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Published : August 27, 2017 | Author : Md. Saleh Akram
Category : Bangladesh Law | Total Views : 187 | Rating :

  
Md. Saleh Akram
Lecturer, Department of Law and Human Rights, University of Asia Pacific, Dhaka, Bangladesh
 

Protect Rights of Justice Seekers: A Critical Analysis of Legal Aid Laws of Bangladesh

Abstract
The most two important weapons for the purpose of preventing social violence and development of societies are equality before law and ensuring social justice.Legal aid signifies the very spirit of equality and equity protected in the modern notions of constitutional law, as so in the Constitution of Bangladesh.Bothnational and international arena the doctrines of equal treatment of law and fair judicial trial have found as one of the foundations of fundamental human rights. A significant number of people of Bangladesh are still underprivileged of their constitutional right of access to justice and fair judicial processes caused mainly by poverty, ignorance, illiteracy, oppression and exploitation.Legal aid is a tool of providing aid to the poor litigants and justice seekers who are unable to afford the high fees of lawyers and admittance to the court. In comparison with the old legal system in our country legal aid is relatively new.Nowadays, legal aid can be arguably said as a crying need to ensure social and legal justice in Bangladesh because most of the citizens live below the poverty line which incidentally makes matters worse.In this article I have discussed the constitutional basis of Legal aid in Bangladesh followed by an analysis of current legal provisions,the gaps, loopholes and complexities of the existing laws relating to legal aid services in Bangladesh and frame out a comprehensive solution for ensuring the aid program so that legal aid protects the justice seeker’s rights.

1. Introduction

Legal aid is fundamental to social and collective justice. Bangladesh is a developing democratic country of the world. In a democratic society all citizen have a right to access to justice and get fair trial. The constitution of the people republic of Bangladesh 1972 has theoretically ensured access to justice, fair trial, rule of law, fundamental rights, human right and equality before law, and equal protection of law, but due to financial crisis and ignorance of law, these constitutional protections have become a fake promise to the vast majority of the people. The constitution of Bangladesh states that it shall be a fundamental aim of the state to realize through the democratic process a socialist, free from exploitation, society in which the rule of law, fundamental human rights and freedom, equality and justice, economic and social, will be secured for all citizens without any discrimination. Governments of all states irrespective of their standing in the international communities are now increasingly more concerned on the welfare of their citizens. In this regard, the issue of alegal aid is also very important from the political perspective. The Government of Bangladesh has to strongly set a target to develop a socialist society which will be free from exploitation wherein the rule of law, fundamental human rights equality and justice, will be secured for all citizens without partiality and prejudice. nobody should be condemned unheard means before dooming a person, the judge must hear the person, if he has anything to say toprevent the miscarriage of justice. Article 27 of the Constitution of Bangladesh provides that all citizens are equal before the law and are entitled to have an equal protection of the law. In the case of Dr. Neelima Ibrahim vs. Bangladesh,it was held that the principle of audi alterem partem (hear the other party) unless expressly excluded by law or by the nature of the objects of any particular law is to be implied to have been proved in every statute. Butthe fact is that due to financial constraints and social inequality not all are equally privileged to get the benefits of the law. Thus, jurisprudential concepts of ‘equality before the law’, ‘equal protection of the law’, ‘rule of law’ have been provided in the past as the rationale for legal aid movement. The main objective of the legal aid mechanism is to make a uniform and standard law for the poor and the privileged sections to access justice. Bangladesh adopt legal aid as an operative tool to achieve securityof law.

2. Definition
In a simple sense legal aid meansfree legal service to persons incapable to pay for a lawyer.Legal aidis the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid connotes the assistance provided to weaker sectors of the society in the protection of their rights and entitlements under the law and constitution.The New Encyclopedia Britannica defines a legal aid as the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such helps.According to the Legal Aid Services Act, 2000 Legal aid connotes the assistance in terms of legal advice, lawyer’s fees, litigation costs and other incidental expenses, provided to the economically disadvantaged populations including those who, for various socio-economic considerations, are unable to access justice.

3. History of Legal Aid Concept

Legal aid is a welfare provision by the state to people who could otherwise not afford access to the legal system. Historically legal aid has played a strong role in ensuring respect foreconomic, social and cultural rightswhich are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as “Mauro Cappelletti” argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement ofeconomic, social and cultural rights. His views developed in the second half of the 20th Century, when democracies with capitalist economies establishedliberalwelfare states that focused on the individual. Prior to the mid-20th Century literature on legal aid emphasized collective enforcement ofeconomic, social and cultural rights. As classic welfare states were built in the 1940s it was assumed that citizens had collective responsibility for economic, social and cultural rights and the state assumed responsibility for those unable to provide for themselves through illness and unemployment.Legal aid schemes were established as it was assumed that the state had a responsible to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce. In the 1950s and 1960s the role of the welfare state changed and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded along with legal aid provisions as concerns emerged over the power of welfare providers and professionals. This led to increasing calls in the 1960s and 1970s for the right of individuals to legally enforceeconomic, social and cultural rightsand the welfare provisions they as individuals were entitled to. In the 1980s the role of the classic welfare state was no longer regarded as necessarily positive and welfare was increasingly provided by private entities. This led to legal aid being increasingly provided through private providers, but remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice citizens were given the right to voice their dissatisfaction through administrative complaints processes.

4.Statutes Relating to Legal Aid of Bangladesh

4.1.The Constitution of the People’s Republic of Bangladesh

The principle of equality of justice as preserved inArticle 7of theUniversal Declaration of Human Rights, 1948,it has also been guaranteed in the preamble ofthe Constitution of the People’s Republic of Bangladeshthat one of the fundamental aims of the state is to realize a society in which equality of justice would be secured for all citizens.There is a stipulation that it shall be fundamental responsibility of the state to emancipate backward sections of the people from all forms of exploitation.Article 27oftheConstitution of the People’s Republic of Bangladesh, 1972states the fundamental rights as follows, ‘all citizens are equal before law and are entitled to equal protection of law’. ‘Equal before Law’ implies the absence of any special privilege to any individual in his or her favor. The expression ‘equal protection of law’ is dependent and based on equal before law as one cannot be achieved without the other.Protection of law that the citizens and the residents of Bangladesh have the inalienable right to be treated in accordance with law is guaranteedand speedy and fair trials are ensured.

4.2.Acid Niontron Ain, 2002

Section 8 (c) provides that the person who are the victims of Acid violence then it is the duty to the council need to provide prescribed policy for their medical aid, rehabilitation and legal aid and also take some steps for its execution and monitor.

4.3.The Code of Civil Procedure, 1908

Theprovision of legal aid is found in the Code of Civil Procedure, 1908for those who file pauper suits. As regards civil matters, Order XXXIII of The Code of Civil Procedure deals with the ‘pauper’ suit. A pauper is a person without any means of support especially a destitute person who depends on aid from public welfare funds or charity. But under civil procedure code a person is a ‘Pauper’, when he does not possess sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when he is not entitled to property worth five thousand taka other than his necessary wearing-apparel and the subject-matter of the suit.Every application for permission to sue as a pauper shall contain the particulars required to plaints in suits and a schedule of the movable and immovable property along with the estimated value thereof.The application should be presented by the applicant to the court in person unless exempted by the court.

4.4.The Code of Criminal Procedure, 1898

Section 340 of the Code of Criminal Procedure, 1898 states the right of person to defend against whom proceedings are instituted and says that an accused should be defended by a lawyer and he must pay the fees and nothing more. While commenting on section 340 (1) of the Code of Criminal Procedure, 1898, the Supreme Court of India observed that the right conferred by section 340 (1) does not extend to a right in an accused person to be provided with a lawyer by the State, or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity.

4.5.The Bangladesh Legal Aid Act 2000 and the Legal Aid Rules 2001

In order to ensure access to justice to the poor and indigent people, the Government of Bangladesh enacted the Legal Aid Services Act 2000 (LASA) and this Act provides legal aid to the poor litigants who are incapable of seeking justice due to financial insolvency, destitution, helplessness and also for various socio-economic conditions. Thereafter National Legal Aid Services Organization (NLASO) was established to implement the government legal aid program throughout the country. The general direction and administration of the affairs and functions of NLASO is vested in the National Board of Management which consists of 19 members and is chaired by Hon‘ble Minister, Ministry of Law, Justice and Parliamentary Affairs. There are 64 District Legal Aid Committee (DLAC) through which NLASO implements the government legal aid program at the district level. DLAC maintains a legal aid fund allocated by the government which is spent for poor litigants upon their applications. There are Upazila and Union level committees also working to spread the legal aid program at the grass root level.

5. Who Can Apply for Legal Aid

The following categories of persons as eligible for seeking the legal aid:
i. Freedom fighter who is incapable of earning or partially incapable of earning or who is without any employment or whose annual income is below six thousand taka;
ii. The person who is receiving old age honorarium;
iii. Poor women who are holders of VGF Cards;
iv. Women and children who are victims of human trafficking activities;
v. Women and children who are acid-burnt by the miscreants;
vi. Any person who has been allocated land or house in a village; poor widow, women deserted by her husband;
vii. Physically or mentally handicapped person who is incapable of earning and without means of subsistence;
viii. Person who is unable to establish his/her right to defend him/her in a Court of law due to financial crisis;
ix. Any other person who is considered eligible by the Legal Aid Board from time to time due to the financial crisis or any other socio-economic reasons or disaster (In this guideline, the phrase “poor and financially poor person” will be used to mean persons whose annual income is not above three thousand taka).

6.How to Apply for Legal Aid

All applications for getting the legal aids must be submitted to the National Board of Legal Aid or in appropriate cases to the District Legal Aid Committee. If an application is rejected by the District Committee and the person feels aggrieved by that decision, then the applicant may prefer an appeal to the National Legal Aid Board within 60 days of the pronouncement of the decision of the District Committee.Apart from the aforesaid provisions, the Legal Aid Rules, 2001 provides for the following provisions on how to make an application for a legal aid:
a) The candidate shall apply, along with his full name & address and the underlying causes for his application, in a white paper;
b) If the application is made for legal aid for any matter in the Supreme Court, it is to be submitted to the Chairman of the organization, on the other hand, if it is for legal aid in any contract, it is to be made to the chairman of the District Committee;
c) The application accepted by the committee is considered in its next meeting;
d) If it is not possible for the committee to make a decision based on the submitted information then the committee may request for further information;
e) Once any application considered to have been accepted, the applicant litigant shall be informed in the prescribed manner.

7.Administration of Legal Aid in Bangladesh

TheAingoto Sohqyota Prodan Aincomprehensively provides for the decentralization of activities in the national and the district level. At the national level, there is a National Legal Aid Board, at the district level, there are District Legal Aid Committees, in the Upazilla or Thana level there are the Upazilla Legal Aid Committees and at the Union level, there are provisions for the Union Legal Aid Committees.

7.1.National Legal Aid Board

At the national level, the whole legal aid scheme is controlled by the National Legal Aid Board (National Board) which is a statutory body whose head office is situated in Dhaka.The Board is managed and administered by a Board of Governors who is constituted by the following persons:
1) The minister of the Ministry of Law, Justice and Parliamentary Affairs who will also be the Chairman of the Board of Governors.
2) Two members of parliament one of whom is from the Govt. ruling party and the other is from the opposite party in the parliament, both of whom will be nominated by the Speaker of theJatya Sangshad.
3) The Attorney General for Bangladesh.
4) The Secretary of the Ministry of Law, Justice Parliamentary Affairs.
5) The Secretary of the Ministry of Home Affairs.
6) The Secretary of the Ministry of Social Welfare.
7) The Inspector General of Police.
8) The Inspector General of jail.
9) The Vice-Chairman of Bangladesh Bar Council.
10) The President of the Supreme Court Bar Association.
11) The Chairman of the National Women Organization.
12) Representatives of three NGOs, dealing with the Law and Human Rights nominated by the Govt. and who have contributed in different districts.
13) Representatives of three women organizations nominated by the Govt. and who have contributed in different districts.
14) Director, who will be the Secretary of this Board.

7.2.Functions of the National Board

The Legal Aid Service Act, 2000 lays down an institutional framework for administering a legal aid at national and district levels. According to Section 7 of the Act, the National Legal Aid Board will mainly act as a policy-making authority and will discharge the following functions:
a. Formulate rules and policies to select a person and to provide legal aids to the people who are unable to get justice due to financial crisis or due to different socio-economic reasons;
b. Frame the scheme to provide a legal aid;
c. Take an initiative to organize research and educational activities to provide a legal aid;
d.Telecast different programs in order to create an awareness among general people on the availability of legal aids in different printed and electronic media;
e. Review the application rejected by the District Committee (monitor the activities of the District Committee);
f. Publish different books, leaflets, pamphlets, etc., for making people aware of getting the legal aid.

7.3.Meeting of the Board of Governors
The Chairman of the Board of Governors shall call the meeting at any place at any time in every three months. The Chairman will be the Chairman of all the meetings and in his absence anybody appointed by him shall perform his duties. One-third of the total number of the members will constitute the quorum of the meeting. But for any adjourned meeting no quorum will be required. In such meetings all members will have a single vote.

7.4.District Legal Aid Committee

The District Legal Aid Committee (District Committee) is solely responsible to provide legal aids at grass root level subject to the availability of funds from the government. The committee shall invite application from the seekers of legal aid, screen the applications, determine the criteria for proviso of legal aid and finally provide the legal aids. The District Legal Aid Committee is constituted by:
1) The District Judge who he will be the Chairman;
2) The District Magistrate;
3) The Superintendent of Police of the District;
4) The Jail Superintendent of the District;
5) The Social Welfare Officer of the District, if any;
6) The Women and Children Officer of the District, if any;
7) The Chairman of the National Women Organization or his nominee;
8) The President of District Bar Association;
9) The Govt. Pleader of the District;
10) The District Public Prosecutor;
11) The Inspector of the District Civil Jail;
12) One representative of the NGO nominated by the District Women Association;
13) The General Secretary of the District Bar Association, who will also be the member secretary of the organization;
14) The Metropolitan Magistrate and the Metropolitan Police Superintendent will also be the members of the District Legal Aid Committee where there is a metropolitan city district.

7.5.Duties and Responsibilities of the District Committee

The District Legal Aid Committee is responsible to perform the following duties:
a.To provide legal aid to the people who satisfy the criteria as set up by the Board of Governors and who are unable to get justice due to financial crisis or due to different socio economic reasons;
b.To set up the conditions on which a successful applicant will get the legal aid;
c.To take initiative to make the people aware of availability of legal aid;
d.To perform the duty invested by the Board; and
e.Any other activities necessary for the performance of the above mentioned activities.

7.6.The Meeting of the District Committee

The Chairman of the District Committee, i.e., the District Judge shall call the meeting at any place at any time every month. The District Judge will be the Chairman of all the meetings and in his absence, anybody appointed by him shall be the chairman. One-third of the total number of the members will constitute the quorum of the meeting. But for any adjournment meeting no quorum will be required.

8. Loopholesof Legal Aid Act

a) The lack of awareness & publicity about the legal aid scheme.
b) The accountability of the members of the Board and Committee are not ensured.
c) The present law compels indigent litigants to travel to the District committee to get legal aid which is very disadvantageous;
d) Making an application to the Law Minister seems to be a very big hurdle for an indigent client. It has not been clarified in the Rules how and to whom an indigent client will approach for legal aid in the Supreme Court.
e) The monthly meeting of the District Committee shall not be held regularly.
f) After allocating a case to a panel lawyer, there are no proper follow-up measures in the form of timely review of progress of the panel lawyers by the District Committee.
g) The Act does not specify cases for which legal aid can be provided.
h) The process of consideration of application can be identified as another source of delay in meeting the ends of justice as the members of the Board and Committee who will consider the applications are often very busy. As a result the applicant does not get justice when really needed.
i) In comparison with the number of legal aid seekers, the number of meetings held to consider these applications fall short of the requirement, as the Board holds at least one meeting in every three months and the Committee holds one meeting in every month.
j) The procedure of the selection of the application is not clear in the Legal Aid Services Act, 2000, i.e., the basis of consideration, the criteria for selection and above all the requisite number of members to give consent to such granting of application is not clear.
k) The members of the committees being from the upper strata of society, they often fail to realize the depth of miseries of these persons and cannot acquaint themselves with their problems.
l) In the Upazilla and Union committees, the inclusion of Chairman and fourteen other members makes the system more complex as it will be seen in most of the cases the legal aid seekers are the victim of the activities of these people.
m) The whole procedure to get legal aid under the Legal Aid Services Act, 2000 is full of difficulties due to its highly bureaucratic system.

9.Recommendations
1) The National Legal Aid Service head office should be reasonably equipped with a logistic capacity including manpower for monitoring and coordinating network that operates all over the country.
2) The District Legal Aid office should be located in the same premises of the District and Session Judge Court so that the aid seekers can communicate without difficulty.
3) Regular meeting of the National Legal Aid Service committee and District committee should be strictly ensured and monitored.
4) Awareness building regarding government legal aid service should be extended over the country through various ways such as print media, electronic media, seminars and symposiums.
5) The annual reports prepared by the Distinct Legal Aid committee submitting to the head office of the board should be regular.
6) Increasing target group confidence and reliability is an essential precondition for the government legal aid service to be effective and operational.
7) Reporting by the District Committees to the Head Office of NLASO should be regular, consistent and following a format recommended to be developed by NLASO.
8) The reporting formats should also be developed for the panel lawyers who should report briefly on individual legal aid cases.
9) Promoting political commitment to the causes and operation of the Government legal aid service through policy advocacy and coordination between different Ministries.
10) To raise the awareness about the legal aid service.
11) Proper monitoring and follow up measures should be taken by government.
12) The procedures for getting legal aid service of the indigent people from the legal aid office and NGOs should be easily accessible.
13) The fund to the legal aid service should be increased to adequate legal service to the indigent people.
14) The numbers of field officers of different NGOs should be increased to create the awareness about the legal aid.
15) To provide the effective legal aid service to the poor people and affected women.

10.Conclusion
Legal Aid as a mechanism endow with a great importance in the all spheres of life to provide equality in the society. A greater collaboration between government and NGOs may ensure a better utilization of the legal aid provisions. Equality before the law, equal protection of the law and rule of law which are all guaranteed by the Constitution of the Bangladesh will cease to be effective if the poor and vulnerable sectors of the populace are not properly provided with a legal aid facility or legal aid mechanism which has to be properly implemented. It is better to do something imperfectly rather than to do nothing flawlessly. A good plan implemented today is better than a perfect plan left for tomorrow. Bangladesh government takes initiative to provide this assistance to the poor people and has created a law for this purpose that is Bangladesh Legal Aid Act, 2000 and taken many scheme to implement these laws through the government action and also through the NGOs. But only the laws are not enough to ensure the proper implementation of the government and non-government initiative, the public awareness is the key factors to get the fruits of the legal aid system in this country. The Government should follow a strategy of continuous improvement. In order to evaluate the achievement of developments in legal aid, it is necessary to create a set of standards beside which it will be assessed.

Footer:
# Abdul Halim & Siddiki,The Legal System of Bangladesh: After Separation. Dhaka: Shams Publication, 2008, pp.7-18
# Kazi Ekramul Haque, K. E.,Administration of Justice in Bangladesh.Dhaka: Asiatic Society of Bangladesh, 2003, pp. 23-29
# 32 DLR (1980) 201
# Ibid.
# Sumaiya Khair, Legal Empowerment for the Poor and the Disadvantaged: Strategies Achievements and Challenges Dhaka, 2008
# The New Encyclopedia Britannica, Vol. VI,P.122
# Section 2(a) of the Legal Aid Services Act, 2000
# Md. Abdul Halim. (2009).The Legal System of Bangladesh. (4thed).Dhaka: CCB Foundation
# Md. Ansar Ali Khan. (2007)Legal System of Bangladesh. (1st ed).Dhaka: National Law Book House
# Preamble ofthe Constitution of the People’s Republic of Bangladesh
# The Constitution of the people’s Republic of Bangladesh. Art.28
# The Constitution of the people’s Republic of Bangladesh, Art.27
# The Constitution of the people’s Republic of Bangladesh, Art.31
# The Constitution of the people’s Republic of Bangladesh, Art. 33
# 32 DLR (1980) p 201
# Rule 1 of order XXXIII of CPC, 1908
# Rule 2 of order XXXIII of CPC, 1908
# Section340 of the Code of Criminal Procedure.1898
# Rule 2 of the Legal Aid Service Rule, 2001
# Section 16 of the Legal Aid Service Act, 2000
# Rule 3 of the Legal Aid Service Rule, 2001
# Act No. VI of 2000
# Bangladesh Legal Aid and Services Trust (BLAST),Annual report 2004-2005,Dhaka: Bangladesh Legal Aid and Services Trust (BLAST), 2005, pp. 12-19
# Bangladesh Legal Aid and Services Trust (BLAST) (2006).Strategic policy and future direction of BLAST,Dhaka: Bangladesh Legal Aid and Services Trust (BLAST)
# Section 6 of the Legal Aid Service Act, 2000
# Section 7 of the Legal Aid Service Act, 2000
# Ibid.
# Section 8 of the Legal Aid Services Act, 2000
# Section 9 of the Legal Aid Service Act, 2000
# Section 10 of the Legal Aid Service Act, 2000
# Section 11 of the Legal Aid Service Act, 2000
# Ibid.
# http://www.isca.in/IJSS/Archive/v1i3/2.ISCA-JSS-2012-015.pdf ; (visited on: December 15, 2012)
# http://www.manusherjonno.org/index.php/component/content/article/34-events/43-seminar-on-legal-aid-and-services-act.html(visited on: October 15, 2016)

 




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