Open Access Research Article
RIGHT OF FREE LEGAL AID AND NATURAL LAW: BRIDGING THE GAP FOR JUSTICE BY:- SMT. VARSHARANI KUNDLIK GANGARDE
Published Paper
Article Details
RIGHT OF FREE LEGAL AID AND NATURAL LAW: BRIDGING THE GAP FOR
JUSTICE
AUTHORED
BY:- SMT. VARSHARANI KUNDLIK GANGARDE
CLASS:- LL.M
1st YEAR, SEMESTER:II
ROLL NO.119
(2023-2024)
PROGRESSIVE
EDUCATION SOCIETY'S
MODERN LAW
COLLEGE, PUNE
SAVITRIBAI
PHULE PUNE UNIVERSITY, PUNE 411007
ABSTRACT:
The concept of
free legal aid, as seen through the lens of principle of natural Justice,
aligns with the idea that certain rights and justice are inherent in nature and
required to be available to all individuals, regardless of their socio-economic
status. In the context of legal aid, natural law suggests that there are
fundamental rights and principles that exist independently of human-made laws. According
to natural law, there is a moral and ethical imperative to ensure that everyone
has access to justice and legal assistance when needed. This stems from the
belief that justice is a fundamental aspect of a just and orderly society. The
idea is to bridge the gap between those who may not have the financial means to
afford legal representation to seek justice and others who has everything. While
the concept of free legal aid may not be explicitly outlined in natural law
theories, the underlying principles of justice, fairness, and the protection of
basic human rights align with the notion that legal assistance should be
accessible to all, irrespective of economic considerations. In the pursuit of a
just and equitable society, the concept of free legal aid plays a pivotal role.
Rooted in both the principles of natural justice and enshrined within the
framework of the Indian legal system, the provision of free legal aid ensures
that justice is not a privilege confined to the fortunate few but a right
accessible to all.[1]
This article delves into the foundations of free legal aid, examining its
philosophical underpinnings in natural law theory and its practical
implementation in the Indian legal landscape.
Introduction:
The concept of free legal aid is deeply rooted in the principles of
justice and fairness, with its foundations often traced back to the
philosophical underpinnings of natural law theory. Natural law, as a
jurisprudential concept, posits that certain rights and principles are inherent
in human nature and can be discovered through reason and moral intuition.
In the context of legal aid,
natural law advocates for the idea that access to justice is a fundamental
right, and barriers to this access go against the inherent principles of
fairness and equity. In this context, the provision of free legal aid aligns
itself with the fundamental notion that justice should be accessible to all,
irrespective of socio-economic status. That Indian legal system has upheld the
concept of free legal aid as paramount aspect and enacted legal provisions in
view of providing legal assistance to all who has no means to seek legal
representation.[2]
Natural Law Theory and Access to Justice:
Natural law theory suggests that there
exists a universal set of moral principles inherent in human nature. These
principles are considered to be discoverable through reason and are not
dependent on positive laws enacted by governments. Natural law theory posits
that certain rights and principles are inherent in human nature and can be
discerned through reason and morality. The pursuit of justice, a central tenet
of natural law, demands that every individual has a right to a fair trial and
legal representation.
The concept of free legal aid aligns
seamlessly with this theory, as it recognizes the inherent dignity and worth of
each person, irrespective of their socio-economic status. In the realm of
natural law, the provision of free legal aid is not merely a legal obligation
but a moral imperative. It reflects the understanding that justice cannot be
contingent upon one's ability to afford legal representation. By ensuring
access to legal aid, societies uphold the fundamental principles of fairness,
equality, and the protection of individual rights as dictated by natural law.
Free legal aid, in this sense, becomes a vehicle for ensuring that individuals,
regardless of their financial means, can access the legal system. This aligns
with the natural law principle that justice should not be a privilege reserved
for the wealthy but a right extended to all members of society.[3]
Safeguarding Basic Rights:
Natural law emphasizes the protection of basic human rights, such as the
right to life, liberty, and property. Free legal aid plays a crucial role in
safeguarding these rights by providing legal assistance to those who may
otherwise be unable to navigate the legal system. This ensures that individuals
are not deprived of their fundamental rights due to financial constraints.[4]
Promoting Social Justice:
Natural law theory inherently promotes the idea of social justice,
wherein the legal system operates to create a fair and equitable society. The
provision of free legal aid serves as a practical manifestation of this theory,
as it seeks to rectify imbalances and empower marginalized individuals who
might otherwise be disenfranchised within the legal framework.[5]
Free Legal Aid in the Indian Legal System:
The Indian
legal system, cognizant of the diverse socio-economic landscape, has integrated
the concept of free legal aid as a constitutional mandate. Article 39A of the
Constitution of India embodies this commitment, proclaiming that the State
shall secure that the operation of the legal system and promote justice on the
basis of equal opportunity and ensures that opportunities for securing justice
should not denied to any citizen by reason of economic or other disabilities.
Article 39A is a pivotal provision within the Directive Principles of State
Policy in the Indian Constitution, embodying the commitment of the state to
secure justice for all its citizens. Enshrined as part of the Directive
Principles in the Constitution's Part IV, Article 39A reflects a visionary
approach to justice, emphasizing the principles of equality before the law and
the right to legal aid. This constitutional provision underscores the state's
responsibility to create a legal framework that facilitates access to justice
for all, irrespective of socio-economic backgrounds. It acknowledges that
economic disparities should not be a barrier to obtaining justice and
emphasizes the need for affirmative action to address such disparities.
One of the key
aspects of Article 39A is the mandate for the state to provide free legal aid.
The framers of the Constitution recognized that the inability to afford legal
representation should not hinder an individual's access to justice. To give
effect to this provision, the government has enacted various legislations and
established schemes to ensure the availability of legal aid to those in need.[6]
Article 39-A of Constitution: Equal Justice and Free Legal
Aid.
By appropriate
legislation or schemes, or in any other way to ensure that opportunities for
securing justice are not denied to any citizen because of economic disabilities,
the state shall ensure that the operation of the legal system promotes justice,
based on equal opportunity. In particular, the state shall provide free legal
aid.[7]
In the landmark case that pertains
to the principles of justice and legal aid is Hussainara Khatoon v. State of Bihar. In this case, the Supreme
Court of India emphasized the right to speedy trial and held that the state is
under an obligation to provide free legal aid to accused person for whom it is
difficult secure legal representation.[8]
In the landmark case of Khatri v. the State of Bihar, Hon'ble
Justice P.N. Bhagwati made it is mandatory for Session Judges to make aware the
accused of their rights to have free legal aid and to give advice to such
person if that person unable to appoint a counsel to defend themselves because
poverty .[9]
In the case of Suk Das v. Union Territory of Arunachal Pradesh,
Hon'ble Supreme that India has many illiterate people who are unaware of their
rights. And because of which, it is critical to develop legal literacy and
awareness among the general public and it is also an essential component behind
legal aid. [10]
In Centre of Legal Research v.
State of Kerala it has been held that in order to In order to achieve the
objectives in article 39A, the state must encourage and support main
participation of voluntary organisation and social action groups in operating
Legal Aid programme. Legal programme which is mean to bring Social justice to
the people cannot remain confine d to the traditional or litigation oriented
program but it must take into account the social economic conditions prevailing
in the country and adopt a more dynamic approach. The voluntary organisations
must be involved and supported for implementing legal in programme and they
should be free from government control.[11]
In a notable judgment State of
Maharashtra v.Manubhai Bagaji Vashi the Supreme Court has held that article
21 read with article 39A cast a duty on the state to afford grants-in-aid to
recognised private law colleges, similar to other faculties, which qualify for
receipt of grant the wholesale duty cast on the state cannot be whittled down
in any manner either my pleading paucity of funds or otherwise.[12]
In the case of Md.
Ajmal Md. Amir Kasab Vs State of Maharashtra Hon’ble Supreme Court held
that : it is the duty and obligation of the Magistrate before whom a person
accused of committing a cognizable offence is produced to make accused person aware
that he has right to consult with and be
defended by a legal practitioner and in case if he has no means to engage a
lawyer of his choice, that state must provide such person legal aid at the
expense of the State.[13]
Section 304 of the code of the criminal procedure:
reads as under :-
(1) Where, in a trial
before the Court of Session, if it appears that the accused is not represented
by a pleader, and that the accused has no sufficient means to appoint a
pleader, the Court shall order to assign a pleader for his defence at the
expense of the State.
(2) The High Court with the previous approval of the
State Government may make rule providing for -
(a) the mode of selecting pleaders for
defence under Sub-Section (1);
(b) the facilities to be allowed to such
pleaders by the Courts;
(c) the fee payable to such pleaders by
the Government, and generally, for carrying out the purposes of Sub-Section
(1).
(3) The State Government may, by
notification, direct that, as from such date as may be specified in the
notification, the provisions of Sub-sections (1) and (2) shall apply in relation
to any class of trials before other courts in the State as they apply in
relation to trials before the Courts of Session.
This section enables Session
Court to assign a pleader for the purpose of defence of the accused at the
expense of the state provided he is unrepresented and if court is of view that he
has no sufficient means to appoint a pleader. The selection of such pleader,
the facilities to be provided to him and remuneration are to be governed by the
rules framed by the high court with previous
approval of the state government.[14]
In Mah.Chand
v.State of Delhi, it was held that "Indigence should never be ground for
denying fair trial or equal justice... particular attention should be paid
to appoint competent advocates, The
accused petitioner was convicted or various offences under the penal code. He
was in custody for the entire period of 1& 1/2 years. No Counsel was provided. It was held
that it was a case of grave illegality.[15]
In the criminal
appeal State of Harayana v. Ram Diya, the counsel appointed by the court for
the accused was not present at the time of the hearing. The appeal was disposed
of without hearing him. It was held that the case be remanded for fresh
hearing.[16]
The Supreme court of India has held in Khatri v. Bihar that the
obligation to provide legal aid to the indigent accused does not arise only
when trial commences but arises right since the accused produced before the
nearest Magistrate as required by section 57 of the code of criminal procedure
and Article 22(1) of the Constitution.[17]
In Ranjana Diwivedi v. Union of India, Hon'ble Supreme Court
directed that however the accused cannot obtain a writ of mandamus for
enforcing this obligation he must apply for it under section 304.[18]
The Supreme court of India has held that a conviction of an accused given in a
trial in which accused was not provided legal aid would be set aside as being
in violation of Article 21 0f the Constitution.[19]
The accused had
plead guilty. He was convicted without appointing a counsel for the accused
under the legal Aid Scheme. It was not vitiated when the trial judge was
satisfied about plea being voluntary, genuine and true .[20]
An accused
having sufficient means cannot claim for free legal aid assistance of a lawyer
at the expenses of State, particularly when he has already engaged a defence
counsel of his choice.[21]
In Rajiv Gandhi
murder case, lawyers appointed to defend the indigent accused persons moved to
the High Court for raising their fees as to make it at par with that of
prosecution lawyer on the principle of 'equal pay for equal work,' as they
would be getting only rupees 50 a day as permitted under rule 9 of Legal Aid to
poor accused rules, 1976. it was held that 'equal pay for equal work' rule was
not attracted as the criteria in the appointment of prosecution lawyers is
different from those of the defence as free Legal Aid to indigent persons. however,
the remuneration of each defence lawyer appointed as such was fixed as the high
court deemed reasonable, fair and just in the circumstances.[22]
An accused in
session trial applied to be provided a particular lawyer at state expenses as
envisaged u/s.304 Cr.P.C., but another lawyer was appointed to depend him. The
high court held that when an accused is capable of engaging a lawyer of his
choice, no Court could be deny him that right, but when he was not in a
position to engage the services of any lawyer, and prays for being provided
with a lawyer at State expense, it would be choice of the court, and not of the
accused to choose a lawyer for defending him. The court is not under a legal
obligation to permit such choice.[23]
The Legal Services Authorities Act, 1987
To concretize
this constitutional directive under Article 39A, the Legal Services Authorities
Act, 1987 was enacted. This legislation established legal services authorities
at various levels to provide free and competent legal services to the
economically weaker sections of society, ensuring that justice is not a distant
ideal but a tangible reality for all citizens.The Legal Services Authorities
Act, 1987, was enacted to implement the constitutional mandate. It established
the National Legal Services Authority (NALSA) at the national level and State
Legal Services Authorities (SLSAs) at the state level and District Legal
Services Authorities (DLSA). These authorities provide free legal aid and
services to eligible individuals.
The Legal Services Authorities Act, 1987, is a significant legislation in
India aimed at providing free and competent legal services to the weaker
sections of society to ensure that opportunities for securing justice are not
denied to any citizen due to economic or other disabilities.
Key features of the Act include the establishment of legal services
authorities at the national, state, and district levels to provide free legal
services to eligible individuals. These services encompass not only
representation in courts but also legal advice, preparation of legal documents,
and more.
The Act outlines the criteria for individuals to qualify for free legal
aid, emphasizing the importance of ensuring justice for marginalized and
disadvantaged groups. It also promotes the settlement of disputes through
alternative methods like mediation and encourages the organization of legal
awareness programs.[24]
The primary goal of the Legal Services Authorities Act is to bridge the
gap between the privileged and the underprivileged in accessing justice. By
providing legal aid and assistance, the legislation seeks to uphold the
principles of equality and justice for all.
Following are some important points with respect to free legal aid scheme
under Legal Services Authorities Act, 1987.
1.Eligibility Criteria:
Free legal aid is typically provided
to economically disadvantaged individuals, members of marginalized communities,
women, children, and other vulnerable groups.
2.Legal Aid Clinics:
Legal aid
services are often delivered through legal aid clinics established at various
levels, including district and taluka levels. These clinics aim to reach out to
the grassroots level and provide legal assistance to those in need.
3.Role of NALSA and SLSAs:
NALSA and SLSAs work to coordinate
and supervise legal aid programs across the country. They also organize
awareness programs to educate people about their rights and entitlements.
4.Panel Lawyers: Lawyers who
volunteer to provide free legal services are empaneled by legal services
authorities. These panel lawyers take up cases and provide legal representation
to eligible individuals.
5.Legal Aid for Litigation: Free legal aid covers various legal
proceedings, including litigation in courts, alternative dispute resolution
mechanisms, and legal advice.
6. Awareness Programs: Legal services authorities conduct
awareness programs to inform people about their rights and the availability of
free legal aid. This helps in reaching a wider audience and ensuring that those
in need are aware of the assistance available to them.[25]
Challenges and Prospectus:
While the
concept of free legal aid is deeply embedded in the legal system of India,
challenges persist in its effective implementation. Limited awareness,
inadequate infrastructure, and the sheer magnitude of legal needs pose hurdles
that require continuous attention and innovation.
However, the
prospects are promising. Legal aid clinics, technology-driven initiatives, and
collaborations between legal professionals and civil society organizations are
emerging as catalysts for change. These endeavors not only bridge the gap
between theory and practice but also contribute to the realization of justice
as an inclusive and accessible entity.
Conclusion:
The concept of free legal aid,
grounded in principle of natural justice, reinforces the idea that justice is
not a luxury but a fundamental right for all members of society. By embracing
this concept, legal systems can move closer to the ideal of a just and
equitable society, where access to justice is not determined by financial status
but is a universal entitlement based on the inherent principles of fairness and
human dignity. The concept of free legal aid, derived from the principles of
natural law and enshrined in the Indian legal system, stands as a beacon of
justice for all. By recognizing the inherent dignity and rights of every
individual, societies can strive towards a legal framework that is not only
just in theory but accessible and equitable in practice. In this symbiotic
relationship between philosophy and law, the concept of free legal aid
continues to evolve, ensuring that the scales of justice are balanced for every
citizen, regardless of their economic standing.
BIBLIOGRAPHY
Statues:
1. The Legal Services Authorities Act,
1987.
2. The Code of Criminal Procedure, 1973.
Books:
1. Dr.J.N.Panday ,Constitutional Law Of
India.
2. Dr. Kailash Rai, Public Interest
Lawyering, Legal Aid and Para-Legal Services.
3. Dr.V.D. Mahajan, Jurisprudence and
Legal Theory.
4. Dr. N. V. Paranjape, Studies in Jurisprudence
and Legal Theory.
5. Ratanlal and Dhirajlal's,The Code of Criminal Procedure.
Articles:
1. Abhishek Parmar, Understanding The
Principle Of Natural Justice And Its Application In The Indian Legal System, available at, https://www.legalserviceindia.com/legal/article-8642understanding-the-principle-of-natural-justice-and-its-application-in-the-indian-legal-system.html, last seen on 20/04/2024.
websites:
1.
Concepts
of natural justice, available at https://www.legalserviceindia.com/legal/article-1549-concept-of-natural-justice.html#google_vignette, last seen on 20/04/2024.
2. lawyersclubindia , available at https://www.lawyersclubindia.com/articles/right-to-free-legal-aid-16211., last seen on 20/04/2024.
3.
Lexology, Rights of Accused Before
and After Arrest in India available
at https://www.lexology.com/library/detail.aspx?g=, last seen 20/04/2024.
4.
Mondaq, right of accused before and after
arrest in India-crime-India available at https://www.mondaq.com/india/crime/1207678/rights-of-accused-before-and-after-arrest-in-india, last seen on 20/04/2024.
5.
legal sevice India.com, available at https://www.legalservicesindia.com/article/1759/Fair-Trial-under-Section-304-of-Crpc.html, last seen on 20/04/2024.
6.
britannica, available at https://www.britannica.com/topic/state-of-nature-political-theory/The-state-of-nature-in-Locke last seen on 20/04/2024.
[1] Dr. Kailash Rai, Public Interest
Lawyering, Legal Aid and Para-Legal Services, 178 (4th ed.,2007)
[2] Concepts of
natural justice, available at https://www.legalserviceindia.com/legal/article-1549-concept-of-natural-justice.html#google_vignette, last seen on 20/04/2024.
[3] Understanding
The Principle Of Natural Justice And Its Application In The Indian Legal
System, available at, https://www.legalserviceindia.com/legal/article-8642-understanding-the-principle-of-natural-justice-and-its-application-in-the-indian-legal-system.html, last
seen on 20/04/2024.
[4] Dr. B.N. Mani Tripathi and
Dr.Rajiv Mani, Jurisprudence (Legal Theory), 431 (19th ed., 2012).
[5] Ibid.
[7] Art. 39A the Constitution of India, Inserted by the constitution
(Forty-second Amendment) Act,1976, S.8 ( w.e.f .3-1-1977)
[8] Hussainara Khatoon v. State of
Bihar AIR 1979 SC 1322.
[13] Md. Ajmal Md. Amir Kasab Vs State of Maharashtra, (2012) 9 SCC 1.
[15] Mah.Chand v.State of Delhi, 1990
CrLJ 682 (Del).
[16] State of Harayana v. Ram Diya,
1990 CrLJ1327 : AIR 1990 SC 1336.
[17] Khatri v. Bihar, 1981 CrLJ470 :
(1981) SCC 627.
[18] RanjanaDiwivedi v. Union of India,
1983 CrLJ1052 : AIR 1983 SC 624.
[19] Suk Das v. Union Territory of
Arunachal Pradesh, (1986) 2 SCC 401: AIR 1986 SC 991.
[20] Tyron Nazarath v. State of
Maharashtra, 1989 CrLJ 123(Bom).
[21] Ashok kumar v. State of Rajasthan,
1995 CrLJ 1231 (Raj).
[22] T. Suthenja v. state of Tamil
nadu, 1995 CrLJ 1496 (Mad).
[23] Tahsildar Singh v. State of M.P.,
1995 CrLJ 1678 (MP).
[24] Dr. Kailash Rai, Public Interest
Lawyering, Legal Aid and Para-Legal Services, (4th ed.,2007)
Article Information
RIGHT OF FREE LEGAL AID AND NATURAL LAW: BRIDGING THE GAP FOR JUSTICE BY:- SMT. VARSHARANI KUNDLIK GANGARDE
Authors: SMT. VARSHARANI KUNDLIK GANGARDE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.