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Published : May 09, 2016 | Author : chitrita21
Category : Legal Aid and Lok Adalat | Total Views : 1008 | Rating :

  
chitrita21
B.A. L.L.B (hONS) NIRMA UNIVERSITY
 

Legal Aid- A catalyst for social change

Injustice – not the absence of laws but the absence of knowledge

Introduction
Whatever standards a man chooses to set for himself, be they religious, moral, social or purely rational in origin, it is the law which prescribes and governs his rights and duties towards the other members of the community. This somewhat arbitrary collection of principles he has very largely to take as he finds and in a modern society it tends to be so diverse and complex that the help of an expert is often essential not merely to enforce or defend legal rights but to recognize, identify and define them. - Mathews and Outton

The unheard cry of a raped girl, the unheard wail of a beaten up wife, this is the fate of the victims when the culprits walk free. Welcome to India, the real India. The base, the heart, of the Indian Constitution, its preamble gives “Justice for all”. The issue here is not to question the preamble, but to question the prevalence of this statement in reality. It’s not the question of lack of implementation of the laws but the lack of knowledge of the same. Does a beaten up wife knows the existence of the law against Domestic Violence; does an eleven year old boy working at the tea stall know the presence of law against Child Labour?

These questions directly point towards the lack of knowledge of laws in our society. Scientia potentia est (knowledge is power) – Sir Francis Bacon, even mere knowledge means power; Thrasymachus – “I say that justice is nothing other than the advantage of the stronger”.

The researchers have concluded from both the quotes that mere knowledge of the existing laws by all can make the whole society just. The paper will start by defining as to the meaning of Legal Aid. It will go on to discuss the cases relating to Legal Aid Movement in India. Further there will be a brief study of Legal Aid under Legal Services Authority Act, 1987. In the end there will be a study of the way this movement is working in India. Legal Aid Right to Legal Aid: The talk of human rights would become worthless unless a person is provided with legal aid to permit him to have access to justice in case of violation of his human rights. This a formidable challenge in the country of India’s size and heterogeneity where more than half of the population lives in far-flung villages covered in poverty, impoverishment and illiteracy. Legal aid is no longer a matter of charity or compassion but is one of the constitutional rights and the legal machinery itself is expected to deal specially with it.

The basic philosophy of legal aid views that the machinery of administration of justice should be easily accessible and should not be out of the reach of those who have to seek it for the enforcement of their legal rights. In fact legal aid offers a challenging opportunity to the society to redress grievances of the poor and thereby law foundation of Rule of Law. In India, judiciary has played an important role in developing the idea of legal aid and expanding its capacity so as to enable the people to have access to courts in case of any violation of their human rights. The Encyclopedia Britannica defines legal aid as phrase which is acquired by usage and court decisions, a specific meaning of giving to person of limited means grants or for nominal fees, advice or counsel to represent them in court in civil and criminal matters . Incapability to consult or to be represented by a lawyer may amount to the same thing as being dispossessed of the security of law. Rawls first principle of justice is that each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all . Legal Aid is the method adopted to ensure that no one is excluded from professional legal advice and help because of lack of funds. Thus, the provisions of legal aid to the poor are based on humanitarian considerations and the main aim of these provisions is to help the poverty-stricken people who are socially and economically backward . Lord Denning while observing that Legal Aid is a system of government funding for those who cannot afford to pay for advice, assistance and representation said: “The greatest revolution in the law since the post-second World has been the evolution of the mechanism of the system for legal aid. It means that in many cases the lawyers’ fees and expenses are paid for by the state: and not by the party concerned. It is a subject of such importance that I venture to look at the law about costs-as it was-as such it is-and as it should be.”

Case Laws Under Article 21 of the Constitution

of the right to free legal services to a person accused of an offence is settled law. In Hussainara Khatoon v. State of Bihar , the Apex Court stated, that the right to free legal services is clearly an essential ingredient of 'reasonable, fair and just' procedure, for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer".

The Apex Court pointed out that it is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal service available to him A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar In this case, Bhagwati, J. observed: "Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty." Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content. The Court further observed that where there are issues of the gravest constitutional importance involving as they do the exploration of a new dimension of the right to life and personal liberty, it has to lay down the correct implications of the constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is evolving.

In Hussainara Khatoon (II) v. Home Secretary, State of Bihar, the Court while dealing with the cases of under-trials who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21.

In Khatri v. State of Bihar, the Court stated, that the State was under a constitutional mandate to provide free legal aid, to an accused person, who was unable to secure legal services on account of indigency, and whatever was necessary for this purpose, has to be done by the State. The State will have its financial constraints and its priorities in expenditure, but the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty. Justice Blacknum says that "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations", in that case, the Supreme Court further stated, that it was unfortunate that though it had declared the right to legal Aid as a fundamental right of an accused person, by a process of judicial construction of Article 21, most of the States in the country had not taken note of this decision and provided free legal service to a person accused of an offence. Article 39-A of the Constitution is an interpretative rule for Article 21. Partial statutory implementation of the mandate is found in Section 304 of the Code of Criminal Procedure and in other situations, Courts cannot be inert in the face of Articles 21 and 39A.

In M. H. Hosket v. State of Maharashtra Krishna Iyer, J. stated : "The inference is inevitable that this is a State's duty and not Government's charity. Actually affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people, but mere philanthropy of it members’ yields short mileage in the long run. Their services, especially when they are on behalf of the State must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner". The Supreme Court earlier in M. H. Hoskot v. State of Maharashtra, It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article21. Of course, it must be recognized that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellants were entitled to free legal assistance at State cost when they were placed in peril of their personal liberty by reason of being accused of an offence which if proved would clearly entail imprisonment for a term of two years.

In M.H. Wadanrao Hoskot v. State of Maharashtra, the Court held that the right to legal aid is one of the ingredients of fair procedure. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39-A of the Constitution, power to assign council for such imprisoned individual for doing complete justice. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so required, assign competent counsel for the prisoners defense, provided the party doesn’t object to that lawyer.

Sheela Barse & Anr vs Union Of India & Ors
on 5 August, 1986 , a free lance journalist, sought permission to interview the female prisoners in the Maharashtra State Jails. The permission was granted by the Inspector-General of Prisons. As, however, the journalist started tape-recording her interviews with the prisoners, the permission to interview was withdrawn. Feeling aggrieved by the cancellation of the permission, the journalist moved this Court in its writ jurisdiction on the ground that a citizen has a right to know under Articles 19(1)(a) and 21 of the Constitution, if the Government is administering the jails in accordance with law, and that the Press has a special responsibility to collect information on public issues to educate the people. The permission in question was cancelled, as stated by the Inspector-General of Prisons in his counter-affidavit to the Writ Petition, on the ground inter alia that the permission had been granted to the petitioner in contravention of the Maharashtra Prison Manual and the rules made there under, which govern the interviews with the prisoners; the petitioner, an amateur free lance journalist not employed by any responsible newspaper, was not covered by the said rules. The respondent also contended that the Articles of the Constitution referred to by the petitioner were not attracted to the case. Disposing of the Writ Petition, the Court held that the term 'life' in Article 21 covers the living conditions of the prisoners, prevailing in the jails. The prisoners are also entitled to the benefit of the guarantees provided in the Article subject to reason able restrictions. It is necessary that public gaze should be permitted on the prisoners, and the pressmen as friends of the society and public spirited citizens should have access to information about, and interviews with, the prisoners. But such access has to be controlled and regulated. The petitioner is not entitled to uncontrolled interviews. Disclosure of correct information is necessary, but there is to be no dissemination of wrong information. Persons, who get permission to interview, have to abide by reasonable restrictions.

As for tape-recording the interviews, there may be cases where such tape-recording is necessary, but tape-recording is to be subject to special permission of the appropriate authority. There may be some individuals or class of persons in the prisons with whom interviews may not be permitted for reasons indicated by this Court in Prabha Dutt v. Union of India & ors., [1982] 1 S.C.R. 1184. The interviews cannot be forced upon anyone and willingness of the prisoners to be interviewed is always to be insisted upon. There may also be certain other cases, where, for good reasons, permission to interview the prisoners may be withheld, which situations can be considered as and when they arise. The petitioner can make a fresh application for permission to interview the prisoners, which is to be dealt with in accordance with the guidelines laid down herein above.

Legal Aid under Legal Services Authority Act, 1987 Legal Services Authorities Act, 1987, was published in the Gazette of India Extraordinary Part II, Section I No. 55 dated 12th October, 1987. Although the Act was passed in 1987, the provisions of the Act, except Chapter III, were enforced with effect from 9.11.1995 by the Central Government Notification S.O.893 (E) dated 9th November 1995. Chapter III, under the heading “State Legal Services Authorities” was enforced in different States under different Notifications in the years 1995-1998 According to Section 2(1) (a) of the Act, legal aid can be given to a person for a 'case' which includes a case or any proceeding before a court.

Section 2(1) (a) defines the 'court' as 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.

As per Section 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. Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favor provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority . Under The Legal Services Authorities Act, 1987 every citizen whose annual income does not exceed Rs 9,000 is eligible for free legal aid in cases before subordinate courts and high courts. In cases before the Supreme Court, the limit is Rs 12,000. This limit can be increased by the state governments. Limitation as to the income does not apply in the case of persons belonging to the scheduled castes, scheduled tribes, women, children, handicapped, etc . Brief about the state of Legal Aid Movement in India It is a common knowledge that around 70% of the people living in the rural areas are illiterate and even more than that percentage of the people are not aware of the rights available to them by law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty because magnifies the impact of the legal troubles and difficulties when they come. Moreover, of their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves.

The Law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programs for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor. That is why it has always been recognized as one of the principal items of the program of the legal aid movement in the country to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become merely a paper promise and it would fail of its purpose. Conclusion Thus we can find a standard shift in the approach of the Supreme Court towards the notion of legal aid from a duty of the accused to request for a lawyer to a fundamental right of an accused to seek free legal aid. But in spite of the fact that free legal aid has always been held to be necessary addition to the rule of law, the legal aid movement is far from achieving its goal.

There is a huge gap between the goals set and met. The major hurdle to the legal aid movement in India is the lack of legal awareness. People are not aware of their basic rights due to which the legal aid movement has not been capable of achieving its goal yet. It is the absence of legal awareness which leads to misuse and deprivation of rights and benefits of the marginalized. Thus it is the need of the hour that the poor illiterate people should be given legal knowledge and should be educated about their basic rights which ought to be done from the grass root level of the country. Because if the poor persons fail to enforce their rights etc. because of poverty, etc. they may lose faith in the idea of justice and instead of knocking the door of law and Courts to seek justice, they may try to settle their own disputes on the streets or protect their own rights through muscle power and in such condition there will be chaos and complete neglect of the rule of law. Thus legal aid to the poor and weak person is essential for the preservation of rule of law which is necessary for the mere existence of the orderly society. Until the poor illiterate man is not legally assisted, he is always denied equality in the opportunity of seeking justice.

 

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

 




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