Right to Legal Aid in India: A Humanitarian Approach

Introduction

A person is entitled to Human rights by virtue of being a Human. These Inalienable rights are traditionally known as ‘natural rights’ and one can say that these are derived from the divine law of nature. At the global level, it has acquired great significance through the Universal Declaration of Human right (UDHR) in 1948. At the state level; it is recognized in state law in the form of legal rights. In India, Civil and political rights are incorporated in the Constitution of India as Fundamental Rights and Economic, Social and Cultural rights have been included as Directive Principles of States Policy. Another Important enactment in India which emphasized on Human rights is The Protection of Human Rights act, 1993.

Our law ensures basic Human rights even to those who are suspected of involvement in crimes. The Indian Criminal Justice system is characterized by the concept of ‘Due Process’, which involves various rights of accused who are facing trial in Criminal Court. It is based on the model of the adversarial system in which the role of the court is similar to that of an impartial referee between the prosecution and defence. Our Judicature is moulded by the Anglo-American model and our judicial process is engineered by Kindred legal technology, Compel the collaboration of Lawyer-power for steering the wheels of equal justice under the law[i]. An accused is innocent until proven guilty and charges against him should be proved beyond a reasonable doubt. The principle of reasonability which states that “it is better that ten guilty persons escape than that one innocent suffer[ii]”. Right to life includes Right to a fair trial which clarifies that a trial without legal assistance cannot possibly be regarded as just, fair and reasonable[iii].

Legal advice is independent of any legal proceedings in any court of law or tribunal. Its nature is not only remedial but has the preventive potential also[iv]. Justice P.N. Bhagwati said, “The poor and illiterate should be able to approach the court and their ignorance and poverty should not be an impediment in the way of attaining justice”[v].The new encyclopedia Britannica defines legal aid as “The professional legal assistance given either free or for a nominal sum, to indigent persons in need of such help”. Justice Krishna Iyer in Sunil Batra’s Case (no.2) v. Delhi Administration said that “…today, Human rights Jurisprudence has constitutional status[vi].

Legal Aid Provisions in Indian Legal System

Historical evolution of legal aid can be traced from the British Period. The founding fathers of our constitution were themselves freedom fighters. They had seen how civil liberties got trampled under draconian Detention law. They had incarcerated in Jail custody for a longer period under the formula of “No lawyer, no hearing, and no appeal”. Many of them were lawyers by profession and hence very aptly knew the importance of lawyer particular in Criminal cases. It was for this reason they have provided for assistance by counsel under Article 22(1) of the Indian Constitution. Another facet of applying ‘rule of law’ is the idea of legal aid. It is dedicated to the principle of equal justice to the poor; Denial of such right to the poor would be the negation of equal protection of the law and ultimately it led to the violation of Article 14. Legal aid and speedy trial is Fundamental right under Article 21. The state is under a duty to provide a lawyer to a poor person [vii]and it must pay to the lawyer his fees as fixed by the court[viii].

It is evident from Sections 303, 304(1) and 41D of Code of Criminal Procedure, 1973 that in a trial before the Court of sessions if the accused is not represented by a pleader, the court shall assign a pleader for his defence at the expense of the state if the accused has not sufficient means. However, there is a loophole in these provisions which is, this right to free legal service would be illusionary for an illiterate accused unless the magistrate or session judge before whom he is produced informs him of such right[ix]. To overcome this limitation, The Court has shown a pragmatic approach in its judicial pronouncements. In M.H Hoskot v. State Of Maharashtra[x], Justice Krishna Iyer observed that providing free legal aid is the State’s duty and not Government’s charity. In Khatri v. State of Bihar[xi], the Supreme Court held that state government cannot avoid their constitutional obligation of providing free legal services to the poor accused by pleading Financial or administrative inability. The legal aid should be provided to convict at all stages, that is for preparing appeals, or mercy petition or for accessing Judicial remedies after mercy petition has been rejected[xii]. The accused must be allowed legal representation during the custodial Interrogation[xiii]. Legal assistance should be given to an indigent person under Police custody, besides under trials and Convicts[xiv]. The trial could be vitiated when the appellant was not provided with proper Counsel to defend himself[xv] and in the absence of alleged errors by defence counsel causing prejudice, the court may inquire independently reweighing the evidence, aggravating and mitigating circumstances, would not have awarded death sentence[xvi]. Legal representation by a fairly Competent lawyer[xvii] is a Fundamental Right implicit under Article 21.

The Legal Services Authorities Act, 1987

The Policy of the government is to provide legal aid to economically backward classes of people. Article 39A is inserted by the Constitutional (42nd amendment Act), 1976. Article 39A states that “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 1987, the Legal Services Authorities Act was passed to fulfil this Constitutional Obligation. According to section 12, legal services authorities, after examining an applicant’s eligibility criteria and the existence of a prima facie case in his favour, provide him with counsel at the expense of the State, pay the court fee required in the case and bear all incidental expenses related to the case[xviii]. Primarily in rural India, most of the poor accused is illiterate and not aware of their right. “Legal aid would be an idle formality if it was to depend upon a specific application by such poor or ignorant person for such legal assistance[xix].” Hence, the voluntary organisation and social groups must involve for implementing legal aid Programmes and awareness as given under Section 8 and 11. Supreme Court has commended the system of Lok Adalats under Chapter VI of the Legal Services Authorities Act, 1987[xx]. It helps in reducing the burden of overburdened civil courts by providing alternative dispute resolution machinery. This Act was amended in 2002, making it mandatory for the central authority and every state authority to establish permanent Lok Adalats in respect of public Utility Services[xxi].

Conclusion

Article 39A with art 21, free legal assistance at state cost has been raised to the status of Fundamental right. The Constitutional mandate in Article 39A is addressed to legislature and executive but it also involves Court that interprets statues and takes part in ‘Judicial Lawmaking’. Public participation is sought to be achieved by setting up legal aid clinics in every part of India. It’s high time to properly implement legal aid so that the one who is in dire need of such help could be benefitted. Law must not only speak justice but it should also be just in its operation.

[i] M.H Hoskot v. State Of Maharashtra, AIR 1978 SC 1548

[ii] Sir William Blackstone ,Commentaries on the laws of England ( J.B. Lippincott Co., Philadelphia, 1893)

[iii] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[iv] B.N. Mani Tripathi, Jurisprudence The Legal Theory 357-58(Allahabad Law Agency,Faridabad,2002)

[v]  Government of Gujarat, Report of the legal aid committee (1971)

[vi] AIR 1980 SC 1579

[vii] Hussainara Khatoon v. Home  Secretary, State of Bihar, AIR 1979 SC 1369

[viii] Central Coalfields v. Jaiswal Coal Company, AIR 1980 SC 224

[ix] Khatri v. State of Bihar, AIR 1981 SC 928

[x] AIR 1978 SC 1548

[xi] 1981 SCC (1) 627

[xii] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

[xiii] Nandini Sathpathy v. P L Dani, AIR 1978 SC 1025

[xiv] Sheela Barse v. State of Maharashtra, 1986 3 SCC 596

[xv] Mohammad Hussain Zulfikur Ali v. state(government of NCT ) Delhi, AIR 2012 SC 750

[xvi] Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747

[xvii] Kadra Pahadiya v. State of Bihar, (1983) 2 SCC 104

[xviii] The Legal Services authorities Act, 1987 (Act 39 of 1987), s. 12 – Criteria for giving legal services.

[xix] Sukdas v. Union territory, AIR 1986 SC 991

[xx] Abdul Hassan and National legal services authority v. Delhi Vidyut Board, 1999  Del (HC) 88

[xxi] The Legal Services authorities Act, 1987 (Act 39 of 1987), s. 22-A, 22-B.


ABOUT THE AUTHOR

Tanya Bhagat

IMG_20200619_151012

Tanya Bhagat is a second-year law student pursuing B.A. L.L.B (Hons) at the Faculty of Law, Jamia Millia Islamia, New Delhi. She is interested in Criminal law and interned at the National Commission for Protection of Child Rights. She can be reached at tanyabhagat29@gmail.com.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s