Legal aid is a torch bearer for poor people who cannot afford to sue. It is free legal aid to the poor in litigation, administrative proceedings, litigation or any advice on any legal matter. The main purpose of this article is to talk about the term "Free Legal Aid" and its importance and impact for the country. Also discuss Article 39A, historical background and implications. The article also discusses public interest litigation and its role in providing free legal aid.
Introduction
The Indian Constitution has vested in itself Article 39-A which ensures that the state shall secure that the operation of the legal system promoting justice on a basis of equal opportunity and in particular, shall be proving free legal aid by suitable legislation as given by the constitution of India ensuring opportunities for ensuring that justice is not denied to any citizen by even he is disabled or economically backward. It is really important that the legal aid system is not overlooked by anyone, and should be competent enough to represent the needy in case of need arises.
The government provides free legal aid to the needy. Legal aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before any authority. However, in a country of continental dimensions and with a population more than a billion, it becomes very difficult to provide free legal aid to everyone.
The idea of legal aid originated in the medieval period. The legal aid, however, was considered to be hybrid in some form of political right or charity from rich to the poor initially. The earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent.
In Britain, the history of the organized efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Article 39-A constitution of India, provides that state shall secure that the operation of the legal system promotes justice on basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or scheme or any other way to ensure that opportunity for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 14 and 22(1) make it also obligatory for the state to ensure equality before the law and legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that the constitutional pledge is fulfilled in its litter and spirit and equal justice is made available to the poor downtrodden and weaker section of the society. Due to multiple factors such as illiteracy, destitution, the absence of knowledge of rights.
The Indian Constitution has put in place a legal system which efforts to protect the rights of everyone. However, one must realize that existence of rules and regulations and law is one thing and its implementation is another.
According to the Preamble of the Constitution, the people of India have given themselves a Constitution which constitutes India a sovereign, socialist, secular, democratic republic which secures to all its citizens social justice along with economic and political justice, liberty of expression and thoughts, one’s belief and to promoting a belief with assuring liberty and integrity of the nation.
It is a privilege to the Indian people that the judicial review and scrutiny available under articles 32, 226 and 136 cannot be barred and fettered by any finality clause contained in any statute. Indian courts are full of admirers who respect their ingenuity and integrity. Among the three organs of the government, people repose more faith in the judiciary. In the early eighties, the Supreme Court adopted a pro-active approach by developing Public Interest Litigation (PIL) for which major credit goes to Justice P. N. Bhagwati, who later become the Chief Justice of India.
Ask a common man about the various important orders, directions, and writs passed by Supreme Court and High Courts which benefits people at large and they will also put the judiciary in high esteem and will praise it while criticizing other functionaries of the state. People have faith in the judiciary and prefer to approach a court of law for redressal of their grievances but due to their incapability, lack of funds and legal knowledge suffers from no fault of theirs. That was the reason that need of providing free legal aid and services arose to the needy and particular categories of people in the society. At present, free legal aid or services is not only a statutory but also a fundamental right, as per the judgment of the Supreme Court in Hussainarakhatoon v. the State of Bihar[1].
Historical Background
After independence, many countries introduced the concept of legal aid to the needy. In 1958, the 14th Law Commission Report emphasized equal justice and free legal aid for the poor. Kerala Legal Aid for the Poor Kerala was the first state to introduce Legal Aid policy. Tamil Nadu and Maharashtra have also introduced similar schemes to provide free legal aid to the poor and backward. In 1971 Hon'ble Justice P.N. Bhagwati is the chairman of the committee formed to emphasize the role of judges in providing justice to all and the work of various legal aid committees.
- Taluka Legal Aid Committee
- District Legal Aid Committee
- State Legal Aid Committee.
In 1973 Hon'ble Justice V.R. Krishna Iyer who was the head of the Expert Committee published a report. The report emphasized the need to provide a legal framework for legal aid, establish legal aid clinics in law schools, focus on Public Interest Litigation and other ways to make the legal aid system more accessible to the public. Later in 1977, Justice P.N. Bhagwati and Justice Krishna Iyer named National Juridicare Equal Justice and Social Justice. The report looked at the functioning of legal aid programs, recognized the importance and role of lawyers in seeking redress or justice, and proposed the creation of a National Legal Aid Service (NALSA).
In 1976, the provision of free legal aid was given legal status by the 42nd Constitutional Amendment by incorporating Article 39A "Equal Justice and Free Legal Aid" into the Directive Principles of State Policy (DPSP). The state said that the courts should ensure access to justice for all and provide free legal aid to those in need so that no economic or other handicap prevents anyone from seeking Justice.
In 1980, the Legal Aid Scheme Implementation Committee (CILAS) led by the Honorable Judge P.N. Bhagwati supervised and controlled the legal aid activities going on in the country and also introduced Lok Adalats, an effective tool for peaceful settlement of disputes.
Salient features of Legal Aid
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 their rights given to them by law.
For a wide range of litigants with special needs, for instance, persons in custody, children, women, complainants under the SC/ST Act, workmen, legal aid is automatically available for filing or defending a case irrespective of the economic status of that person.
Under the legal aid schemes, an extensive network of legal aid committees exists at the Taluk, District,and State levels. In addition, every High Court and the Supreme Court has its own legal services committees.
- Legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.
- The legal aid movement envisages a system where economically and socially disadvantaged groups are assured of easy access to courts and other government agencies for grievance redressal.
- The new rationale for legal aid emerged where the law was slowly begun to be regarded as the instrument through which socio-economic inequalities could be lessened and through affirmative action, some amount of ‘advantage’ was being assured to disadvantaged groups in fields of employment and education.
The philosophy behind legal aid:“Ability is of little use without opportunity”- is an old saying and it requires an opportunity to show your ability. Similarly, an opportunity is required to assert your rights, to defend yourselves and to crave for your legitimate claims. If there is no equality, no equality of opportunity, the available rights even if they are existing on the statute books make no difference in the lives of all concerned as they can no longer take steps for the vindication of their rights at the appropriate forum. Enacting of the said legislation remains an exercise in futility and the entire process being brought to naught giving it negative returns.
It may be appreciated that when there is a fight between two unequals, the conclusion is already forgone and one need not tease his brain to state that strong person would win and the weak would wilt under its pressure and onslaught. If a poor person has no mean to pay court fees and no money to pay for advocate’s fees and other incidental costs of litigation, he certainly is denied an opportunity to seek justice.
The concept of Article 39-A, however, was already existing and was inbuilt under article 14 and article 21 as well as article 22 of the Constitution, which all are Fundamental Rights. The reasonability of not only substantive law but also of the procedural law was interpreted to be well-existing within the mandate of Article 14 and Article 21 as per the landmark judgment of the Hon'ble Supreme Court of India in the Menaka Gandhi v. Union of India,[2] which developed the reasonableness, concept of the procedural law as well and which also led to the development of the concept of a fair and equitable trial including the right of an expeditious trial within the framework of Article 21 of the Constitution.
Apart from that, section 304 of the Code of Criminal Procedure, 1973 also contemplated providing of the legal aid to the accused at State expense and thus the concept of providing legal aid already existed even prior to the enactment of the Legal Services Authorities Act, 1987. Various judicial pronouncements of the Hon'ble Supreme Court have also lent weight and support to the legal aid programmes and has given a much-needed impetus.
In Hussainara Khatoon (IV) v. Home Secretary,[3] the Apex Court emphasized that free legal aid is an inalienable element of reasonable, fair and just procedure. Without it, a person suffering from economic or other disabilities would be denied justice. In Sheela Bharse v. the State of Maharashtra, [4]the Supreme Court opined that legal assistance to a poor or indigent accused under arrest and put in jeopardy of his life and personal liberty is a constitutional imperative mandated not only by Article 39-A but also by Article 14 and 21 of the Constitution.
Lawyers must positively reach out to those sections of humanity who were poor, illiterate and ignorant and who were placed in a crisis such as an accusation of crime and arrest or imprisonment, do not know what is arrest or imprisonment, do not know what to do or where to go or to whom to turn on.
Free legal assistance at state cost is a fundamental right of a person accused of an offense which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Art. 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him.
On the other hand, the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.
The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trials is clearly a violation of the fundamental right of the accused under Art. 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity.[5]
Public Interest Litigation (PIL) and Free Legal Aid
PIL is brought before the court,not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed.
That would be destructive of the rule of law which forms one of the essential elements of public interest in any democratic form of government. The rule of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the rule of law is meant for them also, though today it exists only on paper and not in reality.[6]
It is through PIL that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out great possibilities for the future. Section 4(d) of Legal Services Authorities Act also prescribe taking of necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections, of the society by the Central Authority i.e. NALSA. State Authorities also can take similar steps in this regard by filing PIL for the benefit of the public at large.
Issues and Challenges
Although many regulations, committees and authorities are legally secured, there are still gaps to be filled. Even today, many people face injustice because they cannot afford a lawyer to represent them. Due to the large number of pending cases in court, there are many innocent people who have been terminated and cannot defend themselves. There are many challenges and issues that arise in the way legal aid services are implemented.
Lack of general legal education and legal awareness
This legal aid service is for the poor and illiterate, the main problem is not being educated. He has no legal education, which means he does not know his basic rights and legal rights. People are not very aware of the legal aid services available to them. So Lok Adalats, Legal Aid etc. The legal aid movement is not achieving this goal because people are not well informed.
Lawyers, attorneys, etc. lack of support
These days all lawyers and solicitors want to be paid properly for their services and most of them do not want to participate in such social services. There is very little advice that contributes to this service, but the lack of quality legal representation hinders the delivery of justice.
Lack of power for Lok Adalats
Lok Adalats have limited powers compared to civil courts. First, the lack of proper procedures. Then they can not force the party to attend the trial. Often, one of the parties does not attend the hearing, then there is a delay here as well.
Use of legal volunteers
The main role of these legal volunteers is to promote legal aid camps, schemes and reach the poor and vulnerable sections of society. But there is a lack of proper training, supervision, and monitoring of these legal volunteers. These volunteers are also very small compared to the population as a whole.
Conclusion
One of the key issues facing any legal system is access to justice or more alarmingly, the incapacity of marginalized or disadvantaged groups to access the legal system. It is assumed that justice will be available somehow, whenever and wherever it is required to be dispensed with. However, in this day and age, with a population of well over a billion, great disparity in legal awareness even with the notion of justice enshrined within the constitution remains translating into the fact that the majority does not know what legal aid is, what a court is, what justice means and how it is administered.
The concern of the international community to deal with the obstacles to access to justice is justified because the oppressed and the wronged that are denied justice may resort to revolt and violence or helplessly face extinction.
The primary concern of the nations should be to remove the internal obstacles to access to justice which lie under the cover of power in the hidden forms of lack of understanding the law, inability to deal with cases, prejudices, amenability to political and other influences, the taint of corruption and insensitivity to human sufferings.
The other obstructions hampering access to justice in the delicate areas of human relationship and peaceful co-existence which disturb the very fabric of a multicultural society are racial and religious intolerance, mob violence, extreme poverty, flaws in the legal system, propaganda of hatred, police brutalities, and they call for a concerted effort of an enlightened judicial system and the governance that interest of all the citizens to its heart without searching for cleavages providing ropeways for journey to power.
The neglect in removing obstacles to access to justice is fraught with grave dangers that may perpetuate strife and miseries thwart all progress and encourage mercenary activities giving rise to criminal acts of a terrorist nature. The solutions are there waiting for the will of the state functionaries to bring peace, harmony, and prosperity. People must not only be aware of their rights and remedies, but they must also believe that the enforcement of such rights is possible and that they will get adequate remedies.
By enacting the Legal Services Authorities Act and reiterating the entitlement of legal aid and advice in various other enactments dealing with social justice for example, Mental Health Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Protection of Women from Domestic Violence Act, 2005 etc., the state is now under a statutory obligation to make available “legal service” which includes “rendering of any service in the conduct of any case or other legal proceedings”.
Judicial pronouncements have only reinforced this view, in case after case, helping in evolution of the right to free legal aid services as an essential element of “reasonable, fair and just procedure” vis-à-vis the poor and needy. To make legal services available to the needy people, efforts should have been made from all four sides and every corner with great force and impact by involving all the concerned agencies and units, then only the objective and mandate of legislature behind enacting the Legal Aid Act shall be fulfilled.
Bibliography:
- Austin, Granville, The Indian Constitution: Cornerstone of a Nation, 1966.
- Basu, Durga Dass, Constitutional Law of India, 1991.
- Pandey, J.N., Constitutional Law of India, 1991.
- Law Commission of India, Fourteenth Report, 1958.
End-Notes:
- Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar 1979 AIR 1369, 1979 SCR (3) 532
- (1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597
- (1980) 1 SCC 89 : AIR 1979 SC 1369.
- AIR 1983 SC 378
- Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.
- People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473
Award Winning Article Is Written By: Mr.Nikhil Singh
Authentication No: AP45223769601-13-0423
