Free Legal Aid in India: Concept, Constitutional mandate and Challenges

Author:- Janvi Vishnani

Introduction

“The concept of seeking justice cannot be equated with the value of the Rupee. Money plays no role in seeking justice.”

After independence, the number of Indians who can afford a good standard of living has steadily increased, although the percentage of people living in poverty has steadily decreased. This shift can undeniably be attributed to the government’s policies for poor people’s upliftment. However, several citizens are yet to gain from these measures and provisions. Thus, the poorest members of society feel marginalised and are subjected to a variety of social injustices. Adding to their issues, it has been discovered that they do not have someone to defend them in court as they face criminal proceeding, they are stripped of justice. While no challenge can be solved completely, so our Constitution and laws offer a service to the poorest and underprivileged strata of society who do not have the financial resources to obtain legal aid by supplying them with free legal assistance. Legal assistance is termed “legal aid”.

Provision regarding Legal aid

The term legal aid has not been described in any statute, but if we go by literal meaning Legal Aid refers to “provide free legal assistance to the poor and vulnerable who cannot afford to hire a lawyer to represent them before any court, jury, or before a judicial authority”.

  • International Conventions

Article 7 & 8 of the Universal Declaration of Human Rights 1948 proves Legal aid is a human right. Article 7 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law”, whereas Article 8 says that “Everyone has the effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law”.

Legal aid is given to a citizen charged with a criminal offence as part of recourse to justice under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was signed in 1953.

Article 6 (3) of the European Convention states that a person who has been charged with a criminal offence has the right, “To defend himself in person or through legal assistance of his choosing for if he has no sufficient means to pay for legal assistance to be given it free when the interest of the justice so require”.

Hence, it is prima facie evident that International conventions and declarations have accepted legal aid as a human right. Legal aid should be recognised as an integral part of a nation’s justice system, according to international law.

  • Constitution Mandate and Legislative Framework

The preamble of the Indian Constitution states that “we the people of India” have solemnly resolved “to secure to all citizens justice, social, physical, and political,” as well as “equality of rank and opportunity.” Thus, making social and economic justice the sacred goal of the constitution, the founding fathers also provided ample space for legal aid. Thus, Legal Aid is not specifically stated in the preamble, it is implied.

Article 14 of the Indian constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The term “equal protection of laws” means the poor’s legal right should be at par with the rich citizen, it means lack of funds should not be a reason for denial of justice. Therefore, Legal aid for the poor is needed to ensure equality of justice, since it will act as a shield for the poor in the context of democratic and fundamental rights enshrined in our Constitution.

Every person’s life or personal liberty is protected under Article 21. This article ensures that nobody should be deprived of his life and personal liberty, it should happen only as per “provision established by law”. Procedures established by law has deep meaning for both proponents of liberty and judicial sentinels. Natural justice is essential for a fair trial.

According to Justice Bhagwati, the process through which a person’s life or personal liberty is curtailed must be reasonable, equitable, and just. This viewpoint is a forerunner to one of the most revolutionary developments in the field of Human Rights, the right to free legal aid. As per the Supreme Court right to free aid is an integral component of a rational, equitable, and just process for a person convicted of an offence and it is implied in Article 21.

In Sukh Das v. Arunachal Pradesh, the SC reminded the state of its constitutional duty to provide free legal assistance. The Supreme Court went on to say that it is the state’s responsibility to offer free legal services to the vulnerable as a matter of right, even though they do not request it. Finally, in the case of the State of Maharashtra vs. Manubhai Pragaji Vashi that “it is now equally settled that Article 21 of the Indian Constitution envisages the right to free legal assistance and a speedy trial as a promise to protect citizens’ human rights”

Article 22(1) of the Indian Constitution states that “no one who has been arrested can be detained without first being told of the reason for their detention or shall be denied the right to consult and be defended by a legal practitioner of his choice”. Thus, if a marginalized or underprivileged person fails to consult the legal consult state will provide it, if the state will fail in providing legal assistance Article 22 (1) of the Indian Constitution will be rendered null and a breach of the Constitution will occur.

In the case of Hansraj vs. State of Uttar Pradesh, some railway person conducted a Satyagraha. They were detained, charged, and sentenced under the Railways Act’s rules. They were not informed of the trial date, nor were they informed that they had the right to contact and be represented by a lawyer under Article 22(1). In these conditions, it was agreed that Article 22(1) had been breached.

While the Indian Constitution does not expressly recognise the right to free legal aid as a fundamental right, Article 39-A of the Directive Principles of State Policy provides for the provision of free legal aid to indigent people. Article 39-A guarantees “equal justice” and “free legal aid.” The state must ensure that the judicial system operates in a way that ensures justice on an equal footing. It refers to law-abiding justice. A decent legal structure should be the primary interest of the state in a democratic policy regulated by the rule of law.

Any person accused of a crime in a Criminal Court, or against whom charges are commenced under this Code, may of right be defended by a pleader of his choice,” according to Section 303. In such cases, Section 304 extends legal aid to accused people at no cost to the state, It states that “Where the accused is not served by a pleader in a courtroom before the Court of Session, and it appears to the Court that the accused lacks adequate means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.”

The Legal Service Authority Act 1987 is the most important piece of legal aid legislation. It establishes legal services authorities to provide free and competent legal services to the weaker sections of society, ensuring that opportunities for obtaining justice are not denied to any citizen due to economic or other disabilities, and to organise Lok Adalat to secure justice. The statute contains several clauses aimed at achieving this goal. With effect from November 9, 1995, the Legal Services Authorities Act of 1987, as amended by the Legal Services Amendment Act of 1994, came into force.

Section 12 of this act establishes a group of citizens who are eligible for free legal aid. This Act also seeks to establish the National Legal Services Authority, State Legal Services Authority, District Legal Services Authority, and Taluka Legal Services Authority at the national, state, district, and taluka levels.

Challenges

As mentioned above there are various statutes, constitutional provision for legal aid, but still, there is the room that needs to be filled. Most people now accepted discrimination because they cannot afford a legal advisor to represent them. There are many explanations that there are so many unresolved lawsuits in courts; many persons who are innocent but accused and unable to defend themselves are among them. The advancement of legal aid programmes faces many obstacles and problems.

When we look at the current situation, we can see that there is a significant difference between the targets that have been set and the goals that have been achieved. In India today, the legal aid movement is largely unorganised; it is dispersed and intermittent. There is a serious lack of cohesion among them. The vision of a right to freedom and fair access to justice is a distant hope that has almost hit its breaking point. In a recent survey, a law firm said, “We no longer do pro bono work; we are too busy trying to survive.”

When we look at the issue more closely, we see that illiteracy remains the most significant barrier to legal aid, more than 70% of the population of rural areas is illiterate, and they are unaware of the legal protections that they have. The lack of legal awareness is the real cause for the poor’s abuse and denial of rights and benefits. We have a vast number of laws in this field, not only in the form of philanthropic rulings and legislations, but they have all proven to be myths due to their inadequate execution for those who need them most.

Another major hurdle is lawyers don’t participate in social events. They have no interest in delivering a social service that they would provide by being an important part of legal systems. The explanation for the lawyers’ apathetic attitude toward society is that we hardly provide them with a legal education that includes civic education and moral standards. As a result, they should not recognise, comprehend, or acknowledge their duty to provide legal assistance or services.

Conclusion

Despite the several attempts made by the Executive, Legislature, and Judiciary in providing free legal aid to the vulnerable and disadvantaged citizens of the society and thereby ensuring the true existence of the welfare state in India, but there are numerous challenges in applying the concept of legal aid in its true sense in Indian society. To have a sustainable legal aid movement in India, the government must take the necessary steps to raise public consciousness and educate citizens about their basic constitutional rights. The government’s sole goal or mission should be to offer “fair justice to all. The government should organize camps, drive to create awareness among people, only if people can make proper use of free legal aid service if they are trained and aware of their rights.


Janvi Vishnani is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing BA.LL. B (Hons).