“Until justice rolls down like water and righteousness like a mighty stream.”
-Martin Luther King Jr.
The right to legal aid services, worldwide, has been recognized as an integral part of human rights and fundamental rights. In a time when rich and poor exist, not everyone can go to court to use a good lawyer if they have any problems because it is very expensive to get extra costs when living resources are difficult to take care of. To transfer legitimate governance to rustic and racial communities, a framework for alternative legal service providers must be provided where the concept of legal aid. Legal aid is the purchase of assistance from people who cannot afford the cost of legal representation and access to a court structure.
Legal aid is considered to be focused on providing equality under the rule of law, the right to counsel, and the right to a fair trial. The judiciary has been at the forefront of promoting free legal services to the poor, who cannot afford lawyers to protect the interests of the courts. Providing the right to instant justice and the saving of oppressed social workers is one of the key responsibilities of those legal aid services.
P.N.Bhagwati rightly observed that legal aid means providing an appointment within the society so that the missionary of administration of justice becomes easily accessible and isn’t out of reach of those who need to resort thereto for enforcement of its given to them by law, the poor and illiterate should be ready to approach the courts and their ignorance and poverty shouldn’t be an impediment within the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who can’t have access to courts.
The Constitution of India provides for the principle of legal aid in the Directive Principles of the State Policy contained in Part IV which emphasizes the social security character and hence imposes certain obligations on the State to take positive action to promote the welfare of the society.
Article 39-A has been directed to the State to ensure that the mechanism of the legal system promotes justice based on equal opportunities and shall compulsorily provide free legal aid to economically backward classes by suitable legislation or schemes or in any other way.
Under, Sec. 304 of Code of Criminal Procedure,1973 If the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state.
For the provisions of legal aid, the Government of India had taken massive steps such as setting up of Legal Aid Boards, Societies, Law Commissions and Law Departments and in the year 1980, Committee for Implementing Legal Aid Schemes (CILAS) was constituted under the Chairmanship of Honorable Justice, P.N. Bhagwati to regulate legal aid programs all over the country. Another step was in form of Lok Adalats which is established as a supplementary forum to the litigants in the judicial dispense system of India. In 1987, to give a statutory acknowledgement to legal aid programs all through the nation the Legal Services Authorities Act was established and was implemented on 9 November 1995.
The scope of Article 39A has been widely explained in the case of Air India Statutory Corporation v. United Labor Union in which the Supreme Court observed that Article 39A furnishes beacon light that justice is done based on equal opportunity and no one is denied justice because of economic or other disabilities.
The enormous contribution in edging the legal aid system is of the judiciary which can be witnessed from the Supreme Court’s ardent announcement concerning the rights of the poor and destitute people in the judgment of Hussainara Khatoon v. State of Bihar in which the court observed the importance of Article 39A which emphasizes that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services is impliedly guaranteed under Article 21 of the Indian Constitution.
The Supreme Court in State of Haryana v Darshan Devi that the poor shall not be demarcated out of the justice market on the pretext of court-fee and refusal to apply the exempted provisions of Order XXXIII, Civil Procedure Code.
Another move for providing legal aid was the National Legal Services Authority (hereinafter referred to as NALSA) of India executed the National Legal Services Authority (Free and Competent Legal Services) Regulations under Section 29 of the Legal Services Authorities Act, 1987 which apply to the Legal Service Committees of the Supreme Court, High Courts, the States, regions, and taluks.
In Case Khatri And Ors. vs State Of Bihar And Ors, The Supreme Court held that the state is constitutionally bound to provide legal assistance by hiring a lawyer to an accused person not only at the trial stage but also when they are first produced before the magistrate or remanded time and again and such a right shall not be denied on the ground of financial or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges have the must responsibility to inform the accused of his rights.
International Law Provision
Over seven centuries ago, the beginnings of equal justice under the law were marked by the inscription in the 40th paragraph of the Magna Carta:
To no one will we sell, to no one will we deny, or delay right or justice.
Article 14 of the UN Covenant on Civil and Political Rights that all individuals must be treated equally before the courts and tribunals and under clause (f) it is provided that a person must have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Under Article 6(1) ECHR everyone has the general right is ‘to a fair … hearing’ in the determination of civil rights and obligations or any criminal charge. This implies an appropriate degree of ‘equality of arms’. Concerning criminal offences, Article 6(3)(c) everyone has the right ‘to defend himself in person or through legal assistance of his choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.
In December 2012, the General Assembly unanimously adopted the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems the first international instrument on the right to legal aid. The UN Principles and Guidelines establish minimum standards for the right to legal aid in criminal justice systems and provide practical guidance on how to ensure access to effective criminal legal aid services.
The United Nations assists in the development and reform of national policies and frameworks on legal aid and supports capacity building of state and non-state actors who provide legal aid services in civil, criminal, and family matters. The United Nations system also supports the provision of legal aid by strengthening the capacities of rights holders, enhancing legal aid programs empowering rights holders, particularly the poor and marginalized groups, and supporting legal awareness and legal aid clinics and public outreach campaigns. To further contribute to the global knowledge base on legal aid, the UN system has launched a Global Study on Legal Aid, to gather data on the current state of access to legal aid services worldwide.
Locke’s statement – ‘where law ends, tyranny begins’. Rule of Law is not a ‘mantra or magical sound’ that chanting of which will bring a magical change in society and realize its revolutionary potential for equity, justice, and universal well-being. I believe that we can best secure the Rule of Law and promote, respect for human rights by rooting the efforts in our own cultural and spiritual traditions, without, however, turning a blind eye to the positive lessons from the experiences of other countries around the world.
Legal aid is not a charity or bounty but is an obligation of the state and the right of the citizens. The focus of legal aid is on distributive justice, effective implementation of welfare benefits, and elimination of social and structural discrimination against the poor. Public participation is sought to be achieved by setting up legal aid clinics in every part of India. It’s high time to properly implement legal aid so that the one who is in dire need of such help could be benefitted. Law must not only speak justice but it should also be just in its operation.
Lastly, I would like to quote the words of Nelson Mandela
“To deny people their human rights is to challenge their very humanity.”