Effectiveness of Legal Representation and Legal Aid to under trials and

Convicts under the Statutory Legal Service Authority

I. LEGAL AID: A CONCEPTUAL DISCUSSION

Political philosopher Charles de Montesquieu remarked that, "In the state of nature...all men are
born equal, but they cannot continue in this equality. Society makes them lose it, and they
recover it only by the protection of the law." The protection of law to the weak and marginal
section is thus necessary for ensuring equal justice. Legal aid is one of the means to ensure that
the opportunities for securing justice are not denied to any person by reason of poverty,
illiteracy, etc...1

Legal aid implies giving free legal assistance to the poor and weaker sections of the society for
the conduct of a case or a legal proceeding in any court, tribunal or before an authority with the
object to enable them to exercise the rights given to them by law.

Article 39-A of the Constitution directs the State to ensure 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 Constitution of
India also makes it obligatory for the State to ensure equality before law and a legal system
which promotes justice on a basis of equal opportunity to all.3 4

Article 22 (1) of the Constitution of India further states that no person arrested shall be detained
in custody without being informed, as soon as may be, of the grounds for such arrest and nor
shall he/she be denied the right to consult, and to be defended by, a legal practitioner of his
choice.5 Thus from above it can be said that the under trials and convicts have a fundamental

1
Pooja P. Vardhan, Right to Legal Aid; A Constitutional Commitment, Press Information Bureau (Jan. 17, 2018,
10:00 a.m.), http://pib.nic.in/newsite/mbErel.aspx?relid=118011
2
Constitution of India, Art. 39A.
3
Dr. G. Mallikarjun, Legal Aid in India and the Judicial Contribution, Commonlii (Jan. 19, 2018, 1:00 p.m.),
www.commonlii.org/in/journals/NALSARLawRw/2013/13.pdf
4
Constitution of India, Art. 14 and 22(1).
5
Constitution of India, Art. 22.
right of access to legal aid and if they are not provided with the same then it amounts to violation
of fundamental right.

This essay analyses the intricacies and statutory provision of legal aid to convicts and under
trials prisoners. The researchers in this paper have discussed about the origin of free legal aid
to the mass in general as well as to the under trials and convicts. In the next couple of
chapters the researchers have discussed the judicial decisions in regard of legal aid to the
under trials and convicts and the statutory provisions in regard of free legal aid in India. At
last the researchers have given some suggestions which if implemented will change the society
for better. The researchers have relied upon Doctrinal Method of Research Methodology for
the research purpose. [The list of referred materials have been enclosed in the Bibliography]

II. ORIGIN OF LEGAL AID

Inability of an individual to get a legal advice because of paucity of money too amounts grave
injustice. Rawls first principle of justice states that each person is to have an equal right to the
most extensive total system of equal basic liberties compatible with a similar system of liberties
for all.6 Free Legal aid is hence the best method to be adopted in order to ensure that, no one is
debarred from professional advice because of lack of money or any other disability.

The Encyclopedia Britannica defines legal aid as phrase which is acquired by usage and court
decisions, a specific meaning of giving to person of limited means grants or for nominal fees,
advice or counsel to represent them in court in civil and criminal matters. Free Legal aid as a
Constitutional Right has gained popularity in the civilized states in late 20th or 21st Century, but
in fact this very constitutional right has a great historical background.

Over seven centuries ago the term “equal justice” was marked in 40th Para of Magna Carta
which stated:

“To no one will we sell,

To no one will we deny

6
John Rawls, A Theory of Justice (1st edition 1971).
 Or delay right or justice”

Thus on the green meadows of Runnymede was sown the constitutional seed of legal aid in the
modern world which has travelled to all the continents as part of civilized jurisprudence. 7

However, it was in the 20th Century when the concept of legal aid properly developed. This is
the time when the legal and jurisprudential world found legal aid important for the purpose of
delivery of justice to poor and needy, for the great well-being of the human community.

Aftermath of First World War, the concept of human right developed. League of Nations played
a vital role in it. Many conventions were passed by the League of Nations for the development of
human rights. However, none of these Human Rights Declaration mention about free legal aid.
This very right has evolved over a period of time.

Article 6 (3)(c) of the European Convention for Protection of Human Rights 1953, deals with the
right of legal aid in criminal cases whereby free legal aid is guaranteed to a person who lacks
legal assistance because of paucity of money. 8

The United Nation Conference on Prevention of Crime and Treatment of Offenders 1965 also
recognizes the right to free legal aid in criminal cases, as a tool of achieving social justice and
welfare.9 The Convent on Civil and Political Rights of 1968 also recognizes the importance the
legal aid and its importance for justice.10 Lord Denning too considered Free Legal Aid as a very
important constitutional right. 11

Hence, from above it can be said that Free Legal Aid as a right to the citizens and Legal Aid to
under trials and convicts has evolved over a period of time. Even though we do find mention of
free legal aid in Magna Carta, however, it was in the 20th century when this very constitutional
right fully developed across the civilized nations.

III. JUDICIAL HISTORY OF LEGAL AID IN INDIA:

7
Mamta Rao, Public Interest Litigation – Legal Aid and Lok Adalats, (4th edition, 2015).
8
European Convention for Protection of Human Rights 1953, Art. 6(3)(c).
9
United Nation Conference on Prevention of Crime and Treatment of Offenders 1965.
10
Convent on Civil and Political Rights of 1968.
11
Lord Denning, What Next in the Law (1st edition, 1982).
It was in the Hussainara Khatoon case wherein the Supreme Court of India for the very first time
pointed out that Article 39-A emphasized that free legal service is an inalienable element of
reasonable, fair and just‘ procedure and that the right to free legal services were implicit in the
guarantee of Article 21.12

Two years later, in the case of Khatri v. State of Bihar,13 the court held that the state is
constitutionally bound to provide free legal aid not only at the stage of trial but also when the
accused is first produced before the magistrate or remanded from time to time and that such a
right cannot be denied on the ground of financial constraints or administrative inability or that
the accused did not ask for it.14

In the case of Suk Das v. Union Territory of Arunachal Pradesh,15 Justice P.N. Bhagwati,
emphasized the need for creating legal awareness to the poor as they are unaware of their rights
more particularly right to free legal aid. He further observed that in India most of the people are
living in rural areas and are illiterates. Thus, they are not aware of the rights conferred upon them
by law. Hence, promotion of legal literacy becomes important.

In the case of State of Maharashtra v. Manubhai Pragaji Vashi, the Supreme Court made it clear
that the failure to provide free legal aid to an accused at the cost of the State unless refused by
the accused itself would vitiate the trial. Whereas in M.H Hoskot v. State Of Maharashtra,16
Justice Krishna Iyer observed that providing free legal aid is the State's duty and not
Government's charity.

IV. STATUTORY PROVISIONS OF FREE LEGAL AID IN INDIA TO UNDER TRIALS

AND CONVICTS:

There are many statutory provisions in regard of legal aid in India. Article 39A of Constitution of
India, states that the State shall secure that the operation of the legal system which shall
promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid,

12
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
13
Khatri v. State of Bihar, AIR 1981 SC 262.
14
Id.
15
Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991.
16
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
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.17

Article 14 and 22(1) also makes it obligatory to the state, to provide equality before law and legal
system, which provides for justice based on equal opportunity to all. And the constitutional spirit
is fulfilled, with equal justice available to the poor.18

Article 22 (1) of the Constitution of India states that no person arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such arrest and nor shall
he/she be denied the right to consult, and to be defended by, a legal practitioner of his choice. 19

Apart from that there are also provisions in Cr.P.C which aims for providing legal aid to the
poor, convicts and under trial prisoners. Section 304 of Code of Criminal Procedure reads as
follows:

Legal aid to accused at State expense in certain cases:

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the Court that the accused has not sufficient means to engage a pleader,
the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules
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 fees 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

17
Constitution of India, Art. 39 A.
18
Supra note 4.
19
Constitution of India, Art. 22(1).
of trials before other Courts in the State as they apply in relation to trials before Courts of
Session.20

However, after sometimes it was felt these provisions were not sufficient enough. Therefore, the
government enacted the Legal Services Authorities Act in 1987. This act provides for legal aid
how to be made, whom to be made, and who are eligible to get the legal aid. National Legal
Services Authority (NALSA) is entrusted with responsibility to provide legal aid inter-alia to all
persons in custody.

This act further creates a hierarchy of authorities from Center to Taluk level for the purpose of
providing free legal aid to the weaker section of the society. This act also has provisions for Lok
Adalat [Section 19-22]. Lok Adalat has been created for settling petty offences out of the court.
This will help in reducing the burden of courts and will also help people in getting their matter
disposed of earlier. These statutory provisions are important because legal aid and equality
before the court of law are very important in order to achieve the goal of justice, which is the aim
of Indian legal system.

V. CONCLUSION AND SUGGESTIONS:

Legal aid to under trials and convicts is not a charity or bounty, but is an obligation of the state
and a fundamental right of the accused. The prime object of every state is equal justice for all.
This can only be achieved if the poor illiterate people [Including the under trial Prisoners and
Convicts] are imparted with legal knowledge and are provided with free legal aid.

Even today in the 21st century people are not aware of their basic human rights. This is one of the
reasons why the legal aid movement has not yet achieved its goal. Due to the absence of legal
awareness the under trial prisoners and convicts are often exploited and deprived of their rights.
Thus it is the need of the hour that the poor illiterate people should be imparted with legal

20
Code of Criminal Procedure, 1973, Sec. 304.
knowledge and should be educated about their basic rights which should be done from the grass
root level. 21

There are number of precedents as well as legislations to up hold the right to legal aid to the
convicts and under trial prisoners but they have just proven to be a myth for them 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.22

21
Prof. Marathe & Dr. Choudhary, Constitutional and Legal Framework of the Right to Free Legal Aid in India,
Epitome Journals, Vol.2 Issue 9, September, 2016.
22
Id.
 BIBLIOGRAPHY

The researchers have consulted following sources to complete the research paper:

1. CONSTITUTION OF INDIA

ACTS AND STATUTES:

1. Code of Civil Procedure, 1908.

2. Code of Criminal Procedure, 1973.

3. Legal Services Act, 1987.

BOOKS:

1. Rao Mamta, Public Interest Litigation: Legal Aid and Lok Adalat, Eastern Book Company,
Lucknow (2nd edition).

2. Basu D.D., Commentary on Constitution of India, Vol.3, Lexis Nexis (8th edition)

3. Shukla V.N., Constitution of India, Eastern Book Company, Lucknow (12th edition).

4. Jain M.P., Indian Constitutional Law, Lexis Nexis (7th edition).

ARTICLES:

1. Prof. Marathe & Dr. Choudhary, Constitutional and Legal Framework of the Right to Free
Legal Aid in India, Epitome Journals, Vol.2 Issue 9, September, 2016.