JAMIA MILLIA ISLAMIA

FACULTY OF LAW

TOPIC-

RIGHT TO LEGAL AID

NAME: KHUSHBU GUPTA

COURSE: B.A. LL.B. (HONS.) SELF-FINANCE 2ND YEAR
SUBJECT: CONSTITUTIONAL LAW - II


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 JAM OF CONTENT

1. Introduction
2. Concept of Legal Aid
3. Objective of Article 39-A
4. Constitutional provisions relating to Legal Aid
5. Legal Aid , Statutory Recognition
6. Persons entitled to get free Legal Aid
7. When can Legal Service be Withdrawn
8. Suggestions
9. Conclusion
10. References 


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 INTRODUCTION

Legal aid to the poor and weak is necessary for the preservation of rule of law which
is necessary for the existence of the orderly society. Therefore as a step towards
making the legal service serve the poor and the deprived; the judiciary has taken
active interest in providing legal aid to the needy in the recent past. The Indian
Constitution provides for an independent and impartial judiciary and the courts are
given power to protect the constitution and safeguard the rights of people irrespective
of their financial status. Since the aim of the constitution is to provide justice to all
and the directive principles are in its integral part of the constitution, the constitution
dictates that judiciary has duty to protect rights of the poor as also society as a whole.
Public Interest Litigation is one of the example of how Indian judiciary has played
the role of the vanguard of the rights of Indian citizens especially the poor. It
encouraged the public spirited people to seek justice for the poor. Apart from Public
Interest Litigation and judicial activism, there are reforms in the judicial process,
where it aims to make justice cheap and easy by introducing Lok Adalat system as a
one of the methods to provide free legal aid and speedy justice at the door steps of the
poor.

CONCEPT OF LEGAL AID

Legal Aid which means giving free legal services to the poor and needy who are
unable to afford the services of an advocate for the conduct of a case or a legal
proceeding in any court, tribunal or before an Judicial authority. “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.1 The preamble of the Indian constitution basically aims to secure to
the people of India justice – socio economic and political. Justice P.N. Bhagwati aptly

1 Section (2)(1)© of Legal Service Authorities Act, 1987

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stated that legal aid means providing an arrangement in the society which makes the
machinery of administration of Justice easily accessible and in reach of those who
have to resort to it for enforcement of rights given to them by law. Article 38(1)
PROVIDES that the State shall promote the welfare of the people by securing and
protecting the social order including justice. Article 21 clearly says that every person
has an equal right to life and liberty except according to the procedure established by
the law.
The State shall secure 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.2
In the case of Hussainara khatoon vs. State of Bihar, it was held that if any accused is
not able to afford legal services then he has a right to free legal aid at the cost of the
state. If the accused does not have sufficient means to engage a lawyer, the court must
provide one for the defense of the accused at the expense of the state.3
The Constitutional duty to provide legal aid arises from the time the accused is
produced before the Magistrate for the first time and continues whenever he is
produced for remand.4
A person entitled to appeal against his/her sentence has the right to ask for a counsel,
to prepare and argue the appeal.5 It is provided under article 142 of Constitution read
with article 21 and 39 A of Indian Constitution.

OBJECTIVE OF ARTICLE 39 A

1. This Directive has been added by The Constitution (42nd Amendment) Act 1976,
in order to ensure equal justice which has been promised to all citizens, by the
Preamble and to further the guarantee of equality befre the law (Article 14),
2 Article 39 A of Constitution Of India
3 Section 304 of Criminal Procedure Code, 1973
4 Khatri II Vs. State of Bihar, (1981) 1SCC
5 Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544
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 which was unmeaning to a poor man so long as he was unable to pay for his legal
advises.
2. It has been held that this Article may be used as an aid to the interpretation of
Article 21, and the result would be_
a) Where a prisoner owing to indigence or incommunicado situation is
disabled from engaging a lawyer exercise his statutory right to appal the
court shall, if the circumstances of the case and the ends of justice so
require assign a competent counsel for the prisoner’s defence, provided
the appellant does not object to that lawyer.6
b) It is the duty of the state, in such a case, to pay such reasonable
remuneration for the defence counsel as fixed by court.7
c) The state must offer every reasonable facility to such counsel for
conducting the appeal as a condition of a reasonable fair and just
procedure provided under Article 21.8
d) This right of free legal aid arises when he accused is for the first time
produces before the magistrate and continues throughout the trial.9
e) It extended even to security proceedings.10
3. The ideal of equal access to justice would go against the imposition of an
excessive rate of court fees.11

CONSTITUTIONAL PROVISIONS RELATING TO LEGAL AID

Legal aid a constitutional right under Articles 21 and 39-A of the Constitution are as
under:-

6 Haskot v. State of Maharashtra, 1978 SC 1978

7 Haskot v. State of Maharashtra, 1978 SC 1978
8 Hussainara v. State of Bihar 1979 SC 1369
9 Khatri v. State of Bihar, 1981 SC 928
10 Gopalanachari v. Sate of Kerala 1981SC 674
11 Central Court Fees v. Jaiswal Coal Co., 1980 SC 2125
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“Article - 21. Protection of life and personal liberty – No person shall be deprived of
his life or personal liberty except according to procedure established by law. Article
21 is a fundamental right conferred under Part III of the Constitution
“Article - 39A. Equal justice and free legal aid - The state shall secure 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”. Article 39-A is one of the
directive principles of the State Policy under Part IV of the Constitution.
It has been held by the Constitution Bench of Supreme Court in Chandra Bhawan
Boarding and Lodging, Bangalore v. State of Mysore that while rights conferred
under Part III are fundamental, the directives given under part IV are fundamental in
the governance of the country. There is no conflict on the whole between the
provisions contained in Part III and Part IV. They are complementary and
supplementary to each other.

LEGAL AID, STATUTORY RECOGNITION

there was a statutory procedure providing free legal aid10 by appointing the advocate
for defending criminal case and by exempting court fees in civil cases. It was not
making any significant impact on the ability of the underprivileged people to get the
judicial redressal for their grievances. Hence under tremendous constitutional
persuasion from the Supreme Court the Legal Services Authorities Act, 1987 was
passed by the parliament of India. The Act prescribes the criteria for giving legal
services to the eligible persons. It makes a person eligible for assistance under the act
if he is -
1. A member of a Scheduled Caste or Scheduled Tribe;
2. A victim of trafficking in human beings or begar as referred to in Article 23
of the Constitution;

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 3. A woman or a child;
4. A mentally ill or otherwise disabled person;
5. A person under circumstances of undeserved want such as being a victim
of a mass disaster, ethnic violence, caste atrocity, flood, drought,
earthquake or industrial disaster;
6. An industrial workman;
7. In custody, including custody in a protective home or in a juvenile home
8. In a psychiatric hospital or psychiatric nursing home within the meaning of
clause (g) of section 2 of the Mental Health Act, 1987;
9. A person whose annual income less than rupees fifty thousand or such
other higher amount as may be prescribed by the State Government.
Legal Services Authorities after examining the eligibility criteria of an applicant and
the existence of a prima facie case in his favour provide him counsel at State expense,
pay the required Court Fee in the matter and bear all incidental expenses in
connection with the case.

PERSONS ENTITLED TO GET FREE LEGAL AID

Criteria for giving legal service are prescribed under the Section 12 of The Legal
Services Authorities Act, 1987. Every person who has to file or defend a case shall be
entitled to legal services under this Act if that person is –
1. A member of the scheduled castes or tribes;
2. Any person belonging to the Schedule caste/tribe, persons suffering from
natural calamity, industrial worker, children, insane person, handicap,
persons in custody and those having annual income less than Rs 1 lakh
were entitled to avail free legal aid
3. A victim of trafficking in human beings or beggar;
4. Disabled, including mentally disabled;
5. A woman or child;

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 6. A victim of mass disaster, ethnic violence, caste atrocity, flood, drought,
earth quake, industrial disaster and other cases of undeserved want;
7. An industrial workman;
8. In custody, including protective custody;
9. Facing a charge which might result in imprisonment; —(Khatri II Vs. State
of Bihar, (1981) 1SCC); and
10. Unable to engage a lawyer and secure legal services on account of reasons
such as pover ty, indigence, and incommunicado situation;
11. In cases of great public importance;
12. Special cases considered.

WHEN CAN LEGAL SERVICE BE WITHDRAWN

The legal services committee can with draw the services if:-
1. The aid is obtained through misrepresentation or fraud;
2. Any material change occurs in the circumstances of the aided person;
3. There is misconduct, misbehavior or negligence on the part of the aided
person;
4. The aided person does not cooperate with the allotted advocate;
5. The aided persons appoints another legal practitioner;
6. The aided person dies, except in civil cases;
7. The proceedings amount to misusing the process of law or of legal service.

SUGGESTIONS

The ways by which the sufficiency for the access of free legal aid can be improved:-
1. It is suggested that it is the need of the hour that the poor illiterate people
should be imparted with legal knowledge and should be educated on their

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 basic rights which should be done from the grass root level of the country.
For that judiciary needs the support from state administration to conduct
legal literacy programme.
2. The judiciary should focus more on Legal Aid because it is essential in this
present scenario where gulf between haves and have-nots is increasing day
by day. And elimination of social and structural discrimination against the
poor will be achieved when free Legal Aid is used as an important tool in
bringing about distributive justice.
3. There are number of precedents as well as legislations to up hold the right
to free legal aid but they have just proven to be a myth for the masses due
to their ineffective implementation. Thus the need of the hour is that one
should need to focus on effective and proper implementation of the laws
which are already in place instead of passing new legislations to make
legal aid in the country a reality instead of just a myth in the minds of the
countrymen.
4. In providing Legal Aid, the Legal Aid institutions at all level should use
proper ADR methods so as to speed up the process of compromise between
parties to the case and with that matter will be settled without further
appeal.
Free Legal Services Authorities must be provided with sufficient funds by the State
because no one should be deprived of professional advice and advice due to lack of
funds.

CONCLUSION

Legal aid is not a charity, but is an obligation of the state and right of the citizens. The
prime object of the state should be equal justice for all. Thus, legal aid strives to
ensure that the constitutional pledge is fulfilled in its spirit and equal justice is made
available to the downtrodden and weaker sections of the society. But in spite of the

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fact that free legal aid has been held to be necessary adjunct of the rule of law, the
legal aid movement has not achieved its goal. There is a wide gap between the goals
set and met. The major obstacle to the legal aid movement in India is the lack of legal
awareness. People are still not aware of their basic rights due to which the legal aid
movement has not achieved its goal yet. It is the absence of legal awareness which
leads to exploitation and deprivation of rights and benefits of the poor.


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 REFRENCES

1. http://www.legalserviceindia.com/article/l206-Legal-Aid.html
2. http://www.legalservicesindia.com/article/1176/Right-to-Free-Legal-Aid.html
3. WWW.COMMONLI.ORG
4. Dr. J. N. PANDEY, Constitutional Law of India, 55th Edition
5. Dr. Durga Das Basu, Constitutional Law of India, 5th Edition
6. Durga Das Basu, Shorter Constitution of India, 15th Edition
7.

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