Right to Free Legal Aid

“The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”

 Justice Blackmun in Jackson v Bish

Introduction

A legal aid program assists the needy who cannot afford an attorney, to prevent them from suffering and injustice. For society to function properly, it is vital to provide legal assistance to the poor and weak. The poor illiterate man will not be given equal opportunity to seek justice until and unless he is legally assisted. Hence, in recent years, the judiciary has actively focused on providing legal aid to the needy as a measure to improve the legal services for the poor and deprived. Under the Indian Constitution, a judiciary that is independent and impartial is placed in charge of safeguarding a country’s constitution and safeguarding the rights of its citizens, regardless of their financial situation.

A specific Directive Principle namely Article 39-A of the Constitution of India was incorporated by the 42nd Amendment of the Constitution in 1976 to provide free legal assistance to the deserving sections of society. The Constitution of India recognizes legal aid as a constitutional right, protected by Articles 21 and 39-A. Unless taken away by a valid statutory or constitutional power, “access to justice” is a basic human right conferred by common law. By definition, “access” denotes the right to seek redress. Ubi jus ibi remedium i.e. where there is a Right, there is a Remedy, is not a modern concept but bears a strong resemblance to the primaeval doctrine of Roman law.

Background

In 1987 the Legal Services Authorities Act (LSA) was enacted to ensure that the poor could access free and competent legal assistance. As a result of this Act, the National Legal Services Authority (NALSA) and other institutions of legal assistance were constituted at the District, Taluka, and State levels. According to NALSA statistics, from April 2017 to June 2018, 8.22 lakh people across India benefited from legal aid services.

Free Legal Aid

In October 2021, on the occasion of National Legal Service Day (NLSD), the Ministry of Law and Justice informed the Lok Sabha of the Pan India Legal Awareness and Outreach Campaign. The NLSD is celebrated every year on 9 November to promote awareness for fair and reasonable procedures that ensure equal rights for everyone.

In 1995, the Supreme Court of India established the NLSD to provide support and help to the poor and weak. In civil, criminal and revenue matters before courts, tribunals, or other judicial or quasi-judicial bodies, free legal assistance is provided. The aim of this is to familiarize citizens with the provisions under the Legal Services Authority Act as well as their rights.

Constitutional Provisions

The Preamble of the Indian Constitution ensures that social, economic, and political justice is available to all citizens. The Constitution stipulates in Article 14 that no person shall be denied the right to equality before the law or the right to equal protection of the law within the territory of India. Article 14 aims to guarantee equal justice for all. Providing equal justice means nothing if people living in poverty, illiteracy, or weakness are unable to enforce their rights.

In Article 39A of the Constitution of India, the state is obliged to ensure that the legal system promotes justice based on equality of opportunity. In particular, the state is required to ensure that no citizen is denied the opportunity to secure justice simply for economic or other disadvantages.

According to articles 14 and 22(1), the State also should ensure equality before the law and a legal system that encourages justice on an equal basis.

India’s Constitution guarantees every citizen the fundamental right to free legal assistance or free legal service. In State of Maharashtra v. Manubhai Pragaji Vashi, according to the Supreme Court, it has now become clear that failure to provide free legal aid at the cost of the State to an accused, unless the accused refuses, would lead to “vitiation of the trial.”.

Justice Krishna Iyer observed in M.H Hoskot v. State of Maharashtra that providing free legal aid to those in need should be the state’s responsibility and not a government charity.

Various Dimensions of Free Legal Aid

  1. Social justice has to be incorporated into the administration of justice to ameliorate economic inequality and social disadvantage.
  2. Legal aid must be made available to turn political democracy into social democracy.
  3. The maintenance of the rule of law depends on equal access to justice for the rich and the poor. Unless all citizens have access to the machinery of law, there could be no rule of law.
  4. When legal aid cannot be provided, a principle of natural justice, namely Audi Alteram Partem (let the other side be heard as well), may be reduced to a mere formality.
  5. With the advent of legal aid movements, establishing social righteousness has become the ultimate aim by alleviating the hardships of vulnerable sections of society and mitigating their incapacity.

Drawbacks

  1. Inadequate public awareness: Around 70 per cent of those living in rural areas lack literacy skills, and a higher number of them aren’t aware of the legal rights that they possess. Even those who are literate are unaware of their rights sometimes.
  2. Legal Aid Counsels in poor shape: The study estimates that 81% of Legal Aid counsels undertake the position to serve the poor. The following problems, however, may undermine the effectiveness of this work:

Almost 23 per cent of candidates claim that the meagre salary they receive and delay in payment is one of the major factors affecting the lack of incentives and preference for private law firms. In the research, it is stated that the non-availability of funds with DLSAs is the major factor behind such delay.

Conclusion and Suggestions

By providing door-to-door assistance to those in need of legal advice, the Legal Aid panel in assisting laymen and underprivileged individuals. For the justice system to function smoothly and to build the trust of the people, it must act timely and coherently.

A pro-bono incentive should be inculcated among the legal profession. Undergraduates should be made aware of the paralegal career advantages as well as employment opportunities for paralegals and legal assistants.

Paralegal groups must monitor their Legal Aid policies, and DLSAs should receive biannual reports from each paralegal group.

There need to be frequent meetings held by the DLSA head of each distinct state to resolve the ambiguities in the laws and work out solutions that work around the problems.

As part of the rule of law in a democracy, it is essential to ensure that even the most vulnerable amongst the vulnerable do not suffer injustice due to abrasive actions taken by the State or private individuals. For this to happen, it is crucial to increase the skills of legal aid stakeholders, such as law teachers, lawyers, law students, volunteers such as aaganwadis, local panchayat representatives, etc. so that they can act as intermediaries between rural people and legal service institutions.

References

  1. https://www.legalbites.in/free-legal-aid-in-india/#_ftn20
  2. https://www.dhyeyaias.com/current-affairs/perfect-7-magazine/right-to-legal-aid
  3. https://www.drishtiias.com/daily-updates/daily-news-analysis/free-legal-aid-1

Aishwarya Says:

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