The notion of seeking justice has no relation to the value of currencies. Well, Money does not play any role in seeking justice. India, being the second most populated country with multiple diversities and presence of illiteracy among the people lacks the awareness of the legal systems and constitutional rights prevailing in the country. Though, some people are aware of the systems and the rights, because of their social and economic backwardness they are unable to utilise it. Likewise, due to the high price of legal counselors, it became a costly affair for the weaker sections of the society. With the objective of providing free legal rights and aid to the society, the Parliament has subsumed a specific article to Part 4 i.e Directive Principles of Indian Constitution which is Article 39-A by 42nd Amendment Act, 1976. Also article 14, 21 and 39-A support the legal aid as a constitutional right. “Access to Justice” is always considered as a basic human right until and unless it is taken away by legislature under valid exercise of any statutory power. In Roman law, a term “ubi jus ibi remedium” says that when there is a Right, there is a remedy too. The State aims to provide free legal aid to the poor sections of the society to make them aware of their rights and remedy. Constitutional provisions of legal aid, origin and judicial history of legal aids and steps for increasing the awareness of the people regarding legal systems in India are to be further discussed.
For preserving the existence of orderly maintained society legal aid to the poor is essential for the State. Those sections who cannot afford the service of a lawyer in legal proceedings in a court, tribunal or before any authority, free legal services are applicable to them.
There will be no opportunity for an illiterate man to seek justice if he is not legally assisted and it is similar to denial of justice. Political philosopher Charles de Montesquieu remarked that, “In the state of nature…all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law.” Therefore, legal aid is only the remedy or way to make sure that securing justice is not denied to any citizens on the basis of poverty, illiteracy and so on. Legal aid provides free assistance to the weaker sections for conducting the legal proceedings in the court with the motive to enable the people to use their rights provided in the Indian Constitution. The Constitution empowered the judiciary to protect and safeguard the rights of the citizens irrespective of their economic background. The right to “Free trial” has been accepted as one of the instruments for providing human rights as well as individual liberty. Government has taken important measures towards achieving more efficient and effective judicial system but more attention is needed in delivering the legal services across the country.
Genesis of Legal Aid
Nowadays, dearth of money makes a person unable to get legal advice which results in sepulchre for justice. Each citizen has an equal right to the extensive system of equal liberties along with the similar system of liberties for all. In order to ensure that no citizens should be disentitled from any legal advice due to any disability like lack of money etc. The concept of “equal justice” was mentioned over seven centuries ago in the 40th paragraph of Magna Carta which states that we won’t deny or delay in getting justice neither for us nor for others. In the 20th century the term legal aid evolved.
This century marked the change in the minds of the jurisprudential world in accepting legal aid as one of the methods for the well being of human society. After the fallout of the First World War, the Human Rights Declaration mentions the free legal aid. Talking about the foreign provisions, Article 6 (3)(c) of European Convention for Protection of Human Rights 1953, and the United Nation Conference on Prevention of Crime and Treatment of Offenders 1965, provides free legal aid in criminal cases. Also, the Convent on Civil and Political Rights, 1968 identifies the importance of legal aid. Therefore, it is proved that free legal aid has emerged over a period of time from Magna Carta to the 20th and 21st century.
Provisions for Free Legal Aid In India
Coming to constitutional provisions, Article 39-A of Directive Principles of the Indian Constitution, mentioned that the State should secure free legal aid to all the citizens and should provide equal opportunities for all to secure justice. In contrast, article 14 and 22(1) of the Indian Constitution makes it necessary for the State to provide equality before law and provides for justice on the basis of equal opportunities to all. Order 33, of rule 17 of, CPC provides legal aid to the poor, and Section 304 of CrPc provides free legal aid in criminal cases and sometimes lawyers are being provided by the state. But these provisions are not sufficient for the accomplishment of free legal aid, therefore, the government enforced the Legal Services Authority Act in 1987 which mentions about the procedure of how, in what way and who should get the legal aid. Section 12 provides the procedure to whom the legal aid should be provided. These provisions are necessary and essential for achieving the goals of Indian legal system.
Judicial History of Free Legal Aid
The emergence of free legal aid also resulted in the emergence of several cases. It started from the case Hussainara Khatoon v. State of Bihar, 1980, where the Supreme Court of India pointed out that Article 39-A was inalienable element for “Free” and “Just” procedure as it is already mentioned in Article 21. Later, in the case of Khatri v. State of Bihar, 1981, it was held by the court that the State is bound to give free legal aid in every stage of proceedings starting from initial stage to presenting before the magistrate. In Suk Das v. Union Territory of Arunachal Pradesh, case Justice P. N Bhagwati highlighted the need for spreading legal awareness among the poor and promotion of legal literacy is a necessity. Now, in the case State of Maharashtra v. Manubhai Pragaji Vashi, the Supreme Court of India held that the failure of providing free legal aid to the accused by the state would violate the trials. On the other hand, in M. K Hoskot v. State of Maharashtra, it was observed that it is the duty of the State to provide free legal aid and not the Government’s donation.
Providing free legal aid to the weaker sections of the society cannot be called as a “charity” by the State or any other kind of special privilege provided to them. But in order to achieve the objective of “equal justice”, it is the duty of the State to take certain measures through which the weaker illiterate sections will be imparted with legal knowledge and legal aid. Even today, people are not aware of their rights and duties, due to which the legal aid movement couldn’t achieve their objectives in large. Also the legal aid institutions should use proper ADR (Alternative Disputes Resolution) methods for speedy process of resolving the case. Free legal aid is always considered as a myth due to its ineffective enforcement. Thus, it is a wake up call for the government to focus on proper implementation of laws related to the free legal aid in order to convert the myth of the mindset of countrymen to reality.
3.Pooja P. Vardhan, Right to Legal Aid; A Constitutional Commitment, Press Information Bureau (Jan. 17, 2019, 10:00 a.m.), http://pib.nic.in/newsite/mbErel.aspx?relid=118011
4. Constitutional of India, Art. 14, 22 and 39-A
5.European Convention for Protection of Human Rights 1953, Art. 6(3)(c).
6.Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
7.Khatri v. State of Bihar, AIR 1981 SC 262.
8.Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.
9. M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
10.Code of Criminal Procedure, 1973, Sec. 304.
11.Legal Services Act, 1987, Sec. 12.
Author Details: Anousha Saha (Parul institute of Law)