A remarkable key aspect of the Indian Constitution is that it necessarily assigns a dignified and important position to the judiciary. The chief objective of each and every judicial mechanism of a country is to deliver justice to the society and the notion of access to justice broadly covers within its ambit free legal aid and legal empowerment. If one takes into account, the situation of a country like India where major proportion of the population is living a life with a ‘Below Poverty Line’ status and is still ignorant to their rights and is unable to arrange or afford legal counsel to access various courts of law. As former Chief Justice of India Ranjan Gogoi said ‘The missing nature of social and legal familiarisation and awareness is the “main cause” of “deception, exploitation and deprivation” of the rights and perks of the people at large.There are certain weaker and marginalised sections of the society which are enormously denied from the justice and so the legal aid services would play a vital role to build an effective justice delivering system irrespective of social and economical strata. Our constitution also contains provisions regarding free legal aid under Article 39A as Directive Principle, which was incorporated under 42nd Amendment of Constitution in 1977. It emphasis on providing free legal service for marginalised sections and directing states to make policies to ensure legal aid services to all. Also, National Legal Service Authority of India (NALSA) was set up in 1995 under Legal Services Authority Act, 1987 which aims to provide free legal service to the weaker sections of the society and further State Legal Services Authorities were formed to implement the policies of National Legal Services Authority for peoples. Article 14 (3) (d) of International covenant on civil and political rights propagate the legal assistance to a suspect of his or her choice and he had no sufficient means to pay then state would provide the assistance by prior notifying him of his rights. The contribution of legal aid is quite effective in past decades but there are some serious loopholes which resist the dynamic essence of legal aid.
Legal Aid to Women & Juveniles:
Free legal aid is provided only to some specific strata of the society which are eligible under the provisions of Legal Service Authority Act such as lower castes, women, child, human trafficking victims, person with disabilities and some economically weaker sections. Among these groups, women and children are the vulnerable groups which are facing much more difficulty in seeking justice and therefore, both the underprivileged sections are the major challenges to our justice delivery system and thus impose a sense of responsibility towards them.
•Legal Aid and Women in India:
In country like India where patriarchal society still dominates the entire country, access to justice for women prisoners is still a matter of concern. They are also among one of the weaker masses of the society who are unable to access the doors of courts from their own and are not treated at par with their counterparts. If a woman is accused or suspected in the eyes of law, it becomes difficult to reintegrate her in the society, in post acquittal period. As women are considered as the centrepiece of prestige of a family and due to the disgrace of incarceration they are considered as the blot on their character, and so their family didn’t accept them back. Women accused in India are usually from poor and illiterate background, so due to the lack of their awareness and not enough money it is imperative for the state to provide them proper legal assistance so that they could not face the delay behind the bars. As per the recent stats available (2015) there are 4, 19,623 persons in jail in India of which 17,834 (4.3%) are women of which 11,916(66.8%) are under trial and from 2000 to 2015 the percentage rise from 3.3% to 4.3% and majority of them were found in between 30 to 50 age group. Only 18 prisons across the India are exclusive for the female suspects. Condition of women is pathetic due to lack of proper legal aid provided to them and their problems are not being put forth regarding their access to justice. In Sheela Barse vs. State of Maharashtra In this case court directed that the arrested female suspects must be kept in a separate lock-ups and interrogation must be carried out by a female officer, denial to which will amount to violation of article 14 of the constitution of India. Police must intimate about the arrest to the nearest legal aid committee. Women suspects arrested were detained and assaulted. Supreme Court judge considered a letter of the journalist as writ petition and directed state board of legal aid for providing legal assistance to the person irrespective of its gender. Thus it is the duty of state to provide a proper mechanism so that more reforms and advancements can be made for the betterment of this section and to appoint women legal advisors for more convenient judicial process for the convicts.
•Legal Aid and Juvenile Justice:
Among the different kind of poor and marginalised masses of India, juveniles are the vulnerable ones who follow the track of delinquency in lack of either proper parental care or lack of parental care. Juvenile delinquency is prevalent majorly in the socio-economically backward crowd of the country. In the early stages of lives of juvenile offenders they are in desperate need of legal assistance in order to cope up with their legal problems. Even in a well-off state Tamil Nadu data holds the major drawback of legal aid which shows that only 107 were accessed to free legal aid out of 2425 juveniles. Ones whose free legal aid were denied were helpless and compelled to avail the private legal counsel sometimes engaging the whopping sum which drain the hardly earned money. In many cases juvenile aren’t briefed about such legal knowledge at Juvenile Justice Boards and Child welfare committees which result in fizzle to assist them. Therefore, a swift action by the state is required to develop a proper system which includes quality legal education and awareness programs to aid and make justice within the reach of such needy sections of society with reference to legal aid incorporated under Directive principles of state policy.
Contribution of Judiciary:
By the interpretation of constitution highest court of judicature had delivered many landmark judgements regarding the access to free legal aid and gradually set an effective judicial system which ensure free legal service to poor and under privileged in our society.
In Ramakant v. State of Madhya Pradesh, it was held that neither constitution nor legal service authority Act, 1987 makes any distinction between a trial and an appeal for the purpose of providing free legal aid to an accused person in custody. Therefore, the high court was obliged to provide accused, a legal assistance on state’s expense. The case was remit back to the High court for fresh hearing. Even the Section 12 and 13 of NALSA Act, 1987 which defines the criteria to provide legal aid doesn’t differentiate between trial and appellate stage.
In Hussainara Khatoon v. State of Bihar, it was held that free-legal aid was considered as an element of free and fair trial of an accused and implicitly guarantees article 21 i.e. right to life with dignity. Therefore article 39-A made it mandatory for the state for proper implementation of this constitutional right in order to protect rights conferred under Article 21.
In Khatri v. State of Bihar, it was held that if an accused doesn’t asks for legal assistant, it does not means that he will not be facilitated with legal aid on state’s cost also if free legal aid is not provided to poor, ignorant and illiterate then it is no good and mere a promise on paper.
In Suk Das v. Union Territory of Andhra Pradesh, it was held that it is now settled law that free legal assistance on state’s cost is fundamental right of a person accused of an offence which may involve jeopardy to his life of personal liberty and this is implicit which is prescribed in Article 21. No incarceration for indefinite time of a person who can’t affords.
The important case of Bar council of India v. Union of India is a leading authority in which it was held to confer permanent Lok Adalats to resolve the disputes among the parties concerned with or related to public utilities service up to a specific necessary limit, if not an offence under section 22 would be constitutional. It is not, at the first instance necessary that matter in issue must compulsorily settle before the court of law, it can be created under statute and can reasonably resolve a matter which is in line with fair and natural justice. The setting up of permanent Lok Adalats can’t be termed to be against the rule of law. Legal service authority act, 1987 was to provide legal assistance to weaker section and lok-adalat settle large no. of cases with lesser cost so it promotes fair justice in pursuance with the object of this act.
Conclusion:
On the whole, it is true that we have come a long way from where we started but still the goal is to take courts to the marginalised sections that are facing atrocities. Eventually, through the course of analysis of legal aid in India it can be concluded that proper inspections of legal aid bodies in regular time intervals and to improve quality of legal aid by involving competent legal aid counsels to get rid of the stigma of incompatible free legal aid. Our justice imparting model should be ready to get expanded according to the changing needs and demands of the society. Hence, attempt must be made to replace present stiff justice mechanism which has very little room for further development. By providing proper access to justice through the para-legal aid service, effective alternate dispute resolution mechanism, engagement of legal institutions to peoples by legal aid cells, and proper monitoring of the current system all these combining efforts can revive the condition of legal aid services throughout the country. Faith of marginalised people in justice delivery system could be achieved by collective aim of judiciary, executive and legislature to take justice to the last man in need of it.
References:
i. "Absence of legal awareness root cause of rights' deprivation" Business Standard, August 18, 2019.
ii. "Legal aid is hardly available for poor women in India" National Herald, July 10, 2018. "Free legal aid denied to juveniles in trouble", Times of India, September 9, 2015.
iii. "Ramakant v. State of Madhya,(2012) 8 SCC 533.
iv. "Hussainara Khatoon v. State of Bihar,(1980) 1 SCC 98.
v. "Khatri v. State of Bihar,(1981) 1 SCC 627.
vi. "Sukh Das v. Union Territory of Andhra Pradesh,(1986) 2 SCC 401. Bar council of India v. Union of India,(2012) 8 SCC 243.
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