Legal Aid in Criminal Justice

BY Periya Vaishnav.

“We can end the existing denial of justice to the poor if we can secure an administration of justice which shall be accessible to every no matter how humble.” – Reginald Heber Smith

Social justice is the primary objective of the Indian constitution. Where the vast majority of population is socially and economically backward, but the national goal is social and economic justice, the rule of law, notwithstanding its mien of majestic equality, will fail its mission in the absence of a legal aid system to bring the system of justice to the downtrodden. Therefore, it becomes a legal obligation to make legal process a surer means to social justice. The main strategy to end the estrangement between the law and the poor is legal aid in its comprehensive coverage. Traditionally, ‘Legal Aid’ has been taken to mean the organized effort of the bar, the council, the courts and the government to provide the services of lawyers free, or for a token charge, to persons who cannot afford the usual fees. Inability to consult or to be represented by a lawyer may amount to the same thing as being deprived of the security of law. Thus, Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. It is a movement that envisages that the poor have easy access to courts and other government agencies. It implies that the decisions rendered are fair and just taking account of the rights and disabilities of parties. The focus of legal aid is on distributive justice, effective implementation of welfare benefits and elimination of social structural discrimination against the poor.

The movement for legal aid in India initially grew out of legal defense to those charged with criminal offenses. British judges noticed the need for such assistance and some voluntary organizations set up funds to finance the legal fees of few criminally charged indigents. The first organized and scholarly concern about the need to provide free legal assistance and most comprehensive inquiry into the problem was launched just after independence in 1949. The former Chief Justice of the Supreme Court directed this inquiry through the Committee on Legal Aid and Legal Advice in the State of Bombay. The committee concluded that legal aid was “a Governmental responsibility and … concluded that the principles of equality before the law and equal protection of the law as laid down in Article 14 of the Indian constitution set a duty on the State to provide legal aid to all the citizens…”

A continuing series of state and nationally sponsored reports on the need for a government legal aid program followed this first report. In the 1970s the calls for establishing a national legal aid scheme became more urgent. The National Conference on Legal Aid of 1970 once again discussed the problems of legal aid and insisted on legislation to make provision of legal aid a statutory obligation for the states. Justice Bhagwati, who led the crusade, saw the role of legal aid as part of a grander scheme for justice. In 1980, again a National Committee was constituted under the Chairmanship of Honorable Mr. Justice P.N. Bhagwati which came to be known as CILAS (Committee for Implementing Legal Aid Schemes) to organize, finance, and monitor legal aid programs throughout the country, and to advise the Government on further steps to be taken. The introduction of Lok Adalats added a new chapter to the justice Dispensation System of this country and succeeded in providing a supplementary forum to the litigants for conciliatory settlement of their disputes.

In 1987, in response to demands for some sort of legislation on legal aid and L.A. courts, Parliament passed the National Legal Services Authorities Act (the Legal Services Act), which ordered the state, and district level governments to establish Legal Services Authorities and conferred statutory status to the L.A. courts. Most of the provisions of the Legal Services Act were implemented while it was still a bill. This act gave a statutory base to legal aid programs throughout the country to bring about a uniform pattern. This Act was finally enforced on 9th of November, 1995 after certain amendments were introduced therein by the Amendment Act of 1994. Honorable Mr. Justice R.N. Mishra, the then Chief Justice of India played a key role in the enforcement of the Act. This act aimed at establishing a nationwide network for providing free and comprehensive legal services to the weaker sections. It makes 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.

Section 303 of the code of criminal procedure, 1973 is in conformity with the fundamental right enshrined in article 22(1) of the constitution and it aims that right of hearing cannot be taken away and the sound review would be that opportunity of being heard must be provided to the accused. The Law Commission in its 41st Report observed that:

“24.38. The matter has been engaging the attention of the Government of India for a long time, and the need of action in the matter has been impressed upon state governments. But apparently, financial considerations have come in the way of setting up legal aid or putting into effect comprehensive schemes. It is not necessary for our purpose to go into the details of the various schemes. But we strongly recommend that the right of the accused to representation at government expense should be placed on a statutory footing in trials for serious offences, as a first step in this direction, we propose that such a right should be available in all trials before the Court of Session. The Code should also contain a provision enabling the State Government to extend this right by a notification to any class of trials before other Courts in the state.”

This led to the birth of a new section 304 under the Code which enables the Court to assign a pleader for the defense of the accused at the expense of the state provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader, the facilities to be given to him by the court and his fees are to be governed by the rules that may be framed by the High Court in this regard with the previous approval of the State Government. Provision is made in sub-section (3) to extend the same facilities to any class of trials before other Courts by the State Government.

However, right to Free Legal Assistance is available in cases where offences are punishable with substantive sentence of imprisonment and not when punishable with fine only. The accused has no right to engage a private counsel at State expense. This provision is based on the principle that indigence should never be a ground for denying fair trial or justice. Particular attention should be paid to appoint competent advocates, equal to handling complex cases, not patronizing gestures to raw entrants at the Bar. Sufficient time and papers should also have made available, so that the chosen counsel may serve the cause of justice. It is not the type of the charge or the gravity of the offence committed, but the indigence of the accused on account of indigence, illiteracy or any other disability of the accused that entitle him free legal services at the cost of the State. Moreover, the right to defense includes right to effective and meaningful defense at the trial. The accused cannot defend properly and adequately. Assigning an experienced defense counsel to an indigent accused is a facet for fair procedure and an inbuilt right to liberty and life under Articles 14, 19 and 21 of the Constitution.

Civil Procedure Code: Order 33, rule 17, CPC as amended provides for filing of suits by indigent persons commonly known as pauper suit. Under this provision if a person does not have sufficient means to pay the fee for the plaint or if he is not entitled to property worth Rs. 1,000/- can make an application stating the facts and on this he is entitled to have a pleader on his behalf. Legal aid represents a great effort to ensure the solemn promise of the constitution to full legal aid in its letter and spirit and equal justice to poor, and downtrodden class of the society.

Legal Services Authorities Act, 1987: Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible person. Further section 2(1) (a) of the Act provides that legal aid can be provided to a person for a ‘case’ which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the ‘court’ as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. As per section 2(1) (c) ‘legal service’ includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter. Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority.

The constitution envisioned judiciary of free India as a trustee of the constitution. Being accorded pivotal position in the constitution the judiciary is expected to supplement and strengthen the welfare legislation by bridging gap between haves and have-nots. A full examination of the jurisprudence on legal aid is beyond the scope of this article. However, a sampling of cases illustrates a solicitude for individuals suffering particular hardship.

Hussainara Khatoon v. State of Bihar: The linkage between Article 21 and the right to free legal aid was forged in the decision of this case wherein the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court in this case pointed out that Article 39-A emphasized that free legal service was an inalienable element of ‘reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21. In his inimitable style Justice Bhagwati declared: “Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality”.

Khatri v. State of Bihar: the court answered the question regarding the right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that: “the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that 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 and it must be held 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, provided of course the accused person does not object to the provision of such lawyer. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid at the expense of the State.”

Subh Das v. Union Territory of Arunachal Pradesh: the court held, “It may now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.”

Sheela Barse v. State of Maharashtra: it was held that legal assistance to a poor or indigent accused who is arrested and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by article 39-A but also by article 21 and 14 of the constitution. An analysis of the various decisions of the Supreme Court on the legal aid makes it clear that a proceeding instituted against a person who is unable to engage a counsel are vitiated because of the violation of fundamental right of legal aid impliedly included in the guarantee of article 21.

A close scrutiny of the enforcement of right to legal aid and the working of legal aid scheme shows that the legal aid movement has not fully achieved its goal. There is a wide gap between the goals set and met. This can be attributed to the lack of legal awareness, insufficient staff, lack of knowledge of constitutional obligations for the legal aid to the poor, shortage of good advocates for accepting cases of legal aid at moderate fee and the like. It is the need of the hour that the poor illiterate people should be imparted with legal knowledge and should be educated on their basic rights. Thus, legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary for the existence of the orderly society. Even a comprehensive scheme of legal services can go a long way in ensuring social justice to poor people if implemented in letter and spirit. The proposed rules for carrying out the purposes of the act should take care of all aspects and aspirations of the poor who are to be ensured fair play of justice at all stages in all cases.