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ACCESS TO FREE JUSTICE: A CRITICAL ANALYSIS OF ARTICLE 39 A OF THE CONSTITUTION OF INDIA
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ACCESS TO
FREE JUSTICE: A CRITICAL ANALYSIS OF ARTICLE 39 A OF THE CONSTITUTION OF INDIA
AUTHORED BY -
SHREYA BHARDWAJ
AMITY
UNIVERSITY
(AMITY LAW
SCHOOL)
Introduction
1.1.
Introductory
Remark
Legal Aid Services are recognized as indispensable part of human rights worldwide. International Laws, instruments
and treaties along with local national law have shaped the present status of Legal Aid Services.
Judiciary has always been very critical and vocal for protecting the rights of the common people. Protection of rights
is not possible for those who are
unable to afford a private legal practitioner for the protection of their rights, titles and interests. Therefore, right to Counsellor
access has time and again been made a prominent matter to comply with. Easy,
economic and speedy accessibility to justice for all is a Fundamental Right that needs to be
fulfilled in letter and spirit. Right to access to justice of downtrodden and marginalized sections of
the society needs special care and efficient Legal Aid Services is a first step towards fulfilment of this divine
goal. Effective justice system contributes
to sustainable development and inclusive growth. The question that needs
special attention is that despite
being so many statutory enactments on the subject available, how far the laudable objectives enshrined under these statutes have been achieved?
Effective, efficient, economic and speedy justice which is the
long-cherished vision of our forefathers is still a distant dream. Present paper is an attempt to investigate the
main issues behind it. Researcher has
tried to analyze the falling standard of Legal Aid Services and decreasing
trust of the beneficiary over it.
Data has shown that there exists a wide gap between the profession skills of Private Legal Practitioners and Legal
Aid Counsels ( LACs). Legal Aid Counsels severely lack sincerity, commitment and accountability. This is the main
reason behind dissatisfaction of the beneficiaries over Legal Aid Counsels and Legal Aid Services.
Present research conducted in the state of Delhi
is a serious attempt to understand the problems in carrying out the mandate
of free legal aid in an effective
and speedy manner.
Researcher has analysis’s role, responsibility, accountability, accessibility and commitment of Legal Aid Practitioners towards
the beneficiaries. Three major parameters of commitments, professionalism and competency of the
Legal Aid Counsels have been investigated to see the connection between low
quality of services provided by Legal Aid Counsel and diminishing trust of Beneficiaries over Legal Aid Services.
On
account of severe COVID threat challenges to conduct offline research,
researcher has managed to interview 115 beneficiaries of legal aid, 10 judicial
officers, 15 Legal Aid Counsels
and 35 women beneficiaries from Delhi District Courts. This investigation
has not only been Carried out on
existing legal aid provisions but also the practical aspects of experience of beneficiaries so that the research may
facilitate the strengthening of program by taking proper steps in right direction. Multiple
variables have been tested in the research
to test the hypothesis.
1.2.
Statement of the Problem
There are pro bono Legal
Aid Services but their efficiency and credibility can be tested
on the touchstone of people’s faith in these services. Are people
comfortable reaching out to these services?
Though, free legal service is provided in many forms ranging from drafting of pleadings, filing written statements,
arguing the case in trials, appearance for the undertrials, consultations in civil as well as criminal
cases. Despite all these services, people are reluctant to avail free Legal Aid Services. Various
researches show that incompetency and insincerity of these
legal practitioners has been the main reason of loss of common people in free
Legal Aid Services.
1.3.
Objectives of the Research
Ground
reality is totally different from the high profile promises and provisions made
under various Acts and schemes. After
going through extensive literature available on the subject, it becomes clear that Legal Aid Services
are losing their credibility and efficiency. Legal Aid Counsels have really not
fulfilled the legitimate expectations
of the beneficiaries. No feeling of
accountability is the main reason
behind the insincerity and nonprofessional attitude of these legal practitioners. Research is carried out to verify
these findings and to achieve following
objectives:
(i)
To analyze various
existing provisions and schemes relating
to free Legal
Aid Services.
(ii)
To find out the lacunae
in the existing provisions and schemes.
(iii)
To find out the reason
of shattered faith
of people in availing Legal
Aid Services.
(iv)
To critically examine
the availability, sincerity, competency and efficiency of legal aid councils.
(v)
To find out scope of improvement in Legal Aid Services operations and the effective
measures to be taken.
1.4.
Scope and Significance
Functioning of the current
legal aid system is not satisfactory as it is not fulfilling the Bonafede requirements and expectations of the beneficiaries. Despite being free of cost services given by the legal practitioners, people in
majority are reluctant to approach them for getting such services. Even after allocation and spending big amount of money
for the proper functioning and
expansion of Legal Aid Services, dream of equal
justice to all is not achieved due to unsatisfactory
performance of its council. Significance of present research lies in finding
out the answers to following
issues:
(i)
What measures should be taken to make the Legal Aid
Services people friendly and efficient?
(ii)
What measures should be taken to restore the faith of
marginalized and down trodden strata of society to avail Legal Aid Services?
Researcher is of firm belief that
this research would certainly add something potential to the existing pool of knowledge and thus champion the cause
of maintaining the standard of Legal Aid Services.
Research shall be limited to find out why Legal Aid Services is losing
its credibility and what needs to be
done to improve the situation?
1.5.
Research Hypotheses and Questions
Functioning of the current
legal aid system is not satisfactory as it is not fulfilling the bonafide requirements and expectations of the beneficiaries. Despite being free of cost services given by the Legal practitioners, people in
majority are reluctant to approach them for getting such services. Even after allocation and spending big amount of money
for the proper functioning and
expansion of Legal Aid Services, dream of equal
justice to all is not achieved due to unsatisfactory performance of its council.
Present research is undertaken to answer the following issues:
(i)
What measures should be taken to make the Legal Aid
Services people friendly and efficient?
(ii)
What measures should be taken to restore the faith of
marginalized and down trodden strata of society to avail Legal Aid Services?
The researcher by the proposed
hypothesis, has analysed
the relationship between
independent and dependent
variables. Independent variables in the research are commitment, sincerity, efficiency, easy availability, accessibility, accountability and professionalism of the Legal Aid Counsels . Independent variables of the research
are quality provided
under Legal Aid Services and deteriorating trust of the
beneficiaries over Legal Aid Counsels and Legal Aid Services. The present research shall test the following hypothesis:
(i)
Incompetence, insincerity of legal aid practitioners
is the main reason behind the lack of trust amongst beneficiaries of Legal Aid Services.
(ii)
Lack of commitment and accountability in legal aid councils has led to the beneficiaries choosing private counsel.
(iii)
Not availing Legal Aid Services and incapability to engage private services by
the beneficiaries have led to denial
of justice to the beneficiaries by the infringement of their right to access to justice to all.
1.6.
Review of Literature
Review
of Literature is an acute analysis of existing
pool of knowledge and finding the gaps within
it . Main objective is to verify the existing knowledge or old facts or to
develop something new. It may be a
preface to the primary research or the rationale for engaging in such primary research. Generally, it means
to analyse critically a segment of published body of knowledge through summary, classification and comparison of
prior research studies or theoretical articles.
Edgardo Buscaglia, Investigating the Links Between
Access to Justice
and Governance Factors:
An objective Indicators Approach (Global Program
Against Corruption, Research
and Scientific Series, UN
Office for Crime and Drug Control, 2001), in this United Nations affiliated paper, major study is done to
find out the gaps between access to justice and State’s inaction. Rule of Law puts heavy emphasis
upon the inalienable right of easy and equal access to justice to all, including the poor, destitute and the most vulnerable sections
of society. Justice
should be accessible, impartial , fair and non-discriminatory. Various
factors necessary for equal and impartial justice are independence of the judicial
system incorporating the essential
features of impartiality, integrity, objectivity and accountability must be strengthened at grassroot level.
Farzana Akhtar, The standard of assistance from legal aid
lawyers: an Indian perspective (Indian Law Review, 2021),
Indian legal aid providers have not been able to provide their
services in substantial compliance of International human rights standards
and therefore, the system collapses corroding the trust
of beneficiaries over their services. We are following human rights
perspectives in procedural form only.
Dr. Pratiksha Baxi, Access to Justice
and Rule-of (Good)
Law: The Cunning
of Judicial Reform
in India (working paper, commissioned by the Institute of Human Development, New Delhi on behalf of the UN Commission on the
Legal Empowerment of the Poor, May 2017), has
explored the means of the
politics of judicial reform and how it expands state power when aligned
to access to justice.
Promotion of assurance of protection
of rights of individuals specifically that of the poor in a legal system is a decisive
way to reduce poverty and a strategic
tool to foster respect for law
and government.
S. P. Sathe, Crisis of Indian Legal System ( Economic and Political Weekly,
August, 1983), has said that people
desiring for change but unable to initiate it which gives birth to origin of crisis. Crisis arises
due to incapacity to act. Indian Legal System which
follows its legacy
from British Legal
System has failed to transform and cater to the needs of a democratic society.
Upendra Baxi, The Crisis of the Indian Legal System ( Cambridge University Press, 2011), has discussed the challenges and viable measure
to improve and strengthen the Indian legal system. Our legal system has many inherent
shortcomings like slow and complex process which reduces the trust of common folks in justice delivery system.
Upendra Baxi, Dual Standard of Justice since Globalisation in his (available at https://www.bhopal.net/dual-standards-of-justice-since-globalisation-prof-upendra-baxi/),
has depicted the candid
state of affairs in a regime of poverty and its effect upon access to justice. He mentioned list of cases
of the Supreme Court widening
the gap between
globalised and de- globalised people.
Upendra
Baxi, Access to justice in a Globalised
Economy: Some Reflections (IDS Bulletin,
2001), has put forwarded his
views very succinctly regarding the advent of globalisation and its effects upon the reach of people to
get justice. Though we are living in a border less world, still
we need to cross many boarders to get
justice.
The UN Commission, The Legal Empowerment of the Poor (Cambridge
University Press, 2005), as
the first global initiative to focus
specifically on the link between exclusion, poverty and law strongly believes that if governments want to
remove or reduce poverty, they need
to ensures to all its citizens, especially the poor, a powerful legitimate
stake to all in the protections of rights given by the legal system, which
definitely is not the entitlement or privilege of a handful but a protected right of all
persons.
Workshop Background Paper Understanding Effective Access to Justice ( Open Society Justice
Initiative,2016), herein it is said that effective and efficient
justice systems in the world contribute to an inclusive growth to all and foster
sustainable development goals.
An effective justice
system is responsible for better employment, better living conditions and more government accountability.
1.7.
Research Methodology
In order to
answer the research problem, to attain the objectives and to test the
hypothesis, the researcher has
conducted the doctrinal and empirical research both . As far as doctrinal study is concerned, it has been done by critically examining, the primary as well as the secondary
sources of information on the given
subject. Primary sources
include the relevant
provisions of the Constitution
of India, order 33 of the Code of Civil Procedure, 1908, The
Legal services Authorities Act, 1987, section 304
of the Criminal Procedure Code, 1973, The National Legal
Services Authority (Free and Competent
Legal Services) Regulations, 2010 and various
International Instruments. For empirical purposes, researcher has
interviewed four sets of respondents
namely beneficiaries, Legal Aid Counsels ,
Judicial Officers and women who were entitled to free legal aid but not opted
for i
Scope of Legal Aid Services
2.1.
Introduction
The first
requisite of a democratic society
with rule of law is that justice
should be equal.
What does this equal justice
mean? Whether it should be equally administered to all or all are equal in eye of law or there should be no
discrimination while delivering justice. Infect, it is an amalgamation of various facets. “The
notion of justice evokes the recognition of the rule of law, of the resolution of conflicts, of institutions that make
law and of those who enforce it; it expresses fairness
and the implicit recognition of the
principle of equality”.1
Legal Aid Services is an essential component of justice.
“Justice is the amalgamation of moral rightness based on ethics, rationality,
law, natural law, fairness, religion and/or equity”.2 Justice is a virtue which is the outcome
of fair, impartial and a sound administration of law in modern society. It is the virtue of being just, which is in in
alliance to reality and truth in manifesting opinions
and in conduct depicts many qualities like fidelity, honesty,
just behaviour and
impartiality, fair and clear representation of facts without fear respecting
merit or demerit.3 John Rawl believes that justice is
necessary as it establishes individuals equal
rights and duties
in the society and is an essential idea behind the existence of today’s societies and government.4
The word justice encompasses within
itself various facets.
It is the first virtue
that constitution seeks to achieve to all its people.5
Our Preamble talks about “social, economic and political justice” which is possible only when there is a just social
order in the society wherein all the inequalities due to social,
economic and political factors are done away with. This broad vision of justice cannot be achieved
unless and until the State and the Judiciary both act complementary to each other by
recognising, realising, protecting and strengthening the fundamental rights of the
common masses and an effective forum to enforce
them.
1 Arturo
Carrillo and Annalise Nelson,
Comparative Law Study and Analysis of National Legislation Relating to Crimes Against
Humanity and Extraterritorial Jurisdiction, 46 GWILR 481 (2014).
2 Richard J.
Wilson, “Training for Justice: The Global Reach of Clinical Legal Education” 22
Penn St. Int’l L. Rev. 421 (2004).
3 Upendra Baxi, “Access to justice in a Globalised Economy: Some Reflections” 32 IDS Bulletein 94 (2001).
4 John Rawl , A Theory of Justice (The Belknap Press of Harvard University Press, Cambridge,
1971). 5 “Access, Development And Distributive
Justice : Access Problems Of The Rural
Population” available at: https://www.jstor.org/stable/43950440 (last visited on July5, 2021).
2.2.
Understanding
Effective Access To Justice
Access to justice and access to court are two different scenarios which
together make a just society based on the principles of constitutionalism. Opportunities for securing justice
can only be made viable if people feel comfortable
to access courts. Access to justice is the most fundamental component of the rule of law. It enables everyone to have his/ her voice heard, their concerns noticed,
exercise their rights,
challenge policies of the government and discrimination or
hold policy makers/decision-makers accountable on the very touchstone of constitutionality and legality. Rule of
Law puts heavy emphasis upon the inalienable right of easy and equal access to justice to all, including the poor,
destitute and the most vulnerable sections of society. Justice
should be accessible, impartial, fair and non-discriminatory.
Various factors necessary for equal and impartial justice are
independence of the judicial system incorporating the essential features
of impartiality, integrity, objectivity and accountability must be strengthened at
grassroot level.7 In
today's modern world, access to justice
imply to have recourse to a quick, effective , efficient, affordable and
satisfactory dispute settlement from
a credible authorised forum.8 The words access to justice
presupposes a system which enables
the people to get their valuable
rights settled or resolve their claims and
disputes. Thus equal accessibility to all socially as well as individually just
results are the fulcrum of the
right to equal justice. Technically speaking, access to justice is sort of a guarantee in the minds of general public
to get justice through judicial or
quasi-judicial institutions. It
includes legal representation, adherence to basic human rights standards to be given in courts and a friendly legal system which does not seem alien or a burden to the general
6 Interview
with Mr. Yahaya Al-Hassan, Senior Ex. Director,
Legal Aid, Ghana, General News, August 14,
2009.
7 Richard K. Gordon
Jr. Jonathan M. Lindsay , “Law and the Poor in Rural India: The Prospects for Legal Aid” 5
American University International Law Review (1990).
8 Robert Granfield, “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers” 41 Law & Society
Review (2007).
(i)
Free legal aid and assistance also include within its
scope provision of rendering aid and advice to the beneficiaries so as to
make them aware about the various welfare schemes, enactments and provisions.
2.3.
Procedural Requirements for Applying for Legal Aid Services
One who is in need of legal aid , but doesn’t have ample financial resources to obtain
the same, can very well approach the Legal
Services Authority by giving a written application or filling up the prescribed form stating in brief
the grievance for which one wish to seek
legal aid.
Where applicant is illiterate, concerned officer of the legal services
Committee/ Authority will record
his oral submission and his thumb
impression/ signature on that record.
This record is treated as an
application provided applicant verifies the given eligibility criteria for
obtaining legal services.
NALSA (Free and Competent
Legal Services) Regulations, 2010, stipulates that upon fulfilment of all the given requirements,
a person can make an application
under the Regulation 3 in the given
specific prescribed format and may very well submit it before the designated authority. Where a person is
unable to make an application on account of any disability like illiteracy or otherwise, it is the duty of the
designated authorities to make some necessary arrangements for filing of such an application for availing Legal
Aid Services.
2.4.
Historical Background of Legal Aid Services
In
ancient history as per Manusmriti,
king was supposed to administer justice to all equally without any bias based on the religion. Sanctity of
administration of justice was of utmost importance
and need to be preserved in social, economic and political dimensions of life. Medieval period was mostly dominated by
Muslim rulers and therefore, Islamic Law was
applied for adjudication of all matters or disputes brought before the
court irrespective of religious views
and belief of the parties involved therein. Mughal emperor Jahangir’s justice was popularly known as
Jahangiri Nyaya because of his fair
treatment given to all.11
First and foremost legal aid
movement is said to be appear in 1851, with the passage of an enactment
in France to provide legal assistance to the poor. The genesis
of article 39 A, that
11 Justice T .Mathivanan, “Legal Aid Issues,
Challenges And Solutions: An Empirical Study”,
available at http://www.hcmadras.tn.nic.in/legalaid-issues.pdf (last visited on August
5, 2021).
unequivocally
states about the State’s constitutional obligation to secure access to justice
with equal opportunity to all in a
legal system. Equal opportunity becomes meaningful only when no person is denied justice owing to
economic or financial constraints. Articles 14 and 22(1) provides for “equality before law” and
“equal protection of laws” that promotes justice on a basis of equal opportunity to everyone, can be traced back to the year 1851 with the passage
of a statute in France for
providing legal services to the poor. New York United States saw its first such
legal assistance to poor in 1876 started from New York City.
Indian
Government also started dealing and addressing the questions regarding the
legal aid provisions for poor in
various conferences held by Law Commission and Law Ministers since 1952.
Indian Government made some guidelines and framework for legal aid schemes in 1960. With respect to independent India,
prior to 1976 there was no concept
of official free legal aid. Bombay
Legal Aid Society was the first one to propose the salutary idea of free legal
aid to poor litigants. For the first time in 1949, a committee named The Committee on Legal Aid and Legal
Advice in Bombay
was set up under the pioneer chairmanship of honourable Justice
P.N. Bhagwati. He also headed the Committee on Legal Aid and Advice formed in 1950 by Bombay Government. There were 2 tests suggested by the committee in order to determine the eligibility for legal
aid:
(i)
Prima facie
test,
(ii)
Means Test.
Justice Bhagwati is recognised
as the pioneer of Legal Aid Programme in India. He adorned the Chairmanship of the Legal Aid Committee
. This Committee constituted by the Government of Gujarat was intended to devise some measures to improve legal
system for the poor. He worked relentlessly to promote legal aid programs
and awareness in rural and remote areas.
His contribution to the field has always
been an inspiration for the generations to come.
As far as the Law Commission of
India is concerned, it emphasised for the first time in its 14th Report published in 1958 on the concepts
of free legal aid and equal justice to all. The Report emphasised that the constitutional mandate of equal
opportunity to all to seek justice has no meaning
if laws do not have any protection against this. Without having any active
enactment for the same, we can
never achieve the objective of accessing justice to all sections of society. Provisions for enabling a poor man to knock the gates of justice should be made in form of paying
court fee, lawyer’s
fee, witnesses fee along with other incidental costs of litigation. The Law Commission of India, in its report
of 1958 highlighted the importance of free legal aid as legal aid programs
that are intended
to secure the interests of the poor, are the substantive issues
and not mere petty
issues of procedural law.
Access to justice and poverty are considered to be sworn enemies.12 To study the same, a Committee for Legal Aid was appointed
under the chairmanship of Justice Krishna
Iyer in 1972 to study the
relationship between law and poverty.13 Main objective was to helping the socially and economically disadvantaged people to access justice
and to mitigate the hurdles coming in their way to access justice. The main idea behind this is “to promote community
and traditional justice
systems that are relatively easily accessible to vulnerable groups,
and to make them more
compliant with Human Rights”.14 Committee
was set up to investigate all the aspects related
to free legal aid and the targeted
subject matter in an elaborative manner.15 The Committee conducted empirical survey and
submitted its report titled Processionals Justice to Poor. Report said that the real legal system is one that
enables law to reach the people and not vice versa.
Need
of incorporation of new philosophy in light of prevailing socio economic
conditions in India is must while
evolving legal aid programs in India. It further observed that conventional legal service methods that are basically
Court inclined and litigation oriented need to be evolved to meet the ever changing requirements and problems or
issues of the poor section of the
society. In 1976, again a Committee under the Chairmanship of Justice P.N.Bhagwati and Justice Krishna Iyer was
constituted to suggest available resources of executing the report on legal aid. Report was submitted In 1977
titled Public Juridicare Equivalent Equity and Social Equity. The central purpose of the report was that it believed
that we need a program which is suitable
for India’s need. Something that
reflect western mentalities or goals couldn't be very effective in our country India as just few issues of the poor can be said to be legal issues. The
12 P. Sidhva, “Legal
Aid in India: The Need for Strong Laws and High Minds”,
2 Oxford Human Rights Hub Blog (2012),
available at http://ohrh.law.ox.ac.uk/
legal-aid-in-india-the-needfor-strong-laws-and-high-minds/ (last visited
on August 2, 2021).
13Government of India, “Report Of The Expert Committee
On Legal Aid: Processual Justice To The People”, (Department of Legal Affairs,
May1973).
14 Ibid.
15 T Zainulbhai, “Justice
for All: Improving
the Lok Adalat System in India”, 34 Fordham International Law Journal (2011).
2.6.1.
131st Law Commission Report,
1988
There
has been a steep moral downfall of legal profession. There is an imminent need
to promote
and strengthen the core quality
of justice. 19 In every country, the job of legal professionals must be surveyed with
regards to the established command as set out in article 39A. It is the
main obligation of the State to see that
the general set of laws promotes equity and
equality on a premise of equivalent freedom. The job of legal professionals in
fortifying organizational equity should be in confirmation with the
objective hidden under article 39A. As such, in an adversarial legal framework, courts being the foremost flag bearer of strengthening
of justice administration, legal professionals should strive hard to ensure the same. Thus, opportunity of getting justice
ought not be denied to anyone on account of of financial
or different incapacities. Legal professional owes a duty to not let anyone
walk away the corridors of justice purely due to monetary
constraints. Similarly significant is the way that social inabilities ought not keep at bay litigants from getting equity
of which legal services is a necessary and indivisible aide. The
State, which has presented a syndication on this noble profession by allowing
it to manage its own affirmation, capability for confirmation and be the controller
of its own interior discipline, ought to so behave as bearing the cost of each
office for getting justice . To
release this commitment, legal profession should make its services accessible to those poor who
in any case can't stand
to pay the expense of their
services.
Expenses as additionally their social incapacities should not come in their way to secure justice.
In order to be successful every profession must develop its own ways,
rules and regulations which also help it to promote
the quality of services to be given.
Especially in legal
profession it is of imminent
importance that such changes are brought in society through
its services
19 Law
Commission of India, “131st Report on the Role of Legal Profession
in Administration of Justice” (August, 1988).
rendered which are in confirmation of the egalitarian goals. For these
goals, we are committed both ways constitutionally and also as
our prime policy goals. Keeping in mind these very aspects, the noble
role of Legal profession must be made clear.
Another
important aspect is building good lawyer – client relationship. In almost every profession, there will undoubtedly be a
few people who can't keep up with the elevated
expectation of the profession. At times, proof uncovers a corrupt
situation in advocate- client relationship. It is not a sole criterion to denounce the whole profession. Though, this viewpoint
can't be disregarded too. It is here the issue of credibility and responsibility of the professionals towards their clients. The heads of the Bar should show concern with the destiny
of poor people
and the impoverished and they must take up their cases for free. They
should likewise take up the job of
scrutinizing the credibility of people who don't keep up with high standards of professional norms. They should submit
themselves to social review. It is an unreasonable to expect a litigant
coming from rural or backward
regions to get what is generally anticipated of his attorney and
to gripe against that he feels
cheated and from there on to indict his protest before the Bar Council. There must be a self-regulating mechanism to take
suo- moto notice of an errant lawyer which does not require
any formal complaint to take action. This is the greatest task to perform one’s duties towards
the profession as well as the general
society. That is a difficult task. Responsibility can
be given or by an automatic component. This must likewise remember an ill-advised or amateurish conduct before
the court that would impede the overall framework.
One
important factor for consideration before the Commission was to investigate the
issue of floor and ceiling in fees chargeable by legal professionals. After considering the issue in detail, Commission was of the view that merely fixing the upper limit of fee charged
cannot solve the problem
in toto as there are bound to happen
many persons in the society who cannot afford
this prescribed fee limit and thus would face denial of justice. The fee is certainly going to be a barrier
to seek justice.
While comparing legal services with health services, Commission said that
legal profession needs to gear up with full determination in order to make article 39
A lively and effective. Like
legal profession, health sector is also in private sector. Yet, there
are several free government hospitals have been established to provide free and affordable health care services
to the poor.
Unfortunately,
till today, there is no public sector in legal profession. It is the duty and obligation of the organized legal
profession to set up its public sector unit where the services of its members would be available to those
needy who cannot afford to pay the fees for their services. Legal aid scheme operated by the Government of India
to some extent helps in this behalf.
However, concrete measures have to be taken to set up public sector clinics,
operated by members of the legal
profession, where anyone who is needy and cannot afford to pay the fees of the private sector can walk in and
not only get advice but even initiate proceedings for seeking justice.
2.6.2.
223rd Law Commission Report,
2009
The
report is very strategic and has a very crucial bearing upon the status of Legal
Aid Services. Following measures were
suggested based on the human rights perspective to meet development demands:
(i)
Human Rights forms the foundation to inclusive development demands. Poverty
is the biggest curse for a society
and its development. Injustices and
discriminations in a society act as the main catalyst
for omnipresent poverty.20
(ii)
Promoting Inclusive Participation and total
transparent process in decision making. Participation
of all ensures the feeling of connectivity in State’s activities. No one should feel alone or dejected or left out.
Feeling of oneness acts as a key component
of a vibrant democratic society.
(iii)
Non-discrimination that is equity and equality are two
main factors for maintaining development and poverty alleviation.
(iv)
Empowerment of individuals to practice their common
liberties using instruments like
lawful and political activity to gain ground in more traditional advancement regions.21 The Law Commission of India highlighted the
importance of free legal aid in a
constitutional democracy like India where a significant section of the
population has still not seen the
constitutional promises of even the very basic fundamental rights
being fulfilled for them.
(v)
Ensuring accountability of public and private
organizations to advance, ensure and satisfy common
freedoms and to be considered responsible in case these are not
20 Law
Commission of India, “223rd Report on Need for Ameliorating the lot
of the Have- nots – Supreme Court’s Judgements” (April, 2009).
21 Justice T.
Mathivanan, Judge, Madras High Court “Legal Aid Issues, Challenges and
Solutions an Empirical Study” available
at: http://www.hcmadras.tn.nic.in/legalaid-issues.pdf (last visited on July 2, 2021
Article Information
ACCESS TO FREE JUSTICE: A CRITICAL ANALYSIS OF ARTICLE 39 A OF THE CONSTITUTION OF INDIA
Authors: SHREYA BHARDWAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/03
- Issue 7
About Journal
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- ISSN 2582-6433
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