ACCESS TO FREE LEGAL AID

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This article was written by Shruti Kapoor, a student of Lucknow University.

Legal aid means extending legal assistance free of cost to the poor and needy, to those who do not have the resources to engage a lawyer to represent them in legal proceedings in a tribunal, court or before any other authority.[1]It implies that giving free legal service to the poor and weaker section of society and to ensure that no one is deprived of professional advice and help because of lack of fund. In this regard Justice P.N. Bhagwati rightly observed that:[2]

          The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don’t have access to courts. One need not be a litigant to seek aid by means of legal aid.

Therefore, free legal aid is a method through which system of government funding is proving to those poor and needy who cannot pay cost of litigation.

The concept of free legal aid is closely related to welfare state. It is welfare provision by the state to people who could not pay counsel fee to represent them in legal proceeding. International conventions and their provisions relating to legal aid inspired the schemes for legal services in India too. For instance, Article 8(e) of the American Convention on Human Rights provides the accused with an ‘inalienable’ right to be aided by a state provided counsel, who may or may not be paid (according to the domestic law) in case the defendant is unable to defend himself on his own or appoint a counsel for the same in the time frame stipulated by law. The European Convention on Human Rights, Article 6, gives the accused who doesn’t have adequate resources to afford legal assistance or fails to defend himself, the right to be given a lawyer of his choice by the state, in order to satisfy the aims of justice. It has been held in Monnell v. Morriss that the right under Article 6 cannot be allowed when the defendant has already received representation and a fair trial has taken place but he demands legal aid to appeal against his conviction. Thus is in order to give a proof of need for legal aid in interest of justice, a written submission requesting the same is sufficient. Also, when the state appointed counsel turns out to be incompetent to properly defend the accused, then the domestic court is legally required to resolve the problem ding[3].

CONSTITUTIONAL PROVISION REGARDING FREE LEGAL AID

“Article 39A. Equal justice and free legal aid–                       

                   The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities[4]”

Article 39A, forms a part of the Directive Principles of State Policy, and is given under Part V of The Constitution of India, 1950. It was inserted by the Constitution (42nd Amendment) Act, 1976.[5]Regarding the right to free legal aid, Krishna Iyer,J.,declared, “this is state’s duty and not government’s charity.” The main purpose of this Article is to promote legal equality so that justice is not denied merely on the ground of economic incapability to pay the cost of legal aid.

 The courts have also stressed on the importance of this article. In Abdul Hassan v. Delhi Vidyut Board,[6] the Delhi High court has said that, “It is emphasized that the legal system should be able to deliver justice expeditiously on the basis of equal opportunity and provide free legal aid to the citizens to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities.”

ARTICLE 39A READ WITH ARTICLE 21 OF THE CONSTITUTION

The SC has reiterated the significance attached to free legal aid not only in terms of Article 39A but also with respect to Article 14 and Article 21. Article 14 provides for equality before law and equal protection of laws[7].This implied means that parties to a legal case must have equality of opportunities in accessing the courts and defending their case. But the high legal fees, cost of proceedings, creates inequality of opportunities for the impoverished who are unable to afford this and this calls for free legal aid to be given to them.

Article 21 also guaranteed fundamental right to free legal aid. In Hussainara khatoon v. Home Secretary, Bihar,[8] the SC has held that it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the State is under constitutional duty to provide a lawyer to such person if the needs of justice so required. If free legal services are not provided the trail itself may be vitiated as contravening Article 21.

In Bombay terror attack case, the accused, a Pakistani national, was offered lawyer at the time of his arrest but he denied. When after making request for lawyer of his country, he was convinced that no aid would be provided by his home country, he made the demand for lawyer which was immediately provided to him. in Suk Das v. Union Territory of Arunachal Pradesh[9]it was held that it is the responsibility of the presiding judge to make the accused aware of his right to demand free legal assistance from the State if he cannot afford to engage a lawyer himself and if the accused is convicted without being informed of his right to legal aid and subsequently not having a lawyer to represent him at the trial, the conviction would be declared invalid[10].

STATUTORY PROVISIONS REGARDING FREE LEGAL AID IN INDIA

Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure provide provision regarding free legal aid by appointing the advocate for defending criminal case and by exempting court fees in civil cases, but even after these provision poor and weaker section were deprived of legal aid. Therefore the Legal Services Authorities Act, 1987 was passed by the parliament of India. The Act prescribes the criteria for giving legal services to the eligible persons. It makes a person eligible for assistance under the act if he is –

• a member of a Scheduled Caste or Scheduled Tribe;

      (b) a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;

      (c) a woman or a child;

      (d) a mentally ill or otherwise disabled person;

      (e) a person under circumstances of undeserved want such as being a Victim of a mass disaster, ethnic violence, caste atrocity, flood, Drought, earthquake or industrial disaster; or

      (f) an industrial workman; or

      (g) in custody, including custody in a protective home or in a juvenile home

    (h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987;or

      (i) A person whose annual income less than rupees fifty thousand or such other higher amount as may be prescribed by the State Government.[11]

 According to the Act the ‘court’ is a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions[12]. Under the Act ‘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[13].

CONCLUSION:

Free legal aid is a duty imposed on state government to grant legal assistance to those who cannot afford cost of legal proceeding. This concept is imbibed in our judicial system in order to secure and promote justice in society and to ensure that no poor or weaker class person is deprived of justice. In India many machinery like Lok Adalats, Public Interest Litigation, Nyay Adalat, etc. are established to dispense legal aid efficiently. In order to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability it is necessary to have well –trained lawyers in the country. This is only possible when there are adequate number of law school with necessary infrastructure, good teachers and staff. Government should also permit establishment of duly recognized private law college and afford them grant-in-aid on similar lines on which it is given to government recognized colleges. These law institutions should promote legal aid among students. The benefits of legal services should not only be directed to the poor sections of society but also to those suffering from disability and discrimination such as prostitutes, the mentally challenged, etc. In providing legal aid, legal aid institution at all level such use Alternative Dispute Resolution (ADR) method for speedy disposal of matter between the parties.

[1] Commonwealth Human Rights Initiative, Legal Aid and Advice, available at http://www.humanrightsinitiative.org/publications/police/legal.pdf

[2] Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel,  Principal, New Lal College, Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice between the rich and the poor.

[3] D.D. Basu

[4] Art. 39A, THE CONSTITUTION OF INDIA, 1950

[5] D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, vol. 3, 4098, 8th edn. (2008)

[6] AIR 1999

[7] Art. 14, THE CONSTITUION OF INDIA, 1950

[8] AIR 1979 SC 1377

[9] Suk Das v Union Territory of Arunachal Pradesh , AIR 1986 SC 991

[10] A.P Datar, COMMENTARY ON THE CONSTITUTION OF INDIA, vol. 1, 585, 2nd edn. (2007)

[11] Section 12 of the Legal Services Authorities Act, 1987

[12] Section 2(1) (a) of the Legal Service Authority Act,1987.

[13] Section 2(1)(c) of the Legal Service Authority Act,1987