RIGHT TO FREE LEGAL AID IN INDIA

Part IV of the Indian constitution, which deals with Directive Principles of State Policy, reflect that India is the welfare state. And the Preamble of the Indian constitution aims to secure socio, economic and political justice to the people of India. And in India the constitution and many other legislations give various kind of rights and in order to enforce them in just, fair and equitable manner, Right to Free Legal Aid is very much important. The constitution of India gives much importance to rule of law and it is regarded as a part of the Basic Structure of the Constitution and also of Natural Justice so, Free legal aid to the poor and weak persons has been held to be a necessary adjunct of the Rule of Law. And Free Legal Aid is provided to ensure that opportunities for justice are not denied to any citizen by the reason of economic or other disabilities. Ensuring legal aid to everyone is necessary for substantive equality.

Legal Aid generally means providing the arrangement in the society which makes administration of justice easily accessible in enforcing the rights which are made available to the people. In layman’s terms Free Legal Aid means giving free legal services in civil and criminal matters, to the poor and needy, who are unable to afford the services of the advocate, for the conduct of the case or for a legal proceeding in any court, tribunal or before a judicial authority. And some of the legal aid should be paid back if the person gains any money or property at the end of his/her court case.

Right to free legal aid was provided directly or indirectly by several laws mainly Constitution of India. Article 39A of the constitution lays down the duty on the state to see that the legal system promotes justice on the basis of equal opportunity for all its citizens and also says that state must arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities. And Article 38(1) of the Constitution of India lays responsibility on the state to promote welfare of the people by securing and protecting the social order including justice. And Article 14 provides Equality Before Law and Equal Protection of Law and Article 21 of the Constitution enriches Equal Right to Life and Liberty and says no person shall be deprived of his life or personal liberty except according to the procedure established by the law. Article 6(1) ECHR says, everyone has the general right to a fair hearing in determination of civil rights and obligations or of any criminal charge. Section 304 of Code of Criminal Procedure, 1973 deals with Right to Legal Aid and says that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state. The laws even mandate the magistrates and sessions judges, to inform every accused, who appears before them and who is not represented by a lawyer because of his poverty or indigence, that he is entitled to free legal services at the cost of the state.

And there are many landmark judgements where the courts have upheld and laid down the importance of Free Legal Aid and right to access that. In the landmark judgement of Hussainara Khatoon Vs. State of Bihar, the court held that if any accused is not able to afford legal services then he has a right to free legal aid at the cost of the state. In the landmark judgment of Sheela Barse Vs. State of Maharashtra, the court held that the police must inform the nearest legal aid committee about the arrest of a person immediately after such arrest. In another landmark judgement of Khatri II Vs. State of Bihar (1981 1 SCC), it was held that it is the constitutional duty to provide legal aid and this duty to provide legal aid arises from the time the accused is produced before the magistrate for the first time and continues whenever he is produced for remand and the state cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for the any legal aid. In another landmark judgement of Suk Das Vs. Union Territory of Arunachal Pradesh (1986 2 SCC 401), the court held that any failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial and it may even result in setting aside a conviction and sentence.

The Aim of the Constitution is to provide justice to all and as Directive Principles are integral part of the constitution, the Constitution dictates that judiciary has duty to protect rights of the poor. The judiciary through its significant judicial interventions has compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest section of the society. And in this regard a separate legislation “legal services authorities act,1987” was enacted to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society. And under this act, the national legal services authority (NALSA) has been constituted to provide free legal services to the weaker sections of the society. Public interest litigation and Adalat system are few other methods of providing free legal aid and speedy justice at the door steps of the poor.

To get legal aid, one should show that he/she cannot afford to pay for legal costs and the problem is serious and the person usually have to give details and evidence of his/her and their partner’s income, benefits, savings and property.  As per Section 12 of the legal services authorities act, the persons who will be entitled to free legal aid are: a member of the scheduled castes or tribes; any person belonging to the Schedule caste or tribe, persons suffering from natural calamity, industrial worker, children, insane person, handicap, persons in custody and if the case is before a court other than the Supreme Court then those having annual income less than nine thousand or such other higher amount as may be prescribed by the state government and if the case is before Supreme Court then those whose annual income is less than twelve thousand or such other higher amount as prescribed by the central government, were entitled to avail free legal aid; a victim of trafficking in human beings or beggar; disabled, including mentally disabled; a woman or child; a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earth quake, industrial disaster and other cases of undeserved want; an industrial workman; in custody, including protective custody; facing a charge which might result in imprisonment; unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence, and incommunicado situation; in cases of great public importance; and special cases considered deserving of legal services. All the above mentioned will be entitled to avail free legal aid as per the said act. And to avail such services the person can approach the concerned authority or committee through an application which could either be made by sending in written form or by filling up the forms prepared by the said authorities stating in brief the reason for seeking legal aid or can be made orally and can even apply online by visiting the NALSA website and by uploading necessary documents and then accordingly officer of the concerned legal services authority or a paralegal volunteer can assist the person. And the person can apply to get free legal aid at any stage of the case as long as he/she is eligible to attain free legal services as per Section 12 of the Legal Services Authorities Act,1987 and even though if the person has personal lawyer before and require a lawyer under free legal aid only at the stage of appeal then also the person can apply to avail free legal services provided, he/she is eligible under Section 12 of the act.

The services offered as a part of legal aid by the Legal Services Authority include: rendering of any service in the conduct of any case or other legal proceedings before any court and giving of advice on any legal matter; any charges incurred for preparing, drafting and filing of any legal proceedings; charges of a legal practitioner or legal advisor; payment of court and other process fee; costs of obtaining decrees, judgements, orders or any other documents in a legal proceeding and any other costs for paper work. Free legal services also include provision of aid and advice to the beneficiaries to access the benefits under the welfare statutes and schemes framed by the central or state government and to ensure access to justice in any other manner.

 There are certain cases for which Legal Aid is not available like: in cases of defamation, malicious prosecution, contempt of court, perjury etc.; in cases of economic offences and offences against social laws; any cases where the fine imposed is not more than Rs. 50/-; in cases of proceedings related to election; and in cases where the person seeking legal aid is not directly concerned with the proceedings and whose interests will not be affected. And in some cases, the legal services can even be rejected, like in cases: if applicant has adequate means to access to justice, if the applicant has no merits in his application requiring legal action, and in any other cases if the applicant does not fulfil the eligibility criteria. The legal services once granted can also be withdrawn by the legal services committee in cases like: any material change occurs in the circumstances of the aided person; if the aided person dies, except in civil cases; if there is any misconduct, misbehaviour or negligence on the part of the aided person; if the aid is obtained through misrepresentation or fraud; if the aided person does not cooperate with the allotted advocate; if the aided person appoints another legal practitioner; and if the proceedings amount to misusing the process of law or of legal service.

 Legal Aid is not a charity but it is an obligation of the state and right of the citizens. And it is the primary object of the state to provide equal justice for all and providing free legal aid is the least which could be done by the state to combat the injustice which is faced by the poor population. And even after so much of statutory provisions, committees and authorities, there is still a vacuum which needs to be filled. Even today, many people settle for injustice because they cannot afford an advocate to defend them. There are many challenges and issues which come in the way of the implementation of legal aid services. The absence of legal awareness leads to exploitation and deprivation of rights and benefits of the poor.  So, the NGO’s, Faculties of law and students, media advertisements should work in creating awareness about free legal aid. And for the same there should be proper management and monitoring of the Free Legal Aid Services.