Justice P.N. Bhagwati has rightly said that “the poor and the illiterate should be able to approach the Courts and their ignorance and poverty should not be an impediment in the way of their obtaining Justice from the Courts.”
Under Section 2(1) (c) of the Legal Services Authorities Act, 1987 (hereinafter referred to as ‘the said Act’;), “Legal Service” includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter; To provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act. Justice – social, economic and political, is our constitutional pledge enshrined in the preamble of our Constitution. The incorporation of Article 39-A in the Directive Principles of State Policy in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid.
The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation, who are not able to pay for it.
Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums and should be made available.
Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose. Yet it has become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is engaged through legal aid, obviously the party or his men would come to the lawyer for consultation and it is then that they are asked to fish out some money, which they naturally cannot refuse. One factor that largely contributes to this is that the meager remuneration (less than Rs. 200/-) paid to the lawyers by Legal Aid Committee is paltry and sometimes does not meet the incidental expenses, to speak of compensating the labor put in by the lawyer. Beyond that, the greed to pocket some easy money out of the helplessness of the victims is always there. But what speaks worst about the system is the fact that entrustment of cases under the scheme has become a case of distribution of largess amongst the favorites just as our Governments are notorious for distribution of licenses. The distribution is guided by many factors but largely other than by reason and the capacity to deliver the goods. In the circumstances, expectedly, the quality of aid is compromised to the determent of the beneficiary and, of course, Justice. The whole purpose is, thus, defeated.
Article 14 of the Constitution of India makes it clear that the State shall not deny to any person equality before law and equal protection before law. If the poor and illiterate cannot enforce their rights and get justice, the basic promise of the nation as to equal justice and equal protection of interest, is meaningless.
Articles 38 and 39, of the Constitution of India also speak in favor of the basic right that is guaranteed to every citizen, i.e. right to equality before law. 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.
In State of Maharashtra v. Manubhai Pragaji Vashi, The Supreme Court has made it quite clear that it is now well established that the failure to provide free legal aid to an accused at the cost of the State unless refused by the accused, would vitiate the trial. In M.H Hoskot v. State of Maharashtra, Justice Krishna Iyer observed that providing free legal aid is the State’s duty and not Government’s charity.
In a democracy, where rule of law is supreme, it is essential to ensure that even the weakest amongst the weak, poorest among the poor, in the country do not suffer injustice arising out of any abrasive action on the part of State or a private person. As a way forward there is need to ensure capacity building for legal aid movement. This requires strengthening the skills of stakeholders of legal aid, law teachers, lawyers, law students, volunteers such as aanganwadi workers, members of local panchayat, etc. to act as intermediates between rural people and legal service institutions. In state of Maharashtra v. Manubhai Pragaji Pragaji vashi, the Supreme Court has highlighted the necessity for capacity building and held that in order to provide the “free legal aid” it is necessary to have well-trained lawyers in the country.
The Legal Services Authority Act, 1987 has been enacted to constitute the Legal Service Authorities to provide free and competent legal services to the weaker sections of the society 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 is protected internationally too. International Covenant on Civil and Political Rights also under Article14 (3)(d) guarantees to everyone: “Right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.
Another aspect of Free Legal Aid is the role of the people in the legal field. Students, teachers, professors, young lawyers should bridge the gap between justice and injustice. The legal fraternity should take active part in spreading awareness as to what free legal aid is, among the illiterate masses and poor sections of the society, and the young lawyers should take up cases and avoid grave injustice.
This legal fraternity is the most important cog in the bigger wheel that the Indian legal field works on, and a contribution from them with respect to the Free Legal Aid is very important to uphold the basic element of democracy i.e. equal protection to everyone in the eyes of law, and protection of legal interest of all sections of the Indian Society.