This article is written by Aishwarya Sinha & Tulsi from BPS Women’s University, Sonepat, Haryana.
Table of Contents
Introduction
“I do not know why the state government has not made any efforts to pay us our fees. It has been seven years since the judgement was delivered by the high court. The Supreme Court confirmed the death penalty and Kasab is also dead. But we are still waiting for the fees.”
– Amin Solkar (one of the lawyers who defended Ajmal Kasab) told PTI.
Justice delayed is justice denied, but the question here is how many of us have actual access to justice? Is the distribution of justice same in our society for all? Is the weakest section of society being heard properly at the root level? There are many questions which can be taken into consideration. Legal aid seeks to provide justice to those who lacks finance to engage themselves in the court’s expenditure. Though it aims to provide equality for all it often fails in its objectives because of certain economic constraints. This article lays emphasis on what is legal aid, its constitutional and statutory provisions, its social implementations, its Judicial and legislative perspective.
‘Legal aid’ succours to the people who are unable to render finance for themselves for their legal representation in the court. It is a measure taken by the state to provide justice to all. The preamble of the Indian constitution says that justice should be delivered to each and every person. Article 14 of the Indian constitution lays down equality before the law. It basically defines equality in two-sphere:
- Equality before law
- Equal protection of law within the territory of India.
Article 15(5) of the Constitution of India provides that nothing in the article 15 shall prevent the state from making any special provision, by law, for the progress of any economically and socially backward classes of citizens in India or for the Scheduled Castes or the Scheduled Tribes. Article 21 of Indian constitution is very wider in its sense i.e. it lays that not even a single person should be deprived of the right to life and personal liberty except in accordance to the procedure established by law.
But the reality is far different. These provisions are failing when it comes to implementation. This is because, in a country like India, the problems of poverty, malnutrition, illiteracy etc are still the basic problems. Thus the basic structure of the building has no grip to hold the whole institution & the whole institution would automatically collapse. In such a condition it is really difficult for even a middle-class person to pay for regular court proceedings & there is no room for a poor at all.
In such a scenario, it becomes the duty of the state to provide justice to them. No one should be denied justice just because he/she is poor because no one is poor by choice. The Supreme Court of India made a pronouncement on the rights of poor in Hussainara Khatoon case–
Where the petitioner brought to the notice of Supreme Court that most of the under trials have already undergone the punishment much more than what they would have got had they been convicted without delay. The delay was caused due to the inability of the persons involved to engage a legal counsel to defend them in the court and the main reason behind their inability was their poverty. Thus, in this case, the court adverted that Article 39-A lay emphasis on free legal service which is an inalienable element of reasonable, free, just procedure and this right is included under Article 21 of Indian Constitution.
Judicial precedent
Justice P.N Bhagwati
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 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 & illiterate who don’t have access to courts.
Justice P.N Bhagwati emphasized the need for creating legal awareness to the poor as they are not aware of their rights, more particularly about free legal aid and are illiterate.
Justice Krishna Iyer
He rightly pointed that if a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional & statutory right of appeal inclusive of special leave to Supreme Court for want of legal assistance that is implicit in the court under Article 142 read with Article 21 and Article 39-A of the Constitution, the power to assign counsel for such imprisoned individual is required for doing complete justice.
Legislative perspective
Under Constitution of India
The Constitution of India lays down various provisions related to legal aid. Article 14 of the constitution of India lays down equality before the law. It states that the state shall not discriminate any person within the territory of India and shall give all of its citizen equal protection of the law. By providing the means of Legal Aid the state aims to provide equality to those citizens who cannot afford to pay for themselves. Article 15(5) of the constitution of India provides that nothing in the Article 15 shall prevent the state from making any special provision, by law, for the upliftment of socially and educationally backward classes of people or for the Scheduled Tribes or the Scheduled Castes.
Legal aid a constitutional right under Article 21 & Article 39-A of the constitution of India. Article 21 lays down protection of life & personal liberty. It state that not even a single person should be deprived of the right to life & personal liberty except in accordance with the procedure defined by law. Article 39–A the constitution of India provides the provision of ‘Equal justice and free Legal aid’. It lays down that the state on the basis of equal opportunity shall promote justice and secure the operation of the legal system. It must specifically provide legal aid for free by various schemes and legislation, ensuring that justice should not be denied to any person on the basis of economic or social constraints.
Article 21 is a fundamental right conferred under Part III of the constitution of India and Article 39-A is one of the Directive Principles of the State Policy conferred under Part IV of the Indian Constitution.
Under the Civil Procedure Code, 1908
There are provisions of legal aid in the Civil Procedure Code, 1908. Order 33 Rule 17 of civil procedure code 1908 lays down the suits filed by the Indigent person. The fee has to be paid for the institution of the suits in court. But there are innumerable persons living under the poverty who cannot afford to pay the court fee & to enable them to file suits and also exemption from court fee is provided under Order 33 of CPC.
Rule 17 of CPC provides defence by the indigent person. Any defendant who is an indigent person, who desires to plead a set-off or counterclaim, may be allowed to do so & the rules contained this order shall apply to him as if he were a plaintiff and his written statement were a plaint. The state ensures a place for an indigent person so that he should not be denied justice on footings of financial disabilities.
Order 33 rule18 of CPC lays down the power of government to provide free legal services to the indigent person.
Under the Code of Criminal Procedure 1973
The provision of legal aid can be traced in Criminal law too. Legal aid can be provided in all kinds of criminal cases in India. Section 304 of CrPC provide that the legal aid be provided to the accused at the state expense in certain cases-
- where the court will be satisfied that no pleader has been assigned to accused, it shall assign the same for his defence and the pleader will be funded through state only.
- the High Court has the power to make a rule for the selection of above-stated pleaders, the kind of facilities which that pleader will avail and amount of fees to be paid to such pleader with the prior approval of the state government for carrying out such pleadings.
- the state government through a notification in the official gazette may fix the date from which the provision of this section shall apply to trial and any case before any other court as before the case in a court of session.
By making such provision the state ensures that the provision of Legal aid would reach the ground level and would provide justice to the needy.
Statutory recognition
Every person who wants to institute a suit whether civil or criminal is entitled to legal services. Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to eligible persons. Under the act, if a person is-
a) any member of Scheduled Tribe or Scheduled Caste;
b) any victim of human trafficking or beggar as per Article 23 of the Indian constitution;
c) any child or any woman;
d) any person who is suffering from mental illness;
e) any person who is a victim of any natural disaster i.e. earthquake, flood, drought or any other kind of disaster whether mass or industrial disaster or any ethnic violence;
f) a worker working in the industry;
g) in any custody, within the meaning of custody in a protective home as defined under Section 2(g) of Immoral Traffic (Prevention) Act, 1956.
h) A person who has annual income less than rupees nine thousand or any other higher amount as the State govt. may prescribe, if the case is produced other than before the Honourable Supreme Court, & annual income less than rupees twelve thousand or any other higher amount as the central govt. may prescribe, if the case is produced before the Supreme Court.
Various cases where no legal aid can be provided in India
- Defamation
- Contempt of Court
- Lying under the Oath
- The prosecution did out of vengeance
- Economic offences & offences against the social laws
- Proceedings related to elections
- Cases where the fine imposed not more than Rs.50/-
- The proceedings whose interests will not be affected if not represented properly
- Cases where the person seeking legal aid is not directly concerned with.
International provision
Under the Universal Declaration of Human Rights, Article 10 states that everyone is entitled to equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his legal rights & obligation and of any criminal charges against him. Under the international covenants on civil and political rights, Article 14(1) states that all people shall be equal before the court and tribunals. Under the Article 14(3) (d) of the International Covenant on civil and political rights 1996, mandates any person who is facing any Criminal charge to defend himself in person or through the assistance of a counsel of his choice and if he does not have legal assistance, to be informed of his rights and provide him the legal assistance without any kind payment if he is unable to pay the same due to lack of fund.
Hierarchy of bodies under the act
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a. Gives policies & directions to a central authority (NALSA) b. Give legal services to people c. Conduct Lok Adalat – Headed by Chief Justice of High Court who is its Parton-in-chief
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To implement legal aid programmes and schemes in the district
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Judicial interpretation
In Khatri v. the State of Bihar
It was laid down that it is the duty of the state to provide such legal aid not only during the trial but at any time during the proceedings i.e. when they are first produced before the magistrate or when timely remanded.
In the State of Maharashtra v. Manubhai Pragaji Vashi
The court considered the concept of free legal aid as a legal right in a more wider sense. This right of free legal aid is guaranteed as a fundamental right under Article 21 & fundamental duty on the part of the state under article 39A of constitution of India to provide “equal justice” & “free legal aid”.
In Rhem v. Malcolm
It was laid down that the state cannot be permitted to deny the constitutional right of the speedy trial to the accused on the ground that the state has no adequate financial resources to incur necessary expenditure to deal with trial expeditiously. The State has also to focus upon other fields according to its own priority but it can’t ignore human as a resource and hence to focus upon that no one can be infringed from or deprive of any constitutional right just because he is poor.
In Shri Abdul Hassan & National Legal Services Authority v. Delhi Vidyut Board & Ors.
The Delhi High Court observed that “it is emphasized in Article 39A of the constitution that the legal system should be able to deliver justice expeditiously on the basis of equity and providing free legal aid to ensure that opportunity for securing justice & not deny any citizen by reasons of economic or other disabilities.
In State of Haryana v. Smt. Darshana Devi & Ors.
The Hon’ble Apex court found that no state, it seems as yet framed rules to give effect to the benignant provision of legal aid to poor in Order 33 Rule 9-A of CPC although several years have passed since enactment. After the law has been enacted but the state does not bring it into force by wilful default in fulfiling the condition sine qua non. It is the public duty of each great branch of government to obey the rule of law & uphold the tryst with the constitution by making rules to effectuate legislation meant to help the poor.
In Madav Hayavadanrao Hoskot v. the State of Maharastra
It was laid down that a person is entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal.
In Sheela Barse v. the State of Maharashtra
In this case, the question raised was regarding the safety and security of women prisoners in police lock-up and their protection against torture and ill-treatment. It was laid down that not only to women prisoners but to all the prisoners lodged in the jails in the state should be provided legal assistance. The police must inform the nearest Legal Aid Committee about the arrest of a person immediately after such arrest.
In Suk Das v. Union Territory Of Arunachal Pradesh
It was stated that it is the duty of the court to make the party avail with a lawyer if the same is not capable of hiring it due to the account of his poverty. On the basis of equity and also to provide free legal aid to ensure that justice can’t be denied due to the reason of financial constraints.
Failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.
In Ajmal Kasab v. the State of Maharashtra
The Apex Court while upholding the death sentence in this case held that it is the duty and obligation of the magistrate where accused person who has committed an offence having its nature as cognizable and is first produced for the very first time to make the accuse person wholly aware of his right to consult and to be defended by any legal practitioner of his choice and if for any reason he is incapable to hire a lawyer of his own choice, the same would be provided at the expense of state only.
The Court considered this obligation at the commencement of the trial as absolutely necessary unless the accused person voluntarily confirms to the court that he does not want any kind of assistance from any lawyer and would rather defend himself on its own. Any failure to this would make the trial vitiate and the accused may be subject to conviction and sentence.
The Court in this decision puts an obligation on all the Magistrate in the country to discharge the aforesaid duty in an honest manner and any failure to this would amount to a violation of his duty would make the concerned magistrate liable to departmental proceedings.
In Rajoo @ Ramakant v. the State of M.P.
It was held in this case by the honourable Supreme Court that free legal aid must be provided to all accused who by reason of their poverty are unable to engage with a lawyer, irrespective of their severeness in the crime and the same would not be restricted to the trial stage only. According to the Indian Constitution and the Legal Service Authorities Act, there is no difference between a trial and appeal for the purpose of providing free legal aid to such an accused person. This clearly shows that the poor accused person will be provided free legal services at all stages of the proceedings, whether at trial or at appeal. It is the fundamental duty of the state to provide it free of cost.
Myth and reality of legal aid
“Mumtaz, a victim of domestic violence who is a mother, whose husband remarried without even divorcing her, filed for assistance from free legal services. She barely earned Rs 3,000 a month. But she complained that on asking for free legal aid services, her lawyer doesn’t attend all of her hearings in the court. She even used to ask for little money from the victim all the times. This incident brings the ground reality on the table. It shows the loopholes in our system. Why are lawyers not ready to work for pro bono cases? On the ground reality, the legal aid is completely neglected said by Manisha Tulpule, a Mumbai based lawyer who takes cases from NGOs and work for pro bono privately.”
As examined by Justice Iyer and Justice Bhagwati that a huge number of Indians, steeped in ancient injustice and modern miseries have little to hope for from the law. They have much to shoot against it. In such conditions, it is a must duty of the state to take steps and keep the faith of people in the justice system. Though the execution of legal aid is a great help, much more of it is failing to work till root levels. Thus in order to convert the myth into reality, certain measures should be taken-
- Enough Monetary Ailment– The NALSA is given an annual amount of Rs. 6 crores for the execution of its policies. The Committee is of the opinion that this amount is not sufficient for such an important scheme and strongly recommends that substantial allocation should be made at a revised estimate to make the functioning of NALSA more effective.
- Experienced/Calibre Lawyer to be allowed– NALSA has framed the National Legal Service Authority(Free & Competent Legal Service) Regulations, 2010. It engages Senior competent lawyers on payment of regular fees in special cases where the life & liberty of a person are in jeopardy. Here the law is in itself has not defined the ‘Special Cases’ which has left a loophole and thus in the end again the poor are suffering due to it as most of them will not be able to take benefit of this provision.
In normal cases, the lawyer of the person seeking legal aid services is provided with very less amount as their pay. Therefore, why would a calibered lawyer who could earn a handsome amount from another client want to devote his time for this case? Thus the lawyer in the panel must be experienced. The law ministry should ensure that the senior lawyers must do at least 10 cases in a year under free legal aid in the court.
- Aware Public – If the general public will be aware than only the legal aid will be implemented until its root level. Programmes, seminars, aggressive campaigns should be organised by the law ministries. Awareness of scheme programmes should be able to guide the poor litigants in an effective manner. Efforts should be made to inform the public of the existence of these schemes by electronic media and advertisements.
- Law School & NGOs – Law School and NGOs should also take initiative to contribute towards legal aid. The young law students should be encouraged to participate in legal aid services with their legal academicians who has deep knowledge and experience can take an active part in these legal aid programmes.
NGOs should identify the people who are in need and provide them with the remedy as the people are ignorant of their rights as well as the availability of legal aid.
- Evaluation of the performance of all legal aid authorities –All the district legal aid service authority should be evaluated and compared (the best to be awarded recognition and prizes) with another district legal service authority inter as well as intra states to encourage legal aid.
Conclusion
From the above discussion, it is very intelligible that the framers of Indian Constitution have incorporated provision in the Constitution of India under its Article 39-A, directing the state to take measures to provide free legal aid. The government of India used this article as a base to form the ‘Legal Service Authority Act 1987’ & also incorporated several provisions in Civil Procedure Code 1908 (Order 33 Rule 17, Order 33 Rule 18) and under Code of Criminal Procedure 1973 (Section 304) to render free legal aid to the needy.
Despite all the actions and measures are taken by the government to provide free legal aid, there is not much change in the ground reality as there are many people in different parts of our country who are still unaware of their legal right from which they can seek advantage. Thus, it is need of the hour to make people aware of their legal right so that justice and equality reach to each and every person and no stone is left unturned.
For this purpose assistance from NGOs should be taken. They should identify the people in need and provide them with remedy. The NGOs, the government & the general public who are aware of these provisions should step in and organise awareness campaign and should focus on the implementation of the statutes which it has already enacted. It also becomes the duty of the experienced lawyer to give their contribution to the society voluntarily by providing free legal aid because justice and poor are standing at the different edges in the ground reality.
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