Right to Legal Aid; A Constitutional Commitment
As political philosopher; Charles de Montesquieu
said that; "In the state of nature...all men are born equal, but they
cannot continue in this equality. Society makes them lose it, and they recover
it only by the protection of the law." The protection of law to poor,
illiterate and weak is important to ensure equal justice. Legal aid is one of
the means to ensure that the opportunities for securing justice are not denied
to any person by reason of poverty, illiteracy, etc.
Legal aid is free legal assistance to the poor and weaker sections of the society
with the object to enable them to exercise the rights given to them by law.
Justice P.N.Bhagwati has rightly said that "the poor and the
illiterate should be able to approach the Courts and their ignorance and
poverty should not be an impediment in the way of their obtaining Justice from
the Courts."
The Constitution of India gives much emphasis on the constitutionalism and rule
of law. In India the rule of law is regarded as a part of the basic structure
of the Constitution and also of natural justice. The rule of natural justice
says that individuals should not
penalized by decisions affecting their rights or legitimate expectations unless
they have been given prior notice of the cases against them, a fair opportunity
to answer them, and the opportunity to present their own cases.
The preamble of the Constitution secures to its citizen, social, economic and
political justice. Article 14 of the Constitution makes it clear that the
State shall not deny to any person equality before law or the equal protection
of the laws within the territory of India. The aim of Article 14 is to ensure
equal justice. The guarantee of equal justice is meaningless if the poor or
illiterate or weak persons cannot enforce their rights because of their poverty
or illiteracy or weakness.
Articles 38 and 39, of the Constitution of India lay down clear mandate in this
regard. According to Article 38 (1) 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 or political, shall inform all
the institutions of the national life.
Article 39-A
directs the State to ensure 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.
Right to free legal aid or free legal service is an essential fundamental right
guaranteed by the Constitution. It forms the basis of reasonable, fair and just
liberty under Article 21 of the Constitution of India, which says, “No person shall be deprived of his life or personal
liberty except according to procedure established by law”.
In State of
Maharashtra v. Manubhai Pragaji Vashi, The Supreme Court has made it quite
clear that it is now well established that the failure to provide free legal
aid to an accused at the cost of the State unless refused by the accused, would
vitiate the trial. In M.H Hoskot v. State Of Maharashtra, Justice KrishnaIyer
observed that providing free legal aid is the State's duty and not Government's
charity.
The Code of criminal Procedure and the Code of Civil Procedure
also contain provisions in relation to the free legal aid. Section 304 of the
Criminal Procedure Code provides that where in a trial 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 expense of the State.
Section 304 makes it clear that the State is under an obligation to provide
legal assistance to a person charged with offence triable before the Court of
Session. It enables the State Government to direct that these provisions
shall apply in relation to any class of trials before other courts in the
State.
Order 33 of the Civil Procedure Code provides in respect of the suit by
indigent person. On the application to sue as indigent person is being
granted the plaintiff shall not be liable to pay court fee and in case he is
not represented by a pleader, the Court may, if the circumstances of the case
so requires, assign a pleader to him. This benefit has now been extended
to the dependant also.
A separate legislation, The
Legal Services Authority Act, 1987 has been enacted to constitute the Legal
Service Authorities to provide free and competent legal services to the weaker
sections of the society to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities and to
organise Lok Adalats to secure that the operation of the legal system promotes
justice. The Legal Services Authorities Act establishes statutory legal
services authorities at the National, State and District level. It makes
provisions in relation to Lok Adalat. The main object of the Lok Adalat
is to provide quick justice at less expense.
International Covenant on Civil and Political Rights also under Article14
(3)(d) guarantees to everyone: “Right 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”
In a democracy, where rule of law is
supreme; it is essential to ensure that
even the weakest amongst the weak, poorest among the poor, in the country does
not suffer injustice arising out of any abrasive action on the part of State or
private person. As a way forward there is need to ensure capacity
building for legal aid movement. This requires strengthening the skills of
stakeholders of legal aid; law teachers, lawyers, law students, volunteers such
as aaganwadi workers, Members of local panchayat etc to act as intermediates
between rural people and legal service institutions. In state of Maharashtra v.
Manubhai Pragaji Pragaji vashi, the Supreme Court has highlighted the necessity
for capacity building and held that in order to provide the "free legal
aid" it is necessary to have well-trained lawyers in the country. This is
only possible if there are adequate number of law colleges with necessary
infrastructure, good teachers and staff.
The major drawback of legal aid movement in India is the lack of legal
awareness. People are not aware of rights and protection available under the
law. It needs to be realized that the promotion of awareness regarding legal
aid is not the exclusive duty of the Legal fraternity. It is equally the
concern and responsibility of the society at large. Constitutional commitment
for legal aid can only be cherished if society comes forward to care for
its vulnerable population.
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