Right To Free Legal Aid

The right to free legal aid is one of the basic fundamental rights that have been guaranteed to every citizen under the constitution of India. But this right has come into existence and implementation only by the virtue of judicial decisions in various cases. The principle of free legal aid has been laid down in accordance with the principle of natural justice that perpetuates that nobody should be condemned unheard. Going by the theory of Veil of Ignorance, by John Rawls, the law must be made in such a manner that it takes care of the poorest of the poor persons. The law making authority must always assume a veil in front of them, such that if they are on the other side of the veil, and they do not know their position, as to whether they are the weaker or the stronger section of the society, in such a situation they would make laws concerning the poorer and the weaker section of the society. In this line of concern, the constitution makers of India were aware of cultural and the economic diversity of the country and to promote equality, they put Article 39A into the Constitution, so that the grievances of the poor, needy are not suppressed by the more powerful sections of the society.

The right of legal representation is being provided to every accused who is unable to engage a lawyer or unable to secure competent legal services on account of reasons such poverty, indigence, or incommunicado situations. This article has been considered as an essential expression of ‘reasonable, fair and just’, procedure for an accused of an offence, which is held to be implicit in the form of guarantee under article 21 of the Constitution of India. The courts in India have actively taken part in making this right available to all the eligible persons. Earlier, court took quite a restrictive approach, as far as the interpretation of the statutory provisions was concerned, as it was only considered as a privilege given to the accused and it was further, his duty only to ask for a lawyer if he needed one. And the only task in this scenario that the judge was assigned was to make sure that the person got such an opportunity.

The principle of Legal aid is a part of the Directive Principles of State Policy. And overtime, it has become a mandatory provision to be followed by the Courts, rather than just being a directive. And this has become a mandatory provision through Judicial Decisions and Legislations; a paradigm shift in the concept of legal services, the reaching out to the people to facilitate “access to justice” to all in the most practical manner. But the system is still lacking somewhere as the implementation of the law is not as proper as it should be, as there are many people who are unable to have access to justice by the reasons of social obligations (like women in rural areas are reluctant to go against their relatives in cases of domestic violence and dowry), lack of interest of the lawyer, poverty, lack of awareness, lack of proper implementation of law on part of the lower judiciary and state authorities.

Legal Aid which means giving free legal services to the poor and needy who are unable to afford the services of an advocate for the conduct of a case or a legal proceeding in any court, tribunal or before an Judicial authority. The preamble of the Indian constitution basically aims to secure to the people of India justice – socio economic and political. His Lordship Justice P.N. Bhagwati aptly stated that legal aid means providing an arrangement in the society which makes the machinery of administration of Justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law. Article 38(1) avows that the State shall promote the welfare of the people by securing and protecting the social order including justice. Article 21 clearly says that every person has an equal right to life and liberty except according to the procedure established by the law. 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. In the case of Hussainara khatoon vs. State of Bihar, it was held that if any accused is not able to afford legal services then he has a right to free legal aid at the cost of the state. It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities. —(Art.39 A of the Constitution of India) 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. —(Sec. 304 of Code of Criminal Procedure,1973) The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand. —(Khatri II Vs. State of Bihar, (1981) 1SCC; 1981 SCC (Cri) 228; 1981 Cri. LJ 470) A person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal. —(Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544) (Art. 142 of the Constitution r/w Articles 21 and 39A of Indian Constitution ) Services offered by the Legal Services Authority: 1.Payment of court and other process fee; 2. Charges for preparing, drafting and filing of any legal proceedings; 3.Charges of a legal practitioner or legal advisor; 4. Costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding; 5.Costs of paper work, including printing, translation etc. Duties of the Police and the Courts: The police must inform the nearest Legal Aid Committee about the arrest of a person immediately after such arrest. —(Sheela Barse V. State of Maharashtra) The Magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. 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. —(Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401; 1986 SCC (Cri) 166)

When can Legal services be rejected? If the applicant - has adequate means to access justice; - does not fulfill the eligibility criteria; - has no merits in his application requiring legal action. Cases for which legal aid is not available: 1. Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc. 2. Proceedings relating to election; 3.Cases where the fine imposed is not more than Rs.50/-; 4.Economic offences and offences against social laws; 5.Cases where the person seeking legal aid is not directly concerned with the proceedings and whose interests will not be affected. When can the legal services be withdrawn? The legal services committee can with draw the services if, 1. the aid is obtained through misrepresentation or fraud; 2. any material change occurs in the circumstances of the aided person; 3. there is misconduct, misbehavior or negligence on the part of the aided person; 4. the aided person does not cooperate with the allotted advocate; 5. the aided persons appoints another legal practitioner; 6. the aided person dies, except in civil cases; 7. the proceedings amount to misusing the process of law or of legal service. Who is entitled to free legal aid? Any person, who is: 1. a member of the scheduled castes or tribes; 2. any person belonging to the Schedule caste/tribe, persons suffering from natural calamity, industrial worker, children, insane person, handicap, persons in custody and those having annual income less than Rs 1 lakh were entitled to avail free legal aid 3. a victim of trafficking in human beings or beggar; 4.disabled, including mentally disabled; 5. a woman or child; 6. a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earth quake, industrial disaster and other cases of undeserved want; 7. an industrial workman; 8. in custody, including protective custody; 9. facing a charge which might result in imprisonment; —(Khatri II Vs. State of Bihar, (1981) 1SCC); and 10.unable to engage a lawyer and secure legal services on account of reasons such as pover ty, indigence, and incommunicado situation; 11. in cases of great public importance; 12. special cases considered deserving of legal services. The Concept of Lok Adalat: Lok Adalat is judicial body set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. It has the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like any court orders, yet the parties cannot appeal against such orders. Lok Adalat can resolve all matters, except criminal cases that which are non-compoundable. Either of the parties to litigation can make an application to the court for transferring the case to a lok adalat. Where no compromise or settlement is made by the lok adalat, such a case is transferred to the court and that court deals with the litigation from the stage the lok adalat had reached.

- SAHIL GOSAVI