Justice is a basic Natural and Human right. Heavy cost and lack of awareness are two hindrances to justice and validating the rights of the poor in the country. Free Legal Aid is one of the objectives of natural justice and an instrument to achieve equality before law. Article 39A binds the state to provide Free Legal Aid. How far is the mechanism developed by the state is effective? The ground reality of what is on the paper. The conclusion includes some possible suggestions to overcome the shortcomings of the present system.
Justice, Free Legal Aid, Article 39A, 39A Problems and Solutions
The preamble of the Constitution of India “secures to all its citizens Justice, social, economic, and political”1. But one of the biggest problems to it is poverty. Many a times it is seen that when a wrong has been committed against a person he restrains himself from coming to the court because he does not have money to pay court fees or hire the services of an advocate. To ensure equality among all the citizens and after a lot of recommendations Parliament inserted Article 39 A by Forty-second Amendment Act, 1976. In the very next year, i.e., 1987 parliament passes the Legal Services Authority Act. The aim of both the acts was to provide free legal aid. Historically speaking it all began immediately after the commencement of the Indian Constitution its idea can be traced down in the speeches of Law Ministers and reports of Law Commission. Free legal aid is an essential tool for the concept of welfare state. Today, the challenge before legislatives and judiciary is making policies that ensure social justice to everyone. When we talk of modern state or that we wish to become the world leaders it is not possible till we do not ensure justice to last person on this land. So, there is a great need to study the present ground situation to ensure a better future.
PERSPECTIVE UNDER INDIAN SCENARIO
Free legal aid had a very broad meaning it includes free services of the advocate which means they will not have to pay any charge to the advocate, it also exempts the person from the payment of any court fees. It also covers all other expenses which may occur in connection to the legal proceeding. In this way, the person has not to worry about the expenses which will be incurred to proceed with the case. P.N. Bhagwati, J, explained the importance of free legal service as: “The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just’ procedure for a person accused of an offense and it must be held 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 44 services on account of reason such as poverty, indigence or in 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 justices so require provided of course the accused person does not object to the provision of such lawyer.“2
Hussainara Khaton vs. State of Bihari; a writ petition was brought before the Court asking the release of under trial prisoners. The court held the immediate release of under trial prisoners whose names were mentioned in the petition on the ground that they have remained in jails for more than the maximum term if convicted for their offense and keeping them anymore imprisoned would amount to illegal detention. In the same case, the court mentioned the state must provide legal services to the one who cannot afford it, at the cost of the state to ensure equal opportunity to all citizens. Khatri II vs. State of Biharii the court cleared that the state has to provide legal service to the person from the time he is arrested to each time he had been produced before the magistrate, or is accused in another case too. Madav Hayavadanrao Hoskot v State of Maharastraiii the court held right to appeal against the judgment is also covered under article 39 A and the state must provide counsel to draft an appeal and defend the same.
Article 39A provides “The 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 disabilities”3. Article 14 equality before law4and 22(1) right to consult, and to be defended by, a legal practitioner of his choice5makes it compulsory for the state to set up a legal structure which provides or ensures justice to everyone. The result of this is The Legal Service Authorities Act 1987 which became the foundation of the National Legal Services Authority of India (NALSA) and other legal service institutions at the state, district, and taluka level; and made free legal aid a ground reality.
The National Law University Delhi (NLUD) in a report titled ‘Quality of Legal Representation: An Empirical Analysis of Free Legal Aid Services in India’ showed clearly that beneficiaries of free legal aid do not trust these services moreover they use these services only as their last-ditch option when unable to afford the services of a private advocate6. Why is it so? We will try the understand the problems that persist in the way of Free Legal Aid.
Lack of Awareness and Legal Knowledge
In a vast country like ours, ill-literacy is a very common issue. Citizens are unaware of their fundamental rights. When you are unaware of your rights how will you defend them? This is a very big issue in the failure of Free Legal Aid in India. Everything looks good on the papers but the reality is the beneficiaries are not aware of it, even if they know about it, they do not know where and how to get it.
Quality and Accountability of Lawyers
Almost 80% of India’s population is entitled to Free Legal Aid. But we do not have enough lawyers to cover all the peoples. Young lawyers are not very interested in this; The major reason being the incentive given to lawyers is way less than the market rate. There is also a thinking that the thing which comes free is not good. Practitioners having good skills prefer private practice. While those in Legal Aid Counsel (LAC)[A7] are not as good as compared to private practitioners. In many cases, it has been found that practitioners stretch, do not regularly visit court, and use other means to extort cases from clients.
Lack of Powers of LokAdalats
Lok Adalats do not have the same powers as compared to civil courts. There are no formal procedures or rules as a result parties sometimes skip the hearing dates causing delays in the judgement and moreover, there is a bit of domination of strong parties.
There is an urgent need to set up awareness camps to part legal educations to the poor beneficiaries one simple way can be to make fundamental rights and basic laws a compulsory part of free education imparted to children in schools. Paralegal volunteers like law students should be encouraged to set up legal awareness and aid camps in interior villages. The help of NGOs can also be taken to do the same.
Young lawyers must be encouraged to be a part of the Legal Aid Counsel (LAC). Their incentives must be increased at least to the market rates as a way to attract more and more lawyers in giving free legal aid. The work of the practitioners and advocates must be continuously monitored to keep a check on the quality of their work and their accountability can be set. Feedback from the clients must be taken on a continuous basis to improve the Free Legal Aid Services.
The free Legal Aid system must work properly to ensure that the dreams of the founding fathers of the constitution are fulfilled. Our honorable courts have again and again emphasized the need and importance of free legal aid through various judgments it is the responsibility of the state too; a step towards a welfare state. An India where each and every person has the right to justice and knows how to use his right. This right should not only remain in the Constitution of Indian but should become a beautiful ground reality.
1. India Const. preamble
2.HussainaraKhatoon&Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532 (India)
3. India Const. art. 39, cl. A
4. India Const. art. 14
5. India Const. art. 22, cl. 1
6. Drishti IAS, Quality of Free Legal Aid https://www.drishtiias.com/pdf/quality-of-free-legal-aid.pdf (last visited Jan. 05, 2021 10:16am)
7. Legal Services India, Brief history of Legal Aid http://www.legalserviceindia.com/articles/laid.htm (last visited Jan 22, 2021 05:43pm)
i.HussainaraKhatoon&Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
ii. Khatri And Others vs State Of Bihar &Ors, 1981 SCR (2) 408, 1981 SCC (1) 627
iii. MadhavHayawadanraoHoskot vs State Of Maharashtra, 1978 AIR 1548, 1979 SCR (1) 192