FREE LEGAL AID

FREE LEGAL AID

Surabhi Singhi,
IV Semester, IV Semester, National Law University, Jodhpur

INTRODUCTION

India is a modern state that has accepted the concept of 'welfare state'. Hence it has to work for the welfare of the general public. It is the function of the State to establish a just social order by enacting just laws and by providing equal opportunity to all to grow. Every Government is constituted to respond to the needs and aspirations of the people and to remove social inequalities among its citizens. This promotes social justice among poor and the downtrodden. The concept of social justice must be the underlying principle in the administration of justice in the country.

Today with the plethora of legislative enactments, statutory rules and regulations, and judicial precedents, Courts are a maze not only to the poor but also to a large number of persons who may not be poor financially but so intellectually on account of the lack of knowledge of the relevant laws and of the procedure for obtaining benefit thereof. They have got out of the maze by engaging lawyers and paying their fees. This route of getting out of the maze was not available to the have-nots, who may be described as poor or indigent.

Resultantly, to make available the law channels of justice to the poor, free legal services have been incorporated in the legal system. The concept of legal aid to the indigent has its roots in the well-settled principle of natural justice: 'audi alteram partem'. The earliest movement in Legal Aid was in the year 1851 when an enactment was introduced in France for providing legal assistance to the indigent.

By the constitutional 42nd Amendment Act of 1976, a new provision was included in the Constitution under Article 39A, for dispensing free Legal Aid. To uphold the democratic values and attain social justice Article 39A which was included under Directive Principles of State Policy (part IV) reads as under:-

"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".

Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that 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.

LEGAL AID MOVEMENT IN INDIA - ITS DEVELOPMENT

The concept of equal justice was not unknown in ancient India. Manusmriti casts a duty on king to administer justice ignoring his whims Emphasizing on the religion, Manu states that it includes administration of justice in social, economic and political aspects, whose sanctity has to be preserved and developed.

In the medieval period, though the king was required to administer Islamic law in deciding all cases irrespective of religion of the parties to the suit. Yet Hindus were administered by Hindu Law in deciding civil and religious of which the parties were Hindus. It was Jahangir who took the credit for dispensing even-handed justice to all irrespective of birth, rank of the official position. He used to say that God forbid to favour nobles or even princes in that matter of dispensation of justice. Because of his fair hearing, the justice was known as "Jahangiri Nyaya".

In the modern period, 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 organised efforts on the part of the State to provide legal services to the poor and needy dates back to 1944, when Lord Chancellor, Viscount Simon appointed Rushcliffe Committee to enquire about the facilities existing in England and Wales for giving legal advice to the poor and to make recommendations as appear to be desirable for ensuring that persons in need of legal advice are provided the same by the State. The Committee also recommended four-tier machinery [i.e. (i) at Taluka (tehsil) level, (ii) at district level, (iii) at greater Bombay level and (iv) at State level.] for giving legal aid although the same could not be implemented due to certain reasons. In the same year, another Committee on "Legal Aid and Legal Advice" was appointed under the Chairmanship of Justice Arthur Trevor Harries, the then Chief Justice of Calcutta High Court. This Committee recommended giving legal assistance to the poor.

Since the fifties the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In the sixties, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. Since 1952, the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country.

But significant change came in the late seventies. After Maneka Gandhi v. UOI, AIR 1978 SC 597, courts in India widened their perspective with respect to the civil liberties. While disclosing shocking state of affairs and callousness of our legal and judicial system causing enormous misery and sufferings to the poor and illiterate citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati, made following observations:-

"This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programmes, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them."

CONSTITUTIONAL COMMITMENT TO LEGAL AID

Article 14 guarantees equality before law and equal protection of laws. Equality before law necessarily involves the concept that all the parties to a legal proceeding must have an equal opportunity of access to the court and of presenting their cases to the court. For the indigent, who are unable to meet their economic needs, the justice access to the court would remain a myth because their inability to pay court fee and lawyer's fees etc. would also deny him access to the court. Therefore, under Article 14, rendering legal services to the poor litigant is not just a problem of procedural law but a question of a fundamental character. A person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.

Article 21 asserts the right to life and personal liberty. This right cannot be taken away except by procedure established by law. A procedure is fair and just only when it follows the principles of natural justice. Right to hearing is an integral part of natural justice. If the right to counsel is essential to fair trial then it is equally important to see that the accused has sufficient means to defend themselves. It has been observed and re-observed by the Apex Court of the Country that an accused person at least where the charge is of an offence punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Further counsel for the accused must be given time and facility for preparing the defense. Breach of these safeguards of fair trial would invalidate the trial and conviction, even if the accused did not ask for legal aid.

Article 22(1) provides that a person arrested should not be detained in custody without being informed of the grounds for such arrest and should not be denied the right to consult and be defended by a legal practitioner of his choice.

Article 38 urges that the State should strive to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice: social, economic and political shall inform all the institutions of national life.

Article 39A of the Constitution, inserted by 42nd Amendment of the Constitution in 1976, provides for equal justice and free legal aid. It commands the state to secure that the operation of 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 the opportunities for securing justice are not denied to any citizen by reason economic or other disabilities. Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity.

The Constitution provides for the post of an Attorney General of India to offer legal advice to the Union Government. He is appointed and can be dismissed by the President alone. Likewise provisions are made in the Constitution for the appointment of the Advocate General of a State. He is entitled to attend all legislative sessions and take part in discussions on matters in which expert legal knowledge is required. His duty includes advising Government on legal matters pertaining to his state.These provisions do accord the due status to the legal aid and ample scope for developing legal aid jurisprudence through which human rights culture can be created and social justice can be assured as envisioned by founding fathers of the Constitution.

LEGISLATIVE METHODS OF PROVIDING FREE LEGAL AID

Government has shown its concern over the existing position of justice delivery system. It has acknowledged the fact the poor and underprivileged sections of society have suffered the worst under the present system. Need for free legal aid to poor has been realized. Therefore it has incorporated legislative actions such as The Legal Services Authorities Act, 1987 and set up bodies such as NALSA and SCLSC to ensure free legal aid to poor and under privileged.

The Legal Services Authorities Act, 1987

Judicial Contribution for the Formation of the Act:

By the constitutional 42nd Amendment Act of 76, a new provision was incorporated in the Constitution under Article 39A, for providing free Legal Aid and concept of equal justice found a place in our constitution Article 39A which was incorporated under part IV-Directive Principles of State Policy reads as under:-

With the object of providing free legal aid, the Government of India had, by a resolution dated 26th September, 1980 appointed a Committee known as "Committee for Implementing Legal Aid Schemes" (CILAS) under the chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to monitor and implement legal aid programmes on an uniform basis in all the States and Union Territories. CILAS evolved a model scheme for legal aid programmes applicable throughout the country by which several legal aid and advice Boards were set up in the States and Union Territories.

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.

NALSA

National Legal Services Authority (NALSA) has been set up under section 3 of the Act to monitor and oversee the legal aid programmes throughout the country. In every State, a State Legal Services Authority has to be set up under section 6 of this Act for implementation of the legal aid programmes. At District and Taluk levels also, Legal Services Authorities/Committees are being established to ensure that Legal services are easily available even to the poorest amongst the poor throughout the country. The Supreme Court Legal Services Committee has been constituted under the Act for giving legal aid in the matters coming before the Supreme Court. In every High Court, Legal Services Committees are being established to provide free legal aid.

Supreme Court Legal Services Committee

To empower the marginalized sections of society by promoting legal awareness with the ultimate objective of establishing a just and equitable social order, the Supreme Court of India has set up Supreme Court Legal Services Committee (SCLSC). The SCLSC is headed by a Judge of the Supreme Court of India and has distinguished members nominated by the Chief Justice of India.

The SCLSC has a panel of competent Advocates-on-Record with certain minimum number of years of experience who handle the work of screening papers and handling the cases in the Supreme Court. In addition, the SCLSC has a full-time Legal Consultant-cum-Executive Lawyer who handles queries - both in person as well as through post. The Legal Consultant also screens papers. Although the applicant cannot get a lawyer of his or her choice, the SCLSC ensures that only competent lawyers are entrusted with these cases.

OTHER PROVISIONS RELATING TO LEGAL AID

1. Criminal Procedure Code, 1973
Section 304 provides that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State; and the section further empowers the State Government to extend the application of the above provision in relation to any class or trials before other courts in the State.

2. Civil Procedure Code, 1908
Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court-fees and allows them to institute suits without payment of requisite court fees.

3. Universal Declaration of Human Rights:
Article 8. Everyone has the right or an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law.

4. International Covenant on Civil and Political Right
Article 14(3) 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 any such case if he does not have sufficient means to pay for it.

IMPORTANCE OF LEGAL AID IN DEMOCRATIC SOCIETY LIKE INDIA

Law and social welfare are the twin objectives of any developing country as India. Unless there is due emphasis on and implementation of social welfare schemes to help the underdog in a democratic society, the Rule of Law cannot be a reality. 'Is Justice being sold?' is a poignant question that arises in our mind. This question brings the attention on the unbecoming concept of sale of Justice in India. Sale in what manner? Needless to say the question must not be misconstrued as to suggest that the Judiciary is corrupt. It is one of the fortunes of India that we have a well-organized and fairly efficient Judiciary without any trace of corruption on the whole. The above question can be answered by vividly portraying how court-fees was exorbitant, as also Lawyers fees and the cost of litigation occasioned by that Constant menace called 'Law's delays'.

It is sometimes said that Article 14 is not a positive guarantee of Legal Aid to the deserving citizens. We fail to see how the doctrine of Equality before Law or the equal protection of laws can be guarantee under Article 14 without vouchsafing equal access to Courts of Justice. In the matter of breach of a fundamental right by State action a millionaire as well as a pauper are affected, the former can rush to court at all lavels, engage the best lawyer and wins his case despite all law's delays and laws's heavy cost. But the latter, the poor chap cannot afford to do so. Even if he engages some lawyer within his means, he is at a great disadvantage when pitted against the able advocacy of a Senior Counsel at fabulous fees engaged by the other side.

Thus it can be said that to the extent that a person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court.

The equality of access to the courts that a democratic Constitution provides is rendered meaningless, unless the right to proper representation for the needy litigant is also guaranteed. Thus litigation had become a luxury that the poor litigant could hardly afford. Legal aid is, therefore, primarily the Government's duty else the case of the poor coming to court without a proper counsel was like their entering the lists in an unequal (gladiatorial) contest.

CONCLUSION

Despite of the numerous efforts made by the Government in regards of providing free legal aid and hence ensure the true prevalence of welfare state in India, there are many problems in implementing it in true sense in the Indian society. The problem of knowledge is one of the major problems as most of the people are not aware of law. For every action they have to think for their resources and means because they usually do not have any knowledge about any legal aid which can be provided to them. Fear, ignorance and fatalism were the attitudes toward the legal system in the past Indian society, which has got its aftereffects in the present society as well. Lawyers use the ignorance of these poor peoples and usually demand fee as per their will.

To improve the condition all legal aid plans should be accountable to independent institutions. The Criminal Code and other penal laws should be modified to ensure that everyone who fails to pay a fine is given the opportunity to settle the debt by doing community service work. Governments should recognize the strong links which exist between poverty, child abuse and neglect, unemployment, inequality and crime, and should give their unqualified support to measures which will correct these problems.

Legal aid plans should have objective studies done by independent outside evaluators to determine which models of service delivery would best serve their clients, and should adjust their services in accordance with the results. Legal aid plans should make maximum use of non-traditional methods of dealing with conflicts such as mediation, conciliation and self-help. It also needs to be stressed that legal aid is an issue of extreme importance not just to the poor but also for other groups who are vulnerable such as under trials, those in preventive detention, sex workers and the mentally ill and many others.