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Study of Amendment of Articles of Association
in context of Indian Legal Literature
Rajesh Kumar
Advocate, District Court, Karnal, Haryana
ABSTRACT
The Act gave a charter by which judges have to discharge functions having nothing to do with their constitutional duties of judging and administering their own respective courts. The sanction is wide to the point that it has made the judges the forefront of the battle against debasement in the advancement procedure that influences the lives of millions and in the meantime illicitly reserves our government officials yet that has not occurred and there is by all accounts minimal shot of that occurrence. Rather, similar to the decision lawmakers, judges-run legitimate guide isn't available to open investigation with respect to usage of its own assets. The issues in usage of lawful advantages by hindered gatherings relied upon the degrees of lawful mindfulness and accessibility of lawful administrations to that specific gathering and that an assortment of chronicled, sociological, and monetary imperatives constrained the extent of access to lawful administrations to such gatherings. Due to a multitude of factors with illiteracy, destitution, and corruption heading the list, disadvantaged groups remain largely invisible to the formal legal system and therefore continue to suffer the substantive inequalities that plague their lives.
INTRODUCTION
Inability to consult, engage or represented by a lawyer during any kind of legal proceedings in courts, government offices, authorities and departments etc. for defending or prosecuting a person's legal rights and obligations may amount to the same thing as being deprived of the security and equal protection of the laws. Each one should have an equal right to the most extensive system of basic liberties compatible with a similar system of liberties for all. One need not be a litigant in the court to seek aid by means of legal aid. Legal aid or help should be available to anybody on the road, workplace and even in his house.
Due to a multitude of factors such like illiteracy, destitution, absence of knowledge of rights and corruption heading the list, disadvantaged groups remain largely invisible to the formal legal system and therefore, continue to suffer the substantive inequalities that plague their lives.
The Indian Constitution has put in place a legal system which endeavours to protect the rights of everyone. However, one must realize that existence of rules and regulations and law is one thing and its implementation is another.
As per the Preamble of the Constitution, the general population of India have given themselves a Constitution which comprises India a sovereign, communist, mainstream, popularity based republic which verifies to every one of its natives equity—social, monetary and political, freedom of idea, articulation, conviction, confidence and love; equity of status and of chance; and to advance among them all brotherhood guaranteeing the respect of the individual and the solidarity and honesty of the country.
The Constitution has characterized and announced the shared objective for its residents in its Preamble. The endless estimation of constitutionalism is the standard of law which has three features, i.e., rule by law, rule under law and principle as per law. Under Constitution, it is the essential obligation of the state to keep up lawfulness with the goal that the natives can appreciate harmony and security.
69 insufficiency of numerous individuals to utilize law and its organizations has now been acknowledged as a component of a 'welfare state.' Apart from the social, financial and political necessities on which the case of lawful guide rests, it is currently perceived as a protected basic emerging under articles 14 , 21 , 22(1) and 39A of the Constitution just as under various resolutions and enactments which likewise gets their forces from the constitution. The Constitution ensures 'Appropriate to Constitutional Remedies' as a principal right.
The framework as ensured above under Constitution w.e.f. 26 January, 1950 worked agreeably in the underlying years. Notwithstanding, with the quick development and blast in populace throughout the years, it was being felt that the equity conveyance system of the Indian culture and Indian commonwealth was expensive for poor people, the laws excessively complex for the ignorant to comprehend and the method is as moderate to realize moment help. Article 39A of the Constitution gives that the state will verify that the activity of the legitimate framework advances equity on a premise of equivalent chance and will, specifically, give free lawful guide by appropriate enactment or plans or in some other manner, to guarantee that open doors for verifying equity are not denied to any native by reason of monetary or different inabilities.
The administration gives free lawful guide to the poor. Lawful guide infers giving free lawful administrations to poor people and penniless who can't bear the cost of the administrations of a legal counselor for the direct of a case or a legitimate continuing in any court, council or before any expert. Be that as it may, in a nation of mainland measurements and with populace in excess of a billion, it turns out to be extremely hard to give free legitimate guide to everybody.
The possibility of lawful guide started in medieval period. The lawful guide, in any case, was viewed as cross breed in some type of political right or philanthropy from rich to the poor at first. In the quick evolving financial conditions, this view was found not worthy. In the cutting edge society, lawful guide can't be set on the lower side. On the off chance that the law needs to play, a deliberate and noteworthy job in a just request for the financial recreation of the general public, legitimate guide must give important and substantive training to the poor about the law and their rights and give answer for their lawful issues.
To accomplish the sacred objective of 'equivalent equity to each of other mandate contained in article 39A, has been embedded to urge the state to give free lawful guide to poor people and specific classifications and to find a way to guarantee equivalent equity to all. In 1980, Committee for Implementing Legal Aid Schemes (CILAS) was comprised to manage, direct, screen and execute lawful guide programs consistently all through the nation. The Committee advanced a model plan and subsequent to expelling certain lacks, it was wanted to establish statutory lawful experts from national level to town level. In 1987, to satisfy the established commitment and to give a statutory base to legitimate guide programs, Legal Services Authority Act was authorized which came into power with impact from 9 November 1995.
INDIAN LEGAL LITERATURE
Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion -based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English. As is well known, the Indian legal system is based on the common law. Under the common law, the cases decided by the courts form just as integral a part of the law as statutory law contained in legislative Acts and subordinate legislation. The legislative Acts applicable in India date back from the early nineteenth century. These were promulgated under the British rule in India. According to the Constitution of India (1950), all pre-independence laws continue to be in force. All such laws are available in print either in the official version or as published by various legal publishers.
India has a federal structure comprising the Union of India and the States. According to the Seventh Schedule of the Constitution of India, the various subjects on which laws can be passed are divided into three lists:
the Union List of subjects on which the Central Parliament can exclusively legislate,
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the Concurrent List on which both can legislate. This aspect is relevant when one is searching for the law on a particular subject as prevalent in a particular part of India.
As stated, the judgments of the courts as reported in various law reports constitute an integral and important part of the Indian legal literature and also date back to the nineteenth century. They contain interpretations of the statutory law, but also more importantly, of the uncodified law and they incorporate judge-made law. The judgments are comprehensively reported in various law reports with a well-established index and citation system. Many law reports also print articles and case-comments. Law journals containing only articles and academic writings are also published by a few universities and research institutions like the Indian Law Institute. The law reports and journals are rich resources in the areas of
Human Rights
Constitutional Law
Criminal Law
Environmental Law
Natural Justice
Arbitration Law
Drug Control
Banking
Finance and Corporate Laws
Administrative Law
Intellectual Property
Taxation
These can be of immense interest in other countries. Significantly, the law reports of India form an impressive part of the Indian legal literature. From early times, India has had enterprising publishers, editors and authors who have systematically documented the law and contributed digests and commentaries on various subjects. They have helped provide systematic and comprehensive access to the law on any aspect. For more than a decade now a substantial portion of the legal literature of India has been available in the electronic medium on CD ROM and through the Internet. This access has solved the problem of storage, preservation and portability. Additionally, these resources incorporate search methods and tools which have made the task of retrieval very easy and convenient. They have also solved the problem of updating to some extent. Some of these legal databases and software are of very high quality for which India is well known. Indian legal literature is sustained and serviced by not a few, but by scores of enterprising law publishers, distributors and booksellers spread though out India. They are efficient and quick in providing the latest up-to date law to meet the needs and interests at all levels. This ranges from the mere bare text of a statute to the most comprehensive compilation or commentary on the subject, again mostly if not entirely in English. Their marketing and supply system are mature, modern and fully responsive to meet demands of all kinds in any part of the world that may arise regarding Indian legal literature.
HISTORICAL BACKGROUND OF LEGAL AID
71 Article 39A of the Constitution of India provides that 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 disability. Articles 14 and 22(1) also make it obligatory for the state to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.
The putting up of the right to obtain legal aid as one of the directive principles of State policy under Article 39A of the Constitution rather than making it a fundamental right may invite some cynical minds to say that the government and the masters were not sincere in their endeavours and only wanted to provide a lip service to the public at large by making it a toothless tigers by incorporating it as one of the directive principles of State policy. This view, however, is not sustainable in as much as the mandate of Article 39A has been crystallized into a statutory right by the enactment of the Legal Services Authorities Act, 1987 which has got sufficient sanctions behind the activities of Legal Services Authorities as well as behind the awards of Lok Adalats including the setting up of Permanent Lok Adalats and thus this directive principle of State policy i.e., Article 39A no longer remains a paper tiger and a rule without a sanction behind it.
After coming into force of Constitution of India, in order to implement the basic fundamental rights of the citizens and to give effect to the constitution mandate of the right of life and liberty especially in case of poor and down trodden people of the country, government started doing ground work for providing free legal aid to deserving persons and in this regard some discussions took place in various conferences of Law Ministers and Law Commissions but no effective proposal could come forward. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments.
The first major step taken in this regard prior to independence of the country was in the year 1945 when in the State of Bombay, a society named as Bombay Legal Aid Society was set up which invited the intention of the government of India towards Lord Rushcliffe’s report regarding legal aid and advice in England and Wales. The post independence legal aid development was initiated by formation of Bombay Committee in 1949 under the chairmanship of Mr. N.H. Bhagwati, Sir Arthur Trevor Harries Committee in West Bengal in year 1949, initiatives by the state governments such as The Legal Aid Committee formed in 1952 in UP, the Legal Aid Committee formed in Madras in 1954, and so on. Kerala Legal Aid (to the Schedule Caste, to the Schedule Tribes and to poor) Rules, 1957, 14th Report of the Law Commission of India, Central Government Scheme 1960 as well as National Conference on Legal Aid, 1970 also came in existence.
Law Commission Report (1958): Government of India set up 14th Law Commission under the chairmanship of Mr. M.C. Setalvad, the then Attorney General of India on 5-8-1955 who in its fourteenth report investigated various aspects of system of judicial administration of the country. The Commission consisted of other 10 members also which included two serving chief justices of High Courts, two retired High Court judge, advocates general of two different states and prominent advocates besides co-opted members. The commission suggested broad outlines of some changes to make judicial system speedier and less expensive.
In its 14th report, Law Commission dealt with the issue of legal aid. Commission was conscious of the fact that unless provisions are made for assisting the poor person for providing court fees, lawyers fees and other incidental charges of litigation, he is denied equal opportunity of seeking justice. Legal aid to poor is not a minor procedural law problem but is a question of fundamental character.
72 The poor must be placed in the same position as the rich by means of adequate legal service programme. It stated that the inequality between the rich and the poor in administration of the justice can be removed by establishing and developing effective system of the legal aid programme. Legal aid and advice should be regarded not as a matter of charity or bounty but as a matter of right. It is a part of social security programme just as much as medical aid is. Responsibility of the state was fixed for providing legal assistance to the poor and indigent by stating that this obligation is not merely, socio-economic or political but is constitutional by reason of Articles 14 and 22(1).
Committee wanted that state should made rules and legislation while taking into consideration socio-economic conditions prevailing in the country. It also emphasized that legal aid programmes and the organizations implementing the same must be responsive to the poor in giving legal service and must not be mechanical and wooden in its approach and even after introduction of such programmes, there must be continues examination of its utility and its responsiveness to the poor. The report also in detail dealt with the true scope and extent of the legal aid and pressed for setting up legal aid fund for providing cost and expenses of litigations as well as for remitting of court fees in case of an assisted person by making suitable changes in the legislation. The report also in detail stated the constitution and the working of different legal committees such as: (a) The Taluka Legal Aid Committee, (b) The District Legal Aid Committee, (c) The State Legal Aid Committee. It is recommended that legal service programme be implemented in its entirety but in phased manner at three stages. Committee also suggested for implementation of the preventive legal services programme such as legal research and innovation, institutional changes and organization of the poor etc. may be postponed but there should not be delay in implementation of the items of the legal service and education.
CONCLUSIONS
In India, majority of people still live below the poverty line. They find it difficult to prosecute or defend a case due to high costs involved. Eminent judges of the Supreme Court and High Courts have many a time emphasized the need for free legal aid to the poor. The central government, taking note of the need of legal aid for the poor and the needy, had introduced Article 39A in the Constitution of India in February, 1977. Thus, in the Directive Principles of the state policy, it is now enshrined that the central and state governments shall ensure that the operation of the legal system promote justice on the basis of equal opportunity and shall in particular provide free legal aid for the poor and ensure that justice is not denied to them for economic reasons or other disabilities.
One of the key issues facing any legal system is access to justice or more alarmingly, the incapacity of marginalized or disadvantaged groups to access the legal system. It is assumed that justice will be available somehow, whenever and wherever it is required to be dispensed with.
REFERENCES
[1] Based on Annual Reports of Delhi Legal Services Authority as well as from personal knowledge and experience having been worked as Member Secretary, DLSA .
[2] Article 39A of the Constitution of India inserted by Constitution 42nd Amendment Act, 1976 w.e.f. 03.01.1977.
[3] Judge Supreme Court and Executive Chairman, National Legal Services Authority while writing from the Desk of the Executive Chairman in January, 1999 issue of 'Nyaya Deep' magazine.
[4] See fourteenth Law Commission Report Chapter – 27, Volume 1, Pages 587 – 624.
[5] Summery of Bhagwati Committee’s report was annexed as appendix-1 of chapter-27 of 14th Law Commission report.
[6] Article of Varun Pathak on www.legal service India.com.
[7] Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.
[8] Justice S. Muralidhar, Judge, Delhi High Court in his book Law, Poverty and Legal Aid. [9] Kaltyan Sanstha v. Union of India Writ Petition no. 4582/2003 and others connected writs.
[10] R v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association, [1972] 2 QB 299, 308-9 (Lord Denning MR) 1 WLR 550, 558-9, 564, 567.
[11] Supreme Court Legal Aid Committee vs. Union of India 1998 (5) SCC 762 and Supreme Court Legal Services Committee vs. Union of India AIR 1998 Supreme Court 2940.
