RIGHT TO FREE LEGAL AID AS A FUNDAMENTAL RIGHT
Authored By: Anushka
Year of study: 4th year
Institute: Amity University, Patna
Address: South Purnendu Nagar phulwari sharif, Nigam colony, Patna - 801505
Legal aid means providing a free legal help to any person who is unable to afford a lawyer or an advocate due to his / her unavoidable circumstances. for example if a person is an indigent person who is incompetent to fulfil his basic needs, whose income is not enough to satisfy his and his family basic requirements. If in this situation his legal rights or any fundamental rights get infringed then how he can afford a lawyer or an advocate to fight for him or how can law provide him justice. In preamble of the Indian constitution its sole purpose is to provide justice, social, economic and political. Article 39a of the constitution asseverate that it is the duty of the state to make sure that our justice system is providing justice on the basis of equal opportunities to every citizen by providing them free legal aid or by making suitable legislations and schemes but the justice should not be denied to any citizen by any reason. Article 21 of the constitution states that no person shall be deprived of his life and liberty except according to the procedure established by law. Hence providing legal aid to every person should be included in article 21 of the Indian constitution. If we see as stated in article 21 each and every person irrespective of their caste, sex, religion, race or place of birth, it is the right to be made fundamental right. It is a constitutional mandate that article 39 a ought to be converted into fundamental right. There are many weaker sections of the society who have to suffer or endure in respect to their rights just because they could not afford any legal aids. However, there are many cases which have been in India in relation specifically with legal aid. There are suitable cases the supreme court has issued directions to concerned district judges to arrange legal aids and also to make them aware of the legal aid. Even an accused has the right to engage a lawyer for his defence. It is the duty of the state to provide free legal aid to the accused who is unable to engage a legal representative owing to poverty and similar circumstances. So, here in this paper I have discussed about the significance of free legal aid and why we need to convert it into a fundamental right. Thereafter, I have also discussed about numerous judicial interpretations being made on free legal aid. The paper is concluded by putting forth some suggestions and recommendations.
KEYWORDS: Legal aid, Fundamental right, constitution, preamble, justice.
Article 39 a of the constitution of India provides for free legal aid services to the poor and weaker sections of the society and ensures justice for all citizens on the basis of equal opportunities to every person. It is the duty of the state to provide free legal aid to the people who are not able to afford legal services on their own cost and secure their right. Free legal services can be provided in civil as well as criminal matters for those who cannot afford lawyer for conduct of a case before any tribunal, court or any authority. Legal aid can be provided in many forms which may include:
• Representation by an advocate in legal proceedings.
• Drafting of any legal documents.
• Representing case before a court or tribunal or any authority.
• Providing legal awareness or advice in any legal matter.
Person who are eligible for free legal aid services can be women and children, members of backward classes, any person who is the victim of a mass disaster, violence, flood, earthquake, etc., handicapped persons, persons in custody or prisoners. Free legal aid services are necessary for those persons who are poor, indigent, or those who are not aware of their rights and marginalized sections of the society. The main aim of this provision is to promote justice and provide equal opportunities to every individual. This provision is incorporated under the part 4 of the constitution. This provision was inserted by 42nd amendment 1976. Presently, article 39a is part of directive principle of state policy but there is a constitutional mandate to convert into fundamental right.
According to article 14 of the Indian constitution declares about two things in its provision i.e., equality before law and equal protection of law. The former is referred as a negative concept as it doesn’t give any kind of special treatment or privilege to any individuals and treats every person equally but the latter one is a positive concept which implies equality of treatment in equal circumstances. Art 14 makes it obligatory to make article 39a of the constitution as a fundamental right then only it can be strictly ensured that equal opportunities be provided to the poor, downtrodden and marginalized section of the society. In the spirit of Indian constitution, it is explicitly stated the sole purpose of our constitution to provide justice to every individual irrespective of their caste, religion, sex and place of birth.
In the case of Sheela Barse v. State of Maharashtra, the apex court has held that soon after the arrest of an accused the nearest legal aid committee shall be contacted by the police to ensure providing of the legal aid to the accused. According to article 21 of the Indian constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law. Hence, it is the mandate to the states to ensure legal aid to be provided to every individual even an accused. An accused has also the right to be represented by a lawyer at the cost of state. The right to free legal aid has been declared as constitutional right in the case of Hussainara Khatoon and ors v. Home Secretary, State of Bihar. It was the case of under trial prisoners which also included many children and women imprisoned in Bihar from several years waiting for trial. Some of them filed petition for habeas corpus by supreme court’s advocate. The supreme court held that such imprisonment is denial of human rights. The court also broaden the scope of article 21 by mentioning the speedy trial of prisoners and held that it as fundamental right mentioned in article 21. Therefore, from this case we can say that article 21 plays vital role in providing free legal aid to the persons who are deprived of their rights. Article 21 is the heart of our constitution as it protects the rights of individuals which are connected directly with right to life, liberty and security. Right to life is the fundamental right enshrined in our constitution and of utmost important provision. Previously, it was having very narrow scope but by the passing of time the supreme court has broaden its scope as it interpreted numerous cases.
Presently, article 21 i.e., right to life is the only article in the constitution which have undergone the widest possible interpretation. In the case of Maneka Gandhi v. Union of India, the supreme court held that right to live is not merely the physical right but includes the ambit of the right to live with human dignity. It was deciphered quit explicitly for the citizens and non-citizens that right to live with dignity as the basic right of humans. However, it is the right whether directly or indirectly is related with the furnishing of free legal aid to the weaker and marginalized sections of the society as it is the basic requirement that is essential and unavoidable for a person for the right to life. All the discounted, marginalized and indigent persons who are socially and economically backward community of the society must be treated equally as other classes who are socially and economically more stabled than them. In these backward classes there are most people who are physically disabled and who have been imprisoned for several years. Khatri and ors. v. State of Bihar and ors is the case of public interest litigation filed regarding the blinding of prisoners in Bihar. In this case the court noted the absence of legal representation to these prisoners when they were produced before the magistrate, where neither of the prisoner requested nor did the magistrate enquired for not having any legal aid or if they desired to have legal representation at the cost of state. Further, the court criticized lower courts for the negligence of not following the decision of supreme court in Hussainara Khatoon v. home secretary, State of Bihar that providing legal aid to an accused is a constitutional mandate. It also pointed out that it is the responsibility or obligation to provide free legal aid to an indigent accused as it is their constitutional right which means it must be given to them. This obligation attaches when the accused is produced first time before the magistrate. The court explicitly mentions that the free legal aid should be provided in those circumstances of the case which results in imprisonment or where there is need of social justice. The legal aid will not be provided to the accused who are involved in the offences like prostitution or child abuse. The court has pointed out in hussainara Khatoon’s case that the right to free legal services is clearly an essential element of reasonable, fair and just procedure of law. Then only the purpose of having equal justice to be served to every individual by procedure established by law can be achieved.
NALSA: NATIONAL LEGAL SERVICE AUTHORITY
Free legal aid is being provided to weaker and marginalized section of the society by NALSA (national legal service authority). It has been enacted by parliament in 1987 which came into force on 9th November, 1995. The ultimate goal of this act is to provide free and adequate legal service to the weaker sections of the society on the basis of equal opportunities. There are abounding functions and duties which are being performed by NALSA which includes spreading legal awareness, undertakes social justice litigations, organizing Lok Adalat and promote dispute settlement. Criminal procedure code also states the ideology of providing legal aid to the accused in certain cases under section 304. It states that if any indigent accused person is going to be tried before the court of session and if he is not represented by a pleader then the court have to assign a pleader for his defence at the expense of state. Our country is a democratic nation where every individual has certain fundamental rights even the accused has the right to fair trial for the purpose to meet end of justice. In one of the cases named Suk Das v. Union territory of Arunachal Pradesh, the accused was unrepresented for the trial and did not make any application for legal aid. The question aroused in this case was whether the fundamental right to legal assistance at the cost of state could be denied if the accused has not applied for free legal aid. The court repeated its explicit judgment made in the case of khatri and ors. Vs state of Bihar and ors that it is the duty of the magistrate to inform the accused of his right to free legal services if he is unable to afford a lawyer due to his indigence. On the account of failure of informing the accused of his rights before trial and accused remained unengaged during trial which led to conviction, the trial was vitiated as on the account of violation of fundamental rights of accused under article 21. Poverty, illiteracy and unawareness plays the role of helplessness as most of the people are illiterate in rural areas so how come they will know that what are their rights conferred upon them by law, what are the things they are entitled to, or how can they take help of law? These are some of the questions that they are not aware of. This absence of legal awareness and ignorance of their problems and difficulties get them into more trouble and responsible for deprivation of their rights. These are the reasons why law has to come in action as their protector and provides them with the section 304 of criminal procedure providing free legal aid. One more case is of Anokhilal v. State of Madhya Pradesh in which there was an appeal against a death sentence by a prisoner in case of rape and murder of a minor. The court appointed amicus curiae who was not given sufficient time to prepare afterwards the court set aside the conviction and sentence and directed for de novo consideration of the case. Many directions were passed to avoid this type of situation in future ahead. The court stated that in cases where the conviction is life imprisonment or death sentence the legal aid should be provided by the advocate of 10 years’ experience, in cases of confirmation of death sentence of accused by high court senior advocates must be appointed as amicus curiae and sufficient time should be provided to prepare.
LOK ADALAT: ALTERNATIVE DISPUTE RESOLUTION MECHANISM
Lok Adalat also plays an alternative role in resolving disputes which can be settled outside the courts. The award made by a Lok Adalat is deemed to be a decree and it is binding on both the parties. Lok Adalat is an attempt made to reduce the workload of the courts. It is one of the effective alternative dispute resolution mechanisms in Indian judiciary. The state legal services authority or district legal services authority may organise Lok Adalat at such intervals and places as it thinks fit. From the previous judgements it can be clearly seen that fair, reasonable and just procedure is an essential ingredient of right to free legal service for accused person. This is the constitutional right to be provided to every accused person who is unable to afford a lawyer or any free legal services due to his poverty, indigence or unapproachable situation. It is the duty of the state to provide them with a lawyer as the circumstances of the case. The judgements mentioned above highlights that every individual irrespective of being accused or exonerate, the rights will be avail to the needy person. The equal opportunity will be provided to each and every individual whether rich or poor.
Article 39a of constitution of India is highly significant in present time as it talks about a right to seek legal aid service at the cost of state to those individuals who are unable to engage a lawyer or secure any kind of legal service due to poverty, indigence or incommunicado. Presently free legal aid is not a fundamental right of an individual but it shall be declared as fundamental right as soon as possible as it will help all those needy people who are in need of legal aid. The main objective of legal aid is equal opportunity of justice, eradication of social discrimination, welfare benefits and structural discrimination against poor. There are many guidelines rendered of free justice to needy peoples by legal service authorities act, 1987. Right to free legal aid is a constitutional right provided to the citizens of India. As mentioned above case judgements it is crystal clear that the court is also bounded by laws and cannot confer any conviction to the accused unless he is represented by a lawyer. There is abundance of reasons why weaker and marginalized sections are lagging behind in seeking legal aid for themselves. Due to poverty, indigence, lack of awareness, illiteracy and many more reasons can be added because of which they lag behind in seeking legal aid.
This article explains the concept of free legal aid in Indian constitution. The provisions are merely words on paper and are not implemented exactly as it is written. This needs to be changed and the words laid in provisions needs to be implemented in reality. According to article 141 of the Indian constitution stipulates that the law declared by supreme court shall be binding on all courts. As the supreme court has given numerous decisions on the various cases of free legal aid that every court in the territory of India has to follow its decision and guidelines.
 Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
 Hussainara Khatoon and ors v. Home secretary, State of Bihar, 1979 AIR 1360.
 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
 Khatri and ors v. State of Bihar and ors, 1981 SCC (1) 627.
 Suk Das v. Union Territory of Arunachal Pradesh, 1986 AIR 991.