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Access of Justice for the Poor Through Free Legal Aid

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 sine-quo-non.

Introduction:
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.

Statutory Laws:
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 every individual.

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[1] – 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)[2] – 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[3] 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[4], 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:
  1. 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.
     
  2. The High Court may with the previous approval of the State government, make rules providing for:
    1. The Mode of selecting lawyers for defense under sub-section (1).
    2. The facilities to be allowed to such pleaders by the Courts.
    3. The fees payable to such pleaders by the Government and generally for carrying out the purposes of subsection (1).
       
  3. 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 Session.

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.

Conclusion:
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.

End-Notes:
  1. https://indiankanoon.org/doc/1294854/
  2. https://indiankanoon.org/doc/513169/
  3. https://indiankanoon.org/doc/1373215/
  4. http://www.bareactslive.com/LCR/LC014.HTM

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