By Aashima Kakkar
Introduction
An indigent person or a pauper is a person who is so poor and in need that he or she is unable to provide for himself or herself the basic necessities of life (food, clothing, and a decent place to live), or in legal terms, one who does not have enough money to hire a lawyer to defend them in a criminal case.
Order XXXIII of Code of Civil Procedure (hereinafter as CPC) deals with suits filed by “indigent persons.”
Order XXXIII’s provisions are intended to allow indigent people to file and prosecute suits without having to pay any Court fees. In general, a plaintiff filing a lawsuit in a Court of law is required to pay Court fees as set forth in the Court Fees Act at the time of filing the complaint.
However, a person may be unable to pay the required Court fee due to financial hardship. This order exempts such a person from paying the Court fee in the first instance and allows him to pursue his case in forma pauperis if he meets the order’s requirements.[1]
An indigent person is defined as follows in explanation one to Order XXXIII Rule 1:
- If he does not have sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to pay the fee prescribed by law for the plaint in such suit;
- If no such fees are prescribed, he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
Any property acquired by a person after he files his application for permission to sue as an indigent person and before the application is decided is considered in determining whether the applicant is an indigent person.
In the case of Union Bank of India v. Khader International Construction[2], Hon’ble Supreme Court stated that:
“Order XXXIII CPC is an enabling provision that allows an indigent person to file a lawsuit without paying the court fee at the outset. If the plaintiff wins the case, the court will calculate the amount of court fees the plaintiff would have paid if he had not been allowed to sue as an indigent person, and the State will be able to recover that amount from any party ordered to pay by the decree. It is also provided that if the suit is dismissed, the State will take steps to recover the plaintiff’s court fee, which will be a first charge on the suit’s subject matter. As a result, there is only a provision for deferred payment of court fees, and this benevolent provision is intended to assist poor litigants who are unable to pay the required court fee to file a lawsuit due to their poverty.
According to Explanation I of Order XXXIII Rule 1, an indigent person is one who does not have enough money (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to pay the fee set by law for the plaint in such a suit. It is also provided that, in the absence of such a fee, if a person is not entitled to property worth one thousand rupees other than property exempt from attachment in execution of a decree and the subject-matter of the suit, he will be considered indigent.”
In India indigent persons are helped by the Legal Services Authority to achieve justice. This is explained below.
Legal Aid
With the arrival of the British in India, the adversarial system put an end to the informal dispute resolution system. This new system was more difficult to use and necessitated prior knowledge.
The Law Commission of India’s 14th Report proposed that the government provide free legal aid to the poor. The Report emphasised the legal community’s responsibility to administer the legal aid scheme and the State’s responsibility to fund legal representation for the accused in criminal proceedings, appeals, and prisons.
The Union Government launched a National legal aid scheme in 1960, but it ran into financial difficulties and died of natural causes.
In the second phase, the Union Government established a committee to develop a legal aid scheme for states, chaired by Justice Krishna Iyer. With legal aid committees in every district, state, and centre, the Committee devised a decentralised strategy.
To implement the legal aid scheme, a committee on judicature was formed under the chairmanship of Justice P N Bhagwati.
This Committee proposed legal aid camps and Courts in rural areas, as well as recommending that free legal aid be included in the Constitution. Justice Bhagwati was appointed to lead the Committee on National Implementation of Legal Aid in 1980.
The Legal Services Authorities Act, 1987 was enacted as a result.
The Supreme Court held in Madhav Hayawadanarao Hoskot v. State of Maharashtra[3] that our legal system, which is based on Anglo-American models and heavily employs legal technology, compel the collaboration of lawyer power or steering the wheels of equal justice under law.
Because of proper Court proceedings and the prevalence of lawyers and subsequent fees, the adversarial model has been characterised by the technical nature of law; as a result, it became imperative that Legal Aid be incorporated into the Constitution for the proper and fair adjudication of justice.
Article 39-A of the Constitution was inserted by the 42nd Amendment Act, making equal justice and free legal aid a directive principle of state policy. The sections dealing with Fundamental Rights and State Policy Directive Principles are intended for social revolution, as Granville Austin pointed out. Article 39-A’s operation reaffirms the importance of social justice in today’s society.
Legal Services Authority
There are 3 levels of Legal Services Authority in India established under the Legal Services Authorities Act, 1987, namely:
- Centre that establishes National Legal Services Authority (hereinafter as NALSA) which in turn establishes the Supreme Court Legal Services Authority (hereinafter as SCLSA).
- State that establishes State Legal Services Authority (hereinafter as SLSA) which establishes the High Court Legal Services Authority (hereinafter as HCLSA) and District Legal Services Authority (hereinafter as DLSA) and Taluk Legal Services Committee.
National Legal Services Authority & Supreme Court Legal Services Authority (NALSA & SCLSA)
The NALSA was established to provide free legal services to the poorer sections of society and to organise Lok Adalats for the peaceful resolution of disputes. The Patron-in-Chief is Hon. Mr. Justice N. V. Ramana, the Chief Justice of India. NALSA establishes the SCLSA.
Members of NALSA
- The patron-in-chief – Chief Justice of India
- Executive Chairman – A judge of Supreme Court appointed by the President
- Other Members – nominated by the Government in consultation with the Chief Justice of India
Members of SCLSA
- Chairman – Judge of Supreme Court
- Other Members – prescribed by the Government and nominated by the Chief Justice of India
Functions of NALSA & SCLSA
- Establish policies and principles for implementing the Legal Services Act’s provisions.
- Create the most cost-effective legal aid schemes for the poor.
- Use funds available to them to give to the State and District governments.
- Legal aid camps should be held in rural and slum areas.
- Conduct and promote legal aid research, with a particular focus on providing legal aid to the poor.
- To take all necessary steps to carry out the fundamental responsibilities outlined in Part IV-A of the Constitution.
- Develop clinical legal education programmes in collaboration with the Indian Bar Council.
- Take appropriate steps to increase legal literacy and awareness among the general public, with a focus on educating the most vulnerable members of society.
- Make a special effort to enlist the help of grassroots social welfare organisations.
- Coordinate and monitor the functions of the State Authorities, District Authorities, Supreme Court Legal Services Committee, High Court Legal Services Committees, Taluk Legal Services Committees, and other legal services organisations, as well as provide general direction for the program’s successful implementation.
- Grants and assistance are available for a variety of schemes and social service organisations.
State Legal Services Authority & High Court Legal Services Authority (SLSA & HCLSA)
SLSA have been established in each state to carry out the NALSA’s policies and directions, provide free legal services to the public, and hold Lok Adalats.
The State Legal Services Authority is led by the Patron-in-Chief of the State Legal Services Authority, who is the Chief Justice of the respective High Court. The SLSA establishes the HCLSA.
Members of SLSA:
- Patron-in-chief – the Chief Justice of the High Court
- Executive Chairman – Judge of High Court nominated by the Governor
- Other Members – nominated by the State Government in consultation with Chief Justice of High Court
Members of HCLSA:
- Chairman – Judge of High Court
- Other Members – prescribed by the state authority and nominated by the Chief Justice of High Court
Functions of SLSA:
The state authority is responsible for carrying out the directives of the central authority. It provides legal services in the same way that the central government does, and it also holds Lok Adalats.
Aside from that, the authority has the following responsibilities:
- Provide legal services to people who meet the act’s requirements.
- For all types of cases, hold Lok Adalats.
- Preventive and strategic legal aid programmes should be implemented.
- Other duties as assigned by the central authority and communicated to the state authority from time to time.
District Legal Services Authority (DLSA)
A DLSA has been established in each District to carry out the District’s Legal Services Programs. Every District Legal Services Authority is chaired by the District Judge of the respective district and is located in the District Courts Complex.
Members of DLSA:
- Chairman – District Judge
- Other Members – nominated by the State Government in consultation with the Chief Justice of High Court
Functions of DLSA:
Every district authority is required to carry out the directions issued by the state authority, as well as to take notice of the directions given by the state authority. The district authority must carry out the following responsibilities:
- Coordinate the Taluk Legal Services Committee’s and other legal services in the District’s activities.
- Within the District, there are organised Lok Adalats.
- Perform any other duties that the State Authority may impose through regulations.
Taluk Legal Services Committee
The Taluk Legal Services Committee is governed by sections 11A and 11B of the Legal Services Authorities Act. Every Taluk shall have a committee, known as the Taluk Legal Services Committee, established by the state authority.
A Senior Civil Judge serving as ex-officio Chairman and other members prescribed and nominated by the state government in consultation with the Chief Justice of the High Court shall make up the committee.
Legal Aid offered by Legal Services Authorities
Free legal services entail the provision of free legal aid in civil and criminal matters to those who are poor or marginalised and cannot afford the services of a lawyer to conduct a case or a legal proceeding in any Court, tribunal, or authority.
The services of Legal Service Authority includes:
- Payment of court fees, process fees, and all other charges payable or incurred in connection with any legal proceedings are examples of free legal aid.
- In legal proceedings, obtaining and delivering certified copies of orders and other documents.
- In legal proceedings, preparation of an appeal, a paper book, including printing and translation of documents.
- Performing any service in connection with the conduct of any case or other legal proceeding before any court, authority, or tribunal.
- Giving legal advice on any subject.
Persons eligible for free legal aid
Section 12 of the Legal Services Authorities Act states that the following persons are entitled for free legal services:
- Women and children
- Members of SC/ST
- Industrial workmen
- A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution
- Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster.
- A mentally ill or otherwise disabled person
- Person in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of 1987);or
- Persons whose annual income is less than Rs 9,000 or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than Rs 12,000 or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.[4]
How to apply to Legal Service Authorities?
A person in need of free legal services can approach the concerned authority or committee by submitting an application in writing, or by filling out the forms prepared by the said authorities and stating in brief the reason for seeking legal assistance, or by submitting an application orally, in which case an officer of the concerned legal services authority or a paralegal volunteer can assist them.
By filling out the Legal Aid Application form available online at NALSA’s website, a person can apply for Legal Aid to any Legal Services Institution in the country.
Procedure followed by Supreme Court for applications by indigent persons
Order XVIII of the Supreme Court Rules, 2013 deals with appeals and applications by an indigent person.
Rule 1 states that the appeal shall be presented as a petition or a special leave petition accompanied with an affidavit disclosing all his property that he has accumulated except the clothes he is wearing and stating that he cannot pay the Court fee.
The petition is the presented before the Judge in chambers who may inquire himself into the indigency of the petitioner after notice to other parties and to the Attorney General or make an order directing the High Courts to investigate the indigency after notice to the parties interested and submit a report in the period fixed by the order.[5]
But if the application is for appeal, no further inquiry is needed to set up for checking the indigency of the petitioner. The procedure for maintaining the suit is to be in accordance with the procedure laid down by Order XXXIII of CPC.
According to Rule 6 the Judge in chambers may assign an Advocate on Record to assist the indigent person in the case unless the indigent person has made his own arrangements for legal counsel. This results in choosing an Advocate from a panel of Advocates in the Supreme Court Legal Services Authority (SCLSA), who is directed to help the indigent persons that are working on the directions of the Judge in Chamber.
Rule 7 states the guidelines for imposing costs on indigents persons:
- No fee is payable to the Advocate by the indigent person, with the only exception of out of pocket expenses done by the Advocate, he is entitled to receive these from the indigent persons.
- The court may award costs against the party or out of the property decreed to an indigent person and direct such costs to the Advocate.
Thus, no person or Advocate can receive or demand any fee, profit, or reward from an indigent person. If one does so, he shall be liable to Contempt of Court.
Rule 8 states that the Advocate shall apply to the Registry for his compensation in helping the indigent person, and once the appeal by the indigent person is successful, the Registrar shall calculate the amount of Court fee that the appellant should have paid if he had not been an indigent person.
The fee payable to the Advocate is fixed by the Chief Justice of India and given at regular intervals. This Court fee is to be recovered by the Government of India by the Registrar.
If the application to sue as an indigent person has been withdrawn, the appellant is liable to pay all the costs of the litigation as stated in Rule 9.
Conclusion
For centuries, legal services have been a cornerstone of justice, assisting in the realisation of the ideal of equal justice, regardless of an individual’s financial ability. Their existence is also a testament to a socialist structure’s effectiveness in a country, as well as a demonstration of the various benefits of a socialist structure.
The lack of legal services may lead to the misapplication of the law, which was intended to protect the poor and wronged in the first place.
Legal services can take many forms. In India, they have taken the form of central and state authorities. Legal services are also mentioned in the constitution’s Directive principles of state policy.
As a result, making the best use of them and putting them into practise is critical to the proper functioning of any country’s justice system. The Hon’ble Supreme Court and the way it provides justice to those who cannot afford it is one of the most important aspects of this implementation.
- Lim Pin Sin v. Eng Wan Hock AIR 1928 Rangoon 306 ↑
- Union Bank of India v. Khader International Construction (2001) 5 SCC 22 ↑
- Madhav Hayawadanarao Hoskot v. State of Maharashtra 1978 AIR 1548; 1979 SCR (1) 192 ↑
- Section 12 of Legal Service Authority Act, 1987 available at: https://indiankanoon.org/doc/81155499/ ↑
- Rule 3 of Supreme Court Rules, 2013 – ↑
