Know Your Right: Legal Aid

Introduction

India is a country where a large number of its population are underprivileged and fall under the criteria of below poverty line. According to a report of WORLD BANK released in 2011, which was based on data of 2005’s PPP( Purchasing Power Parity) an international comparison program it was reported that about 23.6% of India’s total population lives below the PPP’s[1]

Article 14 of the Constitution talks about the ‘Right to Equality’ before the law. As everyone has equal rights, everyone possesses the Right to stand before the court while having equal footing as their opposition in the court. The people who are below the PPP’s it is one of the toughest things as they are not economically strong enough to get a lawyer and face their counterparts in the courtroom. To overcome these hurdles, the concept of Free legal aid emerged, where a legal representative is provided to the accused to those who are not able to afford them at free of cost.

Meaning of Free Legal Aid

Free Legal Aid means providing free legal services to the needy and deprived section of society. To those individuals who are not in the position to afford the services of a legal advisor or advocate to conduct legal proceedings or a case in the court of law, tribunal and forum or before a judicial authority.

History of Free Legal Aid

Initially, the movement for Free Legal Aid started in France in the year 1851, where there was an introduction of several enactments for offering legal help to those sections of the society which were indigent. After that in Britain in the year 1944, where the state provided for Free Legal Aid services to the needy section of the society, Chancellor of that time Lord Viscount Simon provided for Rushcliffe committee to look after the existing facilities in England and Wales and to provide Legal aid to the needy people.

In India, since 1952, the government started addressing the question of Legal Aid. In the 14th law commission report for the first time in India, the Right to free legal aid was put forward in broader aspects. Again in 1969, The Right to Free Legal Aid was led emphasis by the Law Commission of India.

Constitutional Provisions

The preamble of the Indian Constitution talks about providing Socio-Economic and Political Justice to the people of India.

Article 39A of the Constitution of India provides for free legal aid to the poor and needy sections of the society and ensures justice for all. This article led to be one of the founding stones for the enactment of the Legal Services act, 1978. The government of India also formed a committee namely “Committee for implementation legal Aid schemes” which was chaired by Justice P.N. Bhagwati, to look after and implement free Legal Aid programmes so that it would be applied to the whole of the country.

Article 21 talks about providing equal rights and liberty to life to every person in the country except for those for which procedure is established by law. Right to Speedy Justice and Trial, as well as Right to Free Legal Aid, was acknowledged to be a part of Article 21. His Lordship Justice Krishna Iyer in the case of M.H. Hoskot vs. The state of Maharashtra (1978)[2]  mentioned that “This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.

Article 22 mentioned the protection of accused under some instances. It talks about providing legal practitioner to the accused and his Right to consult in the circumstances when a person is detained in custody without the knowledge of others.

Section 304 of the code of criminal procedure 1973,  states that if an accused is not economically fit to hire an advocate, the court must provide an advocate to the accused of his defence.

Case laws regarding Free Legal Aid

Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978)

In this case, the controversy was regarding what if a prisoner sentenced to imprisonment, is himself unable to exercise his Constitutional & statutory rights to appeal, inclusive of his Right to appeal for special leave. For all these, there is an implied procedure in the court under article 142 of the Constitution when read with article 21 and  39A of the Constitution, which states that a person who is entitled to appeal against his/her sentence has the Right to ask for a council so that he/she can prepare and argue the appeal, this was established in the case of Maneka Gandhi V. Union of India[3]

Thus it was held that Right to Free Legal Aid is an essential ingredient of fair, reasonable and just procedure which is guaranteed under Article 21 for an assured sentenced to imprisonment & the court needs to always furnish a free copy of the judgment & the jail officials should assist the prisoner in exercising his Right to appeal.

Khatri & others v. State of Bihar & others(1980)[4]

This case is also known as Bhagalpur Binding case. It was the first case where the question of providing Monetary compensation was considered by the supreme court.

In this case, the court held that Right to Free Legal Aid is a fundamental right & it is the Constitutional duty to look after Legal aid of the accused every time he/she is produced before the magistrate for the remand.

Hussainara Khatoon v. Home Secretary, State of Bihar(1980)[5]

It is one of the landmark judgment on the speedy trial of the cases. In this case, a writ petition came before the court for a hearing of the release of under-trial prisoners in the state of Bihar.

The court declared that the Under-trial prisoners who were exceeding the maximum term of their sentence should be released as this was considered to be a violation of their fundamental Right under Article 21 of the Constitution. The court also directed the State government to appoint a Legal representative at their own cost for the Under-trial prisoners, who are charged with bailable offence & are not in the position to afford a Legal representative.

Sheela Barse v. State of Maharashtra(1983)[6]

The court held that the police must inform the nearest Legal Aid committee when the accused is not able to afford legal service by himself.

Indira Gandhi v. Raj Narain(1975)[7]

The court held that every individual has equal rights which are guaranteed under the Constitution. No one should be unheard in the court of law. In cases where legal aid is not provided, the trial is vitiated.

Suk Das v. Union Territory of Arunachal Pradesh (1986)[8]

The appeal to this case raised a vital question related to the administration of criminal justice in the country. That whether an accused who is unable to afford a Legal representative in a trial is entitled to free Legal aid at State cost and in the cases where the accused doesn’t know about his Right to Free Legal aid the magistrate or session judge should inform the accused that he is entitled to Free Legal aid. If he is not so informed and in consequence, he doesn’t apply for Free Legal assistance, is the conviction vitiated and whether the conviction can be set aside?

The court held that any trial would be vitiated if there is a failure to provide legal aid to an impecunious accused unless he refused it.

Person Eligible For the service of Free Legal Aid in India

The eligibility criteria for free legal aid service is provided under Section 12 of the Legal Services Authorities Act, 1978.

Eligible person’s:-

  • Any person who is a member of schedule caste or schedule tribe.
  • A women or a child.
  • If the case is under any other court except the Supreme court of India, the person having the annual income of less than nine thousand rupees or any other amount prescribed by the respective state government, and when the case is before the Supreme court the person having an annual income of less than twelve thousand rupees or any other amount as fixed by the central government. Every individual who falls under this criteria is eligible for free legal aid.
  • The one who is a victim of mass disaster, caste atrocity, drought, earthquake, industrial disaster, or any other case of unjust circumstances.
  • The individual who is not able to engage a lawyer because of poverty , indigence or other situation.
  • Victims of trafficking of Humans as mentioned under Article 23 of the Constitution of India.
  • An industrial workmen.
  • A mentally ill or disabled person.

Free Legal services include:-

  • Providing legal practitioner or legal advisor to the accused.
  • Payment of court fee, process fee and all other fees charged during the legal proceedings.
  • Cost of all the paperwork like printing, translation etc.
  • Handling of all the charges for different work like drafting, preparing and filling of legal proceedings.
  • Obtaining of decrees, judgment and other documents in legal proceedings.

Criteria for rejection of application of Free Legal Aid

  • If the accused who filled the application has enough money that he himself can afford a legal consultant.
  • If the case doesn’t require a legal action.
  • If the applicant doesn’t fall under any of the category mentioned under article 12 of the Legal Services Authorities Act.

Circumstances in which Legal Aid is not provided

  • In the case where there is a contempt of court and in the case of defamation.
  • When the proceedings are related to elections and in those cases where the fine imposed is less than 50 rupees.
  • When the offence is against social laws and economic offences.
  • In those cases where there is no effect on the person’s interest and proceedings if not appropriately represented and
  • In the cases where the person seeking legal aid is not directly concerned.

Various institutions to provide Legal Aid

Legal Aid clinics

Legal aid clinic has been established in villages by the district authority of the concerned state to look after the applicant of Free Legal Aid.

NGO’s

Many NGOs work for the betterment of the weaker sections of the society and provide them with free legal aid.

Legal Aid clinics in various law colleges

Under section 14 of the legal services authority Act, it is made compulsory to establish a free Legal Aid clinic in all the law colleges.

Formation of Lok Adalat

The National Legal Services Authorities Act, 1987 provided organizations like Lok Adalat. Lok Adalat is one of the alternative dispute redressal mechanisms in this forum disputes pending before a court of law, or the cases that are at the stage of pre-litigation are settled amicably. Lok Adalat has the power of an ordinary civil court. It can do work like summoning or examining evidence etc. The parties can’t appeal against the order of Lok Adalat. Lok Adalat has the power to look after all the cases except criminal cases. In some instances where Lok Adalat is not able to settle the dispute, the case is transferred to the court, and the court deals with the case from the stage where Lok Adalat has reached.

Conclusion

The primary concern of Free Legal Aid services is on distributing justice as well as on eliminating social and structural discrimination against the needy and deprived section of the society. Free legal aid has turned out to be one of the magical solutions for the various legal issues faced by the poor. Many people know about their rights and are availing the services of free legal aid. But the primary concern is that an extensive section of society doesn’t know about their rights and duties. They are unaware of various legal aid clinics that are made available to them. Efforts should be made to make people aware of legal aid services through various means such as electronic media and various campaigns. Even the service of free legal aid should be made more flexible so that more and more citizens can avail the service of legal aid easily.

Questions that can be extracted from the article

  1. What do you understand by the term free Legal aid?
  2. What does the Constitution say about free legal aid?
  3. Who is eligible to get free legal aid in India?
  4. What are the criteria for which free legal aid can be rejected?
  5. Where can one get free legal aid?

References


[1] https://www.livemint.com/Opinion/xrATLLP8ojKEVEQgJV0UxJ/The-World-Bank-on-Indias-poverty.html.

[2] 1978 AIR 1548.

[3] 1978 AIR 597.

[4] 1981 AIR 1068.

[5] 1979 AIR 1360.

[6] 1983 AIR 378.

[7] AIR 1977 SC69.

[8] AIR 1986 SC991.

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