Right To Legal Aid:
Much is Done, Much More is Needed
Legal aid means free or inexpensive legal service provided to those
who are in need of it but are not able to pay. For justice it is required that
there should be an impartial tribunal, implementing just and fair laws and
which is accessible by all who are in need. It is this third issue which needs
to be discussed. Any person who doesn’t have the resources enough to get the
meals of two times how will he be able to get his rights enforced by the courts?
To get them enforced he needs not only representation but a proper
representation. How come an illiterate person will be able to know the
intricacies of law? To get justice he needs the help of a person trained in law
and to engage him he needs money and providing free service to such persons is
what we call ‘free legal aid’. In this paper work the authors’ endeavour is to
look into the changing dimensions of legal aid and to see that what else is
needed in this regard.
International Law
The international law on human rights is
only the development of the later half of the twentieth centaury. During the
short period of 50 years it has developed so much that multilateral treaties
have been entered into covering all most all the subjects concerning human lives.
International Covenant on Civil and Political Rights, ICCPR as we call it, has
been drafted in 1966 and came into force in 1976 it has been ratified by 143
nations including India
as well. ICCPR for the first time raised the issue of legal aid in International
Arena.
International Covenant on Civil and Political Rights
India is
also a signatory to this convention. Article 14 of the same convention
discusses about the rights of every person in criminal cases. It provides that;
“In
determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality;
(d) To be tried
in his presence, and to defend himself in person or through legal assistance
of his own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it.” (emphasis supplied)
This article first talks about compulsory
legal assistance in criminal cases in its later part it discuses about the free
legal aid in case where “the interest of justice require” so. This requirement
of the interest of justice will take account of the complexity of the
proceedings, the capacity of the individual to represent himself, and the
severity of the potential sentence.[1]
Now another thing to be noted in this convention is that the state parties
agreeing and are here recognising that these rights derive from the inherent
dignity of the person[2].
So they are actually recognising the right to legal aid as a right deriving its
validity from the mere existence of human beings and a right from the inherent
dignity of the person. The signatories to this covenant were supposed to make
necessary changes in their existing laws so as to accommodate the provisions of
this treaty. India
also being one of the signatories was also supposed to follow the same and
provide legal assistance and legal aid in criminal cases.
Domestic Laws:
Domestic laws or the Municipal laws of
any nation derivers legitimacy from the Constitution so if some right is
provided in the Constitution than no other law can be passed in derogation to
that right. That right will be enforceable as a constitutional right even in
case where no law in accordance with that right is passed.
Constitution of India
We see that in the original draft of the
Constitution no right to legal aid has been recognised it may be because the
Indian Constitution came into force in 1950 while the treaty we are discussing
about came into force in 1976. So in 1976 itself an amendment was made in the
Constitution and Article 39A was inserted into it so as to give effect to the
right recognised in ICCPR. Article 39A talks about equal justice and free legal
aid and says that;
“The state shall secure that the operation of the legal
system promotes justice, on the 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.”
(emphasis supplied)
This Article has incorporated Article
14(d) of ICCPR in its spirit. But here one is to be sure that the right being
provided in the Constitution is given in Part IV of it and as the provisions
contained in this part are not enforceable by any court[3]
making these rights practically of no use. But Article 37 further provides that
“the principles laid down are nevertheless fundamental in the governance of
the country and it shall be the duty of the State to apply these principles in
making laws.” Moreover the contents of this article can be read into the
spirit of Constitution. It is laid down in the Constitution that;
“The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the institution of
the national life.”[4]
“No person who is arrested shall be……..denied the right to consult,
and to be defended by, a legal practitioner of his choice.”[5]
This “right to consult, and be defended by, a legal practitioner”[6]
is not an ancient common law guarantee, but a more modern recognition that the
complexity of modern law requires that a person before a court have the help of
an expert in preparing and presenting his case.
Constitution by Article 14 further provides 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.”
In these Articles the Indian Constitution visualizes and attempts to
provide for a society in which justice is equally and even-handedly provided
for all. The aim of these articles is without a doubt to assure that the law
will not act capriciously and that each citizen will be guaranteed full
opportunity to present his case to a court.
The ensuring of such treatment is the
concern of numerous articles of the Constitution as well as the entire body of
the procedural law. Clearly, numerous requirements must be met in order to
assure the justice and equal treatment, which are sought to be achieved.
Code of Civil Procedure
Even CPC in Rule 9-A of Order XXXIII provides that the court may
“…if the circumstances of the case so require, assign a pleader…” to an
unrepresented indigent person. Indigent person is defined in rule 1 of the said
order which can broadly be understood as a person who is economically not
capable of paying his court fee and hiring a lawyer. There is also a provision
of exempting such persons of court fee. This particular order (9-A) has been
inserted in 1976 itself in compliance with ICCPR.
Code of Criminal Procedure
Although the Constitution has left it open
for the government that when does it actually want to provide legal aid but the
Code of Criminal Procedure has contained it much before it was incorporated in
the Constitution. Section 304 of CrPC talks about legal aid to accused at State
expenses in certain cases it provides as under;
“(1) Where, in a trail before the court of Session, the accused is
not represented by a pleader, and where it appears to the court that the
accused has not sufficient means to engage a pleader, the Court shall assign a
pleader for his defence at the expenses of the State.”
This provision has been provided in the original draft of CrPC (new
draft) and was passed in the original enactment in 1973 while the ICCPR came
into force in 1976. So the requirement of ICCPR was fulfilled much before it
actually came into force.
Now the question arises that if that is the matter then why was
Article 39A inserted in the Constitution by making an amendment in 1976 even
though the same has already been provided in CPC and CrPC. The possible reason
for this could be that the provision regarding the legal aid in civil cases is
provided in Order and not in any section. Since the orders are subject to High
Court Amendments so to enforce them it was necessary to enshrine it in
constitution. In Constitution legal aid is provided in Part IV because of
economic constraints so while in criminal cases legal aid was made compulsory
in civil cases it was left over the respective states to decide upon it as per
their economic conditions.
Legal Advice:
As section 2(1)(c) of the Legal Services
Authorities Act, 1987 states, 'Legal Service' includes the giving of advice on
legal matters
This is not so that all people are in
favour of free legal aid, some people says that we should prefer legal advice
instead of legal aid. The debate is still going on that shall we give free
legal aid to all or should we resort to some other option. Scholars who are
against free legal aid argues that people who want the poor to have better
facilities for bringing legal proceedings (free of cost) are sometimes
overlooking the fact that it may encourage litigation. This is true that a
litigious state of mind is not a desirable thing. But to stop such fallacious
cases there is no need to actually make the courts inaccessible to all but a
small section of the community, but to provide means for advice and
conciliation as well as court proceedings.
Cases where litigation is necessary are
extremely rare compared with the consultation which are needed for advice, and
the number of proceedings taken decreases when advice and assistance are
available out of court. There are undoubtedly cases which at present are only
prevented from going to court by lack of means and if this disability were
removed there would be some increase in litigation but it would be not hostile
to justice because justice doesn’t mean justice for few it means justice for
all and even if this increases the burden on courts justice has to be
given.
In India
we have opted for the cocktail of the two i.e. here legal aid societies provide
both legal aid and legal advice. Providing legal advice would serve a dual
purpose. First, of explaining the legal implications of the situation and
suggesting a course of action. Secondly, of preventing a proceeding in court.
When a person is made to understand the legal implications of his problem, he
may realise that his case is not tenable and not pursue it. Even if he has some
case, he may be persuaded to opt for a settlement through negotiations.
Conciliation centres can be run with the
help of social workers drawn from retired judicial and civil service officers,
educated housewives and other enlightened segments of society. They would be in
a position to mediate and suggest solutions acceptable to the rival parties.
State Legal Services Authorities should run conciliation and counselling
centres at their own offices as also at the offices of District Authorities,
and they could pay an honorarium to the counsellors and conciliators to
compensate them for travelling expenses and the like.
Need for legal Aid:
For justice three things are very important;
I)
the tribunal must be impartial.
II)
laws which it administers must
be fair and reasonable.
III)
this tribunal must be
accessible.
Impartial
If the first requirement is not fulfilled
then the existence of such tribunal will come into a direct conflict with the
principles of natural justice and so will not be able to continue working.
Fair and reasonable laws
There are again very little chances of
the second requirement being not fulfilled because no law which directly
discriminate between one individual or class and another, and that which
directly produce this effect are gradually disappearing as the shape of society
alters.
Accessibility
It is the third requirement, the one I
have labelled “accessibility” which requires further examination. Laws may be
good, the courts may be impartial, but if for any reason the law cannot be
invoked, the machinery of justice is of no practical use. What will an
impartial tribunal be able to do and the just and fair laws will provide when a
common man is not able to approach the tribunal. What if the tribunal is
inaccessible? In this case what will a poor man get even if the first two
requirements of justice are met.
The operation of legal machinery is expensive.
Obviously, there are many people who cannot afford the cost and who, therefore,
are not protected by law unless they are guaranteed special consideration, that
is to say, legal aid.
Development of Right to Legal Aid
The leaders of the judiciary and the bar in India have long
recognised the need for effective legal assistance to all in the society.
Indeed, the most comprehensive inquiry into the problem came just after
independence, in the then state of Bombay.
This inquiry, under the direction of Mr. Justice N.H. Bhagwati, remains an
excellent summary both of the need for legal aid and the manner in which it
might be implemented.[7]
The law commission of India in its report on “Reform of
Judicial Administration”, published in 1958,[8]
reviewed fully the efforts made in India to that date. Though it found
that legal aid “has unfortunately been regarded as of very minor importance,”[9]
the Commission agreed that “the rendering of legal aid to the poor litigant
is…….not a minor problem of procedural law but a question of a fundamental character.”[10]
Again in 1959, a consideration of the problem of providing for “the
rule of law in free society,” resulted in the recognition by the International
Commission of Jurists of the need for state for the state to ensure legal
counsel to all.[11]
One of its resolutions stated:
An
obligation rests on the state to provide adequate legal advice and
representation to all those, threatened as to their life, liberty, property, or
reputation, who are not able to pay for it……… It is necessary, however, to
assert the full implication by lawyers of the requisite standing and
experience, a question which cannot be altogether disassociated from the
question of adequate remuneration for the services rendered.[12]
A full review of the means to implement this demand was made by the
committee on Legal Aid at the Third
All-India Law Conference, held in Delhi
in August 1962. Noting that despite the recommendations of the Bhagwati
Committee, legal aid in India
remained extremely limited, the committee outlined a comprehensive national
programme providing for the establishment of legal aid committees in all
districts of the country.[13]
The committee suggested state participation in the scheme with aid in all
criminal cases where the defendant could not engage counsel, and gradual
extension of aid in civil cases as well. The provision of legal aid was
regarded by the Committee as an absolute duty of the state in India.[14]
The Law Ministry called a meeting of the law ministers of various
states to discuss the principles laid down by this Conference. In this meeting
the state governments indicated their inability to bear the financial burden of
legal aid on a broad scale. As a result, the Law Ministry was in the process of
drawing up a scheme for central support of legal aid activities. Since 1962,
financial limitations have been said to prevent any further effort to extend
the legal aid activities on the part of the Central Government. In theory this
situation continued till the enactment of CrPC but in practice Supreme Court in
1966 itself has provided in its rule for legal aid to be provided, at the
discretion of the court, in all criminal cases coming before it.[15]
Legal Aid and Supreme Court
Supreme court, by its various decisions, played a very crucial role
in the development of legal aid. By its various decisions the Apex Court bring
into light various hidden aspects of right to legal aid. The authors’ here
discusses some of the most cherished judgement dealing with the right to legal
aid.
Right
to legal aid and Right to life:
Supreme Court with the help of series of
cases held that the right to life and liberty does include right to free legal
aid. In Hussainara Khatoon's case[16]
(AIR 1979 SC 1369) the Apex
Court opined that;
"the right to free legal service is .............clearly
an essential ingredient of reasonable, fair and just procedure for a person
accused of an offence and it must be held to be implicit in the guarantee of
Article 21. This is a constitutional right of every accused person who is
unable to engage a lawyer and secure legal services on account of reasons such
as poverty, indigence or incommunicado situation and the State is under a
mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so require, provided of course the accused person
does not object to the provision of such lawyer".
Hon’ble Court pointed out that it is an essential ingredient of reasonable, fair
and just procedure to a prisoner who is to seek his liberation through the
court's process that he should have legal service available to him.
The same reasoning was again upheld by the Hon’ble Court in M.H.
Hoskot v. State of Maharashtra,[17]
(AIR 1978 SC 1548) where the Court held that it may be taken as settled law that
free legal assistance at State cost is a fundamental right of a person accused
of an offence which may involve jeopardy to his life or personal liberty and
this fundamental right is implicit in the requirement of reasonable, fair and
just procedure prescribed by Article 21. Of course, it must be recognised
that there may be cases involving offences, such as, economic offences or
offences against law prohibiting prostitution or child abuse and the like,
where social justice may require that free legal service may not be provided by
the State.
Further the supreme court upheld the same thing in Sukh Das
and another v. Union Territory of Arunachal Pradesh[18]
(AIR 1986 SC 991) Honb’le Supreme Court further held that the exercise of this
fundamental right is not conditional upon the accused applying for free legal
assistance so that if he does not make an application for free legal assistance
the trial may lawfully proceed without adequate legal representation being
afforded to him. The conviction reached without informing the accused that they
were entitled to free legal assistance and inquiring from them whether they
wanted a lawyer to be provided to them at State cost which resulted in the
accused remaining un represented by a lawyer in the trials is clearly a
violation of the fundamental right of the accused under Art. 21 and the trial
must be held to be vitiated on account of a fatal constitutional infirmity.
Legal Aid: An inherent Legal Right
It would make a mockery of legal aid if it were to be left to a
poor, ignorant and illiterate accused to ask for free legal service. Legal aid
would become merely a paper promise and it would fail of its purpose if we wait
for the ignorant and illiterate persons of the society to ask for it. This is
the reason why in Khatri v. State of Bihar[19]
(AIR 1981 SC 928) Supreme court directed "the Magistrates and
Sessions Judges in the country to inform every accused who appears before them
and who is not represented by a lawyer on account of his poverty or indigence
that he is entitled to free legal services at the cost of the State"
unless he is not willing to take advantage of the free legal services provided
by the State. Court also gave a general direction to every State in the country
"...............to make provision for grant of free legal service to
an accused who is unable to engage a lawyer on account of reasons such as
poverty, indigence or incommunicado situations.”
In another case Court held that in the legal aid programmes the
public participation is very important and in this field the voluntary
organisations or social action groups must be supported by State government.[20]
Suggestions & Conclusion:
State Governments and Central Governments have made various programs
dealing with legal aid but still we are lagging behind in certain areas. The
researcher put forth certain suggestions, which in his view will make legal aid
more effective;
- Legal aid should be made available in all cases. In M.H. Hoskot v. State of Maharashtra,[21] Court opined that legal aid must not be available in cases of economic offences or offences against law prohibiting prostitution or child abuse and the like we would like to dissent from the opinion of Hon’ble Supreme Court on following grounds;
a)
Until and unless a person is
convicted a competent court one should be considered to be innocent.
b)
A proper and equal opportunity
for defence should be available to all.
So according to our views legal aid should be available in all cases
irrespective of the kind of crime the person is accused of.
- An amendment should be made in the Advocates Act, whereby it is made compulsory for all senior counsels to provide legal aid in at least one case in a span of two months. So that good and standard legal aid could be made available even to the poor persons as well.
- The criteria of minimum experience to be a legal aid lawyer should be in terms of practice and duration. Even today some experience is necessary to become the legal aid lawyer but generally what happens that a lawyer although having the requisite experience in terms of time but in reality having no experience of arguing any case provides legal aid. So if we are saying to provide the legal aid to somebody it should be legal aid in real sense and not a mockery of a right being provided in Constitution and interpreted as fundamental right.
- If resources permit, State Legal Services Authorities must revise payment schedules for Panel Advocates, so that more talented advocates can be attracted. The panels should be compressed so that panel advocates may get more work and hence more remunerations. This will encourage them to render effective legal assistance to aided persons. In due course this will also give rise to healthy competition among members of the Bar to become Legal Aid Advocates.
- It is also very important that State Legal Services Authorities should keep a watch over cases entrusted to Legal Aid advocates to ensure that there is no laxity in their conduct. Prompt action should be taken where repeated complaints are received from aided persons about advocates assigned to them.
- Top priority needs to be given to publicity campaign and awareness about legal aid services and schemes. They should be aimed at ensuring that no one suffers injustice on account of ignorance or lack of means. The scheme of Legal Aid Counsel may be given wide publicity in the State. Hoardings in the police stations and jails may be affixed. Concrete steps must be taken to establish a nation wide network of voluntary agencies for spreading legal literacy, legal awareness and publicity for legal services.
- We may also organise legal literacy camps in rural and remote areas through law students for dissemination of proper information about legal aid facilities as well as basic legal rights available to our citizens. Law students may also be used to provide legal advice.
- Orientation courses for all judicial officers in the District judiciary must be introduced to apprise them of the legal services schemes and programmes as well as the legal aid network so that they can convey the message of the availability of legal aid to the masses. A properly sensitised District Judiciary can bring a revolution not only in legal services programmes but also in the administration of justice in the country and transform the constitutional dream of equality before law into a reality.
Some of the researcher’s suggestions may seem to be utopian but if
we take our first step then certainly these goals won’t be behind our reach. If
an honest and objective investigation is done and these suggestions are implemented,
it will enhance a sense of confidence of the public in the investigating agency
and in our judicial system. Much is done but much is left as well, Legal Aid
societies are working nicely but haven’t yet reached to the poorest of poor.
We would like to sum up our paper with the message of Hon’ble Mr. Justice A.S.
Anand to legal aid machineries that;
“EXTEND YOUR HAND - REACH OUT - SOMEONE OVER THERE NEEDS YOU”
REFERENCES
Books
- Dr. Singh, P.K., Supreme Court on Human Rights and Social Justice, 5th edition (2001), Allahabad Law Agency, Faridabad.
- Instruments of Human Rights and Covenants, Indian Institute of Human Rights, New Delhi (Course material on distance learning post graduate programme in Human Rights)
- State of Human Rights in India, Indian Institute of Human Rights, New Delhi (Course material on distance learning post graduate programme in Human Rights)
- Andhra Pradesh Civil liberties Committee (APCLC), Digest of Human Rights, Navya Printers, Hyderabad (1998).
- Durga Das Basu, Shorter Constitution and Human Rights, 7th Edition (2003), Wadhwa & Co., Nagpur
- Shukla, V.N., Constitution of India, 10th Edition (2002), Eastern Book Company, Lucknow.
Reports
1. Duggal Committee Report, 1997
2. The National Police Commission
(1977-80)
3. All India Committee on jail
Reforms (1980—83)
4. National Expert Committee (on
women prisoners)
5. Commonwealth Committee on Human
Rights
6.
National Human Rights Commission in its Annual Report of 1997-98
Statutory Compilations
1. Constitution of India, 1950
2. Criminal Procedure Code, 1973
3. Code of Civil Procedure, 1908
4. Legal Services Authority Act,
5. The Indian Evidence Act, 1872
International Conventions
1.
The Universal Declaration of Human Rights 1948
2.
First United National Congress
on the Prevention of Crime and the Treatment of Offender 1955. (Geneva)
3.
Second United National Congress
on the Prevention of Crime and the Treatment of Offender 1960(London)
4.
United Nations International
Covenant on Civil and Political Rights 6th December 1966.
5.
United Nations International
Covenant on Economic Social and Cultural Rights
[1] Human Rights Act, 1998 (U.K.), Schedule 1, Part I, Rights
and Freedom
[2] Preamble, ICCPR, para 2.
[3] Article 37 of Constitution of India.
[4]Article 38 of Constitution of India.
[5] Indian Constitution, Article 22 (1).
[6] Id.
[7] Legal Department, Government of Bombay, Report of the Committee
on legal Aid and Legal Advice in the State of Bombay (1950).
[8] 1 Law Commission of India,
Fourteenth Report (1958).
[9] Id.
at 589
[10] Id.
at 587
[11] See Marsh, The rule of Law in a Free Society (1959)
[12] Id.
at 311,312
[13] “Legal Aid” (a working paper discussed at the Third All-India Law
Conference, August 1962) in 2 Indian Advocate 29 (April-June 1962).
[14] Id.
at 34-39
[15] Order XXI (25), Supreme Court of India Rules, 1966, Gazette of India Extraordinary,
January 15, 1966,
at 42.
[16] AIR 1979 SC 1369
[17] AIR 1978 SC 1548
[18] AIR 1986 SC 991
[19] AIR 1981 SC 928
[20] Centre of Legal Research and another v. State of Kerala, AIR 1986 SC
1322
[21] AIR 1978 SC 1548
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