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The preamble of the Constitution of India assures justice, social economic and political to all citizens of the country. The Articles 14 & 16 of the Constitution of India impose an implicit responsibility on the State to ensure that none is deprived of legal assistance for reasons of economic or other disabilities so that equal justice is provided to all citizens of the country. Article 39-A mandates that the State shall 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 or other disabilities.
The principle contained in Article 39-A are fundamental and cast duty on the State to secure that the operation of the legal system promotes justice to all citizens and particularly the poor and the marginalized. However, despite this Constitutional mandate, poor remain deprived of appropriate legal assistance for a long time after independence. The Supreme Court in Husssainara Kathoon vs Home Secretary, State of Bihar (AIR 1979 SC 1369) commented on the sad plight of poor in the following words:
"We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with legal system have always been on the wrong side of the law. They have always come across 'law for the poor' rather than 'law of the poor'.
The law is regarded by them as something mysterious and forbidding - always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services. We may remind the government of the famous words of Mr. Justice Brennan - "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us was not to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it mot, 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."-------------"
The Supreme Court in this case strongly recommended that the Government of India and the State Governments should devise and introduced a comprehensive legal service programme in the country which is not only a mandate of equal justice implicit in Article 14 and the Right of Life and Liberty conferred by Article 21 but also the compulsion of the constitutional directive embodied in Article 39-A.
Enactment of an Act for providing free legal aidIn pursuant to the aforesaid Constitutional mandate and directions of the Supreme Court, the Legal Services Authorities Act, 1987 was enacted for providing free legal aid in deserving cases. The Act in Section 12 prescribes a criteria for giving legal service. The legal service is defined by Section 2 (c) of the Act to include the rendering of any service in the conduct of any case or other legal proceedings before any Court or other Authority of Tribunal and the giving of advice on any legal matter. The Act further creates various authorities at national state and district levels for promoting the cause of legal services to the poor and for providing legal services to persons who satisfy the criteria laid down under the Act as also to undertake preventive and strategic legal aid programmes. The legal services has manifold facets and is required at various stages, for obtaining guidance, for resolving disputes in Courts, Tribunals or other judicial columns.
Role of Advocates
Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions, which its members are expected to upkeep and uphold. Law is an Hon'ble profession and an Advocate is an Officer of justice and friend of the Court. He is an integral part for the administration of justice. From the ancient times, the legal obligations of the Advocates to conduct the case of a poor litigant without reward when so required by the Court has been recognized not only in our country and in England but also in US and other Countries. However, in practice, Counsels have been assigned only in criminal cases of serious nature and a few civil cases.
The critical position enjoyed by an Advocate in administration of justice in fact imposes a responsibility upon him to ensure that justice is made available to all. Rule 46 of Bar Council if India Rules in part-VI relating to a standard professional conduct and etiquette reminds Advocates of the obligation they owes to the society.
The Rule reads as under:
"Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even tough he cannot pay for it fully or adequately and that within the limits of an Advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society."
To ensure justice to poor and marginalized sections of the society, an Advocate is required to provide them legal assistance even when they are not in position either to pay him at all or adequately pay him for his services. In fact the least duty expected of an Advocate is to play his role sincerely in implementing the various legal aid schemes available under the Legal Services Authorities Act, 1987 - be it legal aid to poor and other marginalized sections of the society or promotion of legal literacy or facilitating resolution of disputes through Lok Adalats. The role of the Advocates in implementation of these schemes becomes pivotal due to the fact that legal profession being monopolistic, the various schemes of legal aid under the Act can only be put into operation through Advocates.
Assignment of a competent Advocate to take up the case of a poor litigant is the most crucial component in providing effective and purposeful legal aid to the weaker sections of the society.
The Advocate is paid by the concerned Legal Services Authority but this payment is generally quite low as compared to the normal fee charged by the Advocate. As such, well established Advocates are generally reluctant to undertake assignment as an Advocate under the scheme of legal aid under the Legal Services Authorities Act. The result is that newly enrolled Advocates or Advocates, who do not have enough cases with them alone opt for taking up such cases with the result that the poor and marginalized person get only substandard legal assistance, which is a serious handicap in successfully implementing the legal aid scheme for weaker sections of the society. The reluctance of senior Advocates in doing service to the community is becoming a serious constraint in the success of the legal aid scheme in India. The Supreme Court in the case of Kishore Chand vs State of H.P. (AIR 1990 SC 2140) commented on this situation as under:-
"Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the Court concerned, volunteer to defend such indigent accused as a part of their professional duty."
The situation in India is in contrast to the situation existing in Britain. Michael Zander, who studied the legal system of Britain to suggest law reforms records with satisfaction in his book "A Master of Justice" that in Britain, a large number of competent senior Barristers are busy in acting as amicus curiae in courts and in providing legal aid to the poor for which they are paid by the State.
The Advocates in India need to take a lesson from their British counterparts in this respect and need to inculcate the spirit of dedication to the cause of justice and for community service so that legal aid movement could succeed in India. Indeed, failure to make justice available to poor may threaten the very existence of the democracy and the rule of law. The members of the legal profession would do well to bear in mind the famous words said by Leeman Abbot years ago in relation to affluent America-
"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the court-room, the seeds of revolution will be sown' the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow".
There have been many instances where Advocates in India have taken the causes of poor and downtrodden without any reward and have ensured justice to them. Unfortunately, there have also been instances where lawyers assigned by public funds have not faithfully played their role in implementation of the legal aid schemes which has cast a serious doubt on the very credibility of a scheme of legal aid available to weaker sections of society in India. The dark side of the legal aid scheme and how the lawyers are swindling the unsuspecting and ever gullible poor litigants as well as petty criminals and first time convicts, most of whom are so because of compelling circumstances, was reported by the Indian Express in a news item under the caption "Free Legal Aid for a Fee". The paper reported how Advocates were abusing the scheme and funds of free legal aid. The modus operandi reported was that the lawyers engaged by the Legal Aid Committee were fleecing money from the parties on whose behalf they had been engaged and holding their cases to ransom by delaying tactics. In the process, many innocent persons were also being compelled to pay large amounts to the lawyers, who are supposed to get their fee from the Legal Aid Committee and to be giving a service for the cause of justice. The phenomenon is not new and has been in existence since the establishment of the institution of free legal aid and has been flourishing since then. Lawyers can always be innovative as any other professionals, in fact much more than that. After all they provide escape routes in people of any hue in trouble. They know how to break laws and get away with it.
Free legal aid undoubtedly is beneficial to poor people and has been instituted with noble purpose. Yet it has become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is engaged through legal aid, obviously the party or his men would come to the lawyer for consultations and it is then that they are asked to fish out some money which they naturally cannot refuse. One factor that may be contributing to this is that the remuneration paid to lawyers by Legal Aid Committee is very low and sometimes even does not meet the incidental expenses what to speak of compensating the labour put in by the lawyer. Beyond that the greed to pocket some easy money out of the helplessness of the victim is always there. But what speaks worst about the system is the fact that entrustment of the cases to Advocates under the scheme has become a case of distribution of largesee amongst the favourites, which is guided by factors other than the capacity of the lawyer to deliver the results. In the circumstances, the quality of legal service provided to poor and downtrodden sections of the society is seriously compromised to the detriment of justice to them. The result is that whole purpose of the scheme gets defeated.
Considering that Administration of Justice is a central function of Advocates, it is incumbent upon them to play a purposeful role in implementation of various legal aid schemes provided under the Legal Services Authorities Act, 1987. The Advocates, as a class and senior Advocates in particular have a solemn duty to ensure justice to all citizens and particularly to poor and marginalized sections of the society and they should rise up to meet the challenge effectively and successfully. The consequences of failure of legal aid schemes are too serious to be ignored. There is no doubt that legal community in India will rise to the occasion and meet the challenge successfully and effectively. Justice to poor alone is the lasting guarantee of continued existence of Rule of Law and democracy in the country.
The author can be reached at: firstname.lastname@example.org / Print This Article
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