Tuesday, 21 March 2017

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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