevertheless, the only criteria to seek free legal representation is that the accused must be charged with such an offense which on conviction would lead to a sentence of imprisonment.

Suk Das Vs.Union Territory of Arunachal Pradesh

Each accused who appears before the Magistrates and the sessions judges must be notified about free legal aid, if the arrested is not rendered by a lawyer owing to his poverty or indigence and that he can avail free legal assistance at State’s cost.
If an accused is not provided with legal support, unless he has been denied such assistance, this would vitiate the trial. It might even lead to the annulment of a conviction and sentence.

Sheela Barse vs. the State of Maharashtra

The proximal Legal Aid Committee must be urgently notified by the police about the arrest of a person instantly after such arrest.

Legal Services Authorities Act

The preamble of this act enunciates-

“An Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.”

Free Legal Aid can be provided to two categories–

The first category includes the following-

A member of the scheduled caste or scheduled tribe.
A victim of trafficking in human beings or begar as referred to in Article 23 of the Indian Constitution.
A child/woman.
A mentally ill or otherwise disabled person.
A person under conditions of under-served need such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster, etc.
An industrial workman
A person in custody, including custody in a protective home or in a juvenile home.
A person psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987.

The second category would comprise of people with economic difficulty–

Persons having a per annum income less than rupees 9000/-, if the case is before any court other than Supreme Court.
Any other higher income which may be permitted by the state government if the case is before other than Supreme Court.
Persons having a per annum income less than rupees 12000/- if the case is before SC of India.

As specified by the Act the “court” would mean a civil, criminal or revenue court and subsume any tribunal or any other jurisdiction included under any law for now in authority, to exercise judicial or quasi-judicial functions.

Bodies existing by virtue of the Act

National Legal Services Authority has been formulated to deal with special cases where the life and liberty of a person are threatened by engaging senior and competent lawyers on the number of regular fees.
State Legal Services Authority has been founded in every state to achieve the directives of the Central Authority, that is, to furnish legal aid to the general population and organize Lok Adalats in the state.
District Legal Services Authority and Taluk Legal Services Authority have been founded to undertake and execute the activities of legal services in district and Taluk respectively.
SC of India has, in addition, created the Supreme Court Legal Services Committee to ensure free legal assistance to the indigent and poor.

When can free legal services be rejected

Free services can be refused to any applicant in true circumstances listed below-

Has sufficient means to avail justice
Does not satisfy the eligibility standard.
Has no merits in his application which requires any legal action
Has the means to arrange for legal assistance

What proof do you need to prove eligibility?

An affidavit with your income and Identity proof are required as documentation to be eligible for free legal services.

When can free legal services be rejected

Free services can be denied to any candidate in certain circumstances enumerated below-

Cases which include defamation, malicious prosecution, contempt of court, perjury etc
Any proceedings concerning an election
Cases in which the fine is shorter than ₹.50/-
Cases involving economic offenses and offenses opposing social laws.
Cases where the person asking legal assistance does not have the locus standi and whose interests will not be denied.

When can be free legal services be withdrawn?

Free legal services can retreat in certain circumstances which have been mentioned hereunder:

Support is procured through fraud or misrepresentation.
Any material change takes place in the events of the aided person.
There is misbehavior, misconduct or negligence on the account of the person to whom aid is provided.
Person to whom aid is provided does not cooperate with the advocate who has been assigned.
Person to whom aid appoints another advocate.
Person to whom aid is extended dies, except in civil cases.
Proceedings would result in misuse of the process of law or of legal aid.

How to apply for free legal services

An individual who requires free legal services can ask for the concerned authority or board through an application which could either be sent in written form,or by filling up the forms made by the said authorities stating in brief the cause for seeking legal aid or can be made orally in which case an officer of the concerned legal services authority or a paralegal volunteer can help the person.
A person can also apply online for getting Legal Aid to any Legal Services Institution in the country by filling up the “Legal Aid Application form” available online at NALSA’s website by going on the ‘Online Application’ Link, along with uploading the needed documents.

Right To Appeal

An appeal is a continuance of a suit and has been said to be “the right of entering a superior court and invoking its aid and interposition to redress the error of the court below.”The right to go to the judicial forum for conflict resolution is a vital right of all persons. It will be an abrogation of a fair method if the right to appeal is denied and hence would vitiate the idea comprehended under Article 21 of the Indian Constitution.

There is an indication on the court under Article 142, read with Article 21, and Article 39A of the Indian Constitution, to give legal services, in case a prisoner sentenced to imprisonment is not able to exercise his legal and constitutional right of appeal, including an SLP. Hence it is necessary to allow a counsel for such an imprisoned person for doing absolute justice. This is a necessary incident of the right of appeal bestowed by the Code and granted by Article 136 of the Indian Constitution.

The important question discussed in the landmark case M.H.Hoskot vs. the State of Maharashtra was if the right of appeal is a vital part of the fair system as desired by Article 21 of the Indian Constitution. By virtue of Article 21 fair procedure has been considered to be an indispensable part of natural justice. The SC in the aforementioned case has named certain rights in favor of the convicts –

When condemning a person the courts shall immediately dispense a free transcript of the judgment.
When any such copy is being transmitted by the appellate, revisional or other courts to the jail officials for delivery to the concerned prisoner, then the concerned jail authority shall, with expedite despatch, get it delivered to the person sentenced. They must mandatorily obtain a written acknowledgment thereof from him.
If the prisoner seeks to file an appeal or a review then every means for the exercise of the right to appeal shall be made available to the prisoner by the Jail Administration.
The court shall appoint a competent attorney for the prisoner’s defense, in case the convict is not able to engage a lawyer, on reasonable grounds such as indigence or incommunicado situation, and if the circumstances of the case, the gravity of the sentence, and the ends of justice so demand, provided the party does not object to that lawyer.
The State which sued the prisoner and set in motion the process which denied him of his liberty shall pay to designate a lawyer such fee as the court may equitably decide.
These kind directions operate by force of Article 21 and are strengthened by Article 19(1)(d)(5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial risk.

Appeals before the Supreme Court of India

The apex court in India for filing a petition is the Supreme Court of India. The SC has appellate jurisdiction for the matters which are mentioned below-

Constitutional Matters

Under Article 132(1) –

If HC permits the certificate to decide the question of law as to the interpretation of the constitution, then in that case appeal is allowed to the SC.

Civil Matters

According to Article 133 –

In circumstances including civil matters, the High Court may grant a certificate to make appeals to the Supreme Court under the situations mentioned below:

If the case involves a vital question of law
If the case has been decided wrongly and it is required to be concluded by the Court.

After the High Court allows the certificate, the appeal can only be made within 60 days from the date of allowance of the certificate.

Criminal Matters

According to Article 134 –

The Supreme Court of India has the right to hear the criminal matters in the cases where the High Court grants certificate or even when a certificate is not granted. Both the situations have been discussed hereunder:

Special Leave Petition

There can be cases when some special class of appeals may not follow the general hierarchy of the courts and tribunals. Article 136 of the Indian Constitution provides for special leave for appeal which can be conferred by the SC of India against any judgment or order made by any court or tribunal in the country in the following matters:

In a matter where gross injustice has been done.
Where a substantial legal question is involved

It can even be filed when an HC does not accept an appeal to SC. Any decision or order concerning to the armed forces cannot be appealed by filing a special leave petition.

How To File An SLP

It is demanded that the petition must contain all the important facts for the SC to adjudge whether leave may be allowed to the Special leave petition. This petition must include the petitioner’s statement that he/she has not filed any other such petition in the HC and must be duly signed by the counsel on record.
A copy of the judgment the Special Leave Petition is asked against, along with all the verifying affidavit and documents must be attached to the petition. After the filing of the petition is executed the court hears the case and depending on the merits of the case allows the opposite party to state their views in a counter affidavit.
After the fulfillment of this process, the court decides if special leave is to be granted or not. Supreme court uses its appellate jurisdiction if the special leave is granted and all the decisions of the Supreme Court following to the admission of SLP are binding on both the parties.

Time Limit to File SLP

SLP can be registered within 90 days against any decision, from the date the judgment was pronounced.
SLP can be filed in the Supreme Court within 60 days, against the order of HC refusing to allow the certificate of fitness for appeal to.