Right to Legal Aid- A Panacea [2020]

Right to Legal Aid- A Panacea [2020]

Introduction

Right to Legal Aid in India aims to secure the social and economic rights of the people. It is an important right that is guaranteed by the state under (Article 39A) of the Directive Principles of State Policy. It is not a fundamental right but despite it, it is no lesser than a basic Human Right. In this article, we shall contemplate and discuss the necessity of legal aid and how it came off as a boon to millions of people.

What are Legal Aid Services?

Legal aid services are those services that provide free legal aid to those people who are destitute and cannot arrange a lawyer. They are generally poor people who do not have accessibility to hire an advocate. These fall under the preview of (Section 12) of the Legal Service Authority Act 1987.[i]

Section 12 decides the criteria of people that can be considered as poor and needy. These include:-

  • Member of Scheduled Caste or Scheduled Tribe community.
  • Victim of human trafficking or child labor under Article 23 of the Indian Constitution.
  • A woman or a child.
  • A mentally unstable or a disabled person
  • An industrial worker
  • A person who has been the victim of a mass tragedy or some caste atrocity.

Legal aid services also include the promotion and creating awareness regarding it thorough various visual and audio media such as through mass media, print media, and posters, and pamphlets.

Legal Aid
Image Source – Google| Image by – Rakhi

History of Legal Aid Services- Beginning of a great revolution

There were not any provisions regarding legal aid in early India. The earliest legal aid movement was introduced in France in 1851. In the United Kingdom, the history of providing legal aid services dates back to 1944.

In India, the idea for providing legal services is not as old as it is in other European countries rather; it was initiated in 1952 when the government implemented some of the policies and schemes for the poor people and for the people who were deprived of their basic legal services. In 1960, the government also implemented some guidelines and strategies regarding legal aid services.

In the 80s, National Committee regarding legal aid services was constituted under the chairmanship of Justice. P.N. Bhagwati. This committee was proved to be very significant in providing uniform and accessible legal aid services in India. National Legal Aid Act which was introduced in 1987 provided a uniform and pattern-based system which shifted the whole paradigm of Legal Aid Services in India.[ii]

Constitutional provisions related to Legal Aid Services in India

Equality before the law and equal protection in law is a basic Fundamental Right guaranteed under Article 14 of the Indian Constitution. Equal representation in front of legal proceedings must be accessible by every person of our country irrespective of social and economical differences. Every person has a basic right to be represented by a counsel who can take a stand on behalf of them.

According to Article 21 of the Indian Constitution, every person has the right to life. This right can only be curtailed with some reasonable restrictions. Everyone has the right to life and personal dignity. No one can be deprived of it. The right to be heard is one of the foremost principles of natural justice. No one can violate these abovementioned principles.

Article 39A (inserted by the 42nd amendment of the Indian Constitution) aims to provide equal justice and free legal aid services. The state must provide free legal aid services to those marginalized sections of the society who cannot afford them. The state must protect the rights of its citizens. Only, in this way, a state can become a welfare state.[iii]

Provisions related to Legal Aid in Criminal Procedure Code, 1973

  • Section 304 of CrPC deals with that where there is a trial the accused is represented by a pleader
  • In case the accused is unable to hire a lawyer, it is the responsibility of the state to provide him with one, free of costs.
  • The state has all the powers to assign an advocate so that the accused can defend him and the state must bear all of its expenses.
  • The state government has the power granted by this section to forward an application regarding that.
  • No one will be gone unheard. Every person has the right to defend himself.

Provisions related to Legal Aid in Civil Procedure Code, 1908

  • Order 33 of the Civil Procedure Code provides for the filling of suits by the indigent persons.
  • Indigent people are needy people who are unable to pay for an advocate and court fees.
  • This will enable the poor and needy people to institute a suit without paying court fees and hefty amount to hire an advocate for defending them.

International Law related to Legal Aid Services

Universal Declaration of Human Rights

  • According to Article 8 of the United Nations Declaration of Human Rights charter, everyone has the right to get an effective remedy.
  • This remedy can be granted for the violation of basic fundamental or legal rights.
  • This can be acquired and can be granted from their respective national courts and tribunals which are located in their country.

International Covenant on Civil and Political Rights

  • Article 14(3) guarantees to everyone, the right to be defended by the counsel of his choice.
  • If the accused or a person does not have any legal assistance and if that person is unable to hire one then that person should be provided of legal assistance.
  • The state must provide a person with legal assistance to meet the demands of justice in case he is not able to hire because of reasonable or rational cause.[iv]

Importance of free Legal Aid in India

One of the crucial principles of Natural Justice is, Audi Alteram Partem’. The English meaning of this Latin maxim is, right to hear the other side or right to be heard. Every person is innocent until proven guilty. The basic of every law religiously revolves around this principle.

Every person has the right to defend themselves and has the right to hire a lawyer of his choice who can defend their best interests. The right to legal aid is one of the most important rights guaranteed by the court. The right of Legal Aid is necessary to uphold the dignity and for ensuring the substantive quality of the Supreme Court.

As it is often believed that equity is much more important than equality, that’s why positive favoritism and reservation are quite necessary. The right to free legal aid which is provided by the state under Article 39A of the constitution is necessary to ensure justice to the poor and downtrodden sections of the society.

The National Legal Service Authority (NALSA) which has been constituted by the legal service authority in 1987 ensures a uniform framework and provides specific guidelines to ensure justice to the poorer and weaker sections of the society.

NALSA is further divided into state, district, and on the tehsil level which maintains and provides legal aid services in various cities, districts and villages. They all work in a close-knit manner and are inter-connected with NALSA at the national level.

Right to free legal aid
Image Source – Google| Image by – Vaishali Phull

There are various types of Legal Aid services provided by the NALSA.

These are mentioned below:-

  • Representation by an advocate in the court.
  • Preparation of pleadings, memo of appeal, and other drafting work that is required for legal court proceedings.
  • Printing and translation of legal documents.
  • Providing free legal advice on any legal matters.
  • Drafting of the special leave petition by the court.

So, these are the services which are provided by the National Legal Service Authority for needy people.

How to apply?

  • A person can transfer an application in a written or an oral manner to the concerned authority.
  • He can alert the concerned authority and can pass the words that he is in dire need of legal representation for reasonable reasons.
  • The person can also fill the form regarding the same either offline provided by the authorities or he can directly go to the legal service authority website and can fill an online form.
  • Attachment of necessary documents with a proper reason is necessary to avail of the benefits of free legal aid services to avoid fraud.[v]

Legal Aid Services- A hidden boon

Legal aid services came off as a boon in the middle of nowhere for the people who could not afford legal counsel to defend them in legal proceedings. Every time, we think of doom, a ray of light always emerges as hope. Legal aid is like a privilege or freedom, to represent oneself in an interest that is best for him. It is the best tool for those people who think that their legal or fundamental rights have been infringed by illogical elements of society.

Legal aid tends to break all the bureaucratic fetters of the society by providing justice to those people, to whom justice had been restricted by the so-called elite and aristocratic people. It not only provides for justice but also seeks to create awareness regarding it to laymen who do not know the law.

Justice should be available to every person of the society irrespective of prevailing socio-economic differences between them. Legal aid services aim to bridge the gap between upper-class elite people and the downtrodden section of our society.

Henceforth, we can rightfully claim that legal aid is like the hidden panacea for all those people who could not approach the court of justice due to one or other reason.[vi]

Conclusion

Despite, many strategies and policies that were implemented to ensure legal aid services, there are still a plethora of loopholes that are required to be patched up. Nevertheless, efforts should not be superfluous. Concrete efforts and great determination are required to overcome this hurdle. Also, a positive and critical analysis of current policies is necessary to remove the irrational flaws that are present in the present Legal aid system.


References

[i] ‘National Legal Service Authority’ https://nalsa.gov.in/services/legal-aid/legal-services accessed 23 August 2020

[ii] Agam Raj, ‘Legal Aid in India’ https://www.slideshare.net/mobile/agamraj1/legal-aid-in-india accessed 23 August 2020

[iii] Kiran Suresh Marathe, Nitesh Dharamdas Chaudhari, ‘Constitutional and Legal Framework of the Right to Free Legal Aid in India’ https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://www.epitomejournals.com accessed 23August 2020

[iv] ibid

[v] ‘Free legal aid is crucial right granted by Constitution; SCs, STs, women among categories of people eligible for provision’ First post (22 July 2019) https://www.google.co.in/amp/s/www.firstpost.com/india/free-legal-aid-is-crucial-right-granted-by-constitution-scs-sts-women-among-categories-of-people-eligible-for-provision-7034801.html/amp accessed 24 August 2020

[vi] Prateek Tak, ‘Legal Aid: A Boon for the Indian Legal System’ (2012) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2013233 accessed 24 August 2020


Author- Seep Gupta | College- Institute of Law, Jiwaji University

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