This article is written by Vineeta Tiwari , LLB(2021),DDU AKHPUR UNIVERSITY during her internship.
ABSTRACT
Legal Aid means providing free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. Legal aid is essential to guaranteeing equal access to justice for all . This paper has analyzed the approach and role of the judiciary in regard to right to legal aid. The consideration of Right to free Legal Aid as Fundamental Right is nothing but the outcome of judicial interpretation of the most cherished Right under Article 21 of the Constitution of the India. . The article concludes with the presentation of India’s Constitutional right and guidelines of the Legal Services Authority Act, 1987 to provide free legal aid to poor.
History of Legal aid in India:
In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati the then Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994.
Constitutional Provisions:
Article 39A of the Constitution of India provides that 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 disability.
Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all.
Objectives of Legal Service Authorities
Provide free legal aid and advice.
Spread legal awareness.
Organize lok adalats.
Promote settlements of disputes through Alternative Dispute Resolution (ADR) Mechanisms. Various kinds of ADR mechanisms are Arbitration, Conciliation, Judicial settlement including settlement through Lok Adalat, or Mediation.
Provide compensation to victims of crime.
Institutions for providing Free Legal Services
National Level:
National Legal Services Authority (NALSA). It was constituted under the Legal Services Authorities Act, 1987. The Chief Justice of India is the Patron-in-Chief.
State Level:
State Legal Services Authority. It is headed by the Chief Justice of the State High Court who is its Patron-in-Chief.
District Level:
District Legal Services Authority. The District Judge of the District is its ex-officio Chairman.
Taluka/Sub-Division Level:
Taluka/Sub-Divisional Legal Services Committee. It is headed by a senior Civil Judge.
High Court: High Court Legal Services Committee
Supreme Court: Supreme Court Legal Services Committee.
Criterion for Providing Legal Aid:
Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:
Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is
• member of a Scheduled Caste or Scheduled Tribe;
• a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
• a woman or a child;
• a mentally ill or otherwise disabled person;
• a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or • an industrial workman; or
• in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
• of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2of the Mental Health Act, 1987 (14 of 1987); or
• in receipt of annual income less than rupees nine thousand or higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court.
Application made for free legal Aid can be rejected on the following basis:-
1. The applicant has enough money and can afford a lawyer,
2. Does not fulfill any of the eligibility criteria, or
3. The case does not deserve legal action. If the application is rejected, then the reasons that it was rejected must be recorded and informed to the applicant. The applicant also has the right to appeal against the rejection to the Chairman of the authority
The Legal Services Authority can’t arbitrarily take away the legal aid that they have given you. But legal aid can be withdrawn if:
1. Applicant lied in his application for it.
2. Applicant is able to afford a lawyer.
CASE LAW
Hussainara Khatoon v. State of Bihar – where the court was appalled at the plight of thousands of under trials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that “there can be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”
In Khatri & Ors v. State of Bihar & Others it held that: “the State is Constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it.
In Sukh Das v. Union Territory of Arunachal Pradesh the court observed that “It may therefore now 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.”
In Indira Gandhi v. Raj Narain the Court said:”Rule of Law is basic structure of Constitution of India. No one so condemn unheard Equality of justice. There ought to be violations to the fundamental right or prerogatives, or privileges, only then remedy go to Court of Law. But also at the stage when he is first produced before the magistrate in absence of legal aid, trial is vitiated.”.
In State of Maharashtra v. Manubhai Pragaji Vashi The court widened the scope of the right to free legal aid. The right to free legal aid is guaranteed fundamental right under Art 21 and 39A provides “equal justice” and “free legal aid”.
CONCLUSION
The focus of legal aid is on distributive justice, effective implementation of welfare benefits and elimination of social and structural discrimination against the poor. It works in accordance with the Legal services Authority Act, 1987 which acts as the guideline of the rendering of free justice It’s a very wonderful right incorporated in our Constitution in the Article 39A to promote Justice on equal basis. In the case of Khatri v. State of Bihar, the court held that the right to legal aid is a fundamental right under article 21 of the Indian Constitution
