RIGHT TO LEGAL AID: ABSTRACT OR REALITY By Kanika Jaggi from Symbiosis Law School Pune
When a crime is committed, the guilt or innocence of the accused is decided by a trial. The accused is heard before passing a sentence in a court of law. This is a universally recognized principle of natural justice, i.e., Audi Alteram Partem. Every person shall be given a reasonable opportunity to defend himself and a right to be heard.[i] In a situation where the accused is a popper and cannot afford legal aid, it is the duty of the State to provide him the necessary legal aid at its expense. The provision of legal aid is essential to ensure a fair trial.
The Constitution of India has conferred the right to legal aid through Articles 21 and 22(1). It is a fundamental right of the accused to get legal aid at the State costs and the State is legally bound to inform the accused persons of their valuable right of getting free legal aid.[ii] Article 39A of the Constitution states that it is the duty of the State to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In order that justice prevails, free legal aid shall be provided to the unprivileged. Section 304 of the Code of Criminal Procedure directs a Court of Sessions to assign a pleader for the defence of the accused at the expense of State. This provision has been upheld in the recent case of Subhash Bhardwaj v. State[iii]. Further, Order 33 of the Civil Procedure Code enables persons who are too poor to pay the court fee to institute a suit without payment of it.[iv]
“Every person has a right to a fair trial by a competent court in the spirit of the right to life and liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of the charge in a criminal case.[v]”
The right to legal aid is a virtuous entitlement conferred upon individuals by the Grundnorm itself. It upholds the essence of democracy and equal justice. However, no matter how good it looks on paper, it faces certain challenges on the implementation front. Lack of legal awareness, insufficient lawyers, financial constraints and inefficient system are a few, to name. Unlike the French and the American system of Legal Aid, it is still suffering from voluminous shortcomings in India. The procedure and eligibility to engage state sponsored lawyer are cumbersome one. Also, the counsels are not paid enough ensuing them to take such cases lightly.
The government is trying to tackle such problems on their level. The Legal Services Authorities Act was enacted in 1987 in order to provide free and competent legal services to the weaker sections of the society to secure justice. The concept of Lok Adalats was introduced by virtue of Section 19 of the stated act to ensure quick justice with less expense. A web-based platform (Domain name: doj.gov.in) for ‘Pro bono legal services’ has been introduced by the government, where interested lawyers can register themselves to volunteer their services for the underprivileged litigants. The ministry of law and justice has launched the ‘Tele-Law’ pilot project to provide legal aid services through its Common Service Centres (CSC), to the marginalized communities, at the panchayat level. The National Legal Services Authority (NALSA) launched a web application for free legal services to prisoners. According to the secondary material published on the Internet, the software will be able to generate reports showing the total number of inmates, the number of inmates unrepresented/ represented by legal services lawyers and private lawyers.
Instead of these efforts put in by the government including the recent developments, many poor and the unprivileged are denied justice. Denial of the right to undergo a fair trial leads to vigilance and violence. India has come a long way since the independence to establish and follow that every accused has a right to meet the case of the prosecution on even terms. However, it has miles to travel to reach a point of fulfillment and satiety.
[i] Ram Kumar v. Managing Director/Secretary, U.P. State Argo Industrial Corporation Ltd. and Ors., Writ Petition No. 1886 of 2001.
[ii] Mohanlal v. State of M.P., 2000 (3) MPHT 435.
[iii] Subhash Bhardwaj v. State, Crl. Appeal Bo. 545/2016.
[iv] Jatindra v. Dwarka ILR 1983, 115.
[v] Mohd. Hussain alias Zulfikar Ali v. State, (1977) 2 SCC 584.
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