The Provisions For Legal Aid Under CRPC And Its Adequacy
Justice P.N Bhagwati rightly described legal aid as a means for providing an
arrangement in the society which enables the poor and illiterate to access
justice without their ignorance and poverty becoming a hindrance.[1]
It is imperative that the judicial system should be easily accessible to all in a country as the poor should have an equal opportunity and equal right to get their constitutional and statutory rights enforced by the courts of law. Hence, in India, where Article 14 of the Constitution ensures equality to all before the law, it is the State’s responsibility to provide mandatory legal aid to the disadvantageous sections in the society.
Historical Context of Legal Aid in India
The foremost step towards legal aid in India was pre-independence when the Bombay Aid Society was established in 1945. Post-independence, State Legal Aid Committees were formed and the 14th Law Commission Report under the chairmanship of the then Attorney General M.C. Setalvad was published which suggested reforms in the legal system to ensure speedier and cheaper justice.
The Report was of the conclusion that it is the State’s duty to provide legal aid and further suggested the establishment of Legal Aid Committee by the State Bar Associations in order to encourage the legal fraternity towards the direction of legal aid.[2] Further, Justice P.N Bhagwati hailed legal aid as equal justice and Justice Krishna Iyer considered legal aid to be a dependable ally of the weak and poor.
A report of the Expert Committee on Legal Aid, titled Processual Justice to the People, considered the nexus between law and poverty, and was of the view that legal aid creates a vested interest in law for the poor.
Justice Iyer in this Report dealt with the importance of legal aid for the poor as, if the legal system is only available for the rich and the affluent, the poor and the masses will seek justice in the streets rather than in courts, therefore, anti-law will become a way of life.[3]
In 1977, Justice Bhagwati and Justice Iyer submitted a joint report titled, National Juridicare: Equal Justice-Social Justice which recommended the establishment of National Legal Service Authority (NALSA) accountable to the Parliament.[4] Unfortunately, it was only by the Legal Service Authority Act, 1987 that NALSA, State Legal Service Authority, District Legal Service Authority and Lok Adalats were established.
Need for Legal Aid
In the words of Justice Blackmum, humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.[5]
25.8% of the Indian population lives below poverty line whereas majority of the population in rural areas is still illiterate. The citizens lack legal awareness and are blissfully unaware of the rights conferred upon them.
The bulk of Indian population is comprised of backward social and economic status, but our Constitutional goal is social and economic justice. If the majority of the population is not able to afford competent legal assistance, the justice system is then only essentially functioning for the well-off sections of society. This goes against our basic principles of constitutionalism and natural justice as our Constitution emphasizes on equality and rule of law.
There is a need for legal aid for the disadvantageous as it brings the legal system nearer to them and helps them to be able to enforce their rights and defend themselves. The movement for Legal Aid is not only to provide legal practitioners to those who can’t afford them, but to also spread legal awareness and educate citizens in order to uplift their status in society.
Moreover, learning about the police atrocities from Mr. Mohammad Aamir Khan who spent 14 years in prison on false terrorism charges and the fact that his case of being abducted by the police and being framed wasn’t a rare case but one of many of cases of these kind, I strongly believe that the need for legal aid is necessitated even more for the poor sections of society who are a victim of these circumstances due to their economic and social status.
Legal Provisions for Legal Aid
The provision for legal aid is a constitutional mandate in India, provided for in Article 39A of the Constitution as a part of the Directive Principles of State Policy (inserted by the Constitution 42nd Amendment Act, 1976). Section 304 of the Code of Criminal Procedure provides for legal assistance to accused at the State’s expense if the accused cannot afford the same.
In Hussainara Khatoon v Home Sceretary, the Supreme Court held that the right to free legal services is implicit in Article 21 of the Constitution as it is a crucial element of reasonable, just and fair procedure.[6] Further, Article 22(1) of the Constitution provides a constitutional right of an attorney to all accused persons, it is an enabling provision that comes into force on the commencement of trial as provided under Section 304 CrPC.
In Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, it was held that access to a lawyer is imperative in order to ensure the high standards of statutory compliances. It was further held by the Court that right to legal aid of accused arises when s/he is arrested on counts of a cognizable offence and is first produced before a magistrate, even if s/he doesn’t ask for legal representation or remains silent.[7]
The accused is denied personal liberty as soon as s/he is arrested and produced before the Magistrate, and competent legal aid is most required by him at this stage as it when he has the opportunity of bail or to obtain his release and to resist remand to police or jail custody.[8]
It is the duty and obligation of the Magistrate before whom the accused is produced, to make the accused fully aware of his right to an attorney and, in case s/he cannot engage a lawyer due to economic constraints, the State will provide him with the same without any cost.
The Courts have a constitutional duty to provide the accused with a lawyer before the commencement of trial unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want a lawyer and would rather defend himself personally.
The Supreme Court has also discussed the implications of the failure of Courts in providing legal assistance to accused; these implications being different for the pre-trial and trial stage. If the Court fails to provide legal representation at the commencement of trial, the trial and the resultant conviction or sentence of the accused will be vitiated.
Whereas, if the Court fails to provide a lawyer to accused at a pre-trial stage, it may lead to disciplinary proceedings for the concerned Magistrate or a right to claim compensation for the accused. This latter failure would not vitiate the trial unless and until it is shown that the failure to provide legal aid to accused has resulted in some material prejudice to the accused during the trial.[9]
In the case of Rajoo@Ramakant v State of Madhya Pradesh, the Court has also held that free legal aid must be provided to all accused who cannot afford it irrespective of the severity of the crime committed, and at every stage of the justice-delivery system as neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of legal aid.[10]
Pro-Bono Culture in India
The Processual Justice to the People Report had observed that representation of the disadvantageous by counsel has to be recognised as a professional mandate in order to achieve access to justice for all.[11]
The State did not take into account the recommendations made by this Expert Committee that were, to make pro-bono cases mandatory for legal practitioners. The now established system of legal aid in India is based on the wide assumption that the lawyers empanelled are competent and provide their services for free.
The legal services authorities fail to ensure quality of legal practitioners till date and there are numerous instances wherein the State provided lawyer under legal aid asks the client for money. In such circumstances, it is imperative to usher a pro-bono culture amongst the legal fraternity as till date the obligation of legal practitioners to provide legal aid is only moral.
The only mandatory legal condition has been provided by the Supreme Court in the case of Indira Jaisingh v Supreme Court of India[12] wherein pro-bono work was held to be one of the qualifying requirements for designation as Senior Advocate. Even after various Committee recommendations, pro-bono work in India has not been made mandatory for lawyers and still remains a voluntary concept. In 2017, the Government launched the Pro Bono Legal Service, Tele law service and Nyaya Mitra Scheme to encourage pro-bono work and legal aid amongst lawyers however, these schemes are also only voluntary.
Conclusion
Legal aid in India is a constitutional mandate and also provided for in procedural statutory codes. The importance of legal aid has been recognised by the Indian Judiciary in various cases but still it remains to be an unfulfilled promise to the weak and poor.
The State fails to provide competent and quality lawyers and prioritise the freedom to access justice. The insufficient resources and compensation allotted to the various legal aid schemes and authorities are the reasons that legal practitioners lack incentive to work with the legal aid authorities.
However, in the recent years, pro-bono work of lawyers has been recognised therefore, providing encouragement to private practitioners. I believe that in order to ensure that quality legal aid is provided to all, pro-bono work should be made mandatory for lawyers along with mandatory clinical legal education in Law Universities.
The proper functioning of legal aid clinics in law schools will help usher the concept and practice of legal aid in future lawyers at an early stage and help India to reach its goal of equal access to justice for all.
End-Notes:
It is imperative that the judicial system should be easily accessible to all in a country as the poor should have an equal opportunity and equal right to get their constitutional and statutory rights enforced by the courts of law. Hence, in India, where Article 14 of the Constitution ensures equality to all before the law, it is the State’s responsibility to provide mandatory legal aid to the disadvantageous sections in the society.
Historical Context of Legal Aid in India
The foremost step towards legal aid in India was pre-independence when the Bombay Aid Society was established in 1945. Post-independence, State Legal Aid Committees were formed and the 14th Law Commission Report under the chairmanship of the then Attorney General M.C. Setalvad was published which suggested reforms in the legal system to ensure speedier and cheaper justice.
The Report was of the conclusion that it is the State’s duty to provide legal aid and further suggested the establishment of Legal Aid Committee by the State Bar Associations in order to encourage the legal fraternity towards the direction of legal aid.[2] Further, Justice P.N Bhagwati hailed legal aid as equal justice and Justice Krishna Iyer considered legal aid to be a dependable ally of the weak and poor.
A report of the Expert Committee on Legal Aid, titled Processual Justice to the People, considered the nexus between law and poverty, and was of the view that legal aid creates a vested interest in law for the poor.
Justice Iyer in this Report dealt with the importance of legal aid for the poor as, if the legal system is only available for the rich and the affluent, the poor and the masses will seek justice in the streets rather than in courts, therefore, anti-law will become a way of life.[3]
In 1977, Justice Bhagwati and Justice Iyer submitted a joint report titled, National Juridicare: Equal Justice-Social Justice which recommended the establishment of National Legal Service Authority (NALSA) accountable to the Parliament.[4] Unfortunately, it was only by the Legal Service Authority Act, 1987 that NALSA, State Legal Service Authority, District Legal Service Authority and Lok Adalats were established.
Need for Legal Aid
In the words of Justice Blackmum, humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.[5]
25.8% of the Indian population lives below poverty line whereas majority of the population in rural areas is still illiterate. The citizens lack legal awareness and are blissfully unaware of the rights conferred upon them.
The bulk of Indian population is comprised of backward social and economic status, but our Constitutional goal is social and economic justice. If the majority of the population is not able to afford competent legal assistance, the justice system is then only essentially functioning for the well-off sections of society. This goes against our basic principles of constitutionalism and natural justice as our Constitution emphasizes on equality and rule of law.
There is a need for legal aid for the disadvantageous as it brings the legal system nearer to them and helps them to be able to enforce their rights and defend themselves. The movement for Legal Aid is not only to provide legal practitioners to those who can’t afford them, but to also spread legal awareness and educate citizens in order to uplift their status in society.
Moreover, learning about the police atrocities from Mr. Mohammad Aamir Khan who spent 14 years in prison on false terrorism charges and the fact that his case of being abducted by the police and being framed wasn’t a rare case but one of many of cases of these kind, I strongly believe that the need for legal aid is necessitated even more for the poor sections of society who are a victim of these circumstances due to their economic and social status.
Legal Provisions for Legal Aid
The provision for legal aid is a constitutional mandate in India, provided for in Article 39A of the Constitution as a part of the Directive Principles of State Policy (inserted by the Constitution 42nd Amendment Act, 1976). Section 304 of the Code of Criminal Procedure provides for legal assistance to accused at the State’s expense if the accused cannot afford the same.
In Hussainara Khatoon v Home Sceretary, the Supreme Court held that the right to free legal services is implicit in Article 21 of the Constitution as it is a crucial element of reasonable, just and fair procedure.[6] Further, Article 22(1) of the Constitution provides a constitutional right of an attorney to all accused persons, it is an enabling provision that comes into force on the commencement of trial as provided under Section 304 CrPC.
In Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, it was held that access to a lawyer is imperative in order to ensure the high standards of statutory compliances. It was further held by the Court that right to legal aid of accused arises when s/he is arrested on counts of a cognizable offence and is first produced before a magistrate, even if s/he doesn’t ask for legal representation or remains silent.[7]
The accused is denied personal liberty as soon as s/he is arrested and produced before the Magistrate, and competent legal aid is most required by him at this stage as it when he has the opportunity of bail or to obtain his release and to resist remand to police or jail custody.[8]
It is the duty and obligation of the Magistrate before whom the accused is produced, to make the accused fully aware of his right to an attorney and, in case s/he cannot engage a lawyer due to economic constraints, the State will provide him with the same without any cost.
The Courts have a constitutional duty to provide the accused with a lawyer before the commencement of trial unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want a lawyer and would rather defend himself personally.
The Supreme Court has also discussed the implications of the failure of Courts in providing legal assistance to accused; these implications being different for the pre-trial and trial stage. If the Court fails to provide legal representation at the commencement of trial, the trial and the resultant conviction or sentence of the accused will be vitiated.
Whereas, if the Court fails to provide a lawyer to accused at a pre-trial stage, it may lead to disciplinary proceedings for the concerned Magistrate or a right to claim compensation for the accused. This latter failure would not vitiate the trial unless and until it is shown that the failure to provide legal aid to accused has resulted in some material prejudice to the accused during the trial.[9]
In the case of Rajoo@Ramakant v State of Madhya Pradesh, the Court has also held that free legal aid must be provided to all accused who cannot afford it irrespective of the severity of the crime committed, and at every stage of the justice-delivery system as neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of legal aid.[10]
Pro-Bono Culture in India
The Processual Justice to the People Report had observed that representation of the disadvantageous by counsel has to be recognised as a professional mandate in order to achieve access to justice for all.[11]
The State did not take into account the recommendations made by this Expert Committee that were, to make pro-bono cases mandatory for legal practitioners. The now established system of legal aid in India is based on the wide assumption that the lawyers empanelled are competent and provide their services for free.
The legal services authorities fail to ensure quality of legal practitioners till date and there are numerous instances wherein the State provided lawyer under legal aid asks the client for money. In such circumstances, it is imperative to usher a pro-bono culture amongst the legal fraternity as till date the obligation of legal practitioners to provide legal aid is only moral.
The only mandatory legal condition has been provided by the Supreme Court in the case of Indira Jaisingh v Supreme Court of India[12] wherein pro-bono work was held to be one of the qualifying requirements for designation as Senior Advocate. Even after various Committee recommendations, pro-bono work in India has not been made mandatory for lawyers and still remains a voluntary concept. In 2017, the Government launched the Pro Bono Legal Service, Tele law service and Nyaya Mitra Scheme to encourage pro-bono work and legal aid amongst lawyers however, these schemes are also only voluntary.
Conclusion
Legal aid in India is a constitutional mandate and also provided for in procedural statutory codes. The importance of legal aid has been recognised by the Indian Judiciary in various cases but still it remains to be an unfulfilled promise to the weak and poor.
The State fails to provide competent and quality lawyers and prioritise the freedom to access justice. The insufficient resources and compensation allotted to the various legal aid schemes and authorities are the reasons that legal practitioners lack incentive to work with the legal aid authorities.
However, in the recent years, pro-bono work of lawyers has been recognised therefore, providing encouragement to private practitioners. I believe that in order to ensure that quality legal aid is provided to all, pro-bono work should be made mandatory for lawyers along with mandatory clinical legal education in Law Universities.
The proper functioning of legal aid clinics in law schools will help usher the concept and practice of legal aid in future lawyers at an early stage and help India to reach its goal of equal access to justice for all.
End-Notes:
- Committee of Justice PN Bhagwati on Free Legal Aid, 1971
- 14th Law Commission of India Report, Reform of Judicial Administration (1958), available at http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf
- Expert Committee on Legal Aid, Government of India, Processual Justice to the People (1973), available at http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20expert%20committee%20in%20legal%20aid,%201973.pdf
- National Juridicare: Equal Justice-Social Justice Report, 1977
- Jackson v. Bishop, 404 F 2d 571
- Hussainara Khatoon v. Home Sceretary, State of Bihar, 1979 AIR 1369
- Mohammed Ajmal Mohammad Amir Kasab and Ors. v. State of Maharashtra, AIR 2012 SC 3565
- Khatri and Ors. v. State of Bihar, 1981 SCC (1) 627
- Mohammed Ajmal Mohammad Amir Kasab and Ors. v. State of Maharashtra, AIR 2012 SC 3565
- Rajoo@Ramakant v. State of Madhya Pradesh, CA no. 140/2008
- Expert Committee on Legal Aid, Government of India, Processual Justice to the People (1973), available at http://reports.mca.gov.in/Reports/15-Iyer%20committee%20report%20of%20the%20expert%20committee%20in%20legal%20aid,%201973.pdf
- Indira Jaisingh v. Supreme Court of India, WP no. 454/2015
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