In this article, Shreya Sahoo does a case Analysis of M.H.Hoskot v. State of Maharashtra.

Free Legal Aid And Its Significance

In this country, most of the prisoners belong to the lower and illiterate class, so they suffer silent deprivation of liberty caused by the unreasonable, arbitrary and unfair procedures behind the ‘iron bars’ and ‘stone walls’. Thus, it becomes essential that these people are made aware of their right to free legal aid.

Since the inception of the Legal Services Authorities Act, a total of 1,58,88,621 have benefited through the Legal services and the advice provided by the State Legal Services Act under Legal Services Authorities as on November 2017. And in the past 1 year, a total of 8,22,856 number of people have been benefited.

Meaning of Free Legal Aid

The definition of legal aid is to provide free legal services to the poor and indigent who are incapable of affording the services of an advocate for the preparation and representation of a case or a legal proceeding in any court, tribunal or before a judicial authority.

Right to Legal Aid

• Article 21 guarantees for ‘Protection of life and personal liberty’-

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

An advocate’s service is the most important ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and it will be a failure of equal justice if an advocate’s supportive skills and inputs are not present for the accused.

• Article 39A, a directive principle of state policy, provides for ‘Equal Justice and free legal aid’-

“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, 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.”

This article is an interpretative tool for Article 21.

• Fragments of statutory application of the mandate can be seen in Section 304, Criminal Procedure Code: “If the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the expense of the state.”

• Article 8 of the Universal Declaration of Human Rights insists on free legal aid, where liberty is endangered:

“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.”

• Article 14(3) of the International Covenant on Civil and Political Rights guarantees to everyone :

“The right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

• Madav Hayavadanrao Hoskot vs.State of Maharashtra

A person who is eligible to appeal against his or her sentence has the legitimate right to ask for an advocate, to prepare and argue the appeal.

• Khatri II vs.State of Bihar

It is the constitutional duty of the magistrate to inform and furnish legal aid to the accused and this duty emerges from the time the accused is brought before the magistrate for the first time and continues whenever he is produced for remand.

Therefore, it is the duty of the Magistrate or the Sessions Judge, before whom the poor or indigent accused person has been produced, to make aware that if such person is not able to engage any lawyer due to his indigence or poverty, he can do so by obtaining free legal services at the cost of the State.

However, the only criteria to seek free legal representation is that the accused must be charged with such an offense which on conviction would lead to a sentence of imprisonment.

• Suk Das vs.Union Territory of Arunachal Pradesh

• Every accused who appears before the Magistrates and the sessions judges must be informed about free legal aid, if the accused is not represented by a lawyer owing to his poverty or indigence and that he can avail free legal assistance at State’s cost.
• If an accused is not provided with legal assistance, unless he has been refuted such assistance, this would vitiate the trial. It might even lead to the annulment of a conviction and sentence.

• Sheela Barse vs. State of Maharashtra

The nearest Legal Aid Committee must be compulsorily notified by the police about the arrest of a person instantly after such arrest.

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Legal Services Authorities Act

The preamble of this act enunciates-

“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.”

Free Legal Aid can be provided to two categories–

The first category includes the following-

• A member of the scheduled caste or scheduled tribe.
• A victim of trafficking in human beings or begar as referred to in Article 23 of the Indian Constitution.
• A child/woman.
• A mentally ill or otherwise disabled person.
• A person under conditions of under-served need such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster, etc.
• An industrial workman
• A person in custody, including custody in a protective home or in a juvenile home.
• A person psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987.

The second category would comprise of people with economic difficulty-

• Persons having a per annum income less than rupees 9000/-, if the case is before any court other than Supreme Court.
• Any other higher income which may be permitted by the state government if the case is before other than Supreme Court.
• Persons having a per annum income less than rupees 12000/- if the case is before SC of India.

As stipulated by the Act the “court”  would mean a civil, criminal or revenue court and subsume any tribunal or any other authority incorporated under any law for now in authority, to exercise judicial or quasi-judicial functions.

Bodies existing by virtue of the Act

1. National Legal Services Authority has been created to deal with special cases where the life and liberty of a person are endangered by engaging senior and competent lawyers on payment of regular fees.
2. State Legal Services Authority has been instituted in every state to implement the directives of the Central Authority, that is, to furnish legal assistance to the general population and organize Lok Adalats in the state.
3. District Legal Services Authority and Taluk Legal Services Authority have been instituted to undertake and implement the activities of legal services in district and Taluk respectively.
4. SC of India has, in addition, constituted the Supreme Court Legal Services Committee to assure free legal assistance to the indigent and poor.

When can free legal services be rejected

Free services can be refused to any applicant in certain circumstances enumerated below-

1. Has sufficient means to avail justice
2. Does not satisfy the eligibility standard.
3. Has no merits in his application which requires any legal action
4. Has the means to arrange for legal assistance

What proof do you need to prove eligibility?

An affidavit with your income and Identity proof are required as documentation to be eligible for free legal services.

When can free legal services be rejected

Free services can be refused to any applicant in certain circumstances enumerated below-

1.   Cases which involve defamation, malicious prosecution, contempt of court, perjury etc
2.   Any proceedings pertaining to an election
3.   Cases in which the fine is less than ₹.50/-
4.  Cases involving economic offenses and offenses opposing social laws
5.  Cases where the person requesting legal assistance does not have the locus standi and whose interests will not be vitiated

When can be free legal services be withdrawn?

Free legal services can be withdrawn in certain circumstances which have been mentioned hereunder:

1. Assistance is procured through fraud or misrepresentation.
2. Any material change takes place in the circumstances of the aided person.
3. There is misbehaviour, misconduct or negligence on the account of the person to whom aid is provided.
4. Person to whom aid is provided does not cooperate with the advocate who has been assigned.
5. Person to whom aid appoints another advocate.
6. Person to whom aid is extended dies, except in civil cases.
7. Proceedings would result in misuse of the process of law or of legal aid.

How to apply for free legal services

A person who requires free legal services can seek for  the concerned authority or committee through an application which could either be sent in written form,or by filling up the forms formed by the said authorities stating in brief the cause for seeking legal aid or can be made orally in which case an officer of the concerned legal services authority or a paralegal volunteer can assist the person.
A person can also apply online for getting Legal Aid to any Legal Services Institution in the country by filling up the “Legal Aid Application form” accessible online at NALSA’s website by going on the ‘Online Application’ Link, along with uploading the required documents.

Right To Appeal

An appeal is a continuation of a suit and has been said to be “the right of entering a superior court and invoking its aid and interposition to redress the error of the court below.”The right to go to the judicial forum for dispute resolution is a vital right of all persons. It will be a repudiation of a fair procedure if the right to appeal is denied and hence would vitiate the idea conceived under Article 21 of the Indian Constitution.

There is an implication on the court under Article 142, read with Article 21, and Article 39A of the Indian Constitution, to dispense legal services, in case a prisoner sentenced to imprisonment is not able to exercise his statutory and constitutional right of appeal, including an SLP. Therefore it is essential to allow a counsel for such an imprisoned person for doing absolute justice. This is an imperative incident of the right of appeal bestowed by the Code and granted by Article 136 of the Indian Constitution.

The important question discussed in the landmark case M.H.Hoskot vs. State of Maharashtra was if the right of appeal is a vital part of the fair procedure as desired by Article 21 of the Indian Constitution. By virtue of Article 21 fair procedure has been contemplated to be an essential part of natural justice. The SC in the aforementioned case has enumerated certain rights in favor of the convicts –

1.  When convicting a person the courts shall instantly dispense a free transcript of the judgment.
2. When any such copy is being sent by the appellate, revisional or other courts to the jail officials for delivery to the concerned prisoner, then the concerned jail authority shall, with expedite despatch, get it delivered to the person sentenced. They must mandatorily procure a written acknowledgement thereof from him.
3. If the prisoner seeks to file an appeal or a revision then every means for the exercise of the right to appeal shall be made available to the prisoner by the Jail Administration.
4. The court shall appoint a competent  counsel for the prisoner’s defense, in case the prisoner is not able to engage a lawyer, on reasonable grounds such as indigence or incommunicado situation, and if the circumstances of the case, the gravity of the sentence, and the ends of justice so demand, provided the party does not object to that lawyer.
5. The State which prosecuted the prisoner and set in motion the process which denied him of his liberty shall pay to allocate a counsel such fee as the court may equitably decide.
6. These benevolent prescriptions operate by force of Article 21 and are strengthened by Article 19(1)(d)(5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril.

Appeals before the Supreme Court of India

The highest court in India for filing an appeal is the Supreme Court of India. The SC has appellate jurisdiction for the matters which are mentioned below-

Constitutional Matters

Under Article 132(1) –

If HC permits the certificate to decide the question of law as to the interpretation of the constitution, then in that case appeal is allowed to the SC.

Civil Matters

According to Article 133 –

In matters involving civil matters, the High Court may grant a certificate to make appeals to the Supreme Court under the situations mentioned below:

• If the case involves a vital question of law
• If the case has been decided wrongly and it is required to be concluded by the Court.

After the High Court grants the certificate, the appeal can only be made within 60 days from the date of grant of the certificate.

Criminal Matters

According to Article 134 –

The Supreme Court of India has the authority to hear the criminal matters in the cases where the High Court grants certificate or even when a certificate is not granted. Both the situations have been discussed hereunder:

• Without Certificate granted by the HC under Article 134 (a) (b) of the Constitution:

“When the High Court has reversed the order of acquittal of the accused person and imposed on him capital punishment or life imprisonment or imprisonment for a period of 10 years or more;or the High Court has  from before itself withdrawn any case from any lower court and has convicted the accused person and punished him to death in trial.”

• With Certificate granted by the HC under Article 134 (c) of the Constitution:

“If the particular case is fit for the appeal to the SC of India.”

Special Leave Petition

There can be instances when some special class of appeals may not follow the general hierarchy of the courts and tribunals. Article 136 of the Indian Constitution provides for special leave for appeal which can be granted by the Supreme Court of India against any judgment or order made by any court or tribunal in the country in the following matters:

• In a matter where gross injustice has been done.
• Where a substantial legal question is involved

It can even be filed when an HC does not accept an appeal to SC. Any judgment or order pertaining to the armed forces cannot be appealed by filing a special leave petition.

How To File An SLP

1. It is required that the petition must contain all the important facts for the SC to adjudge whether leave may be granted to the Special leave petition. This petition must include the petitioner’s statement that he/she has not filed any other such petition in the HC and must be duly signed by the counsel on record.
2. A copy of the judgment the Special Leave Petition is sought against, along with all the verifying affidavit and documents must be attached to the petition. After the filing of the petition is completed the court hears the case and depending on the merits of the case permits the opposite party to state their views in a counter affidavit.
3. After the completion of this process, the court decides if special leave is to be granted or not. Supreme court exercises its appellate jurisdiction if the special leave is granted and all the decisions of the Supreme Court subsequent to the admission of SLP are binding on both the parties.

Time Limit to File SLP

1. SLP can be filed within 90 days against any judgment, from the date the judgment was pronounced.
2. SLP can be filed in the Supreme Court within 60 days, against the order of HC refusing to permit the certificate of fitness for appeal to.

Conclusion

Therefore, it can be concluded that it is not the duty of the accused to ask for an advocate to represent and counsel his case but a fundamental right extended by the Indian Constitution to seek free legal aid. But despite this fact, the legal aid revolution has not been able to achieve its goal and there is a long road to traverse before the goal is met. It is the absence of legal awareness of the basic fundamental rights amongst the lower rung of our society which leads to deprivation of freedom and liberty.

If the poor would not be able to enforce their rights then they might lose faith in the judiciary resulting in settlement of the dispute outside the court. This situation will lead to complete anarchy due to the dearth of the authority of law. Therefore, to safeguard equality in opportunity to seek justice of an indigent, he must be made aware and be legally aided.

Also, the right to appeal is not a natural or inherent right, it is a creation of statute and there cannot be any right of appeal until and unless it is explicitly provided in any statute. However, it is urged that such a restriction would violate the fundamental rights of a petitioner provided under Article 21. If the right to appeal is denied not only would it result in taking away the person’s right to liberty but the conviction would bring disgrace for the convict.