1. The petitioner invoked the writ jurisdiction of this Court feeling aggrieved by measures taken by the Branch Manager, State Bank of India, Ektiasal Branch, respondent no. 8, in terms of provisions contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the SARFAESI Act). The writ petition was dismissed on September 24, 2004, reserving the liberty of the petitioner to apply before the tribunal under Section 17 of the SARFAESI Act. However, the bank was directed to release the household articles of the petitioner. Several contempt proceedings followed thereafter initiated by the petitioner, but the same were disposed of without granting effective relief to him.
2. A second round of litigation started with the presentation of a further writ petition. That was dismissed on July 4, 2008 on the ground that the earlier writ petition had been dismissed with liberty to the petitioner to approach the tribunal. The writ appeal preferred against such order was also dismissed on September 25, 2008, granting liberty to the petitioner to seek remedy in accordance with law.
3. A further writ petition, the third in the series, was presented by the petitioner with a prayer to release movable and immovable assets not hypothecated and mortgaged to the bank, to allow the petitioner to operate his locker and to give appropriate accounts of loan amount upon adjustment of matured value of fixed deposits and for other relief. The writ petition was held to be barred by principles of res judicata by a learned judge of this Court, vide judgment and order dated April 17, 2012. A writ appeal filed against the said judgment and order, however, succeeded. By its order dated April 18, 2013, an Hon’ble Division Bench set aside the order impugned and directed holding of an inquiry by an officer not less than the rank of Deputy General Manager of the Reserve Bank of India (hereafter the RBI). It was observed that in the event the report was favourable to the petitioner, the appropriate authority of the RBI must take appropriate steps.
4. In compliance with such order, Mr. Chandrajit Sahoo, Deputy General Manager, RBI was appointed inquiry officer. While Mr. Sahoo was seized of the inquiry, the bank approached the Hon’ble Supreme Court with a Special Leave Petition (hereafter the said SLP) challenging the order dated April 18, 2013. The said SLP is reportedly pending before the Hon’ble Supreme Court. By filing this writ petition, the petitioner has prayed for, inter alia, the following main relief:
'a) A writ in the nature of mandamus commanding the respondents specially the respondent no. 2 to arrange accommodation including food and also the up down railway fairs as the petitioner being a citizen of India able to attend before the Hon’ble Supreme Court.'
5. It is claimed by the petitioner that as a result of the protracted proceedings by and between him and the bank, his resources have been drained to such an extent that he is in acute financial distress and has no means to travel to New Delhi to contact the advocate thereat (who has been requested by Mr. Goutam De, an advocate practising in this Court, to defend the petitioner, pro bono) and to explain to him his side of the story so that the said SLP filed by the bank is dismissed. It is further claimed that the petitioner has been running from pillar to post to secure funds for his travel to New Delhi to defend the said SLP but all such attempts have proved abortive. It is in such circumstances that the petitioner has claimed an order on the Secretary to the Government of West Bengal, as noted above.
6. The writ petition was moved by the petitioner in person before me on January 6, 2014. Having regard to his unintelligible submissions, I had requested Mr. Pratik Dhar and Mr. Supratim Dhar, learned advocates to assist the petitioner. On the next few days, Mr. Pratik Dhar and his team of learned juniors as well as Mr. Goutam De appeared for the petitioner, pro bono.
7. Mr. Datta, learned advocate representing the respondents 1 to 3, at the threshold, had objected to the maintainability of the writ petition. According to him, by filing a petition under Article 226 of the Constitution, an individual litigant cannot seek mandamus on the State to provide him funds for his travel and accommodation at the station where his case is pending. He further contended that the State cannot indulge in charity for the petitioner and that he must arrange funds to travel to New Delhi for defending the said SLP. The decision in Ranjan Dwivedi v. Union of India, (1983) 3 SCC 307, was relied on by him, where a petition under Article 32 of the Constitution filed by an accused in a criminal case seeking mandamus on the State to bear the expenses of the lawyer of his choice on a scale equivalent to, or commensurate with, the fees that are being paid to the counsel appearing for the State, was rejected by granting him liberty to move the Court of the Additional Sessions Judge in terms of Section 304, Code of Criminal Procedure (hereafter the Cr.P.C.).
8. Upon hearing the learned advocates appearing for the petitioner and the State, I recorded in my order dated January 22, 2014 that prima facie the petitioner did not have a legal right to maintain the writ petition on the basis of the pleadings therein. However, the problem faced by the petitioner was viewed as extremely serious in view of his claim of lack of financial resources and considering the Legal Services Authorities Act, 1987 (hereafter the LSA Act), which had been brought into existence with avowed objects but without any express provision for providing financial assistance to a litigant on account of his travel and accommodation for working out his remedy in an outstation court or for raising defence in proceedings in such outstation Court, where he is arrayed as a respondent, I was of the further view that Section 2(1)(c) of the LSA Act defining 'legal service' would require proper interpretation. Having regard thereto, while requesting Mr. Kalyan Kumar Bandyopadhyay, learned senior advocate to assist the Court as amicus curiae, the National Legal Services Authority (hereafter the NALSA), the Supreme Court Legal Services Committee (hereafter the SCLSC), the West Bengal State Legal Services Authority (hereafter the SLSA), the Calcutta High Court Legal Services Committee (hereafter the CHCLSC), and the State Bank of India were directed to be impleaded as additional respondents. Subsequently notice was also directed to be served on the Union of India.
9. To the credit of Mr. Dhar, I must record that he made sincere efforts to sustain the claim of the petitioner by looking into the scheme that permits assistance from the Chief Minister’s Relief Fund as well as other schemes formulated by the State as social welfare measures. The petitioner’s claim did not fit in such schemes and no provision of law could be brought to my notice by Mr. Dhar for persuading me to grant the relief claimed in the writ petition against the respondent no. 2, the Secretary to the Government of West Bengal. There can be no doubt that the State Government cannot be directed to shoulder the responsibility of arranging accommodation including food for the petitioner at New Delhi as well as to arrange for his up and down railway fares having regard to introduction of the LSA Act. The obligation of the State under Article 39A of the Constitution was found to have been discharged by enactment of the relevant legislation and in view of the varied nature of activities contemplated thereunder to reach out to litigants who are in distress, I called upon the parties to address me on the Act in general and Section 2(1)(c) thereof in particular.
10. After due service of notices, all the parties except the SCLSC were represented and in their presence the writ petition was finally heard.
11. Mr. Bandopadhyay commenced his argument by submitting that every statute has to be read in the light of the preamble to the Constitution. According to him, the preamble declares India to be a socialist nation and if any doubt arises while interpreting the provisions of a statute, it ought to be construed in the light thereof. He contended that the purpose of the LSA Act to render legal aid ought not to be restricted to the liability of effecting payment of advocate’s fees and costs of court proceedings by the authorities created by the LSA Act; legal aid in the context must be real and not an illusion. It was further contended that the authorities/committees created by the LSA Act should strive to give life to Article 39A of the Constitution, which could fructify if an expanded meaning is given to the words 'any service' in clause (c) of sub-section (1) of Section 2 of the LSA Act. Referring to Regulation 13 of the Supreme Court Legal Services Committee Regulations, 1996 (hereafter the SCLSC Regulations), he urged that the ‘modes of legal services’ were merely enumerative and not exhaustive having regard to the words ‘may include’ and keeping in mind the socio-economic realities it may become necessary to consider new factors or modes of providing legal aid, which were not comprehended by the framers of such regulations at the time the same were framed. The problem that engulfs the petitioner now, according to him, may be faced by any other citizen of the country living far away from New Delhi and if the person in real need of legal aid is disabled by economic or other disability from reaching the Court at New Delhi from a place located in West Bengal and further, if the relevant statutory provisions are read in a manner as not recognizing the aspect of grant of financial aid to have access to justice, the very object of enacting the LSA Act would be frustrated. The decisions in Atam Prakash v. State of Haryana, AIR 1986 SC 859; Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1; K.K. Baskaran v. State, (2011) 3 SCC 793; and Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408, were referred to by him while concluding that the Court ought to rise to the occasion and give effect to the intent of the legislature.
12. Mr. Dhar echoed the submissions of Mr. Bandopadhyay and added that the definition of 'legal service' in Section 2(1)(c) of the LSA Act is not exhaustive and the legislature being aware of the danger of limiting the width of the words ‘legal service’, intentionally used the words ‘includes’ and ‘any service’ so as to make it flexible to meet the requirements of a given situation which may not have been foreseen. The decisions in C.I.T., Andhra Pradesh v. M/s Taj Mahal Hotel Secunderabad, (1971) 3 SCC 550, and Regional Director, Employees’ State Insurance Corporation v. High Land Coffee Works, (1991) 3 SCC 617, were relied on by him to trace the meaning of the word ‘include’ in a definition clause. Further, according to him, a restrictive or narrow interpretation of the word ‘any’ would offend the spirit of the requirement of enlargement, which an inclusive definition affords. Regard being had to the dictionary meaning of ‘service’ i.e. the act of helping or doing work for another or for the community and further in view of the meaning of the word ‘conduct’ in the sense it has been used in Section 2(1)(c), ‘legal service’ as contemplated in the LSA Act, he argued, is not restricted to drafting a plaint/written statement or arguing a case before a Court or an authority but may include something in the nature of managing the case as a whole on behalf of the legal aid seeker. Referring to Article 39A of the Constitution, which ordains that free legal aid may be provided by (i) legislation, (ii) schemes, or (iii) in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, it was submitted that the phrase ‘in any other way’ puts an end to all kinds of restrictive interpretations while considering the desirability of providing free legal aid. This submission was sought to be buttressed by him by referring to the decisions of the Supreme Court in State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730, and Manoharan v. Sivarajan (C. A. No. 10581 of 2013) (unreported). Reference was also made to Rule 4(i) of the West Bengal State Legal Services Authority Rules, 1994 (hereafter the SLSA Rules), which enables the Member- Secretary of the SLSA to process proposals for financial assistance and issue utilization certificate thereof, and it was urged that the processing of proposals for financial assistance ought to be read with the very object of providing ‘legal services’ as visualized by the LSA Act, or else correct interpretation of a beneficent legislation would be thwarted. Finally, it was submitted that the promise of the People of India setting forth the goal of our political society as enshrined in the preamble to the Constitution must not be trampled by reason of any incorrect reading of the LSA Act.
13. The lead argument on behalf of the respondent authorities providing ‘legal services’ was advanced by Mr. Sengupta, learned advocate for the CHCLSC. His submissions were adopted by Ms. Bhattacharya, learned advocate for the SLSA and Mr. Malhotra, learned advocate, led by Mr. Sarkar, learned advocate for the Union of India as well as the NALSA.
14. At the outset, Mr. Sengupta made it clear that submissions would be confined only to the aspect for which the CHCLSC has been called upon to express its views, since the CHCLSC is not concerned with the merits of the claim raised by the petitioner in the writ petition. Mr. Sengupta and the other learned advocates for the relevant legal services authorities contended in unison that ‘legal services’ contemplated in the LSA Act and the rules/regulations framed thereunder would not cover grant of any financial aid, for whatever purpose, to a litigant who is otherwise entitled to legal services. It was argued by him that the LSA Act was enacted for constitution of legal services authorities ‘to provide free and competent legal services’, meaning that the object is to provide competent ‘legal services’, which would be free, and ‘competent’ does not by any stretch of imagination be comprehended to include travel fare and accommodation charge that a litigant may have to shoulder; what the institutions under the LSA Act are obliged in terms of the statutory mandate is to render service relatable to the conduct of a case and it, therefore, follows that such institutions are under no obligation to bear expenses towards travel fare and accommodation charge of a litigant. An argument has been advanced by him that if travel fare and accommodation charge are construed to be included in ‘legal service’ as defined in the LSA Act, a daily wage earner might claim that he ought to be paid his wages for the period he is compelled to stay away from work while he prepares his advocate, engaged by the authority/committee under the LSA Act, to conduct his case, and in the process uphold the Constitutional ideals and values relating to social justice. In further support of the contention that ‘legal service’ does not include bearing expenses for travel and accommodation, provisions contained in Regulation 17 of the SCLSC Regulations and Regulation 44 of the West Bengal State Legal Services Authority Regulations, 1998 (hereafter the SLSA Regulations) have been referred to by Mr. Sengupta, Ms. Bhattacharya, learned advocate for the SLSA and Mr. Malhotra, learned advocate for the NALSA. It has been contended that for attendance at the office of the relevant legal services authorities for the purposes mentioned therein as well as at Court, the aided person has to do so at his own expense and, therefore, it would not be proper to hold that expenses for travel and accommodation come within the width of ‘legal services’. Regulation 13 of the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010 (hereafter the NALSA Regulations) has also been referred to in support of the above contention for showing the extent of financial assistance that could be borne by the legal services authorities. Reference has also been made, apart from Regulation 13 of the SCLSC Regulations, by Ms. Bhattacharya to Regulation 39 of the SLSA Regulations providing for the modes of ‘legal aid’ and it was contended that it is only in respect of the enumerated modes that the SLSA and CHCLSC are competent to render ‘legal services’. Submission has also been made by Mr. Sengupta that reliance placed by Mr. Dhar on Rule 4(i) of the SLSA Rules is misplaced. Processing of proposals for financial assistance and issue of utilization certificate thereof, in the context, would mean proposals that are required to be placed for drawing of funds from the Central Government and the State Government for meeting the expenses of the legal services authorities in the State and issue of certificate proving proper utilization of such funds, and not proposals for expenses relating to travel and accommodation of a litigant. Finally, it has been urged while referring to Sections 4, 7 and 8 of the LSA Act that the SLSA, the CHCLSC and the other authorities in the State have to function in accordance with the directions of the NALSA and in the absence of clear directives in this regard as well as lack of resources to meet the additional burden, should the Court hold that expenses for travel and accommodation are comprehended within ‘legal services’, it may not be possible for the legal services authorities in the State to reach out to those who are really in need of free legal aid.
15. Mr. Banerjee, learned junior standing counsel for the State, submitted that should the Court hold the view that the petitioner is not entitled to the relief claimed in the writ petition, any debate on the social justice aspect of equal opportunity and access to legal remedies would be entirely academic. He sought to remind the Court that the petitioner had not made any application for grant of legal services before any authority and unless his prayer is refused, the stage is absolutely premature for a detailed discussion on the issue as to whether ‘legal services’ covers grant of financial aid or not for travel and accommodation purpose. He contended that in view of the present position of the laws, it is for the Supreme Court to adjudicate what relief could be extended to the petitioner through the appropriate legal services authority/legal aid committee according to the regulations framed in this behalf and that the State of West Bengal has nothing to do in the matter.
16. In reply, Mr. Dhar submitted that ‘competent legal services’ in the context of the LSA Act ought to be understood as sufficient and adequate, and not merely suitable. He also appealed to the Court to decide the larger issue, which according to him has never arisen for consideration before, instead of relegating the petitioner to the SCLSC for an order of rejection of his prayer, since it is a foregone conclusion having regard to the arguments advanced on behalf of the legal services authorities represented before me that expenses towards travel and accommodation would not be borne by the SCLSC.
17. The argument of Mr. Banerjee ought to be dealt with first. It is no doubt true that whether 'legal service', as defined in Section 2(1)(c) of the LSA Act, would include, in an appropriate case, the obligation of the legal services authorities, which are the creatures of such Act, to bear the expenses of a needy, poor and indigent person’s access to the situs of the Court premises far away from his residence and accommodation at such place for a purpose intrinsically connected with conducting of his case, to ensure equal opportunities for securing justice, is not a question that is directly in issue but has incidentally cropped up for a debate in course of consideration of this writ petition. Substantial arguments have been advanced by the parties as well as by the learned amicus curiae, as noted above. The SCLSC, in terms of Regulation 5 of the SCLSC Regulations, is obliged to administer and implement the legal services programme insofar as it relates to the Supreme Court of India. It has not entered appearance. I shall assume that had it been represented, it would have spoken in the same voice as the other learned advocates representing the legal services authorities. A fortiorari, it follows that even if an application had been made by the petitioner before the SCLSC for grant of ‘legal services’ coupled with a request to bear the minimum fare for travel and accommodation charge for having access to the legal service advocate, who might be engaged to represent the petitioner on he being found entitled to ‘legal services’, the latter part of his prayer would most certainly be rejected. The Court cannot in the circumstances shut its eyes and refuse to express its views after hearing the parties at substantial length, merely because the petitioner never approached the SCLSC and consequently, the occasion for it to reject his prayer did not arise. It would amount to slaying the slain, if at this stage of the proceedings the petitioner were forced to complete a ritual in law by knocking the doors of the SCLSC for having a formal order of rejection and thereafter to approach the Court once again, despite his dwindling resources, for an order to set it aside. Since rejection can reasonably be anticipated, there is no question of closing the discussion with the observation that the question is purely academic and need not be considered. On the contrary, the issue as to what is the width of the words ‘legal services’ from the angle learned advocates for the parties have addressed the Court, calls for a decision since such issue does not appear to have engaged the attention of any Court in India before. It is the duty of the judiciary to interpret the law within the limits set down by the Constitution. The Court acts as an intermediary between the people and the other organs of the State to ensure that the latter operates within the parameters delineated by the Constitution. It would, therefore, be my solemn duty to express my views, for whatever it is worth. The contention of Mr. Banerjee, accordingly, stands overruled.
18. Before I proceed to examine the provisions of the LSA Act, the principles laid down by the Constitution Bench in Atam Prakash (supra) through the speaking voice of Hon’ble O. Chinappa Reddy, J. in relation to interpretation of the Constitution and other statutes, cited by the learned amicus curiae, may be noticed. Paragraph 5 of the report, to the extent relevant, reads as follows:
'5. *** Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the Preamble to the Constitution as the guiding, light and to the Directive Principles of State Policy as the Book of Interpretation. The Preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. When we go about the task of examining statutes against the Constitution, it is through these glasses that we must look, 'distant vision' or 'near vision'. The Constitution being sui generis, where constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted maybe misplaced. Originally the Preamble to the Constitution proclaimed the resolution of the people of India to constitute India into 'a Sovereign Democratic Republic' and, set forth 'Justice, Liberty, Equality and Fraternity', the very rights mentioned in the French Declarations of the Rights of Man as our hopes and aspirations. That was in 1950 when we had just emerged from the colonial-feudal rule. Time passed. The people's hopes and aspirations grew. In 1977 the 42nd amendment proclaimed India as a Socialist Republic. The word 'socialist' was introduced into the Preamble to the Constitution. The implication of the introduction of the word 'socialist', which has now become the centre of the hopes and aspirations of the people - a beacon to guide and inspire all that is enshrined in the articles of the Constitution, is clearly to set up a ‘vibrant throbbing socialist welfare society’ in the place of a ‘Feudal exploited society’. Whatever article of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional validity is sought to be questioned, we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State. For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution. A classification which is not in tune with the Constitution is per se unreasonable and cannot be permitted.*** '
19. On the question as to how and in what manner a particular statute ought to be interpreted, I often seek guidance from the decision in M/s. Girdhari Lal & Sons v. Balbir Nath Mathur, (1986) 2 SCC 237, authored by the same learned judge a day before the judgment in Atam Prakash (supra) was delivered. Paragraphs 6 to 9 thereof contain an enlightening discussion on principles of interpretation of statutes, the thrust being to find out the legislative intent and to interpret the law accordingly. The relevant passages are quoted below:
'6. It may be worthwhile to restate and explain at this stage certain wellknown principles of interpretation of statutes: Words are but mere vehicles of thought. They are meant to express or convey one’s thoughts. Generally, a person’s words and thoughts are coincidental. No problem arises then, but, not infrequently, they are not. It is common experience with most men, that occasionally there are no adequate words to express some of their thoughts. Words which very nearly express the thoughts may be found but not words which will express precisely. There is then a great fumbling for words. Long-winded explanations and, in conversation, even gestures are resorted to. Ambiguous words and words which unwittingly convey more that one meaning are used. Where different interpretations are likely to be put on words and a question arises what an individual meant when he used certain words, he may be asked to explain himself and he may do so and say that he meant one thing and not the other. But if it is the legislature that has expressed itself by making the laws and difficulties arise in interpreting what the legislature has said, a legislature cannot be asked to sit to resolve those difficulties. The legislatures, unlike individuals, cannot come forward to explain themselves as often as difficulties of interpretation arise. So the task of interpreting the laws by finding out what the legislature meant is allotted to the courts. Now, if one person puts into words the thoughts of another (as the draftsman puts into words the thoughts of the legislature) and a third person (the court) is to find out what they meant, more difficulties are bound to crop up. The draftsman may not have caught the spirit of the legislation at all; the words used by him may not adequately convey what is meant to be conveyed; the words may be ambiguous: they may be words capable of being differently understood by different persons. How are the courts to set about the task of resolving difficulties of interpretation of the laws? The foremost task of a court, as we conceive it, in the interpretation of statutes, is to find out the intention of the legislature. Of course, where words are clear and unambiguous no question of construction may arise. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to judges, it may be safely presumed that the legislature intended what the words plainly say. This is the real basis of the so-called golden rule of construction that where the words of statutes are plain and unambiguous effect must be given to them. A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the legislature to others as well as judges. Intention of the legislature and not the words is paramount. Even where the words of statutes appear to be prima facie clear and unambiguous it may sometimes be possible that the plain meaning of the words does not convey and may even defeat the intention of the legislature; in such cases there, is no reason why the true intention of the legislature, if it can be determined, clearly by other means, should not be given effect. Words are meant to serve and not to govern and we are not to add the tyranny of words to the other tyrannies of the world.
7. Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from parliamentary debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard must be had to legislative history too.
8. Once parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation. This is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction. Again, the words of a statute may not be designed to meet the several uncontemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the ‘primary situation’. It will then become necessary for the court to impute an intention to Parliament in regard to ‘secondary situations’. Such ‘secondary intention’ may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation.
9. So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary.'
20. My memory refreshed, I now move on to read the Statements and Objects of the LSA Act. A bare perusal thereof reveals that Article 39A of the Constitution is the driving force behind enactment of the LSA Act.
21. The Directive Principles of State Policy, contained in Part IV, have been held to be the heart and soul of the Constitution. What Article 39A lays down is that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid to any citizen with economic or other disabilities by suitable legislation or schemes or in any other way, so that justice is not denied. It is, therefore, the embodiment of the will and the aspirations of the People of India that the State either by enacting laws or by framing schemes or in any other way ought to ensure easy access to justice to each and every citizen suffering from economic or other disability, on the basis of equal opportunity. The word ‘shall’ is used twice there. Giving due regard to the promise that resonates from a reading of the preamble to the Constitution, the terms of Article 39A are, in my opinion, mandatory and it is unfortunate that it took the Parliament almost eleven years after introduction of Article 39A in 1976 to first enact the LSA Act in 1987 and then for the political executive to enforce it a further eight years hence w.e.f. November 9, 1995. Better late than never!
22. Article 39A, envisioning a cherished goal, cannot thus be read divorced from the preamble to the Constitution, whereby the People of India promised equality of opportunity and justice, - social, political and economic, to themselves, as well as Article 14 of the Constitution that guarantees equality and frowns upon invidious discrimination. Drawing inspiration from the decision in Manubhai Pragaji Vashi (supra) cited by Mr. Dhar, I hold that providing assistance to a litigant in distress either due to economic or other disabilities is the State’s duty viewed in the light of not only Article 39A read with Article 21 of the Constitution but also Article 14 thereof and such duty has to be discharged by enacting legislation or framing scheme or in any other reasonable and legitimate way. Regard being had to the above perception, the LSA Act is virtually the endeavour of the Parliament to give effect to Article 39A of the Constitution by extending free legal aid to ensure that the legal system promotes justice on the basis of equal opportunity. The decision in K. N. Govindan Kutty Menon v. C.D. Shaji, AIR 2012 SC 719, may be referred to in this connection.
23. In Mohd. Ajmal Amir Kasab (supra), the Supreme Court noticing Article 39A of the Constitution and Sections 12 and 13 of the LSA, observed that the programme of legal aid has assumed the proportions of a national movement and proceeded to hold that it is too late in the day to contend that the right to be defended by a legal practitioner comes into force only on commencement of trial, as provided under Section 304 of the Cr.P.C.
24. The Supreme Court very recently in Manoharan (supra), also cited by Mr. Dhar, observed that Article 39A of the Constitution provides for a holistic approach in imparting justice to the litigating parties; it not only includes providing free legal aid via appointment of counsel for the litigants but also includes ensuring that justice is not denied to litigating parties due to financial difficulties.
25. Having taken note of what Article 39A is all about, it would be of worth to notice what the preamble to the LSA Act says:
'An Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.'
26. The preamble to the LSA Act, thus, appears to have cleaved its object into two, i.e.
(i) formation of legal services authorities and (ii) organization of lok adalats. Here, the second object does not fall for consideration.
27. Chapter II of the LSA Act is titled 'The National Legal Services Authority'. While Section 3 thereunder relates to constitution of the NALSA, the immediately next provision (Section 3A) empowers the NALSA to constitute the SCLSC. In terms of Section 4(a) and (b), it is the function of the NALSA to lay down policies and principles for making legal services available under the provisions of the LSA Act as well as to frame the most effective and economical schemes for the purpose of making legal services available thereunder. Sections 6, 8A, 9 and 11A of the LSA Act, under Chapter III titled 'State Legal Services Authority', provide for constitution of the State Legal Services Authority, the High Court Legal Services Committee, the District Legal Services Committee and the Taluk Legal Services Committee respectively. The functions to be performed by each of these committees are also duly provided in the LSA Act. Chapter IV titled 'Entitlement to Legal Services' is the heart of the LSA Act. It has Sections 12 and 13, laying down the ‘criteria for giving legal services’ and ‘entitlement to legal services’. Section 25 provides for the overriding effect of the LSA Act.
28. It is axiomatic that the LSA Act, being conceived in the interest of the poor and the needy, is a beneficent legislation.
29. Bearing in mind the foundational rule of statutory interpretation that the statute under consideration ought not to be read in a manner inconsistent with the provisions of the Constitution, which is the fountain head of all legislations, I would now notice a few decisions on how a beneficent legislation ought to be construed.
30. The decisions in Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Limited, (1983) 1 SCC 147, and Andhra University v. Regional Provident Fund Commissioner of Andhra Pradesh, AIR 1986 SC 463 are decisions in support of the proposition that a beneficent legislation ought to be liberally construed.
31. In Union of India v. Pradeep Kumari, (1995) 2 SCC 736, it was ruled that while construing the provisions of beneficent legislation intended to remove inequality and to give relief to the inarticulate and poor people the Court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it.
32. For interpretation of an Act of Parliament or the legislatures, which is conceived in public interest and is clearly concerned with the socio-economic sphere, a broad and liberal approach ought to be adopted instead of a restrictive approach. Courts while construing provisions of socio-economic legislation must interpret them in a manner which furthers its purpose rather than frustrates it [see Bharat Prasad v. State of Bihar, (2009) 6 SCC 698].
33. One may in the context also refer to the decision in Allahabad Bank v. All India Allahabad Bank Retired Employees Association, (2010) 2 SCC 44, reiterating the law that welfare statutes must always receive liberal construction and that it should be so construed so as to secure the relief contemplated by the statute.
34. I take it to be law settled that in interpreting a beneficent legislation, there is no room for taking a narrow view and the Court is entitled to be generous towards the persons on whom the benefit has been conferred. The LSA Act being social welfare legislation enacted, inter alia, to protect the interest of persons in need of ‘legal services’ ought not to be interpreted in a constricted manner; on the contrary, it calls for a liberal interpretation. The Court, whenever it is seized of an issue relating to proper interpretation of the LSA Act, ought to construe the provisions in favour of those, who for economic or other disability, stand the risk of being deprived of equal opportunity and thereby are faced with a real likelihood of denial of justice to them.
35. In the light of the above, I shall now direct my endeavour to trace the width of the words ‘legal services’, which is the crux of the LSA Act.
36. What is 'legal services' referred to in the preamble of the LSA Act and the other provisions noticed above where it has been used contextually throughout? The statutory definition of 'legal service', to be found in Section 2(1)(c), reads thus:
'2(1)(c) ‘legal service’ includes the rendering of 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.'
37. It is important to note that the definition of ‘legal service’ in Section 2(1)(c) is an inclusive definition, and any service to be rendered in the conduct of any case or legal proceeding is comprehended by it. The two words appearing one after the other, i.e. 'any' and 'service' bear great potential and are of utmost significance in understanding what ‘legal service’ actually comprehends.
38. In M/s. Associated Indem Mechanical (P) Ltd. v. State of West Bengal, AIR 2007 SC 788, definition of the word 'premises' in the West Bengal Government Premises (Tenancy Regulation) Act, 1976 fell for the Supreme Court’s consideration. The definition started with the words 'includes any'. It was held as follows:
'It is well settled that the word ‘include’ is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.'
39. In view of user of the word 'includes' as a suffix to the term 'legal service', the same indicates that the definition is not exhaustive but extensive. The decisions cited by Mr. Dhar provide useful guidance in this behalf.
40. The dictionary meaning of the word ‘any' is 'one or same or all'. In Black's Law Dictionary, it is explained that the word ‘any’ has a diversity of meaning and may be employed to indicate ‘all’ or ‘every’ as well as ‘same’ or ‘one’ and its meaning in a given statute depends upon the context and subject matter of the statute.
41. It was also held in M/s. Associated Indem Mechanical (P) Ltd. (supra), while dealing with ‘any’ in the definition clause of ‘premises’ that:
'The opening part of the definition of the word ‘premises’ in Section 2(c) employs the word ‘any’. 'Any' is a word of very wide meaning and prima facie the use of it excludes limitation (See Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293 at 297)'.
42. 'Any' in the context it has been used in clause (c) of Section 2(1) of the LSA Act, it is clear, indicates that it has been used in a wide sense extending from one to all and admits of no exception.
43. Adverting attention to the word 'service' appearing in Section 2(1)(c) of the LSA Act, it is found that the same has not been defined in it. However the word 'service' has different meanings depending upon the context in which it is used. In the context of contract of personal service, service would mean being employed to serve another. In the context of feudal laws, it means ‘that duty which the tenant owed to his lord by reason of his fee or estate’. In civil law, it means servitude. In practice, service means delivery of legal process. Service may sometimes mean a service which is provided usually for a fee.
44. William C. Burton in Legal Thesaurus says that where ‘service’ (as a noun) refers to ‘assistance’, 'it means - abetment, accommodation, advice, aid, …, backing, benefit, care, cooperation, favour, guidance, help, helping hand, …, relief, succour, support, ….'.
45. In Judicial Dictionary by K.J. Aiyar (Vol.2, 15th edition at p.1487), Corpus Juris Secundum (1952 Edn., Vol LXXIX) has been referred to for ascertaining the general meaning of the word ‘service’, which is to perform service. Further, the word ‘service’ has a multiplicity and a variety of meanings and different significations. It is not a simple word with a simple meaning, leaving no room for construction, but rather it is a broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context. Thus the Courts have found it impracticable to attempt a definition by which to test every case that may arise (Aiyar citing Ajit Singh v. State of Punjab, AIR 1970 P&H 351).
46. The term ‘service’ as appearing in the Consumer Protection Act, 1986 (hereafter the CP Act) came up for consideration of the Supreme Court in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787. The discussion on what service in the CP Act meant, was prefaced by the following words:
'The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends in the context in which it has been used in an enactment.'
47. In Union of India & ors. v. M/s Martin Lottery Agencies Ltd., (2009) 12 SCC 209, the Supreme Court noticed the dictionary meaning of the word ‘service’, inter alia, meaning as 'work done or duty performed for another or others; a serving; as, professional services, repair service, a life devoted to public utility service'.
48. There can possibly be no doubt that the word ‘service’ has to be contextually understood.
49. In the context of the LSA Act, the word 'service' in Section 2(1)(c), used as a noun, must be understood as referring to assistance, aid, help, succour, support that is to be extended to a person in need by the relevant legal services authority.
50. Now 'in the conduct of any case' appearing in clause (c) of Section 2(1) may be examined. Conduct in the context would mean 'management' of a case or the act or method of 'managing' a case. Once a person seeking legal services is found entitled to the same, the duty of managing or conducting his case rests on the shoulders of the relevant legal services authority that finds him deserving of ‘legal services’. In terms of the LSA Act, on the entitlement being proved, the aided person has to be extended any service that he requires for proper conduct of his case. The ultimate object is that even if he were to return unsuccessful on termination of the lis, he may not have a feeling of denial of equal opportunity and justice in view of his economic or other disability.
51. While examining the provisions of the LSA Act, the corresponding Hindi version was also looked into by me. The Hindi version of the LSA Act is the ‘Vidhik Seva Pradhikaran Adhiniyam'. ‘Service’ in the English version of the enactment is ‘seva’ in the Hindi version. The discussion on ‘service’ infra conforms to ‘seva’ which, to my mind, encompasses a wide range of activities intended to benefit mankind and takes within its fold assistance of the nature presently being discussed.
52. At this juncture, the effect and import of Regulation 13 of the SCLSC Regulations and Regulation 39 of the SLSA Regulations providing for the different modes of legal services and legal aid respectively may be considered. I concur with the learned amicus curiae that the specified modes are merely enumerative and not exhaustive. The usage of ‘may include’ together in Regulation 13 and ‘may be given’ in Regulation 39 indicate the legislative intent to provide discretion to the SCLSC and the SLSA/the other subordinate legal services authorities respectively to select from a wide range of modes of legal services/aid, some of which have been enumerated to indicate the ones ordinarily provided. To read the said regulations as excluding other modes of legal services/aid not expressly provided therein, would necessarily lead to throttling of the noble cause the statutory provisions seek to achieve.
53. In the normal run of events, an advocate from the panel maintained by the relevant legal services authority is engaged to represent the aided person. For the purpose of enabling the advocate concerned know what his grievance precisely is, and for preparing the brief to argue the case on his behalf if the aided person considers it necessary to have a one to one interaction with such advocate, which is not unusual, but such person finds it difficult to reach the advocate from his residence for lack of funds or other disability and access resultantly does not materialize, would it not be a deprivation of opportunity insofar as his pursuit for justice is concerned? The answer cannot but be in the affirmative. The importance of a pre-hearing conference at the chamber of an advocate, duly attended by the litigant himself or his authorized person, to discuss the pros and cons and in the process to get ready for the ensuing legal battle in Court, is well known to all who have some idea of how a case is fought out. An advocate may prepare himself to argue a law point without requiring any assistance from the litigant who has briefed him, but if a matter has to be argued both on factual as well as legal aspects, and the facts are complicated and the Court has to be satisfied on facts, presence of the litigant at the pre-hearing conference often times is of great utility. The answer to a question posed by the advocate on a factual aspect may not be known even to him despite perusal of the papers several times, and it is such a situation that the presence of the litigant proves to be useful. It may not be a proper approach to look at the problem from the angle that the legal service advocate does not require the presence of the aided person for assisting him to argue his case. The question that ought to be posed for an answer in the circumstances is does the aided person feel that his presence is required and if sought for, an opportunity in that behalf ought to be extended or not? If the answer is in the affirmative, and considering that proper briefing of an advocate by a client is vital in the adversarial system of litigation, and also to advance the object and purpose the LSA Act seeks to achieve i.e. opportunity for securing justice should not be denied to any citizen by reason of economic or other disability, there can be no escape from the conclusion that 'rendering of any service in the conduct of a case' would include within its scope the obligation of the legal services authorities to bear travel fare and accommodation charge, of course in an appropriate case, or else much of what has been said about our Constitution, its ideals, values, principles and goals would be wasted eloquence.
54. I may add that acceptance of the contention of the respondents would tend to defeat the concept of social justice and strike at the root of the Constitutional values and ideals. It would result in a mockery of the legal aid system if the poor, needy and marginalized were denied the opportunity to meet the advocate engaged by the legal services authority, if the former so desires, and prepare the latter adequately, sufficiently and suitably to fight the case, on the specious ground that the regulations do not conceive of any such opportunity. If the LSA Act had imposed a restriction, the question of validity thereof on the touchstone of the Constitutional provisions would have required examination in depth, provided of course the statute itself were challenged on such a ground. Not only no such restriction has been imposed, the LSA Act very much in tune with Article 39A confers adequate authority and makes space available for the NALSA to lay down policies and principles and to frame the most effective and economical schemes for making ‘legal services’ available to those in real need thereof. An improper reading of the LSA Act cannot abridge the rights of the persons of the nature mentioned in Section 12 of the LSA Act. A negative and somewhat mechanical approach to construction of a statute has to be abandoned and replaced by a positive approach of purposeful construction to effectuate the object and purpose of the statute, and thereby to make the concept of ‘legal services’ meaningful.
55. Rendition of free legal aid cannot thus be confined only to engagement of an empanelled advocate, paying his fees and shouldering the costs of the proceedings and certified copies of the orders passed in such proceedings. If legal aid has to be real in the true sense of the term, the narrow and restrictive approach has to be shunned and a wide and liberal approach adopted to translate the Constitutional promise to action. If indeed such restricted meaning is to be attributed to the words ‘legal service’, the object with which the LSA Act was introduced may not be fulfilled and in such an eventuality, the LSA Act would largely remain a document of limited use. India is a vast country and significant sections of its population still do not have means to arrange two square meals a day. It may indeed so happen that a person not having sufficient means has to seek redress before a local court of law or tribunal and in doing so and in course of participation in the proceedings spends whatever little he has, and by efflux of time that is unfortunately associated with termination of the proceedings finally, albeit in his favour, finds himself to be without any funds at all. Should the lis be carried to the High Court of the State or an appellate tribunal exercising jurisdiction from its seat at the capital of the State or the Supreme Court or appellate tribunal in New Delhi by his adversary (who may happen to be a moneyed man or a company of repute not lacking in funds) and such a poor and needy litigant has absolutely no financial resource to travel to the High Court or the appellate tribunal at the State capital, or to the Supreme Court or appellate tribunal at New Delhi, as the case may be, for the purpose of defending such case and it is listed as an undefended matter, a virtual walk-over would ensue and the Constitutional goal of securing operation of the legal system to promote justice on a basis of equal opportunity would never fructify. If assistance were to be confined to only the modes of legal services as enshrined in the relevant regulations and not apply to anything else, and the person found entitled to legal services desiring to have access to the advocate engaged to represent him for giving appropriate instructions to prepare the latter for his case has to do so at his own expense, is to render the LSA Act a document that would encourage a litigant to visualize equal opportunity in course of a legal battle, which in reality turns out to be a mirage.
56. I am tempted to borrow the words of Hon’ble V. R. Krishna Iyer, J. here for aptly describing the situation. In Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, although in a different context, it was observed that:
"Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no-confidence' will be heard to say, 'that man had no chance to defend his stance'."
57. Let me now examine as to how providing free and competent ‘legal service’ to a litigant who has to approach the Supreme Court either by taking recourse to appropriate proceedings [for eg. SLP, writ petition under Article 32 of the Constitution, transfer petition in a matrimonial dispute, appeal provided by a statute like the CP Act, etc.], or to defend a proceeding where he is a respondent, is to be regulated according to the narrow and constricted view of the LSA Act and the several rules/regulations framed thereunder, as articulated by the learned advocates for the legal services authorities before me. First and foremost, a person inclined to institute a case or compelled to defend a case, desirous of seeking ‘legal services’ under the LSA Act must satisfy any of the eight criteria mentioned in Section 12. To satisfy such criteria, an affidavit as to his status and income would be considered sufficient to make him eligible for ‘legal services’ [see Section 13(2) of the LSA Act and Regulation 5 of the NALSA Regulations]. An applicant seeking ‘legal services’ from the SCLSC for the purpose of either instituting or defending a case may not remain personally present before the Secretary of the SCLSC. This, I hold, because of absence of any provision mandating presentation of an application remaining personally present and further in view of provisions contained in Regulation 3(7) of the NALSA Regulations, which enables sending of documents in support of the claim through e-mail or interactive on-line facility. Since the case has to be filed or is before the Supreme Court, the upper limit of annual income mentioned in Rule 12 of the NALSA Rules would apply and the ball has to be set in motion by an application under Regulation 3 of the NALSA Regulations read with Regulation 11 of the SCLSC Regulations. Once the hurdle of entitlement is crossed, the concerned authority has to be satisfied that he has a prima facie case to prosecute or defend [Section 13(1)]. For grant of ‘legal services’ in connection with a case before the Supreme Court, the Secretary of the SCLSC is required to follow the provisions in Regulation 12(2) of the SCLSC Regulations and if satisfied that the applicant deserves ‘legal services’, he shall decide the mode of ‘legal service’. The modes of ‘legal services’ are to be found in Regulation 13 of the SCLSC Regulations. The cases where ‘legal services’ are not to be provided are enumerated in Regulation 14, whereas Regulation 15 enables grant of ‘legal services’ in certain cases of the nature finding place therein. The duties of a person receiving grant of legal aid are adumbrated in Regulation 17. The situations on the occurrence of which ‘legal services’ granted earlier could be withdrawn are envisaged in the immediate next regulation. Any provision in the rules/regulations to the effect that the expense borne by an aided person to have access to the legal service advocate, who is engaged on his behalf to conduct his case, is not traceable; on the contrary there is Regulation 17 of the SCLSC Regulations, which I shall deal with a little later.
58. Now, if the legal service advocate engaged by the SCLSC requires the presence of the aided person to explain an adverse circumstance appearing from the documents against him, which cannot effectively be had unless the presence of the aided person is secured before such advocate and the adversity explained, should he proceed to institute or defend the case without having the benefit of the explanation that could have been offered by the aided person? If the aided person due to economic or other disability is unable to have access to the advocate and the latter after waiting for reasonable time institutes proceedings or defends the proceedings brought against the aided person and suffers an adverse order, in such a contingency, would the object and purpose of the LSA Act be achieved? Is it not akin to a doctor treating a patient based on pathological reports, without having first-hand knowledge of the patient’s physical condition either from the patient or anyone having knowledge of the patient’s physical condition? Is such a situation desirable? To give full and complete effect to the provisions of the LSA Act and in view of the wide meaning of the term ‘legal services’, is not the aided person entitled to the minimum travel fare and accommodation charge required for ensuring his access to the legal service advocate? These are questions that are of considerable importance and have to be answered in the light of the principles laid down in regard to interpretation of a beneficent legislation as well as the expansive meaning attributable to the words 'legal services', wherever used in the LSA Act and the rules/regulations framed thereunder.
59. Reliance has been placed on Regulation 17(3) of the SCLSC Regulations and Regulation 44(3) of the SLSA Regulations, which are pari materia, by Mr. Sengupta, Ms. Bhattacharya and Mr. Malhotra and it has been argued that such provisions expressly ordain that if an aided person is required to attend the office of the relevant legal services authority, or the legal service advocate or the Court, he must do so at his expense. Regulation 17 and Regulation 44 mandate what the duties of an aided person are. Sub-regulation (1) of Regulation 17 requires a person seeking legal services to comply with any requisition or direction that may be made upon him by the Secretary of the SCLSC or any of its members from the date the application for legal services is made till he enjoys the legal services granted to him. Sub-regulation (1) of Regulation 44, although worded a little differently, is also to the same effect. The provisions in sub-regulation (3) of both the regulations relate to attendance of an aided person at two different places. The first part of the sub-regulation enjoins the aided person to attend the office of the relevant legal services institution, as and when required by it (the institution), or by the legal service advocate rendering legal aid for furnishing full and true information and making full disclosure to him (the advocate); and the other is regarding attendance of the aided person at Court, as and when required. Question that arises considering the argument advanced is whether in terms of sub-regulation (3), attendance in respect of all the situations contemplated therein shall be at the own expense of the aided person or is it only attendance at the Court that shall be at his own expense. Viewing it differently, the question is whether the words 'at his own expense' is relatable also to attendance at the office of the relevant legal services authority or whether bearing his own expense is restricted only to attendance at the Court.
60. It is imperative for the aided person to discharge the specified duty and there can be no quarrel on this score. In my view, sub-regulations (1) and (3) cannot be read in isolation. Regulation 17 and Regulation 44 have common headings i.e. 'Duties of an aided person', and sub-regulation (1) of both starts with the words '(A) person seeking legal services' and such person is duty bound to comply with any requisition/direction till enjoyment of legal services. It is sub-regulation (3) of both that refer to 'an aided person'. Nevertheless, sub-regulation (1) also comprehends an aided person.
61. Experience has shown that when a litigant has his back to the wall because of lack of adequate means and has little option open to fight a legal battle against a mighty opponent that he approaches the relevant legal services authority. Suppose, after grant of his application for legal services, there are successive directions requiring him to be present at the office of the SCLSC for meeting either its Secretary or any of the members of the SCLSC or the legal service advocate engaged to represent him, and he is required to comply with each such direction by remaining present at his own expense. In such an event, which is theoretically possible, he would in all likelihood shy away with the feeling that whatever little he has would go down the drain and it is better not to be drawn into such costly legal battle. This aspect cannot be lost sight of while construing sub-regulation (3).
62. Two possible constructions, as noticed above, appear on meticulous reading of sub-regulation (3). However, in view of the discussions infra, law is settled that if the provision of a beneficent legislation is reasonably capable of two constructions, the construction that advances the purpose and object of the statute in question should always be preferred to the construction that tends to defeat its purpose or renders it ineffective. I, therefore, hold that attempts to give full effect to the intendment underlying the LSA Act and to ensure its due workability over the days to come would be rendered futile, if sub-regulation (3) were read in a manner to impose obligation on the aided person to discharge a duty of the nature mentioned in the first part, at his own expense.
63. This brings me to the question as to why an aided person, who has been suffering from financial distress and has thus been held entitled to grant of legal services, would be required to attend the Court at his own expenses, irrespective of the reasons compelling his presence in Court. What is relevant in this connection is to ascertain generally, when and why does a litigant attend Court? The answer is not far to seek. With the introduction of examination-in-chief on affidavit, a litigant may not be required to attend Court to tender oral evidence but his presence may be required for swearing the affidavit. Next, his presence would be necessary if his adversary seeks to cross-examine him. Thirdly, he may attend on his own perception that his presence is required for providing on-spot instructions to his advocate. Fourthly, he may be present in Court as per his advocate’s request if such presence is considered necessary by such advocate to enable him either effectively respond to any query of the Court on facts, the answer whereof is not known to him readily, or to counter a factual point raised by his adversary. Finally, his presence may be required in terms of an order of the Court. I need not enumerate here the circumstances warranting an order of the Court for securing the personal presence of a litigant before it. Suffice it to note, a judge may direct the personal presence of a litigant in Court because of some delinquency on his part. In the unlikely event of such an order being passed resulting in a real requirement of the aided person to attend the Court, it is too obvious that the relevant sub-regulation would apply, for, the institutions created by the LSA Act cannot be expected to encourage any delinquency of the aided person by shouldering the expenses of his attendance. However, giving due regard to the last part of sub-regulation (3), it cannot but be held that whenever attendance of an aided person in Court is required, be it for swearing an affidavit or for facing crossexamination or for complying with an order of Court, the aided person has to attend the Court at his own expense. It is well within the province of the Court to read down a provision of an Act for erasing the obnoxious or unconstitutional element in it that offends the Constitution or to bring it in conformity with the object of such statute. Similarly, a rule/regulation which is part of subordinate legislation can also be read down to save it from invalidity or to bring it in conformity with the avowed policy of the Act. When the Court finds any provision of an Act to be inconsistent with the Constitution or a rule/regulation framed under such Act to be inconsistent either with the Constitution or the concerned Act, an attempt is made to save the offending provision of the Act or the rule, wherever possible and practical, by reading it down by a benevolent interpretation, rather than declare it as unconstitutional or invalid. But the power of reading down the offending provision of the Act or the rule/regulation would arise if there is a challenge to the validity of such statutory provision [see State of Rajasthan v. Sanyam Lodha, (2011) 13 SCC 262]. Regulation 17 of the SCLSC Regulations and Regulation 44 of the SLSA Regulations are not under challenge and the Court has no power to strike down any provision or read it down unless the parties are at issue on the validity thereof. In such circumstances, it is not possible to read down sub-regulation (3) of both Regulation 17 and Regulation 44 to confine its applicability only to cases where the Court directs an aided person to appear before it. I express hope and trust that the concerned sub-regulation would receive due attention of the concerned authorities to bring it in conformity with the provisions of Article 39A and the object and purpose of the LSA Act.
64. Contention of lack of financial resources at the disposal of the legal services authorities and the additional expenditure to be incurred, should the Court be inclined to hold that ‘legal service’ includes bearing of expenditure for travel and accommodation of the aided person, has been raised on behalf of the legal services authorities. Having examined the issue from all angles, I cannot resist but observe that because of the higher public purpose of the LSA Act, it must have primacy over mundane contentions of lack of funds at the disposal of the legal services authorities. Inadequacy of funds might involve inconvenience but on that score, the lofty ideals of Article 39A and the LSA Act cannot be put aside. The actions of such authorities must be focused to maximize the services that are renderable under the LSA Act to a person entitled to ‘legal services’, in the conduct of his case. If indeed cost is a factor, the legal services authorities ought to cut down the expenditure on other avoidable heads and provide succour to those for whom such institutions have been created.
65. Apprehension expressed by Mr. Sengupta that expanded reading of clause (c) of Section 2(1) would enable an aided person to claim that his daily wage be secured by the legal services authorities while he is away from work fighting a legal battle, has not impressed me. The Constitution of India does not guarantee a fundamental right to work. Although the State’s obligation to secure, inter alia, the right to work within the limits of its economic capacity and development is traceable in Article 41, a positive obligation on the State to guarantee right to livelihood has not yet emerged because the country so far has not attained the capacity to guarantee it. That apart, claiming of daily wage by the aided person is not even remotely connected with ‘rendering of any service in the conduct of any case’. I am of the view that the contention is not well founded and has been urged to be rejected.
66. Mr. Dhar’s contention based on Rule 4(i) of the SLSA Rules does also not commend to be worthy of acceptance. In terms of Section 16 of the LSA Act, there shall be a State Legal Aid Fund. Grants made by the NALSA and the State Government would constitute the Fund. The quantum of these grants would obviously vary depending on the activities of the SLSA. The function of the Member-Secretary of the SLSA mentioned in Rule 4(i) is relatable to procurement of grants towards financial assistance, utilization thereof and issuance of certificate in that regard. At the
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time of framing of the SLSA Rules, it does not seem to have crossed the mind of the rule-framers that ‘legal service’ in Section 2(1)(c) of the LSA Act could include the obligation with which the Court is presently concerned and, thus, something more cannot be read in Rule 4(i). This contention, consequently, stands overruled. 67. It is inconceivable that a litigant, who is well and truly suffering from poverty or other hardship and despite his entitlement to ‘legal services’ under the LSA Act having been proven, would have to garner funds to meet the Secretary or any member of the relevant legal services authority, or for having access to the legal service advocate engaged to represent him and to properly instruct such advocate to place his version before a Court or a tribunal. If expenses therefor are not borne and the aided person is left to garner funds for the purpose, how does society live up to the promise of securing justice based on equal opportunity? The beneficial effects of the legislative policy underlying the LSA Act would be nullified if insensitivity were to override pragmatism. Nothing can be more destructive of the rule of law than concerted actions of people in power not willing to act in consonance with public policy but according to personal predilections and whims. The LSA Act, read in the context of and in harmony with Article 39A of the Constitution, ought to be interpreted to cover and/or include all possible situations calling for rendering of any service, hitherto before unforeseen or not conceived of, in connection with conducting of a case, which is required to achieve the Constitutional goal of securing justice for all through equal opportunity. To advance the cause of justice and to promote the high public purpose of the LSA Act, I hold that Section 2(1)(c) is flexible to include within its ambit the obligation of the relevant legal services authority that is approached to bear the minimum of travel fare and accommodation charge, in an appropriate case, to enable the aided person not only to have access to the situs of the Court/ to the legal service advocate for providing appropriate instructions but also when his presence is required at the office of the committee/authority, as the case may be, to enable him comply with any requisition/direction made by it. The term ‘legal services’ cannot be restricted to exclude bearing of expenses for travel and accommodation that a litigant, who otherwise satisfies the criteria for grant of free legal assistance, is required to undertake to participate in a legal battle in a Court or tribunal far off from his ordinary place of residence or business. If so interpreted, that would deprive the litigants in need of free legal assistance the protection that the LSA Act seeks to offer and this would militate against the beneficial object, which is its heart and soul. 68. Having answered the point formulated in paragraph 17 thus, the next point that would deserve consideration as a logical corollary is whether any and every aided person is entitled to travel fare and accommodation charge. There cannot be any two opinions that only in very exceptional circumstances, an aided person may be entitled to the same. The classes of aided persons who could be legally entitled to travel fare and accommodation charge may not be capable of exhaustive enumeration. However, in this regard, an attempt may be made by looking at Section 12 of the LSA Act, which identifies the classes of persons entitled to legal services. A member of the Scheduled Caste or Scheduled Tribe, or a woman, or a person with disability as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, or an industrial workman, is entitled to ‘legal services’ under the LSA Act as of right, irrespective of their annual income. The criteria for such persons to claim ‘legal services’ is that an affidavit has to be filed in line with Regulation 5 of the NALSA Regulations and materials have to be placed before the concerned authority for recording a satisfaction that such person has a prima facie case to prosecute or defend. Having regard to the individual annual income of each of such category of persons, it would not be improper or unjust to reach a conclusion that they are not be paid travel fare and accommodation charge. Now, take for instance the case of a victim of the nature mentioned in clause (e) of Section 12 who is rendered a destitute and has to survive on charity. The concerned authority, on being approached, is satisfied that he is one covered by clause (e) as well as with the prima facie case that he intends to prosecute before the High Court or the Supreme Court, as the case may be, alleging violation of his fundamental rights by the State and his claim for compensation arising out of such situation [clause (e) of Section 12]. A legal service advocate is even appointed to conduct his case. Though the aided person may have at some point of time earlier earned in excess of the limit of annual income specified in clause (h), being the victim of circumstances he finds himself in a precarious position bereft of any means to travel to the High Court or to the Supreme Court to properly instruct his legal service advocate. On the one hand, he would fall within the category of person entitled to legal services but what happens if he fails to reach his legal service advocate to narrate his story for instituting a proceeding? Is he not entitled to be assisted either financially or by whatever other means that could be conceived of so that the legal service advocate may have complete instructions to lodge his claim before the Court? Most certainly, the answers would have to be in favour of such aided person. Or take the instance of a tribal in Campbell Bay, Nicobar Islands, who satisfies the twin criteria mentioned in clauses (a) and (h) of Section 12 of the LSA Act and is a respondent in a SLP on which notice has been issued by the Supreme Court. Would it be proper to hold, after a satisfaction is reached in regard to grant of legal services to him that he has to travel to New Delhi from Campbell Bay at his own expense for access to his legal service advocate to provide him appropriate instructions? I do not feel persuaded to so hold. These are illustrative exercises intended to portray a distinction between two classes of aided persons, one not in need and the other in need of travel fare and accommodation charge. 69. However, whenever persons of the categories mentioned in Section 12 claim travel fare and accommodation charge, it would be the duty of the concerned authority to satisfy itself, on a case to case basis, as to whether the claim is justified or not. The grain has to be separated from the chaff, or else the entire exercise itself might become counter-productive. A second look at the policy, to effectuate the legislation meant for the poor, is overdue. Quoting Hon’ble V.R. Krishna Iyer, J. once again, 'law must keep its promise to justice'. What would be the principles to be followed in such a case, how the system is to be structured and in what manner and to what extent benefit in favour of the aided person is to be worked out, are issues of policy that must of necessity be formulated by the NALSA in performing its functions in terms of clauses (a) and (b) of Section 4 of the LSA Act, keeping itself abreast of the reality that there is no dearth of unscrupulous persons in the society who would not lie low to misuse the noble policy. 70. It is now time to conclude the discussion. Prayers made in the writ petition are not granted. However, the petitioner shall be free to work out his remedy in accordance with law and in the light of the observations made above, if so advised. 71. The writ petition stands disposed of, without order for costs.