Free Legal Aid Challenges & Solutions:

This blog is inscribed by Mindala Nagasai.

History

The emergence of legal aid in India has a long history. Earlier the committee for implementing legal aid schemes (CILAS) used to monitor the legal aid schemes. In 1980 this committee was constituted at national level to supervise the legal aid programmes throughout the country under the chairmanship of Justice P.N. Bhagwathi which later on thought to constitute a statutory legal services authority at all levels to monitor the legal aid programmes.

In 1987 this programmes of legal aid has finally assumed the statutory base with the name legal service authority act 1987. The primary objective of this act is:

               “To provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”[1]

Notwithstanding This Act There Are Other Statutes Providing For The Legal Aid. They Are:

1)     The Constitution of India:

Article 14:

This article provides that ‘no state shall deny to any person equality before law’ i.e. equality in the administration of justice forms the basis of the constitution.

Article 22:

This article provides for the arrested person a right to consult and to be defended by a lawyer of his choice.

Article 21:

This article provides that the right to free legal aid is the fundamental right.

Article 39A

This article was added to the constitution with the 42nd amendment act which provides for the equal justice and free legal aid.

2)     The code of criminal procedure (Cr.P.C)

Section 304:

This section guarantees free legal services in case of sessions trials.

3)     Law commission reports:

  • 14th law commission report
  • 48th law commission report

Both these reports speak about the concept of free legal aid.

Principles On Legal Aid:

On several occasions the apex court has laid some principles in relation to the free legal aid. The following are some of the principles:

  • Free legal aid to the poor and needy is an essential element of any reasonable fair and just procedure.[2]
  • Poor and disadvantaged are entitled to the preferential treatment than the rich and affluent as the weaker sections are deprived of justice due to their poverty, ignorance and illiteracy.[3]
  • Absence of legal representative would vitiate the doctrine of fair procedure as enshrined under article 21 of the constitution.[4]
  • It is the responsibility of the state to ensure that fair and impartial justice is made available at the door steps of the poor and economically weaker sections of the society at the free of cost.
  • The duty is cast on the Magistrate or the Sessions Judge to inform the accused concerned about his entitlement to have engaged a counsel at the cost of State.[5]
  • Magistrate or the Sessions Judge, before whom the accused appears, is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.[6]

In spite of these many statutory provisions and dictums by apex court poor are denied of their right to free legal aid in other words poor and needy are getting increased day by day and the challenges are also taking its growth rapidly.

The following are some of the circumstances where the poor are denied their fundamental right to free legal aid:

Bal Bahadur v. Customs Air Custom Officer Airport[7]

In this case an inexperienced and incompetent advocate was appointed as the free legal advocate. For which it was remarked that the appointment of inexperienced and incompetent advocates as free legal aid advocates will defeats the whole purpose of the legal aid.

Sudhakar Tiwari v State[8]

In this case the legal aid advocate appointed on behalf of the accused remained absent during the trial and all the testimonies are recorded in his absence.

Asmaniya Bai v State of Madhya Pradesh[9]

In this case the poor and innocent was labelled as the accused & was convicted by court based on the improper cross examination and unreliable eye witnesses by the legal aid advocate. And though the accused was enlarged on bail but due to lack of money for the bail bond he remained in the prison.

Ramchandra Nivrutti Mulak v State of Maharashtra[10]

In this case the legal aid advocate remained absent during the trial by seeking the adjournments and later on he filed and withdrew the application for pleading as the advocate. And court decided and convicted the accused without hearing on the other side which is also the violation of principle of natural justice.

Sunil S/o Khanderao Gaikwad & ors. v State of Maharashtra and ors.[11]

In this case an advocate who does not have any experience was appointed as the legal aid advocate.

Rajender Singh @ Bijoy Singh v State of West Bengal[12]

In this case the legal aid advocate was appointed after the witnesses are examined.

M.H. Hoskot v State of Maharashtra[13]

In this case the right to appeal was denied to the accused based on the reason that the accused was in the prison.

Solutions For Proper Implementation Of Legal Aid:

  • Apex court

The apex court should be vigilant in implementation of the law by bringing the awareness to all the people.

  • Judicial duty:

The judiciary is considered as the state so, it should consider as its duty in applying the principles of legal aid in its decisions.

  • Vigilant visits:

Judges should make vigilant visits to the prisons ensuring that the convicted prisoners should get their right to appeal and see that the ultimate purpose of providing legal aid should be fulfilled.

  • Departmental proceedings:

In case of failure to provide free legal aid that concerned magistrate should be liable for the departmental proceedings

  • Programme:

Making the concept of free legal aid as part of the poverty alleviation programmes.

  • Reform:

Reforming the laws by making the necessary amendments by meeting the needs of the poor.

  • Motivating factors:

Contemplating the motivating factors like money a sense of belonging to society and being able to learn from the real life situations.

  • Creating faith:

creating faith in the minds of needy people to have free and costless access to justice and for which the lawyers community at large must be prepared to do more pro bono service and increasing their remuneration.

  • The recommendations of the expert committee in the form of Report of the National Juridicare: Equal Justice – Social Justice has observed:
  • Establishing legal service clinics in  law schools
  • To use the law students for the legal aid activities like legal literacy and awareness and after proper training allowing them to plead in courts as legal aid advocates.
  • Amending the advocates act and inserting section 27A in the said act which thereby allows the senior law students to appear in court on behalf of the poor under the supervision
  • Monitoring the administration of various laws and making socio-legal surveys highlighting the problems of poor[14]

References:

  1. The Legal Services Authorities Act, 1987.
  2. Hussainara Khatoon v state of Bihar AIR (1989) SC 1360.
  3. Bihar Legal Support Society v CJI & Anr. AIR 198 SC 38.
  4. Maneka Gandhi v Union of India AIR (1978) 597.
  5. Suk Das v. Union Territory of Arunachal Pradesh, (1986) AIR SC 991
  6. Khatri v. State of Bihar AIR (1981) SC 928.
  7. Bal Bahadur v. Customs Air Customs Officer (2009).
  8. Sudhakar Tiwari v. State ILR (2012) III (DEL) 34.
  9. Asmaniya Bai v. State of M.P 2000 (3) MPLJ 272.
  10.  Ramchandra Nivrutti Mulak v. State of Maharashtra LQ 2008 HC 2119
  11. Sunil s/o Khanderao Gaikwad & Anr. v. The State of Maharashtra & Others LQ 2013 HC 18529.
  12. Rajender (Bijoy) singh v. State Of W.B (2004) CriLJ 4023.
  13. M.H. Hoskot v. State of Maharashtra AIR (1978) SC 1548

[1] The Legal Services Authorities Act, 1987 (No. 39 of 1987).

[2] Hussainara Khatoon v state of Bihar AIR (1989) SC 1360.

[3] Bihar Legal Support Society v CJI & Anr. AIR 198 SC 38.

[4] Maneka Gandhi v Union of India  AIR (1978) 597.

[5] Suk Das v. Union Territory of Arunachal Pradesh, (1986) AIR SC 991.

[6] Khatri v. State of Bihar AIR (1981) SC 928.

[7] Bal Bahadur v. Customs Air Customs Officer CRL.A. no. 12 (2009).

[8] Sudhakar Tiwari v. State ILR (2012) III (DEL) 34.

[9] Asmaniya Bai v. State of M.P 2000 (3) MPLJ 272.

[10] Ramchandra Nivrutti Mulak v. State of Maharashtra LQ 2008 HC 2119.

[11] Sunil s/o Khanderao Gaikwad & Anr. v. The State of Maharashtra & Others LQ 2013 HC 18529.

[12] Rajinder Singh @ Bijoy singh v. State Of West Bengal (2004) CriLJ 4023.

[13] M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

[14] Supriyo Routh, Providing Legal Aid: Some Untried Means, 50, 2008 (JILI)

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