RIGHT TO FREE LEGAL AID

August 22, 2023

This article has been written by Kumari Shalini, a student studying B.A. LL. B from Lloyd Law College, Gr. Noida. The author is a 3rd -year law student.

INTRODUCTION

“Legal aid is central to righting wrongs and rectifying injustice”

-Sadiq Khan

The provision of legal assistance by the State is impacted by attitudes toward welfare, and legal aid services have a close relationship with the welfare state. Legal aid is a state-funded social service that allows those who otherwise couldn’t afford it to access the legal system. Access to legal counsel and the courts for those eligible for welfare benefits, such as social housing, helps to guarantee that those provisions are upheld. This is made possible by legal aid. Legal aid has historically been very important in ensuring the respect for economic, social, and cultural rights that are involved with the provision of social security, housing, social care, health, and education services that may be provided publicly or privately, as well as employment law and anti-discrimination legislation.

The provision of legal aid entails making arrangements in society to make the missionary of administering justice more easily accessible and within the means of those who must turn to it in order to enforce rights granted to them by the law. The poor and illiterate should be able to approach the courts, and their lack of education and poverty should not stand in the way of their ability to receive justice from the courts. The underprivileged and ignorant who lack access to the courts should be able to obtain legal assistance. Legal aid can be used by anyone, even those who are not litigants.

The struggle for equal opportunity and legal protection is fundamentally a struggle for social justice. Legislators and judges now face a challenge in creating appropriate policies and useful tools to advance equality with freedom and safeguard fundamental rights with social justice. The Preamble to the Indian Constitution expresses the promise of social justice. The Indian Constitution aspires to guarantee social, economic, and political justice for all citizens as well as equality of opportunity and status. All Indians, especially the poor, impoverished, weaker and helpless, and illiterate segments of society, should have access to legal justice, according to the interpretation and application of the Constitution’s provisions.

The historical emergence of legal aid

The history of legal aid initiatives may be traced back to the efforts of the Indian government, which began addressing the issue of legal aid for the underprivileged in numerous conferences of law ministers and law commissions following the adoption of the Indian Constitution. A Committee was established in 1980 to oversee legal assistance programs across the nation. Hon. Mr. Justice P.N. Bhagwati, who was then a judge on the Supreme Court of India, served as its chairman. It started working to give legal aid to those in need across the nation and was given the name CILAS—Committee for Implementing Legal Aid Schemes. Another accomplishment in the area of legal aid for Indian residents was the creation of Lok Adalat. These courts accelerated the trial process in our nation, hastening the administration of justice.

Legal Services Authority Act was passed in 1987 in order to give the idea of legal aid cells a statutory foundation and standardization. This law, which wasn’t quite complete, was finally put into effect in 1995, mostly under the direction of Hon. Mr. Justice R.N. Mishra. Hon. Dr. Justice A.S. Anand, a Supreme Court of India judge, became the Executive Chairman of the National Legal Services Authority after its formation in 1995. The National Legal Services Authority served as the top organization in the newly established national network. They principally advocated for the idea that everyone should have access to justice, and to that end, they established guidelines and rules to ensure that, in accordance with the Constitution, everyone can access legal assistance.

The constitutional base of legal aid in India

Free legal aid was added to the Constitution under Article 39A by the 42nd Amendment Act of 1976. The impoverished and weaker segments of society must receive free legal assistance, according to Article 39-A of the Indian Constitution.

Article 39A- Equal Justice and free legal aid

“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.”

Part III of the Constitution grants Article 21 as a fundamental right. Contrarily, Article 39-A, which is found in Part IV of the Constitution, is one of the guiding principles of the State Policy. The Constitution Bench of the Supreme Court ruled in Chandra Bhawan Boarding and Lodging, the Bangalore v. State of Mysore case, that “although the rights granted under Part III are basic, the directives issued under Part IV are fundamental in the governing of the country. Overall, the clauses in Parts III and IV do not conflict with one another. They are additive and supplemental to one another.

A basic right contained in Article 21—the right to life and personal liberty—is the right to free legal assistance. According to Article 21, “No Person Shall Be Deprived of His Right to Life and Personal Liberty Except in Accordance with The Procedure Established by Law.” The Hon’ble Supreme Court noted that Article 39A emphasized that free legal services were an inalienable component of reasonable, fair, and just procedure and that the right to free legal services was implicit in Article 21 in the seminal case Hussainara Khatoon & Ors. V. Home Secretary, State of Bihar 1980. In Khatri v. State of Bihar 1981, the Supreme Court ruled that the State is required by the Constitution to offer legal representation to all detainees, including those who are initially brought before a magistrate or who are remanded at any point. Because of financial limitations, administrative shortcomings, or the fact that the accused did not request it, a privilege of this nature cannot be refused. A Magistrate or session judge has a responsibility to explain this right to the defendant.

CONCLUSION

Legal guidance is a commitment of the state and a right of the people, not generosity or abundance. Equivalent equity for all should be the state’s main protest. In this way, legal guidance aims to ensure that the holy pledge is upheld in both letter and spirit and that oppressed and weaker segments of society can access equal justice. However, despite the fact that the development of free legal guides has been considered a key aspect of the administration of justice, the goal has not been achieved. The gap between the goals set and those achieved is considerable. The lack of legal awareness is the main obstacle to the growth of legal guides in India. Because people are still unaware of their fundamental rights, the goal of legal guide development has not yet been met. Lack of legal awareness leads to abuse of impoverished people’s rights and benefits as well as suffering for them.

In a democracy where the rule of law is paramount, it is crucial to make sure that no one, not even the weakest among the weak or the poorest among the poor, suffers injustice as a result of any aggressive action taken by the government or a private individual. Moving ahead, it’s important to make sure that legal aid movement capacity is built. In the state of Maharashtra v. Manubhai Pragaji Vashi, the Supreme Court emphasized the need for capacity building and declared that having qualified attorneys in the nation is important in order to give “free legal aid.” This is only feasible if there are enough law schools with the required facilities, staff, and faculty.

REFERENCES

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