The Constitution of India guarantees to every human
being certain fundamental rights which are enshrined in Part-III and some of the
rights are like Right to Equality (Article-14), Right to Life and Personal Liberty
(Article-21). The Constitution also lays down the provisions for effective
redressal mechanism in case of violation of such rights. The Supreme Court of
India also passed many effective judgments making it easier for the poor and
marginalized peoples to get access to justice by ensuring various reformisms in
the existing laws. For a healthy democracy, equal access to justice is a
It is not possible to think of development, if its people are not having equal
access to justice. Hence legal aid is very much essential to enable access to
justice to the poor and to protect their rights by ensuring them the
constitutional remedial measures, in case of violation of their rights. Legal
Aid act as a great measure in providing assistance to the poor and deprived
unequal members of the society.
“Law is the means and Justice is the end, and in order to
enable the law to meet its end, the legal the system should be accessible to
all.” Perhaps any denial of this will lead to failure of constitutional mandate
and death of democracy.
Article-8 of the Universal Declaration of Human Rights and Article 14(3) of the
International Covenant on Civil and Political Rights, provide provisions for an
effective remedy and legal assistance to all. Similarly the Constitution of
India in its Part-III, Article-14 to 32 guarantees certain fundamental rights to
Article-14 lay down the provisions that the State
shall not deny any person, equality before the law, and equal protection of laws
within the territory of India. One of the best and an effective way of bringing
access to justice to the poor is by way of filing public interest litigation (PIL).
The judiciary is trying to remove the obstacles between the poor and the
socially backward classes by permitting the socially spirited persons to file
P.I.L, and champion the cause in order to protect and defend the constitutional
and legal rights of the weaker sections.
Justice P.N Bhagwati in the case of S.P Gupta
Versus Union of India
AIR 1982(SC) 149 – Held that any person can approach
the Court in the interest of the Public or public welfare by filing a petition
in the Supreme Court U/A-32 of the Constitution of India; and in the High Court
U/A -226 of the Constitution of India. In the Court of the Magistrate under
Section 133 of the Code of Criminal procedure.
Article 14,21,39A and Article 22(10, 38 of
the Constitution of India lays down the provisions for free legal aid as a
matter of right to persons who are due to financial or other reasons cannot
afford to engage a counsel.
In M.H Hoskot Versus State of Maharashtra
(1978) 3 SCC (544) – Justice Krishna Iyer declared that:
“If a prisoner sentenced to
imprisonment is virtually unable to exercise his constitutional right of appeal,
inclusive of special leave to appeal (to the Supreme Court) for want of legal
assistance , there is implicit in the Court under Article-142 read with
Article-21 and 39A of the Constitution of India, the power to assign Counsel for
such imprisoned individual for doing complete justice.”
Justice P.N Bhagwati has stated further in
Hussinara Khatoon Versus State of Bihar
AIR 1979(SC) 1369 that:
“ This is a
constitutional right of every accused person who is unable to engage a lawyer
and secure legal services, on account of reasons such as poverty, indigence or
incommunicado situation and the state is under a 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”
Eminent Jurist M.C Setalvad has recommended in its 14th report, that the
state should provide free legal aid service to the poor, as it is his obligation
to maintain funds to provide legal aid. Under the Cr.p.c 1973, Section-304
provides the provision to give legal aid to the accused at the state expenses.
It states that:
- Where in a trail before the court of session, the accused is not
represented by a pleader and where it appears to the court that the accused
has no sufficient means to engage a lawyer, the Court shall assign a pleader
for his defense at the expense of the State.
- The High Court may with the previous approval of the State government,
make rules providing for:
- The Mode of selecting lawyers for defense under sub-section (1).
- The facilities to be allowed to such pleaders by the Courts.
- The fees payable to such pleaders by the Government and generally for
carrying out the purposes of subsection (1).
- The State Government may by notification direct that, as from such date
as may be specified in the notification, the provisions of Sub- Section (1)
and (2) shall apply in relation to any class of trials before other Courts
in the State as they apply in relation to trials before the Courts of
Therefore it is clear that the state shall
provide legal aid to the accused at the expense of the state. The national legal
Services Authority 1987, also lays down provision for providing free and
competent legal services to the weaker sections of the society and to organize
Lok Adalats to secure and promote justice on a basis of equal opportunity. The
National Legal Services Authority also provides provision for settlement of
disputes through negotiation, arbitration and conciliation and it also monitor
and evolutes the implementation of the legal aid program at periodic intervals.
The state is duty-bound to provide legal
aid to the poor and marginalized people of the society who are in need of legal
support as they are unable to get assistance from a lawyer due to their
financial or other conditions. Legal aid is not a charity but is a distributive
justice for the effective implementation of welfare benefits and discarding
social and structural discrimination against the poor.
The Legal Services
Authority Act 1987 provides the guideline for the effective implementation of
the legal aid schemes and ensuring justice to the poor and distressed peoples.
The Legal Aid provides equal justice as laid down in the Constitution of India
not just by words only but also in its true letter and spirit. But in spite of
this, still, there are lacunas in proper and effective implementation of legal
aid scheme for factors like lack of awareness about it and due to the lack of
efficient lawyers because eminent lawyers are least interested in pro- bono
cases. New dimensions must have to be discovered in order to make legal aid and
justice deliverable system available for the weaker and distressed peoples more
efficiently and effectively.