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Law and Poverty: Legal Aid and Constitutional Provisions

According to the World Bank Report of the year 2016, India has recorded to have 270,000,000 Indians as poor and because of being socially and economically disadvantageous, it is difficult for them to access justice and exercise their constitutional/ legal rights.

India came up with Legal Service Authority Act, 1987(herein after referred to as the Act), by virtue of which, the marginalized sections of the society will be eligible for proper legal aid. The Act is a step forward on the principles of Article 39-A of the Indian Constitution, which ensures that justice to be provided by equal opportunity.

The section 2(1) (c) of the Act, defines the term Legal Service, read under as:
'Legal Service' includes the rendering of any service in the conduct any case or other legal proceeding before any court or other Authority or tribunal and the giving of advice on any legal matter.

Therefore, it is clear that the services which are rendered in the conduct of any legal proceeding before the court of law is legal service.

The concept of assigning a legal representative was suggested in the 14th Law Commission Report. Again, in the year 1970, a committee was set-up, known as Justice P.N. Bhagwati Committee, which was aimed to create a channel for those who are not being able to reach out to enforce their rights guaranteed by law. This will in turn ensure equal justice and nobody will be denied of justice on the grounds of being poor, illiterate etc.

Constitutional Provisions
The constitution has rightly guarded the concept of Legal Aid to all the sections of the society and it provides the opportunity of being heard to uphold justice. Article 38 of the constitution, in itís clause (1) entrusts the state with the duty to promote the welfare of the people by promoting the nation to establish all kinds of justice-social, economic and political.
Article 39A of the Constitution, inserted by the 42nd Amendment Act, has assigned the state to secure the operation of justice in the legal system and provide free legal aid by establishing statutes or such bodies which are necessary for the purpose.

Legal Aid is a part of Right to Life (Article 21) and as stated by the Supreme Court of India in the case of Hussainara Khatoon v. State of Bihar[i], that, it is the right of every accused person to be represented by a lawyer, if he/she is unable to do so due to poverty then the state shall provide the person with the required representative. There have been number of instances, where the provision of providing free legal aid has been made as a mandatory duty of the state and can nowhere be treated as a form of charity.[ii]

Apex Court, being the highest court of Justice has also widened the scope of Article 39-A to include the proceedings related to bail also in the ambit of free legal aid.[iii] It is important to note here that the idea of free legal aid starts from the time of arrest and ends after the final judgement is pronounced. It is also the duty of the advocate appointed under free legal aid to comply to the procedure of law and appear in the court during the time of proceedings and if he/ she doesnít do so, then be eligible for punishment and the case to be started afresh.

Statutory Provisions
The Criminal Procedure Code, 1973, contains the idea of free legal aid under the Section 304, clause (1), which puts an obligation on the Court to appoint a pleader for the accused, where he is not being able to do so.

The Civil Procedure Code 1908 provides Order XXXII, where when a suit is filed by an Indigent person, there is no requirement to pay the Court fee and if he requires a pleader then the Court to appoint the same. The same benefit is applicable to the defendant also, if he is an Indigent Person.

Eligibility for free legal aid
To be benefit under the free legal aid service of the government, the person to satisfy either of the following criteria:
  • Member of the Schedules Caste/ Scheduled Tribe
  • Human trafficking victim/ beggar (Article 23 of the Indian Constitution)
  • A woman/ child
  • A disabled person (according to the provisions mentioned in Persons with Disabilities Act, 1995)
  • Victim of disaster Ė flood/ drought/ earthquake etc
  • Industrial workman
  • in custody
  • in a juvenile care home
  • has annual income less than Rs. 9,000 (amount to be specified by the state) etc.

Reports made by NALSA (National Legal Service Authority) in context of Legal Aid
  1. Legal Assistance to family members of Prisoners:
    The report is a detailed document containing the problems of the third sect, other than the victim and the offender Ė the families of the offenders who are dependable on offenders for their daily living. The report throws light upon the various steps taken by the Legal Service Authority to protect the families of the offenders.
     
  2. Legal Aid to women prisoners and their accompanying children in prisons:
    Women are more vulnerable to face exploitation, abuse, violence etc. The draft is a report of the 10-day campaign launched by NALSA which was launched to enhance the legal aid services for the women prisoners.
     
Cases:
  • Rajoo v. The State of Madhya Pradesh (09.08.2012 - SC) : MANU/SC/0641/2012

Facts:
In the year 1998, Rajoo along with 6 others, gangraped a female. They were found guilty by the trial court and each of them was sentenced to 10-year rigorous imprisonment and fine.
All the convicts filed an appeal in the High court, which resulted in the removal of conviction from all of them, except Rajoo and Vijay.

Vijay accepted the decision but Rajoo filed for an appeal in the Supreme Court of India.

Issue
  • Whether Rajoo was entitled for free legal aid?
  • In Other words, whether free legal aid can be provided during the appellate stage of a case or is only applicable at the trial stage?
     
Decision
The Article 39-A, containing the provisions for free legal aid, came in effect from the year 1977 by virtue of the 42nd Amendment Act. The Court noted that this provision is applicable to those parties of the case who satisfy the criteria stated under Section 12 of The Legal Service Authority Act, 1987 at all the stages of the case.

Supreme Court observed that the High Court, while hearing the appeal didnít discharged itís duty effectively by enquiring whether Rajoo was in need of any assistance in form of free legal aid and hence, it was found that Rajoo was disabled from being benefited out from this provision.

Therefore, the Supreme Court ordered the High Court to hear the fresh case for the same.

Anokhilal v. State of Madhya Pradesh AIR 2020 SC 232
Facts:
The accused was convicted of rape and murder of a 9-year-old girl. The Legal Aid Advocate, who was appointed, didnít appeared at the hearing of the case. Afterwards, another Legal-aid counsel was appointed for the same and on the same day charges were framed against the accused. He was then sentenced to death penalty, along with fine, which was to be executed after the permission of the High Court.

Though the accused appealed in the High Court and the High Court upheld the order of the Trial Court.

Hence, the appeal was made to the Supreme Court.

Issue
  • Whether while exercising the right of free legal aid, the accused was given meaningful and real assistance or not?
Decision
It was observed by the Apex Court that the Amicus Curie so appointed while granting free legal aid to the accused was not given enough time to prepare, which lead the hearing to be unmeaningful.

The conviction was set aside and the highest court of justice in India ordered to hear the case afresh.

Court framed guidelines in regards to this to avoid such mis-happenings in future, such as:
  • In cases, where the convicts can be sentenced to life imprisonment or death sentence, only those advocates to be appointed, as legal aid counsels, who hold a minimum of 10 years of experience.
  • If the death sentence is in confirmation, then only senior advocates to be appointed for the purpose of legal aid counsels.
  • Each legal-aid counsel to be allotted enough time to prepare for the case. Normally, a 7-day time period may be considered as a reasonable time for the same.
  • The counsels to be granted to have meetings and discussions with accused.
References:
  1. The World Bank, India's Poverty Profile (worldbank.org) (Last visited May 10, 2021, 9:29 P.M.).
  2. National Legal Service Authority, legal assistance to the family members of the prisoners book - National Legal Services Authority! (nalsa.gov.in) (Last Visited May 11, 10:00 P.M.).
End-Notes:
  1. A.I.R. 1979 S.V. 1369.
  2. M.H. Hoskot v. State of Maharastra, A.I.R. 1978 S.C. 1548.
  3. Khatri v. State of Bihar A.I.R. 1981 S.C. 928.

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