A BRIEF ON LEGAL AID

by Lipika Sharma


Legal Aid implies the granting of free legal services to the poor and needy people who cannot afford a lawyer’s fees to pursue a case before a tribunal or authority. Legal Aid is the tool used to ensure that no individual is deprived of professional guidance and support due to lack of funds. The key goal is to ensure equality of justice for the disadvantaged, downtrodden and weaker sections of society. According to Justice P.N. Bhagwati, “Legal aid means providing an arrangement in society so that the machinery of the administration of justice becomes easily accessible and is not beyond the reach of those who have to resort to it to enforce it by law. The poor and illiterate could approach the courts, and their ignorance and poverty should not be a barrier to obtaining justice from the courts. One need not be a litigant to obtain legal assistance.”[1]


Legal aid seeks to ensure that the constitutional commitment is fulfilled in its letter and spirit, and that equal justice is made available to the poor, downtrodden and weaker sections of society. It should be noted that the Constitution of India provides that the State shall ensure that the functioning of the legal system promotes justice on the basis of equal opportunities and, in particular, grants free legal assistance, through appropriate legislation or schemes or in any other way, to ensure that opportunities for justice are not denied to any citizen on account of economic or other disabilities.[2] The Constitution of India also makes it mandatory for the State to guarantee equality before the law and a legal framework that promotes justice on the grounds of equal opportunities for everyone.[3]


OTHER RELATED PROVISIONS

1. Under Order XXXIII of the Civil Procedure Code, 1908, a person can be permitted to claim as a pauper by the court if the court is convinced that the party requires sufficient funds to cover legal costs.

2. In criminal cases Section 304 of the Code of Criminal Procedure, 1973, 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.

3. Article 22(1) of the Constitution specifies that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

4. Article 14(3)(d) of the International Covenant on Civil and Political Rights, 1966, says that in the determination of any criminal charge against him, everyone shall be entitled to the following guarantees in full equality, 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 the 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.


REPORTS OF VARIOUS COMMITTEES ON LEGAL AID

1. The Law Commission of India in its 14th Report provided several recommendations for state legal aid. It observed that until any provision is provided to support the poor man in paying legal fees and expenses for lawyers and other incidental litigation costs, he/she is deprived of the right to seek justice.

2. In the Law Commission of India, 41st Report, it was observed that representation by a lawyer should be made available to the accused in all cases tried by a court of sessions at government expenses.

3. The Law Commission of India, 48th Report, suggested providing free legal assistance by the State to all accused that were not represented by a lawyer for lack of money.


WHEN CAN LEGAL AID BE WITHDRAWN?

1. If the aid is obtained through misrepresentation or through fraud;

2. If there is any material change in the circumstances of the person aided shall occur;

3. There is neglect, misconduct or ignorance on the part of the individual assisted;

4. The person supported does not cooperate with the advocate assigned;

5. The aided person appoints another qualified lawyer;

6. Except in civil situations, the individual aided dies;

7. The trials involve abuse of the legal process or the court service.


CASES WHEN LEGAL AID IS NOT AVAILABLE?

1. Cases related to defamation, malicious prosecution, contempt of court, perjury etc.

2. Proceedings regarding elections;

3. Cases in which the imposed penalty is no more than Rs.50/-;

4. Economic offences and offenses against social laws;

5. Cases in which the individual seeking legal aid is not personally interested in the case and whose rights shall not be affected.


CASE LAWS

In Sheela Barse v. Maharashtra State[4], it was held that the fundamental obligation provided not only by Article 39-A but also by Article 21 and 14 of the Constitution is legal aid to a poor accused who is imprisoned and placed at risk for his life or personal liberty.

In the case of Husainara Khatoon v. State of Bihar[5], the Supreme Court took note of a newspaper item on the issue of a large number of under trials in the jails in Bihar. The court made an order directing the release of several of them on the condition of their furnishing a personal bond. In subsequent hearings, the court said that it is a constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of reasons such as poverty, or indigence and the state is under a mandate to provide a lawyer to an accused if the circumstances of the case and the needs of justice so require, provided course the accused person does not object to the provision of such lawyer. It was further observed that in our country the poor are priced of out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. We would strongly recommend to the Government of India and the State Government that it is high time that a comprehensive legal service programme is introduced in the country.

This was also held in Sukhdas v. Union Territory of Arunachal Pradesh[6], in the event that an accused is not advised of his right and thus remains unprecedented by a lawyer, his trial is vitiated by constitutional infirmity and any conviction resulting from that trial can be set aside. In court trials, there will be no true equality until the victim has a fair hearing to protect himself against the accusation and an


CONCLUSION

Legal support is not a charity or a favor but an obligation of the citizen society and right. The state’s main goal would be fair treatment for all. Consequently, legal aid aims to ensure that the constitutional obligation is met in its letter and spirit, and that equal justice is made accessible to the downtrodden and poor members of society.[7] But despite the reality that free legal assistance has been deemed a required adjunct to the rule of law, the movement for legal aid has struggled to achieve its goal. There is a wide difference between the goals set and achieved. Lack of legal awareness is the major obstacle to legal aid movement in India.

[1] Justice T. Mathivanan, Legal Aid: Issues, Challeges and Solutions [2] The Constitution of India, Art. 39A. [3] The Constitution of India, Art. 14 & 22(1). [4] JT 1988 (3) 15. [5] (1980) 1 SCC 81. [6] 1986 SCR (1) 590. [7] Gurmeet Nehra, Access to justice: Role of legal aid in its complete realization, 2 ILI 77, 82.