India, with its rich cultural heritage and diverse population, has always maintained a complex and evolving legal landscape. The legal profession in India has seen significant development and transformation over the years, reflecting the country’s socio-political changes, economic growth, and global integration.
Historical Overview
The origins of India’s legal system can be traced back to ancient times, where the concept of justice was administered through traditional practices, customs, and religious texts. Over time, with the advent of colonial rule, India was introduced to the British legal system, which laid the foundation for its modern legal framework.
Post-independence, India embarked on a journey to establish a democratic, secular, and socialist nation. The Constitution of India, adopted in 1950, became the supreme law of the land, providing the framework for the country’s legal system and establishing the judiciary as an independent and impartial institution.
Evolution and Growth
The evolution of India’s legal profession can be characterized by several key milestones:
Expansion of Legal Education: The establishment of premier law schools and universities, such as the National Law Schools, has played a pivotal role in raising the standards of legal education in India. These institutions have produced a new generation of legal professionals equipped with advanced knowledge and skills to meet the demands of a globalized world.
Specialization and Diversification: The legal profession in India has witnessed a shift towards specialization, with lawyers focusing on niche areas such as corporate law, intellectual property rights, environmental law, and international law. This diversification has enabled legal professionals to cater to the specific needs of various sectors and industries, contributing to the country’s economic development.
Advancements in Legal Technology: With the advent of technology, the legal profession in India has undergone a digital transformation. The use of legal tech platforms, online dispute resolution mechanisms, and artificial intelligence tools has enhanced efficiency, transparency, and accessibility in the legal system.
Global Integration: India’s legal profession has become increasingly integrated with the global legal community. International collaborations, cross-border transactions, and participation in international arbitration and mediation have expanded the horizons for Indian legal professionals, enabling them to engage with global legal practices and standards.
Challenges and Opportunities
Despite its growth and development, the Indian legal profession faces several challenges, including:
Backlog of Cases: The high number of pending cases in Indian courts remains a significant concern, leading to delays in the delivery of justice and undermining public confidence in the legal system.
Access to Justice: Access to legal services remains a challenge for marginalized and underprivileged communities due to factors such as high costs, a lack of awareness, and geographical barriers.
Regulatory Reforms: There is a need for continuous regulatory reforms to streamline legal education, enhance professional standards, and address issues such as lawyer’s misconduct and unethical practices.
However, these challenges also present opportunities for innovation, reform, and growth within the legal profession. Initiatives such as legal aid programs, alternative dispute resolution mechanisms, and pro bono services can help improve access to justice and make the legal system more inclusive and equitable.
Conclusion
The development of India’s legal profession is a testament to the country’s commitment to upholding the rule of law, promoting justice, and fostering democratic values. While significant progress has been made over the years, there is still much work to be done to address the existing challenges and realize the full potential of the legal profession in India.
By embracing technological advancements, enhancing legal education, promoting specialization, and ensuring access to justice for all, India can continue to strengthen its legal profession, uphold the principles of justice, and contribute to the country’s overall growth and development on the global stage.
The Advocates (Amendment) Bill, 2023, which amends the Advocates Act of 1961 and repeals the Legal Practitioners Act of 1879, was approved by the Lok Sabha on Monday.
Union Minister of State (independent charge) for Law and Justice Arjun Ram Meghwal introduced the bill in the Rajya Sabha on August 1; the upper house then passed it on August 3. The Central Government’s effort to repeal “all obsolete laws or pre-independence Acts” that have outlived their usefulness includes the Bill.
It proposes to repeal the Legal Practitioners Act of 1879 and regulate the legal profession solely through the Advocates Act of 1961, keeping a clause addressing touts in courts.
“With the exception of the issue pertaining to ‘touts,’ all the aspects addressed in the Legal Practitioners Act, 1879 are already covered under the Advocates Act, 1961,” reads the bill’s statement of purpose and reasons. All of the sections 1, 3, and 36 of the Legal Practitioners Act, 1879 have been repealed, in accordance with clause (a) of sub-section (5) of section 50 of the Advocates Act, 1961.
Advocate’s Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice, ranging from civil suits to criminal trials, from ADR procedures to the enforcement of decrees and judgments, and more.
The Advocate’s Diary explores the idea of jurisdiction and explains how civil jurisdiction courts across the country separate cases according to suit value, subject matter, and location. We also looked at the concepts of cause of action and res judicata. Furthermore, we looked at the equity-based rules governing the summary dismissal of mirror suits and parallel proceedings filed in accordance with the same cause of action under Sections 10 and 11 of the Code of Civil Procedure (CPC).
According to the Commercial Courts Act of 2015, pre-institution mediation has been proposed for commercial lawsuits; in the Pathil Automation v. Rakheja Engineers case, the Supreme Court ruled that this requirement is mandatory.
On the other hand, public policy objections to outright clauses are frequently raised. Stated differently, should these clauses permit the parties to select a court that would not have been subject to jurisdiction under Sections 9 and 15-20 of the CPC? Or will courts find that, in accordance with section 28 of the Indian Contract Act, 1872, such an agreement restrains legal proceedings?
The Supreme Court disagreed with the trial court’s interpretation. It held that parties were indeed restrained from conferring jurisdiction on a court which would, otherwise, not have jurisdiction. However, where two courts had concurrent jurisdiction as per the provisions of the CPC, an agreement between the parties to confer exclusive jurisdiction to one (and oust the jurisdiction of the other) would not be a violation of Sections 23 (violation of public policy) and 28 of the Contract Act.
The Supreme Court first addressed the issue of whether an exclusive jurisdiction clause automatically excludes all other courts having jurisdiction under the CPC’s provisions in ABC Laminart v. AP Agencies, Salem. The court in ABC Laminart determined that the parties did not intend for any other court to have jurisdiction over them simply because an exclusive jurisdiction clause was present. Words like “alone,” “only,” or “exclusive” in clauses may imply the presence of such an intention; in other cases, however, the specific facts and circumstances of the case will ascertain whether or not such an intention is present.
In Wasch Gases Pvt Ltd v. Indian Oil Corp Ltd, the Supreme Court elaborated on this position, holding that the interpretation of exclusive jurisdiction clauses should be construed in a way that maximizes the court’s understanding of the parties’ intentions rather than having to follow the rules of statutory interpretation. According to the Court, the existence of an exclusive jurisdiction clause suggests that the parties intended for other courts to handle their disputes, and in those circumstances, an ousting would be a just result.
While the above cases discuss the express exclusion of the jurisdiction of some courts, there are a number of statutes which provide that for any challenge to actions taken in pursuance of the provisions of the statute, the remedy would lie before a specified tribunal/forum and a civil suit will expressly not lie [For example, see section 79 of the Real Estate (Regulation and Development) Act 2016]. The legal tenability of such provisions, and their intersection with the jurisdiction of civil courts under the CPC, was laid down by the Supreme Court’s Constitution Bench in Dhulabhai v. State of Madhya Pradesh. In Dhulabhai, the Supreme Court held that where a statute establishes a special tribunal/forum to adjudicate any challenges or disputes arising out of the statute and provides finality to the decisions of such a tribunal/forum, the jurisdiction of civil courts in such situations must be excluded. However, if the very provision has been challenged and declared unconstitutional, then a civil suit in respect of such matters shall continue to lie.
Payment of court fee: A civil suit prerequisite
A court fee is levied on any substantive pleading filed before a court of law to institute legal proceedings for two reasons: first, to generate revenue for the State, and second, to deter vexatious and frivolous proceedings from being initiated by litigants. While court fees in India is regulated by the provisions of the Court Fees Act, 1870, a number of states have enacted legislation to levy court fees in accordance with List II, Entry 3 of the Seventh Schedule of the Constitution.
Before looking at how the Court Fees Act, 1870, and the Karnataka Court Fee and Suit Valuation Act, 1958 regulate the levy and payment of court fee, we will first inspect the relevant provisions under the CPC.
Section 149 CPC provides the civil court with the discretion to allow a party to cure the payment of deficit court fee at any stage. Payment of deficit court fee is therefore a curable procedural defect and will not be fatal for the institution of a civil suit. However, if such a defect is not cured, it does render the suit liable to be rejected in the future.
The Supreme Court has, in Ajay Dabra v. Pyare Ram, clarified that once a party makes good the deficiency in court fee in respect of a pleading, such a defect shall be deemed to have been cured from the date on which the said pleading was first filed in court.
The CPC’s provisions safeguard the important idea that justice ought to be available to everyone and prevent impoverished and destitute litigants from being denied it because they lack financial means. Any indigent person may file a civil lawsuit under Order 33 Rule 1, and Rule 8 states that an indigent person will not be required to pay a court fee in connection with a lawsuit they file. Order 44 waives the court fee for impoverished individuals filing an appeal against a decision that is unfavorable in the primary proceedings on the Memorandum of Appeal.
The Court Fees Act, 1870, specifically states in Sections 3 and 4 that the High Court may impose fees on both the original and appellate side pleadings. The method for calculating fees for various suits is outlined in Section 7. Together with Schedule II, which deals with fixed fees, and Schedule I, which addresses the assessment of ad valorem fees (based on the suit’s subject matter value), it is read. Sections 13–16 provide specific guidelines for when a refund of court fees may be requested, including when the lawsuit is withdrawn. As stipulated in Section 25 of the Act, stamps are typically used for the collection of court fees.
Parties should bear in mind the Karnataka Court Fee and Suit Valuation Act 1958 when initiating any suit or original side proceedings that necessitate the payment of court fees. According to Section 4 of the Act, a document that requires payment under the Act cannot be shown in court until the fee is received. Furthermore, in cases where the party has requested more than one relief, Section 6 states that court fees are due on the total amount of relief requested, whereas in cases where relief is requested in an alternate manner, they are due on the highest relief claimed. Section 10 also states that in a suit, the plaint should contain a statement on the particulars of the subject matter of the suit, and how it has been valued (which should be in accordance with the provisions of the Act) for payment of appropriate court fee.
Requirements of Order VI Rule 14A
Order VI Rule 14A of the CPC requires that along with every pleading filed in court, a statement should be filed by the party providing the correct address of the party, which shall be called the “registered address of the party”. Sub-section (2) also allows a party to inform the court if the said address has been changed, and to provide details of the new address by filing the relevant form.
Both disobeying these guidelines and trying to provide the court with a false or misleading address carry severe penalties. Should the defect belong to the plaintiff, the court may, in accordance with Rule 14(5), halt the case until the proper address is given. The Delhi High Court acknowledged this in Gagan Kakkar v. Dharampal Chhabra, holding that the court could even strike out the defendant’s defense and place the defendant in the same circumstances as if the defense had not been raised.
Pre-institution mediation under the Commercial Courts Act
The Commercial Courts Act, 2015 has given a tremendous boost to alternative dispute resolution methods such as mediation for resolving commercial disputes. Section 12-A of the Commercial Courts Act makes trying mediation before the institution of any commercial suit mandatory. This was recently upheld by the Supreme Court in Patil Automation. The Supreme Court also laid down that any suit which was filed without complying with the mandate under Section 12-A was liable to be rejected under Order 7 Rule 11 of the CPC.
It is specifically stated in Section 12-A that pre-institution mediation is only to be considered in lawsuits in which the parties have not requested urgent interim relief. Parties have attempted to evade the Section 12-A pre-institution mediation process by submitting false requests for interim relief before the commercial court. The Supreme Court called out this practice in Yamini Manohar v. TKD Keethi, ruling that the parties would still need to comply with Section 12-A’s requirement for pre-institution mediation even if they only apply for temporary relief. The Court decided that the commercial court ought to determine whether the request for urgent interim relief was made on legitimate and genuine grounds.
Advocate’s Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy.
Advocate’s Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice – ranging from civil suits to criminal trials, from ADR procedures to enforcement of decrees and judgments, and more.
The guest columns in the series aim to develop a conversation channel with seasoned practitioners, senior advocates, arbitrators and judges.
India’s courts are characterised by a deluge of cases and a lack of timely judicial appointments. The ground situation illustrates the need to demarcate the jurisdiction of courts according to territory, monetary value of claims and subject-matter of the dispute.
When it comes to adjudication, two distinct problems arise. First, depending on where the court is situated, it will cause grave inconvenience and prejudice to litigants located far away from the court in raising their claims and filing suits in time. Second, given the court’s overloaded mandate, it will have to make judgment calls in prioritising some disputes over others. And in this exercise, it will be making value-laden assessments that will directly clash with the judiciary’s role of dispensing justice fairly and equally.
Jurisdiction, therefore, is a concept that is premised on ensuring efficiency and expedition of dispute resolution. By demarcating courts on the basis of geography, monetary value and subject matter, the civil justice system can prioritise its fundamental goals of equity-based justice and finality of adjudication. Equally, it prevents unscrupulous litigants from raising meritless claims, by providing for such suits to be dismissed on the ground of lack of jurisdiction itself.
Institution of a suit and jurisdiction – relevant provisions of the CPC
Section 9 of the Code of Civil Procedure (CPC) is the provision that demarcates the jurisdiction of courts for adjudicating civil disputes. It empowers courts to adjudicate all civil suits, with two qualifying criteria. Firstly, the suit must be of a civil nature. In effect, this qualifier restricts the court to adjudicate rights belonging to an individual or an entity’s interest over property, under contract, or in law generally, that arise out of a civil relationship. However, is some crimiinal cases, the jurisdiction of the court under Section 9 is not completely barred, if there is a dispute of a civil nature within the broader criminal action claims.
The second qualifier is in respect of suits for which the court is either explicitly or implicitly barred from taking cognizance. This qualifier arises in situations where specific statutes or rules provide for tribunals or quasi-judicial bodies under the said statute/rules to adjudicate claims, and expressly exclude the jurisdiction of civil courts. An implicit exclusion would arise in situations where a particular relief or performance can only be claimed/enforced in a specified manner, and the jurisdiction of a court exercising ordinary civil jurisdiction would be barred in such instances.
The hierarchy of civil courts is enshrined in Section 15 of the CPC, which states that every civil suit shall be instituted in the court of the lowest grade competent to try the same. The civil justice system hierarchy is usually established through state legislation. For instance, in Karnataka, the Karnataka Civil Courts Act, 1964 lays down the class and establishment of civil judges in the State, their territorial and pecuniary jurisdiction, and the powers of district judges to hear appeals from the decisions of civil judges. In Delhi, the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 provides for the hierarchy chart.
Under the broader umbrella of Section 9, the CPC provides for suits to be delineated based on subject-matter, territory and pecuniary limits. Under the CPC, subject-matter jurisdiction flows from Section 9, and is more specifically described within Section 16. In Section 16, interestingly, subject matter and territorial jurisdiction amalgamate to an extent, since the Section grants jurisdiction to the court having jurisdiction over the local limits of the area where the property is located, over suits for recovery of immovable and movable property, partition, foreclosure etc. It further provides that where the relief can be obtained through the defendant’s personal obedience, the suit can also be instituted in a jurisdiction where the defendant resides or carries on business.
Therefore, in respect of immovable property, jurisdiction is usually vested in a court which is located and exercises jurisdiction over the local limits of where the disputed property is located. Section 18 further provides that where the local limits of where the property is located are uncertain, the court which is seized of the matter can record the said uncertainty and proceed to entertain and dispose of the suit. Section 18 illustrates the legislature’s goal of attaining finality in proceedings under the CPC, and in providing quietus to a dispute instead of allowing a jurisdictional obstacle from becoming a permanent roadblock to a party seeking justice.
Where multiple courts can exercise jurisdiction over a civil suit – which often is the case for suits involving money recovery, partition suits etc – the choice of institution of the suit is left to the plaintiff, who is the dominus litis (master of the case). The doctrine of dominus litis is premised on the principle that the plaintiff of the suit is the party who benefits from a favourable order, and suffers the consequences of an adverse order equally (including the expenses arising out of it). As a result, in a case where multiple courts have jurisdiction, the plaintiff makes the choice to institute the case in a particular court, which is also recognised in section 19 of the CPC.
Before we delve into the concept of cause of action, and how different courts exercise jurisdiction based on where the cause of action arose, we will end this section of the column by covering the area of pecuniary jurisdiction. Section 6 of the CPC further recognises the priority of State legislation in this regard by stating that nothing in the Code shall grant jurisdiction to courts over claims which exceed its pecuniary jurisdiction. It also gets a nod in Section 16 of the CPC, which qualifies subject-matter jurisdiction under the Section with the court’s pecuniary limits to adjudicate such suits. While the right to value a claim is the prerogative of the plaintiff, the Supreme Court in Tara Devi Vs. Thakur Radha Krishna Maharajhas held that such a right is not absolute, and the valuation of the suit should not be absolute or arbitrary to deny a court jurisdiction which it validly has under the CPC.
Courts of small causes are also established in different states for suits which have a low monetary value. For instance, under the Karnataka Small Cause Courts Act ,1964, the pecuniary limit for a court of small causes in Bangalore is ₹2 lakh, whereas it is ₹1 lakh for other areas in the State. In Delhi, under the Provincial Small Cause Courts (Delhi Amendment) Act, 1995, the pecuniary limit for a court of small causes under Section 15 is ₹5,000.
Cause of action and res judicata
Section 20 CPC introduces the concept of cause of action. A cause of action in respect of a suit is essentially its raison d’etre – the factual circumstances which led to the dispute arising between the parties. Section 20(c) provides jurisdiction to the court which is located in the local limits of where the cause of action, “wholly or in part”, arises. The phrase “wholly or in part” is an important qualifier. The Supreme Court, in South East Asia Shipping Vs. Nav Bharat Enterprises, has held that cause of action is essentially a bundle of facts which led to the genesis of the dispute, and to the plaintiff obtaining a right in law to approach the court for legal redress. The cause of action, therefore, necessarily includes an act of the defendant, in the absence of which the suit itself could not possibly exist. Mentioning the cause of action in pleadings is also a non-derogable prerequisite under the CPC, with Order II Rule 2 and Order VII Rule 1.
A cause of action can, by its very nature, arise in different places. More so, it can arise as a result of the actions of multiple parties. In such situations, Section 20(a) and (b) follows from the doctrine of dominus litis and allows for courts in the jurisdiction of the place where any of the defendants either resides, carries on business or works for gain to adjudicate such suits. However, a defendant is also empowered to seek transfer of such a suit to a separate court (which also exercises jurisdiction as per section 20) after it receives notice and before the settlement of issues.
As can be seen from the provisions and powers of the court described above, the CPC is premised on ensuring that the civil justice system does not cause prejudice to either party in instituting or defending against valid and determinable civil claims. And in this endeavour, the recognition of the principle of res judicata under Section 11 of the CPC becomes key. While Section 21 of the CPC allows for parties to raise jurisdictional objections which are to be decided by the court of first instance at the earliest possible opportunity, res judicata is attracted in a situation when a party, which has raised and contested the same claims in a previous suit – and has lost – raises such claims against the same parties in a different suit. Res judicata prevents litigants from reagitating lost claims in law, and preventing re-adjudication of disputes to which the appropriate jurisdictional court has already applied its mind to, and decided the claims finally.
The Supreme Court in Isher Singh Vs Sarwan Singh held that once the requirements under Section 11 of the CPC are met, and it can be assessed that the matter in both suits was directly and substantially the same based on a reading of the pleadings, issues and the court’s final judgment, the bar under Section 11 would squarely apply.
Changes brought by the Commercial Courts Act 2015
After the introduction of the Commercial Courts Act in 2015, a number of important changes have taken place in the institution of civil suits under the CPC. For instance, in terms of subject-matter jurisdiction, the Commercial Courts Act defines ‘commercial disputes’ in Section 2(1)(c) of the Act, over which commercial courts exercise exclusive jurisdiction. Section 2(1)(c) covers a broad range of disputes, ranging from ordinary transactions between merchants and bankers to franchising and partnership agreements, and over any other dispute which is notified by the Central government.
The Act also specifies the pecuniary jurisdiction for commercial courts, which is set at a minimum value of ₹3 lakh under Section 2(2)(i) – which defines the term ‘specified value’ of a commercial dispute – and Section 3(1). The Act provides for determination of the ‘specified value’ under Section 12, to ensure the fair and accurate valuation of the commercial suit’s value.
Lastly, depending on whether the High Court of the State where the Act is being applied exercises ordinary original civil jurisdiction, the Commercial Courts Act has established separate hierarchical commercial court systems. Such courts, like the Delhi High Court, have a Commercial Division and a Commercial Appellate Division.
For High Courts that do not exercise such jurisdiction (such as Karnataka), the Commercial Courts are set up at the civil/district judge level, with the district court and High Court having Commercial Appellate Divisions.
Under Section 16 of the Advocates Act 1961 two classes of advocates are classified; Senior Advocate and Junior or those who are not designated as seniors. The Senior advocates play the role of legal experts in India who have significant knowledge in the field of law. They are associated with many prominent cases as they are good contributors to the principle of the Rule of Law.
How to become a Senior Counsel?
Section 16(2) of the Advocates Act, 1961 and Rule 2(a) of Order IV of the Supreme Court Rules, 1966 provide certain guidelines to be followed for the designation of a senior counsel.
As per these provisions:
The Chief Justice and other judges of the concerned court should believe that a particular advocate is fit to hold the position of a senior advocate.
The concerned advocate should have exceptional legal expertise and knowledge of the law.
The consent of such an advocate should be obtained prior.
The selection should be on the sole ground of his knowledge and expertise in the area of law.
What are the restrictions imposed on a Senior Advocate?
A senior advocate is not permitted to appear without an Advocate-on-record or any junior.
He/she is refrained from drafting pleadings or affidavits before any court or authority mentioned under Section 30 of the act.
He/she shall not accept directly from a client any brief or instructions to appear in any Court.
A senior cannot file any pleading or represent his client neither can draft an application in his own handwriting.
The senior advocate must maintain a code of conduct, different from the other advocates.
India’s first woman Senior Advocate Indira Jaising filed a petition in SC challenging the existing process of designation.
She termed this process as opaque, arbitrary and fraught with nepotism and sought greater transparency in the process of designating.
As a result, the Apex Court decided to lay down guidelines for itself and all High Courts on the process of designating senior advocates.
The judgment decided the setup:
A permanent committee, and
a permanent secretariat,
The secretariat was tasked with receiving and compiling all applications for designation with relevant data, information, and the number of reported and unreported judgments. Besides creating permanent bodies, the verdict laid down the procedures and assessment criteria for the designation process.
Indira Jaising v Supreme Court of India, 2023 SCC OnLine SC 614, decided on 12-05-2023
In an application filed by Senior Advocate Indira Jaising against the existing system of designation of Senior Advocates, terming it flawed as it was not objective, fair, and transparent, and thus did not take into account considerations of merit and ability, the 3-Judge Bench of Sanjay Kishan Kaul*, Ahsanuddin Amanullah, and Aravind Kumar, JJ. has fine-tuned the guidelines laid down in the 2017 Judgment to bring in greater transparency and objectivity in the designation process. The Supreme Court has published new guidelines for the designation of senior advocates practising mainly in the Apex Court. These guidelines come after the May 12 ruling delivered by a three-judge bench led by Justice SK Kaul in a case seeking modification in the conferment of ‘senior advocate’ designation guidelines rendered in a 2017 SC ruling.
New guidelines for the designation of senior advocates in the SC
What do the new guidelines say?
Minimum age to apply for the senior advocate designation
The new guidelines prescribe the minimum age as 45 years to apply for the ‘senior advocate’ designation.
This age limit may, however, be relaxed by the Committee, the Chief Justice of India, or a Supreme Court judge if they have recommended an advocate’s name.
The 2017 guidelines say that the CJI along with any judge can recommend an advocate’s name for designation.
However, the 2023 guidelines specify that the CJI along with any Judge of the Supreme Court may recommend in writing the name of an advocate for designation.
Marks set aside for publications
Earlier, the guidelines stated that 15 marks were set aside for publications.
However, the new guidelines state that only 5 marks will be given for:
publication of academic articles, experience of teaching assignments in the field of law, and
guest lectures delivered in law schools and professional institutions connected with law.
Weightage given to reported and unreported judgements
The weightage given to reported and unreported judgements (excluding orders that do not lay down any principle of law) has increased from 40 to 50 points in the new guidelines.
Why are the guidelines being changed after the Indira Jaising Case?
In February 2023, the Central government sought to change guidelines for the designation of senior lawyers.
These guidelines were issued by the Supreme Court in the aftermath of its 2017 ruling in the case of ‘Indira Jaising vs. Union of India’.
The designation guidelines for lawyers are based on a point-based system, which awarded 40% weightage to publications, personality, and suitability gauged through the interview.
The Centre argued that this system is subjective, ineffective, and dilutes the esteem and dignity of the honour being conferred traditionally.
It pointed to the rampant circulation of bogus and sham journals where people can publish their articles without any academic evaluation of the contents and quality of the articles.
The Centre also sought to reinstate the rule of a simple majority by a secret ballot, where the judges can express their views about the suitability of any candidate without any embarrassment.
The existing guidelines discouraged the system of voting by secret ballot, except in cases where it was unavoidable.
The Legal Aid and Advice (Amendment) Bill is a proposed legislation that seeks to amend the existing Legal Aid and Advice Act of 1972. The bill first introduced in the Indian Parliament in 2015 and was subsequently re-introduced in 2017.
The bill’s major goal is to increase access to legal aid and counsel for marginalized and vulnerable groups in society, such as women, children, senior citizens, and people with disabilities. It aims to accomplish this through broadening the scope of legal aid services and increasing the number of legal aid providers available.
The bill proposes the creation of a National Legal assistance and Services Authority, which will be in charge of developing policies and guidelines for the provision of legal assistance and advice. It also intends to establish State Legal Services Authorities in each state to oversee the implementation of local legal assistance programs.
Other key provisions of the bill include the establishment of legal aid clinics in every district of the country and the provision of legal aid to individuals at pre-trial, trial, and post-trial stages of legal proceedings. The bill also proposes to make legal aid a fundamental right under the Indian Constitution.
Overall, the Legal Aid and Advice (Amendment) Bill, if passed, has the potential to significantly improve access to justice for marginalized communities in India.
RIGHT TO FREE TRAIL AND FREE LEGAL AID AS A FUNDAMENTAL CONCOMITANT
The right to a fair trial and free legal aid are two important fundamental concomitants of the right to access justice.
The right to a fair trial is a fundamental human right that is protected by various international treaties and national constitutions. This includes the right to a fair and impartial tribunal, the right to a public trial, the right to be heard, the right to legal representation, the right to cross-examine witnesses, and the right to appeal.
The provision of free legal aid is a recognized international human rights law norm that is included in various national constitutions, including the Indian Constitution. Article 39A of the Indian Constitution guarantees free legal help to all people, particularly the poor and underprivileged elements of society.
FREE LEGAL AID IN INDIA
In India, free legal aid is a constitutional right guaranteed by Article 39A of the Indian Constitution. It guarantees equitable access to justice for all citizens, particularly the impoverished and disenfranchised. The Legal Services Authorities Act of 1987 establishes a legal framework for the administration of free legal assistance programs.
Every state in India has a State Legal Services Authority that is responsible for providing legal aid to qualified clients under this statute. Legal help is supplied through legal aid clinics, court-based legal aid cells, and other similar organizations. The goal of free legal aid is to ensure that everyone has access to justice, regardless of their financial situation or background.
LAND MARK GENERATING LEGAL AID MOVEMENT IN INDIA.
The case of Hussainara Khatoon v. State of Bihar (1979) was a watershed moment in India’s legal aid movement. A public interest litigation was launched in this case on behalf of several undertrial convicts who had been imprisoned for several years without being tried. The Supreme Court of India took up the case and ordered the release of all undertrial convicts who have served more than the maximum sentence for the offenses they were charged with..
This case brought to light the issue of India’s delayed speed of justice delivery, as well as the situation of undertrial detainees, many of whom lack the financial capacity to obtain legal representation. It raised awareness about the need for legal aid programs, which resulted in the establishment of the Legal Services Authorities Act of 1987, which offers free legal aid to the impoverished and disenfranchised parts of society. The case of Hussainara Khatoon v. State of Bihar is widely recognized as a watershed moment in India’s legal aid movement, and it is still cited as a precedent in situations involving access to justice and legal aid.
CONCLUSION
The Legal assistance and counsel (Amendment) Bills of 2015 and 2017 were proposed legislations in India aiming at enhancing access to legal assistance and counsel for disadvantaged and vulnerable groups. The proposals proposed establishing a National Legal Aid and Services Authority as well as State Legal Services Authorities to oversee the provision of legal aid services at the national and state levels.
While the laws were not enacted, there is still a pressing need in India for legal assistance reforms to ensure that every citizen has equitable access to justice. Future legislative efforts are planned to build on the suggestions made in the Legal Aid and Advice (Amendment) Bill and work toward a more equal and just society.
Right to receive information under Article 19 (1) a.
The Madras High Court has recently noted that a hospital’s failure to provide information pertaining to the treatment given to a patient would amount to professional misconduct and would result in tortious liability as it infringes on the patient’s right.”Article 19(1)(a) of the Constitution includes within its sweep the right to receive information. The right to know is the species of the right to speech and expression provided by Article 19(1) (a) of the constitution of India. A citizen has a fundamental right to access information. It is the duty of the state to protect the fundamental rightMadras the High Court recently delivered the judgement as follows:
All hospitals, Government or private are liable to maintain medical records and provide the same to the patient or their attendants within 72 hours of a request, the Court added.
The Madras High Court recently observed that government hospitals withholding information from their patients or attendants would amount to professional misconduct and result in tortious liability. [Jothi vs The State and Ors.]
Justice GR Swaminathan noted that Article 19(1)(a) of the Indian Constitution includes the right to receive information and, obviously, a patient is entitled to invoke this right.
The Court further observed that in any event, in view of the Right to Information (RTI) Act, government hospitals can no longer withhold information from patients or their attendants.
“Withholding would amount to professional misconduct and result in tortious liability as it constitutes an infringement of the patient’s rights. All hospitals, whether Government or private are liable to maintain the medical records and provide the same to the patient or their attendants within 72 hours of the request and failure to do so constitutes an infringement of the patient’s right,” the Court emphasized.
The Court was hearing a plea by a woman seeking action against officials of a government hospital for medical negligence. She also sought compensation to the tune of ₹15 lakhs.
The woman told the Court that in 2014, she gave birth to a female child after being admitted to a government hospital in Mudukulathur. Since the baby developed asphyxia, both mother and child were referred to another government hospital in Paramakudi and later to another one in Madurai, where the baby, unfortunately, passed away.
She argued that the baby’s death resulted from medical negligence. Moreover, she claimed that the baby had been stillborn. However, in order to prevent any controversy, she and the baby were sent to different hospitals, the Court was told.
The woman also asserted that if a cesarean operation had been performed, the baby could have been saved. It was further stated that despite requesting the medical records, they were withheld.
On the other hand, Special Government Pleader (SGP) D Gandhiraj and the counsel for the doctor and nurse on duty denied all the allegations made by the woman and prayed for the dismissal of the case.
The Court noted at the outset that it did not make a difference if the doctor is working in a government or a private hospital as the same duty of care is expected wherever they serve.
“The professional standards cannot be lowered. There has been a paradigm shift worldwide. Patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession vide Montgomery V Lanarkshire Health Board, “ it added.
Further, since it is now a digital age, it should no more be difficult to store all information digitally.
A patient is entitled to be furnished all records related to their treatment and this right can be effectuated only if information is stored digitally, the Court said.
However, the Court found no merit in the woman’s claim that her baby was stillborn and could have been saved if a caesarean operation was performed. The Court explained that every gynaecologist’s endeavour would be to deliver the baby normally and that the doctor could not be blamed merely because of an untoward outcome.
All the same, the judge observed that if ventilator support had been available at the hospital where the child was delivered, the woman and her child would not have been forced to travel long distances to other hospitals.
Further, he noted that the hospital’s failure to furnish information did constitute an infringement of the woman’s right. The Court also noted that the hospital management’s failure to furnish the patient’s information infringed on her right. Accordingly, the Court held that the woman was entitled to a compensation of 75,000.
Solicitors advise with clients, create pleadings and other paperwork, but they also hire attorneys to represent them in court. To become a solicitor, an attorney must pass an exam. throughout India. Before an Indian lawyer can become a solicitor, two years of practice are also necessary. Unlike an advocate, a solicitor can handle a huge clientele. Typically, lawyers operate on a retainer basis for large firms in exchange for a significant salary. Lawyers are consulted by business clients for guidance on a variety of issues, including litigation, property, tax, and finance.
Personal legal problems like wills, property conveyancing, divorce, and child custody are frequently dealt with in private client services. There are a variety of sizes and types of law firms, so it’s vital to do your homework to choose which one is best for you. A variety of abilities are required for solicitors. They must be able to work closely with colleagues, pay close attention to detail, and be willing to put in long hours in addition to being able to engage with clients and establish good working relationships with them. To deal with complex information, they also require initiative and sound judgment.
What is the difference between advocate and solicitor in India?
An advocate who represents the central government or government is called an attorney general. He provides legal advice to the central government as well as represents its cases. The Solicitor general assists the attorney general in his work.
Difference between Lawyer, Barrister, Solicitor, Advocate
Lawyer
To make things easier, any law student will be referred to as a lawyer. But this person needs to finish graduation. He or she will be referred to as a lawyer after graduating. Of course, duration is irrelevant. Academic course length varies from nation to nation. For instance, India offers both a 3 and a 5 year program. A student can become a lawyer if they have completed one of these two courses. But the most important query is now.
Whether a lawyer can represent their clients?
The answer is NO. A lawyer can’t represent his or her client in court.
Barrister
Just like a lawyer, Barrister is also a similar concept. But the law graduates from England, Wales, New Zealand and Australia are called Barristers. A barrister can’t represent his or her client in court. To represent a client in court, he has to obtain a licence from the Bar Council.
Solicitor
A solicitor normally proofreads documents, meets clients, drafts case notes and these types of things. Basically, a solicitor gets the case when a client walks in the door and hands it off when it goes to the court stage. So a majority of works are done by a solicitor.
Difference between Barrister and Solicitor
The differences between these two are getting narrower with time. Traditionally, what would happen is a client would go to a solicitor first. The solicitor would go through the case and run the case. Then a solicitor will go to a barrister for specialist advice. It could be for a specialist opinion, court documents, etc. The barrister will mainly do the advocacy. But in recent times, solicitors are doing more and more advocacy and now the barristers have public access as well. So, anyone can directly approach a barrister.
Advocate
When a lawyer passes the Bar exam, then he is called Advocate. Every country has a bar council. This Bar Council gives a licence when a lawyer passes the exam.
That means an Advocate is a lawyer who has passed the Bar Exam. An advocate can represent his client in court. So minimum requirements for an Advocate is a law degree and licence from Bar Council. An advocate is authorised to appear in court.
Senior Advocate
Senior Advocate title is given by the Supreme Court or High Court. There are criteria that need to be followed to be a Senior Advocate. This criterion differs from country to country. In India, 45 years of age and at least 20 years of practice as an advocate is mandatory. Senior advocates’ gowns are different from Advocate’s.
Attorney General
An advocate who represents the central government or government is called an attorney general. He provides legal advice to the central government as well as represents its cases.
The Solicitor general assists the attorney general in his work.
Public Prosecutor and Government Pleader
If a crime is committed against an individual, then it will be deemed as the crime is committed against society at large i.e. state. Here the victim’s name is replaced by the state. Modern jurisprudence supports this idea.
Public Prosecutor: In criminal cases, the person who appears on behalf of the state is called a public prosecutor. He is also called PP. \
Government Pleader: In terms of civil cases, the person who appears on behalf of the state is called Government Pleader.
Who can give solicitors?
It is part of a new, four-stage route to becoming a solicitor, introduced in 2021. To qualify through the SQE route you’ll need to: Have a degree (or equivalent) in any subject. Pass SQE1 and SQE2 assessments*
The Solicitors Qualifying Examination (SQE) is being phased in to become the new centralised way to qualify as a solicitor in England and Wales. It will eventually replace the Legal Practice Course (LPC) route to practice.
Can a non lawyer own a law firm in India?
Yes a non-lawyer can be owner of the Law Company, such person can do administrative work of running the company and not appearing in the case before the Court or Tribunal etc. 1. A “FIRM” is a legal entity, registered as a OPC or a LLP or a Pvt.
Can solicitors appear in court?
Solicitors represent clients in disputes and represent them in court if necessary. In complex disputes however, solicitors will often instruct barristers or specialist advocates to appear in court on behalf of their clients.
Why is a lawyer called a solicitor?
A lawyer is anyone who could give legal advice. So, this term encompasses Solicitors, Barristers, and legal executives. A Solicitor is a lawyer who gives legal advice and represents the clients in the courts. They deal with business matters, contracts, conveyance, wills, inheritance, etc.
How to register a Law Firm in India?
Types of Law Firms in India.
A law firm is an organization that represents various government agencies, corporations, individuals in the court of law. Legal services are centered on analyzing legal challenges and providing fair and sound advice to attain justice. Most of the individuals in the legal field aspire to establish a legal firm of their own.
Before establishing a legal firm it is vital to know about the process of establishing, registering, and other legal-related documents. Registration of legal firms not only helps in creating a mark but also safeguards the rights of that organization.
Sole Proprietorship:
This Law Firm handle by a single person, who is the owner. All decisions of management, records, maintenance, financial & tax will be take care by him alone and the tax will be applicable as per his personal income.
Documents required (Sole Proprietorship)
Shop Establishment Registration Certificate.
Letter of CA regarding nature of business.
Firm Letterhead with name and address.
Stamp having name of proprietorship firm.
Address and ID Proof of proprietor alongwith office address proof.
Partnership Firm:
This Law Firm handle by two or more partners to the firm and all the partners can give their opinions and decisions as per their choice and experience in their fileds.
Partnership firms in India are governed by the Indian Partnership Act, 1932 and it is not mandatory to register partnership firm. That the tax will be applicable at the flat rate of 30%.
Documents required
(Partnership firms)
Application for Registration having Name of Firm, Place, Joining date of partners, duration of firm, date of establishment, permanent addresses of partners etc. alongwith supporting Affidavit alongwith prescribe fee.
Certified copy of the Partnership Agreement.
Proof of place of business.
Limited Liability Partnership:
In this law firm (LLP) the partnership work in protected ways compare to a common partnership. That the advantage of an LLP Law Firm is, to protect the personal assets of partners in the case of dispute arise between partners. Now a days most of the Law Firms (Partnership) are adopting this model after it’s enactment in India.
In LLP model the liabilities of its partners is limited to their contributions to the business and protection them from the misdeeds, negligence, or incompetence of the other partners.
Documents required
(Limited Liability Partnership)
Apply for designated Partner Identification Number (DPIN).
Apply for Digital Signature Certificate (DSC).
Then apply for the unique name of LLP Firm which will be used to file incorporation with the MCA. Thereafter certificate of Incorporation will be issued.
Thereafter approval from Ministry of Corporate required to get the LLP name.
Remember that every LLP needs a registered Permanent Account Number (PAN) and Tax Account Number (TAN).
Can an advocate run a law firm?
According to Rule 47.
An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
Are Advocates Allowed to do Business in India?
The Bar Council of India puts various restrictions on advocates such as an advocate cannot take up other employment such as running a business while serving as an advocate.
These restrictions given by the bar council are enumerated from Rules 47 to 52 of Bar Council of India Rules, frames under Advocates Act 1961z
According to Rule 47. An advocate shall not personally engage in any business; he can be a sleeping partner in a firm and do business that is deemed appropriate by the State Bar Council, the nature of the business should not be inconsistent with the dignity of the profession.
According to Rule 48. An advocate may be the Director or the Chairman of the Board of Directors of a Company, provided none of his duties are of an executive character. Advocates are restricted from being a Managing Director or a Secretary of any company.
According to Rule 49. An advocate cannot be a full-time salaried employee of any government, person, firm, corporation or concern, during the reign of his practice. An intimation to the bar council is to be given if he wants to do so. An intimation, thus, will lead to termination of his practice, as long as he continues such employment.
According to Rule 50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but not personally participate in the management.
Advocates are permitted to do the following things such as review Parliamentary Bills for a remuneration, edit legal textbooks at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. (Rule 52)
So, it is necessary for advocates to adhere to the rules given by the bar council of India. Otherwise, they would be subjected to various penalties and would have to bear the consequences. So Advocates cannot do individual business in India.
Conclusion
It is to be kept in mind that different countries have different systems. For example, South Africa, Bangladesh, India, Srilanka, and Pakistan have almost the same structure and hierarchy. So, the terms are the same in these countries. But, the UK, Wales and many other countries have different terms as well.
The practice of advocacy is a right under Sections 29 to 34 of the 1961 Advocate Act. “The Advocates are the only recognized class of persons entitled to practice law,” according to Section 29 of the Advocate Act of 1961. It should be highlighted that just one group of people—Advocates—are permitted to practice under the terms of this section, subject to the Act’s provisions. A person who is not an advocate listed on the High Court’s roll has no right to represent the accused, according to the ruling in D.A.S. Swami vs. Kubendran AIR 1967.
Right to Practice :
A) Advocates to be the only recognized class of persons entitled to Practice law (Section.29)
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.
B) Right of Advocates to practice (Article 30)
Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends —
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice..
C) Advocates alone entitled to practice (Section 33)
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.
Conditions for Right to Practice
Bar Council of India has framed rules accordingly and Chapter III of the Bar council of India rules regarding conditions for right to practice provides as follows :
1) Every Advocate shall be under an obligation to see that his name appears in the roll of State Council within whose jurisdiction he ordinarily practices:
However, if an advocate does not request to have his name added to the State Bar Council’s roll within six months of beginning his practice, it will be assumed that he has engaged in professional misconduct within the meaning of Section 35 of the Advocate Act.
2) An advocate shall not enter into a partnership of any other arrangement for sharing remuneration with any person or legal practitioner who is not an advocate.
3) Every advocate shall keep informed the bar council on the roll of which his name stands, of every change of his address.
4) The Council or a State Council can call upon an advocate to furnish the name of the state council on the role of which his name is entered, and call for other particulars.
5) i) An Advocate who voluntarily suspends his practice for any reason whatsoever shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrollment in original.
ii) Whenever any such advocate who has suspended his practice desires to resume his practice shall apply to the Secretary of the State Bar Council for resumption of practice along with an affidavit damping stating whether he has incurred any of the disqualifications under Section 24A, Chapter III of the Act during the period of suspension.
iii) The Enrollment Committee of state Bar Councilmay order with the resumption of his practice and return the certificate to him with necessary endorsement. If the enrollment committee is of the view that the Advocate has incurred any of the disqualifications the committee shall refer the matter under proviso to Section 26(1) of the Act.
iv) On Suspension and resumption of his practice the Secretary shall act in terms of rule 24 of part IX.
6) i) An advocate whose name has been removed by order of the Supreme Court or a High Court or Bar Council as the case may be, shall not be entitled to practice the profession of law either before the court or before the authorities mentioned under Section 30 of the Act, or in Chambers or otherwise.
ii) An advocate who is under suspension shall be under the same disability one in which he held office.
7) An officer after his retirement or otherwise ceasing to be in service shall not practice for a period of 2 years in the area in which he exercised jurisdiction for a period of 3 years before his retirement or otherwise ceasing to be in service.
8) No Advocate shall be entitled to practice if in the opinion of the Council he is suffering from such contagious disease as makes the practice of law hazard to the health of others. The disqualification shall last for such period as the Council directs from time to time.
Advocate Alone entitled to practice
Section 33 of Advocates Act, 1961 provide that except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act. it means advocates alone are entitled to practice in a Court or in any Authority.
Case Law –
Hari Shankar Rastogi vs. Girdhari Sharma AIR 1978 SC 1019 In this the Case Supreme court has held that a private person who is not an advocate , has no right to barge into Court and claim to argue for a party.
Difference between Right and Privilege:
No
Right
Privilege
1
Right means the standard of permitted action by law. Right is a legally enforceable claim, inseparably associated with remedy. Rights are legally protected interests.
Privilege is a benefit or immunity conferred by law on a person or Group of Persons. In simple words Privilege means the freedom which a person has i.e. to do or not to do something.
2
A right involves something to be done or abstained by another person for the benefit of the person with the right.
Privilege carries the idea that the person who enjoys liberty can by himself do or abstain from doing what he has the right to do or abstain from doing.
3
In a right the action or the forbearance comes from the one who is burdened to satisfy the right.
In privilege there is no one else who has to carry out the act or abstinence; it is the enjoyer of the privilege who is himself to act or abstain.
4
Right implies duty cast on another person who must not disregard the right.
Law cannot interfere in case of privilege. Privilege is absence of restraint.
In the Widest sense of the term right, right may be taken to include privilege.
Right to practice as advocate not an absolute right, says SC
The Supreme Court has held that the right to practice as an advocate is not an absolute right, but it is a statutory right subject to control and regulation….
The apex court said that the courts can supervise and regulate the right to practice in order to ensure administration of justice.
A bench of Justice A K Sikri and Justice N V Ramana said the right to appear and conduct cases in the court is a matter..on which the court must and does have major supervisory and controlling power.
Hence, courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate, the bench said.
The court explained the legal position while upholding the Allahabad High Court rules,.which stated an advocate, who is not registered with the Bar Council of Uttar Pradesh, is allowed to appear, act or plead in the said court only when he files his ‘vakalatnama’ along with an advocate enrolled with the Bar Council of Uttar Pradesh and ordinarily practiced in the Allahabad High Court.
It rejected a plea by Jamshed Ansari, who contended that the rules put unreasonable restriction on his fundamental right to practice his occupation and also violated Section 30 of the Advocates Act.
The petitioner also claimed that such rules were contrary to the provisions of Article 22 of the Constitution and Section 303 of the Code of Criminal Procedure, which provided the citizens a right to defend themselves by a legal practitioner or plead.ader of their choice. The court, however, said that the restriction was reasonable and done keeping in mind the public interest.
The whole object of the rules in question is furtherance of the administration of justice and to ensure that the advocates who can be easily located or accountable to the courts are allowed to practice before the court,” the bench said.
Legal Services includes providing Free Legal Aid to those weaker sections of the society who fall within the purview of Section 12 of the Legal Services Authority Act, 1987. It also entails creating legal awareness by spreading legal literacy through legal awareness camps, print media, digital media and organizing Lok Adalats for the amicable settlement of disputes which are either pending or which are yet to be filed, by way of compromise. NALSA also undertakes necessary steps by way of social action litigation with regards to any matter of special concern to the weaker sections of the society. Legal services also encompasses facilitating the beneficiaries to get their entitlements under various government schemes, policies and legislations
What is included in free legal services/aid provided by the Legal Services Authorities? / What is the nature of free legal services?
Free legal aid is the provision of free legal services in civil and criminal matters for those poor and marginalized people who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any Court, Tribunal or Authority. These services are governed by Legal Services Authorities Act, 1987 and headed by the National Legal Services Authority (NALSA).
Provision of free legal aid may include:
Representation by an Advocate in legal proceedings.
Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases;
Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;
Drafting of legal documents, special leave petition etc.
Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceedings.
Free Legal Services also include provision of aid and advice to the beneficiaries to access the benefits under the welfare statutes and schemes framed by the Central Government or the State Government and to ensure access to justice in any other manner.
According to Section 2(c) of the Legal Services Authorities Act, 1987, “legal services” includes any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter.
Is Free Legal Aid Confined to the Cases before the Subordinate Courts?
No, free legal aid is not confined to cases before the subordinate Courts. Legal Aid is provided to the needy from the lowest Court to the Supreme Court of India. Legal Aid Counsel represent such needy persons before the lower Courts, High Courts and also before the Supreme Court of India.
What kind of cases can I apply free legal aid for?
According to Section 13 (1) of the Act, any individual who satisfies any criteria under Section 12 is entitled to receive legal services, provided that the concerned Legal Services Authority is satisfied that such person has a genuine case to prosecute or defend the matter. There is hence no bar as to which kind of cases one can apply and not apply for. All kinds of cases are included as long as the individual satisfies the eligibility under Section 12 of the Act.
Can I choose a lawyer of my choice under the free legal services/aid?
Yes, it is possible to avail the services of a lawyer of your choice under free legal services. According to regulation 7(6) of the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, the application for legal services will be scrutinized by the Member-Secretary or the Secretary and if the applicant has mentioned/expressed his/her choice of a lawyer on the panel, such Member-Secretary or Secretary can consider and allow the same.
Can I get only free legal consultation even if I do not want to pursue a proper case in the courts?
Yes, it is possible to get any kind of legal service under free legal aid/services.
Can I get free legal aid lawyer at any stage of case? Can I get free legal aid at the time of appeal even though I had my personal lawyer before the appellate stage?
Yes, you can apply to get free legal aid at any stage of the case as long as you are eligible to attain free legal services as per Section 12 of the Legal Services Authorities Act, 1987. Even if you had your personal lawyer before and require a lawyer under free legal aid only at the stage of appeal (and are eligible under Section 12), you can make an application to avail the same.
8.When can Legal Aid be Denied or Withdrawn? Legal Aid can be denied at the initial stage before the application for legal aid is accepted. It can also be withdrawn at the later stage after the application has been accepted and legal aid has been provided. Legal aid can be denied or withdrawn in the following circumstances: Legal aid can be denied if a person is found ineligible under Section 12 of the Legal Services Authorities Act, 1987 Legal aid can be withdrawn if the aided person who applied under the income category is found to possess sufficient means; Legal aid can be withdrawn where the aided person obtained legal services by misrepresentation or fraud; Legal aid can be withdrawn where the aided person does not cooperate with the Legal Services Authority/Committee or with the legal services advocate;
Legal aid can be withdrawn where the person engages a legal practitioner other than the one assigned by the Legal Services Authority/Committee; Legal aid can be withdrawn in the event of death of the aided person except in the case of civil proceedings where the right or liability survives; Legal aid can be withdrawn where the application for legal service or the matter in question is found to be an abuse of the process of law or of legal services.
What if the Person in need of Free Legal Aid is Illiterate? Such persons can be assisted by the SLSAs/DLSAs/TLSCs or panel Advocates etc., once they approach the legal services institutions. The Para Legal Volunteers (PLVs) who are stationed in the villages can also gather necessary information of such applicants and fill up the forms for them. The applicant is required to affix signature initials or thumb impression on the same. What is the procedure after my application is submitted with the Legal Services Institutions? Legal aid is provided to the entitled persons through legal services authorities existing from the National to Taluka levels including the NALSA, State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, Supreme Court Legal Services Committee and High Court Legal Services Committees. If, however, an application or request for legal aid is received by NALSA, NALSA forwards the same to the concerned authority. Once the application is submitted with the proper authority, it would be perused by the concerned Legal Services Institution as to what action is needed upon the same. The information about the next step on the application would then be sent to the parties concerned. The action taken on an application received would vary from providing counselling/advice to the parties, providing a lawyer to represent them in the court, etc.
9. What is the procedure after my application is selected/legal aid is granted? Once the application is selected, the applicant is given intimation about the assignment of a lawyer. A letter of appointment is also issued to the assigned lawyer with a copy to the applicant. The lawyer would thereafter contact the applicant at the earliest. The applicant may also contact the lawyer in the meanwhile. What is the average time taken for an application to be processed and for an individual to be assigned a free legal aid lawyer? According to Regulation 7(2) of the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, a decision on the application for free legal aid is to be taken immediately and not more than 7 days from the date of the receipt of the application.
10. How will I get an intimation/information of the acceptance, success, failure, etc. of my application? By email, SMS or Courier? Once the application is scrutinized by the concerned authorities, the information of its success or failure is given to the applicant in the following ways:
If the application was made physically at the front office of any Legal Services Authority, an address (either residential or email) for correspondence is usually noted and information regarding the application is sent to the same. If the application is made online via the NALSA website or the online portals of the Legal Services Authorities, an application number is generated and the appropriate Legal Services Authority is contacted. The applicant can track the status of the application on the online portal itself. If the application has been received from Government Departments / CPGRAM, an email is sent to the applicant. The applicant can also get a scanned copy of the application on the CPGRAM website. Remarks regarding the application are also made on CPGRAM website and the website of the Legal Services Authority
