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Concept of Legal Aid

Legal aid denotes giving free legal services to the poor and needy who cannot afford the services of a lawyer for some legal proceeding in any court, tribunal or before an authority. Legal aid is the system adopted to ensure that no one is deprived of professional advice and help for want of money. Therefore, the main objective of providing legal aid is to deliver equal justice to the poor, down trodden and weaker section of society.

Justice PN BhagwatiLegal aid means providing an arrangement in the society which makes the machinery of administration of justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law.”

Encyclopedia BritannicaLegal aid is the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such help.”

The concept of “legal aid” is inseparable from its function as a vital means of access to justice. Access to justice is defined as “the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards.”

Legal aid plays a crucial role in enabling people to make informed decisions, as well as to obtain justice remedies. Legal aid strives to ensure that equal justice is made available to the poor, downtrodden and weaker sections of the society. It helps people to assert their rights and to contest cases of discrimination. It contributes to enhancing people’s trust in the justice system, and it enhances the legitimacy of the state.

Legal aid can also ensure that people have access to information about their rights, entitlements, and obligations. Put simply, access to legal aid is fundamental to safeguarding fair, equal, and meaningful access to justice.

Justice Brennan: “Nothing rankles more in the human hearts than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull thing down. When only the rich can enjoy the law, as a doubtful luxury and the poor, who need it most cannot have it because its expense puts it beyond their reach; the threat to the continued existence of free democracy is not imaginary, but very real. Democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe it and benefit by its impartiality and fairness.”

Mauro Cappelletti argues, “legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights.”

  1. Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The prime object of the state should be “equal justice for all”. Thus, legal aid strives to ensure that the constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the downtrodden and weaker sections of the society.
  2. According to United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems— “Legal aid is an essential aspect of a fair, humane, and efficient criminal justice system based on the rule of law. Without access to legal aid, millions of people around the world are at high risk of having their rights ignored or violated when they interact with a criminal justice system, including through arbitrary pretrial detention, torture, coerced confessions, and/or wrongful convictions.”
  3. Legal aid enables society’s poor and marginalized groups to better understand and exercise their rights and entitlements. They may resolve their disputes peacefully, and seek remedies for grievances and thereby enjoy equal protection of the law.
  4. Effective legal aid service systems can improve the performance of justice systems, including law enforcement, simultaneously increasing accountability and respect for the rule of law – all of which are integral to sustainable development. Access to legal information and assistance with legal or justice-related issues are also key for upholding human rights.
  5. In the context of criminal justice, a functioning legal aid system is essential to ensure a fair, efficient and effective criminal justice system. Providing legal aid to persons accused or suspected of a crime can protect their right to a fair trial.
  6. In civil matters, access to legal aid for poor and marginalized groups – for example, to resolve disputes over land and property or in commercial or family cases – can help empower poor and marginalized groups. They may claim their rights and entitlements, use their assets, and grant them access to services and benefits they are entitled to under the law.

A constitutional mandate

The Constitution of India has ensured equality to all its citizens. The Constitution also prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

Article 14 of the Constitution of India reads “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 39A of the Constitution of India provides for equal justice and free legal aid. It lays down that—

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.”

Articles 14 and 22 (1) of the Constitution of India also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all.

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. The objective is to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.

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. Keeping in view the Parliamentary intent, settlement of all disputes through negotiation, conciliation, medication, Lok Adalat and Judicial Settlement are required to be encouraged.

The authority has to take recourse to conciliation mechanism. One of the essential ingredients of the conciliation proceeding is that nobody shall be forced to take part therein. It has to be voluntary in nature. The proceedings are akin to one of the recognized ADR mechanism. It may be treated at par with Conciliation and Arbitration. In such a case, the parties agree for settlement of dispute by negotiation, conciliation or mediation. The proceedings adopted are not binding ones, whereas the arbitration is a binding procedure. Even in relation to arbitration, an award can be the subject matter of challenge.

The Supreme Court has ruled that free assistance must be provided to all poor accused, irrespective of the severity of the crime attributed to them, at every stage of the three-tier justice delivery system and could not be restricted to the trial stage only.

Khatri vs State of Bihar

In this case1), the Supreme Court has held that the state is constitutionally bound to provide legal aid at not only the stage of trial, but also when they are first produced before the magistrate or remanded from time to time. Such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and sessions judges must inform the accused of such rights. The right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence. This right is implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person, if the circumstances of the case and the needs of justice so require.

MH Hoskot vs State of Maharashtra

If a prisoner sentenced to imprisonment is unable to exercise his constitutional and statutory right of appeal inclusive of special leave to the Supreme Court for want of legal assistance, there is implicit in the court, the power to assign counsel for such imprisoned individual for doing complete justice.2)

Abdul Hasan vs Delhi Vidhyut Board

Legal system should be able to deliver expeditiously on the basis of equal opportunity and provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.3)

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 a suit by indigent person. When the application to sue as indigent person has been granted, the plaintiff shall not be liable to pay court fee. In case a pleader does not represent him, the court may, if the circumstances of the case so require, assign him a pleader as well.

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.

1)
AIR 1981 SC 262
2)
1978 3 SCC 81
3)
AIR 1999 Del 80


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Created on 2021/01/15 20:54 by LawPage • Last modified on 2021/01/15 20:56 by LawPage