Introduction – Peace and harmony is very essential for the growth and development of a nation which can be ensured through fair administration of justice. In a welfare state like India where people are known for its diversity, it is the obligation of the state to ensure equal administration of justice as it is sine qua non of fair administration of justice. To promote equal administration of justice irrespective of economic or other disability, the concept of free legal aid emerged. In this context Article 39-A of the Indian Constitution provides free legal aid by suitable legislation or schemes or in any other manner, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. With the intention of providing free legal aid, the Government of India enacted the Legal Services Authorities Act, 1987. The Supreme Court of India, through important pronouncement, has developed the Law relating free legal aid and observed that right to free legal services is an essential ingredient of “reasonable fair and justice”, procedure for a person accused of an offense and it must be held implicit in the guarantee of Article 21.
Free legal aid, meaning and concept – Legal aid is the provision of for free legal services to the people who are not able to afford legal representation for the conduct of any proceeding in any court, tribunal or before an authority. Legal aid is part and parcel of the consult of administration of justice.
According to Cambridge Dictionary – “Legal aid means a system of providing free advice about the law and practical help with legal matters for people who are too poor to pay for it.”
According to Merriam Webster – Legal aid means aid provided by an organization established especially to secure the legal needs of the poor.
Therefore, legal aid refers to the free legal assistance that is provided to the weak, deprived and poor sections of the society with the purpose to enable them to exercise the rights that are provided to them by law and constitution.
The philosophy of legal aid as an inalienable element of fair procedure is evident from Mr. Justice Brennan’s well-known words: Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because, democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.
Constitutional Framework of free legal aid in India – In a welfare state like India, where people are known for its diversity, it is the obligation of the state to ensure equal administration of justice as it is a sine qua non of fairs administration of justice. The founding father of the Constitution of India had taken a positive approach towards doctrine of equal justice, which becomes apparent on the plain reading of the preamble and other provisions of the constitution. By the forty-second amendment of the constitution, effected in 1977, Article 39-A was inserted. This article states that “The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in particular provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic of other disabilities.” In view of the constitutional mandate of Article 39-A. Legal services or legal aid is provided to an eligible person free cost . Article 39-A cost a duty on the state to secure a legal system which promotes justice on the basis of equal opportunity.
The Act provides, inter alia, for the constitution of a National Legal Services Authority, a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the authority concerned is satisfied that such person has a prima facie case to prosecute or defend.
Judicial Contribution – The Indian Constitution provides for an independent and impartial judiciary. And it is the duty of court to protect the constitution, and the rights of people irrespective of their financial status. The judiciary through its important judgments has developed relating to free legal aid to bring justice to doorsteps of weaker sections of the society.
In Hussainara Khatoon and Ors. V Home Secretary, State of Bihar – it was observed by the supreme court that “free legal service is an unalienable element of “reasonable, fair and just” procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal aid is, therefore, clearly an essential ingredient of “reasonable, fair and just” procedure for a person accused of an offence and it must be hold implicit in the guarantee of Article 21. This is constitutional ought of energy accused person who is unable to engage a lawyer and secure legal services on account of such as poverty, indigence or incommunicado situation and the state is under a mandate to provide a lawyer to an accused person is the circumstances of the case and the needs of justice so require, provide the accused person does not object to the provision of such lawyer.
Justice Krishna Iyer, who is crusader of social justice in India, had ought by said that “if a prisoner sentenced to to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal, inclusive a spcial leave to appeal for want of legal assistance, there is implicit in the court under Article 142 read with Articles 21 and 39A of the constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the code and allowed by the Article 136 of the constitution. A two judge bench of the Hon’ble Supreme Court after holding that the conviction of the appellant was vitiated as he was not provided with legal aid in the courses of trial ordered retrial. Recently in case of Anokhilal vs State of M.P. it was observed by the Hon’ble by the Supreme Court that Right for 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 guaranteed by article.
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