Right to Legal Aid

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Right to legal aid

The Right to legal aid services, across the globe, has been recognized as an integral part of human rights and fundamental rights. In the era where both rich and poor exists, everyone doesn’t have the ability to approach the court of law through a good lawyer if they face any complexities because it is highly expensive to incur extra expenses where elementary facilities of life is hard to maintain. To convey proper legitimate administrations to the rustic and tribal communities, conveyance framework with an alternate model of legal service providers must be provided for which the concept of legal aid is established. Legal aid is the procurement of aid to persons who are incapable to bear the cost of lawful representation and access to the court framework.

Legal aid is viewed as focal in giving access to equality under the watchful eye of the law, the right to counsel and the right to a fair trial. The Judiciary has been in the forefront in promoting free legal aid services to poor people, who cannot afford to engage a legal practitioner to protect the interests in courts. Providing right to access to speedy and economical justice for the downtrodden strata of the society is one of the main mandates of such legal aid services.

Constitutional provisions 

The Constitution of India provides for the principle of legal aid in the Directive Principles of the State Policy contained in Part IV which emphasizes the social security character and hence imposes certain obligations on the State to take positive action to promote the welfare of the society. According to Article 39-A, it has been directed to the State to ensure that the mechanism of legal system promote justice on the basis of equal opportunities and shall compulsorily provide free legal aid to economically backward classes by suitable legislation or schemes or in any other way.

Consequently, legal aid is not a philanthropic activity, but rather is a constitutional prerequisite of the state and right of the citizens. In this way, legal aid endeavors to shield that the constitutional pledge is satisfied in its later and spirit and equal justice is made open to the intimidated and weaker areas of the general public. It is the State’s obligation to watch and keep check on the legal framework that emphasizes justice on the premise of equal opportunity for every one of its nationals.

For the provisions of legal aid, the Government of India had taken massive steps such as setting up of Legal Aid Boards, Societies, Law Commissions and Law Departments and in the year 1980, Committee for Implementing Legal Aid Schemes (CILAS) was constituted under the Chairmanship of Honorable Justice P.N. Bhagwati to regulate legal aid programs all over the country. Another step was in form of Lok Adalats which is established as a supplementary forum to the litigants in judicial dispense system of India. In 1987, to give a statutory acknowledgment to legal aid programs all through the nation the Legal Services Authorities Act was established and was implemented on 9 November 1995.

The Act encapsulates the criteria for providing lawful administrations to the eligible persons which are –

1. he should be a member of a Scheduled Caste or Scheduled Tribe;

2. A victim of trafficking in human beings or beggar as provided in Article 23 of the Indian Constitution;

3. A woman or a child;

4. A disabled or mentally ill individual;

5. A person apprehended by undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, natural calamities or industrial disaster; or

6. An industrial workman; or

7. being in custody in a protective home or in a juvenile home;

8. admitted in a psychiatric hospital or nursing home

9. A person whose annual income is less than fifty thousand rupees or such other higher amount as may be prescribed by the State Government.

Under Section 304(1) of the Code of Criminal Procedure, 1973 it is stated that in a trial before the sessions judge, if the accused has no sufficient means to engage a plea, the court should assign a pleader for his defense at the expense of the state.

The enormous contribution in edging the legal aid system is of judiciary which can witnessed from Supreme Court’s ardent announcement with regard to the rights of the poor and destitute people in judgment of Hussainara Khatoon[i] in which the court observed the importance of Article 39A which emphasizes that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services is impliedly guaranteed under Article 21 of the Indian Constitution. The same was observed by Supreme Court in State of Haryana v Darshan Devi[ii], that the poor shall not be demarcated out of the justice market on the pretext of court-fee and refusal to apply the exempted provisions of Order XXXIII, Civil Procedure Code.

The scope of Article 39A has been widely explained in case of Air India Statutory Corporation v. United Labor Union[iii]in which Supreme Court observed that Article 39A furnishes beacon light that justice is done on the basis of equal opportunity and no one is denied justice by reason of economic or other disabilities.

Another move for providing legal aid was the National Legal Services Authority (hereinafter referred to as NALSA) of India executed the National Legal Services Authority (Free and Competent Legal Services) Regulations under Section 29 of the Legal Services Authorities Act, 1987 which are applicable to the Legal Service Committees of the Supreme Court, High Courts, the States, regions and taluks.

Free Legal Aid under International Law

UN Covenant on Civil and Political Rights

It affords some sustenance on free legal aid to the poor and impoverished persons precisely in criminal proceedings. Article 14 of said covenant clearly states in Article14(i) that all individuals must be treated equally before the courts and tribunals and under clause (f) it is provided that a person must have the free assistance of an interpreter if he cannot understand or speak the language used in court.

There are a number of declarations and principles adopted by the United Nations which helps to operative legal aid, for example, the Universal Declaration on Human Rights (UDHR) in Article 8 and Article10 provides that everyone has the rights to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by constitution or by law and everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the declaration of his rights and obligation and any Criminal Charge against him.[iv]

Legal Aid in Other Countries

Legal Aid in United Kingdom:

In U.K, the scheme of legal aid is controlled by the Legal Service Commission, and is subjected to most of the criminal and civil cases but with exceptions such as libel, most personal injury cases (which are now dealt with under Conditional Free Agreements, interests of contingency fee) and cases associated with the running of a business. Family law cases are also covered. The first state funding for legal representation under Poor Prisoners Act was enacted in 1903 which provided for legal counsel in murder cases and other serious cases.

The modern system related to civil aid was created by the Legal Advice and Assistance Act 1949 on the recommendations of the Rushcliffee Committee of 1945 which laid down that lawyers practicing privately should be paid to undertake cases on behalf of people of small or moderate means. The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012 was enacted which came into effect on1st April 2013 has initiated the deepest cuts to the legal aid scheme since it began.

The provision of Legal Aid is now not available for employment law cases, except for cases which include exploitation of an individual who is a victim of trafficking in human being or a contravention of the Equality Act 2010 Legal Aid is no longer available for welfare benefit cases except for appeals to the Upper Tribunal or higher courts.[v]

Legal Aid in Australia:

Legal aid commissions in Australia plays a defining role in achieving equality before the law by striving to ensure that all citizens, including those who cannot afford to pay, have access to the legal services they need to obtain justice are present in each state and territory and are in eight in number all total.

The Australian Government and most State and Territory Governments subsidize community legal centers, which are free, non-profit organizations that give assistance, counsel in relation to legal issues. Also, the Australian Government reserves financial assistance for legal services under certain statutory plans and legal services for Indigenous Australians. The Australian Government made its first real stride towards a national arrangement of legal aid when it built up the Legal Services Bureaux in 1942. Be that as it may, there was a move in the late 1970 to give administration conveyance by the States and Territories (not the federal arm of government).

The Australian Government established the Commonwealth Legal Aid Commission Act 1977 (LAC Act) which was set up in 1977 for cooperative arrangements between the Australian Government and State and Territory governments under which legal aid would be provided by independent legal aid commissions to be built up under State and Territory enactment. It initiated in 1976 with the foundation of the Legal Aid Commission of Western Australia and finished in 1990 with the foundation of the Legal Aid Commission of Tasmania. The cooperative arrangements that were built up by the LAC Act accommodated Commonwealth and State and Territory legitimate guide financing understandings, which started in 1987. The Australian Government changed its arrangements to specifically finance legal aid services for Commonwealth law matters in July 1997.

Case analysis

Khatri v. State of Bihar[vi] 

The Supreme Court held that the state is constitutionally bound to provide legal assistance by hiring a lawyer to an accused person not only at trial stage but also when they are first produced before the magistrate or remanded time and again and such a right shall not be denied on the ground of financial or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges have the must responsibility to inform the accused of his rights.

Suk Das v. Union Territory of Arunachal Pradesh[vii]

Justice P.N. Bhagwati, highlighted the necessity of the constructing the legal awareness to the poor as they are unaware of the their rights specifically right to free legal aid and further observed that in India people residing in rural areas are illiterates and are not aware of their innate legal rights conferred upon them by law. Even literate people are not knowledgeable of their rights. This absence of legal awareness makes them unapproachable to a lawyer for consultation.

H. Hoskot v State of Maharashtra[viii]

In this case it was observed that a prisoner sentenced to imprisonment is not capable of exercising his constitutional and statutory right of appeal virtually inclusive of special leave to the Supreme Court for the legal assistance, but there is implicit power to assign counsel for such imprisoned individual in the Court under Article 142 read with Articles 21 and 39-A of the Constitution.

The idea of legal aid is ancient in essence, but its implementation is still in progress. Legal aid is envisioned to afford the cost of poor people and vulnerable segments of the general public, to support the needy who are facing exploitation and implementing their legal right because our Constitutional principle protects every section of the society and highlights equality.

Frequently Asked Questions (FAQs)

1. What are legal aid camps?

As per Section 4(e) of National Legal Services Authority, it is provided that legal aid camps must be organized which are the camps setup for the dual  purpose  of  educating  weaker  sections  of  the society  as  to  their  right  as  well  as  encouraging  the  settlement  of  disputes through Lok Adalats when financial crisis exists and to understand legal needs and address legal problems of people by giving appropriate legal advice free of cost.

2. How to apply for legal aid?

For applying for legal aid one has to approach the concerned authority or committee through an application which has to filled as provided by the authority or sending a written form and stating the reason for seeking legal aid and can be orally made in presence of concerned legal officer or by redressing the issue in online mode through the NALSA’s website.

References

[i] Hussainara Khatoon v. State of Bihar, [1980] 1 SCC 98

[ii] AIR [1972] SC 855

[iii] AIR[ 1997] SC 645: [1997] 9 SCC 377: [1997]1 LLJ 113

[iv]The Universal Declaration of Human Rights‟ (UN )<http://www.un.org/en/documents/udhr/index.shtml>

accessed 11 October 2015

[v] Jon Robins, „Legal aid in 21st-century Britain‟ (The Guardian,12 March

2009)<http://www.theguardian.com/money/2009/mar/11/legal-aid-justice-gap>accessed on 8 October 2015

[vi] Khatri v. State of Bihar, AIR[ 1981] SC 262

[vii] Suk Das v. Union Territory of Arunachal Pradesh AIR [1986] SC 991

[viii] [1978]3 SCC 81

  • J.N.Pandey, The Constitutional Law of India ( 50th Edition, 2013), Central Law Agency, Allahabad

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