“The concept of seeking justice cannot be equated with the value of dollars”[1]

In India, there is a significant population that lacks education and lives in poverty. Many are unaware of their legal and constitutional rights, and even if they are aware, they cannot afford legal representation. This poses a costly problem. To address this issue, the Indian parliament introduced Article 39-A through the 42nd amendment to the constitution in 1976, aiming to provide Free Legal Aid to deserving sections of society.

Legal aid is safeguarded as a fundamental right under the Indian Constitution, specifically reinforced by Articles 21 and 39-A. Article 21 guarantees that no person can be deprived of their life or personal liberty unless it is done in accordance with the law. Furthermore, Article 39-A mandates that the State must ensure the effective functioning of the legal system to uphold justice by providing equal opportunities to all. This encompasses the provision of free legal assistance through appropriate legislation, schemes, or other means. The aim is to ensure that all citizens, regardless of their economic or other disadvantages, have the opportunity to seek justice.[2]

The Supreme Court, through various judgments, has interpreted free legal aid as essential for ensuring equal justice and protection under Article 21 of the Indian constitution. In the Hussainara Khatoon v. Home Secretary, State of Bihar case, Justice Bhagwati emphasized that a procedure that fails to provide legal services to an indigent accused person cannot be considered responsible, fair, or just. Therefore, the right to legal aid was deemed implicit in the procedural obligations outlined in Article 21.

In the Khatri v. State of Bihar case, the court established that the right to free legal services is a crucial element in guaranteeing a reasonable, fair, and just procedure for individuals accused of a crime. It was deemed essential for upholding the protection provided under Article 21 of the Constitution. Additionally, the Supreme Court imposed a responsibility on the Trial Court to inform the accused about their entitlement to legal aid. The Court itself expressed the opinion that it would undermine the purpose of legal aid if the burden of seeking it was solely placed on a disadvantaged, uneducated, and illiterate defendant, thus rendering it meaningless.[3]

CONCEPT OF LEGAL AID

Under Article 39A of the Indian Constitution, the provision of free legal aid is addressed. Legal aid is not a charitable act or a mere reward, but rather a constitutional obligation for both the state and its citizens’ rights. Its purpose is to uphold the constitutional promise and ensure equal access to justice for the vulnerable and marginalized segments of society. It is the responsibility of the state to ensure the preservation of the legal framework and equal opportunities for all its citizens, serving as the foundation of justice.

Since 1952, the Government of India has recognized the need to provide urgent legal aid to the poor and others, taking into account conferences of justice ministers and legal commissions. In 1960, specific rules were established, and legal aid initiatives were implemented in various states through councils, associations, and legal departments. In 1980, Hon’ble Justice P.N. Bhagwati established the Committee on the Implementation of Legal Aid Programs (CILAS) to oversee and regulate legal aid programs nationwide. The introduction of Lok Adalat’s added another dimension to the framework.[4]

Article 39-A of the Constitution of India indeed finds its place under the Directive Principles of State policy. But the directive principles of state policy, though not strictly enforceable in Courts of Law, are yet fundamental in the Governance of the Country. They embody the genuine conscience and in the absence of wholeheartedly implementing the Directive Principles, it is unattainable to realize the envisioned welfare state as envisioned by the Constitution.[5]

LEGAL AID AND  ADVICE AMENDMENT BILL 2015&2017

 The Legal Aid and Advice (Amendment) Bill is a proposed legislation that aims to amend the existing Legal Aid and Advice Act of 1972. It was first introduced in the Indian Parliament in 2015 and later reintroduced in 2017. The primary objective of the bill is to enhance the accessibility of legal aid and guidance for marginalized and vulnerable groups, including women, children, senior citizens, and individuals with disabilities. To achieve this, the bill proposes the establishment of a National Agency for Legal Aid and Services. This agency would be responsible for formulating policies and guidelines for the provision of legal aid and advice. Additionally, the bill aims to create state legal departments in each state to oversee the implementation of legal aid programs at the local level. If passed, the Legal Aid and Advice (Amendment) Bill has the potential to significantly improve access to justice for marginalized communities in India.[6]

NEED OF THIS ACT

1. Access to Justice: The act ensures that economically disadvantaged individuals can access justice by providing them with legal aid and assistance. It allows them to seek legal remedies, assert their rights, and actively participate in the legal system, regardless of their financial limitations.

 2. Fair Trial: By offering legal representation, advice, and support, the act contributes to a fair trial for the poor. It helps them navigate complex legal procedures and present their case effectively, ensuring a more balanced power dynamic and upholding the principle of equality before the law.

3. Reduction of Legal Disparities: The act aims to address the disparities in access to justice by providing legal aid to the poor. It helps narrow the gap between the rich and the poor in terms of legal representation, enabling individuals with limited financial resources to participate effectively in legal proceedings.

4. Empowerment and Awareness: Legal aid under the act often accompanies legal awareness programs. These initiatives educate the poor about their legal rights, entitlements, and available legal options. By empowering them with knowledge, the act enables the poor to make informed decisions, assert their rights, and avoid potential legal challenges.

5. Protecting Rights: The Act recognizes that every individual has the right to a fair trial and legal representation. It seeks to protect the fundamental rights of individuals by ensuring that they have access to legal aid and advice to defend their rights and interests.

CONSTITUTIONAL PROVISIONS

The Indian Constitution contains provisions that uphold the importance of legal aid and access to justice for all citizens. The key constitutional provisions related to legal aid are as follows:

1. Article 14: This article guarantees equality before the law and equal protection of the laws. It ensures that legal aid is available to all individuals, regardless of their economic or social status, to ensure equal access to justice.

2. Article 21: This article protects the right to life and personal liberty. It has been interpreted by the Supreme Court to include the right to legal aid, ensuring that individuals have adequate legal representation and assistance in legal proceedings.

3. Article 22: This article safeguards the rights of arrested individuals. It includes the provision that an arrested person shall not be denied the right to consult and be defended by a legal practitioner of their choice. Legal aid is essential to fulfil this constitutional right.

4. Article 39A: This article, introduced by the 42nd Amendment to the Constitution, directs the State to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen due to economic or other disabilities.

These constitutional provisions highlight the significance of legal aid as a fundamental right and emphasize the State’s responsibility to ensure equal access to justice for all citizens, irrespective of their economic or social background.

MERITS OF LEGAL AID AND AMENDMENT BILL

The Legal Aid and Advice (Amendment) Bill has several merits that can significantly enhance access to justice and legal assistance for marginalized individuals. Some of its merits include:

1. Increased Availability of Legal Aid: The bill aims to enhance the availability of legal aid and advice to marginalized and vulnerable segments of society. By establishing a National Agency for Legal Aid and Services and state legal departments, it seeks to streamline and expand the provision of legal aid programs at both national and local levels.

2. Targeted Assistance for Marginalized Groups: The bill specifically targets women, children, senior citizens, and individuals with disabilities, recognizing their unique vulnerabilities and the need for tailored legal support. It ensures that these marginalized groups have access to legal aid services that cater to their specific needs.

3. Policy Formulation and Guidelines: The bill proposes the creation of a National Agency for Legal Aid and Services, responsible for formulating policies and guidelines for providing legal aid and advice. This can lead to a more organized and standardized approach to legal aid programs, ensuring their effective implementation and improved outcomes.

4. Strengthened Implementation and Monitoring: With the establishment of state legal departments, the bill strengthens the implementation and monitoring of legal aid programs at the local level. This can result in better coordination, oversight, and evaluation of legal aid services, ensuring their efficient delivery and effectiveness.

5. Improved Access to Justice: By enhancing the availability and quality of legal aid, the bill aims to improve access to justice for marginalized communities. It can help bridge the gap between the disadvantaged and the legal system, enabling them to exercise their rights, seek legal remedies, and effectively participate in legal proceedings.

Overall, the Legal Aid and Advice (Amendment) Bill has the potential to address the existing gaps in access to legal aid and advice. It can promote equality, fairness, and inclusivity in the justice system, ensuring that marginalized individuals have the necessary support to navigate legal complexities and protect their rights.

DEMERITS OF LEGAL AID AND AMENDMENT BILL

While the Legal Aid and Advice (Amendment) Bill carries several merits, there are also potential drawbacks or demerits that need to be considered. Some of these demerits include:

1. Funding and Resource Challenges: Implementing an expanded legal aid system can impose financial burdens on the government. Allocating sufficient funds and resources to effectively provide legal aid to marginalized individuals may strain existing budgets and resources, potentially leading to limitations in the scope and quality of services.

2. Capacity and Infrastructure Issues: Scaling up legal aid services may require the establishment of new institutions, such as the National Agency for Legal Aid and Services and state legal departments. However, creating and managing these entities may present challenges in terms of capacity building, infrastructure development, and staffing, potentially affecting the efficient delivery of legal aid.

3. Potential Abuse and Misuse: While the aim of the bill is to assist marginalized groups, there is a possibility of misuse or abuse of legal aid provisions. Some individuals may attempt to take advantage of the system, leading to a strain on resources and delays in providing assistance to those who genuinely need it.

4.Limited Reach and Awareness: Despite the efforts to expand legal aid, there may still be limitations in reaching all marginalized individuals in need. Lack of awareness about available services, especially among remote and marginalized communities, can prevent them from accessing legal aid programs, thereby limiting the bill’s effectiveness.

5.Quality of Legal Representation: Ensuring the quality and competence of legal aid providers can be a challenge. It is crucial to have well-trained and experienced lawyers to provide effective representation. However, the availability of such professionals willing to work within the legal aid framework may pose a significant challenge.

It is important to consider these potential demerits and address them effectively to maximize the positive impact of the Legal Aid and Advice (Amendment) Bill and mitigate any potential drawbacks.

CASE LAWS RELATED TO LEGAL AID

1. In the case of Khatri v. State of Bihar, the court established that the right to free legal services is a crucial aspect of ensuring a reasonable, fair, and just procedure for individuals accused of an offence. It was deemed imperative in upholding the guarantee provided under Article 21 of the Constitution. Additionally, the Supreme Court imposed a responsibility on the Trial Court to inform the accused about their entitlement to legal aid. The Supreme Court itself expressed the view that it would undermine the purpose of legal aid if the responsibility of seeking it was placed solely on a disadvantaged, uneducated, and illiterate defendant, thus turning it into a farce.[7]

2. In the case of Centre for Legal Research v. State of Kerala, [8] the Supreme Court emphasized the importance of promoting and assisting voluntary organizations and social action groups in their efforts to operate legal aid programs. The recognition is now widespread across the nation that the legal aid program, crucial for achieving social justice, cannot be limited to traditional and obligation-based approaches. Instead, it must consider the socio-economic circumstances prevailing in the country, adopt a more proactive stance, and encompass what can be termed as assistance schemes.

3.In  Suk Das v. Union Territory of Arunachal Pradesh, the Supreme Court faced the challenge of striking a balance between the right to legal aid and the social interest at stake. The Court made an observation stating that there might be situations involving offences such as economic crimes, prostitution, or child abuse, where considerations of social justice may suggest that the state is not obligated to provide free legal services.

CONCLUSION  In conclusion, the introduction of the Legal Aid Act is a significant milestone in ensuring access to justice and safeguarding the rights of individuals, especially those who are economically disadvantaged. By offering free or subsidized legal aid and assistance, this act addresses the obstacles that often hinder marginalized individuals from engaging effectively in the legal system. It fosters equality before the law and helps reduce legal disparities arising from socioeconomic status. The act empowers the poor by providing them with legal representation, advice, and support, enabling them to navigate intricate legal procedures and assert their rights. It ensures a fair trial for all individuals, irrespective of their financial resources, and upholds the principles of fairness, equality, and the rule of law. Furthermore, the Legal Aid Act not only provides immediate relief by resolving legal issues but also works towards long-term empowerment.

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[1] Blackmun, J. In Jackson V. Bishop,404 F 2nd 571 (8th Cir 1968)

[2] Ms . Silky Mukherjee, Constitutional Provisions for Legal Aid in India, Bharati Law Review, Jan.-Mar..,2013.

[3] Volume 5, Issue 3, Dr Abhijit Bhattacharjee, Right To Legal Aid: An Integral Part Of Social Justice, Ijrar International Journal Of Research And Analytical Reviews July-Sept2018.

[4] Volume 3 Issue 3, Dolly Choudhury, Concept Of Free Legal Aid-A Comparative Analysis Free Legal Aid In India, United Kingdom, And Australia, Issn:2348-8212, International Journal Of Law And Legal Jurisprudence Studies.

[5] Volume 5, Issue 3, Dr Abhijit Bhattacharjee, Right To Legal Aid: An Integral Part Of Social Justice, Ijrar International Journal Of Research And Analytical Reviews July-Sept2018.

[6] Advocate Tanwar, Legal Aid and Advice (Amendment) Bill,2015 and 2017.

[7] Volume 5, Issue 3, Dr Abhijit Bhattacharjee, Right to Legal Aid: An Integral Part Of Social Justice, Ijrar International Journal of Research And Analytical Reviews July-Sept2018.

[8] Legal Research V. State of Kerala, Air 1986 Sc 1322.

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Author: Ratala Bala Bhargavi

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