Free Legal Aid – A Constitutional Commitment
Free Legal Aid at state cost is a fundamental feature of all
democratic systems. It may slightly differ in form in other jurisdictions. The
difference in quality and manner is based on social setup. The prevailing
circumstances - economic, political and others of a particular State play an
important role in this regard. The preamble of the
Constitution secures to its citizen, social, economic and political
justice. Article 14 of the Constitution makes it clear that the State
shall not deny to any person equality before law or the equal protection of the
laws within the territory of India. The guarantee of equal justice is
meaningless if the poor or illiterate persons cannot enforce their rights
because of their poverty or illiteracy. Articles 38 and 39, of the
Constitution of India lay down clear mandate in this regard. According to
Article 38 (1) the State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which
justice, social, economic or political, shall inform all the institutions of
the national life. Article 39-A directs the State
to ensure 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 or other
disabilities. Right to free legal aid or free legal service is an
essential fundamental right guaranteed by the Constitution. This miserable condition
has drawn the attention of legislation from time to time. Consequently,
appropriate provisions have been added in existing laws to meet out the problem
effectively. Section 304 of the Criminal Procedure
Code, Order 33 of the Civil Procedure Code, A separate legislation in name of The
Legal Services Authority Act, 1987 and Article14 (3) of International Covenant
on Civil and Political Rights also ensure that
even the weakest amongst the weak, poorest among the poor, in the country does
not suffer injustice because of their poverty or illiteracy. Legal
aid comes in many forms like Legal Aid Clinics, Lok Adalats, Prison Legal Aid
Clinics, Pension Lok Adalats, Awareness Programmes, and spreading of legal
awareness. A person who satisfy all or any of the criteria
specified in Legal Services Authority Act, 1987 is entitled to receive legal
services provided that the concerned Authority is satisfied that such person
has a prima facie case to prosecute or to defend. Legal
service is generally given in all or any one or more of the following modes
like by payment of court fee, process fee, expenses of witnesses, preparation
of the paper book, lawyers fee and all other charges payable or incurred in
connection with any legal proceedings; through representation by a legal
practitioner in legal proceedings; by supplying certified copies of Judgments,
orders, notes or evidence and other documents in legal proceedings; by
preparation of appeal paper book, including printing, typing and translation of
documents in legal proceedings; by drafting of legal documents; by giving legal advice on any legal matter;
and through Mediation. In a democratic country like our nation, in the
course of administration of justice both the victims of crime as well as it's
perpetrators are required free legal aid. In order to improve this mechanism we
have to create faith in the minds of needy people to have free and costless
access to justice and for which the lawyers community at large must be prepared
to do more pro bono service. Assistance may also be taken by legal aid clinics
set up in Law Schools. It will provide opportunity to young budding lawyers to
learn about social justice.
Dr. Ramesh Kumar,
Associate Professor,
JEMTEC School of Law, Greater Noida,
(affiliated to Guru
Gobind Singh Indraprastha University, New Delhi)
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