Fundamental Right to Legal Aid
Fundamental Right To Legal Aid Of The Accused Vis A Vis Legal Ethics Of Advocates: Indian Criminal Justice System
It is common knowledge now that thousands of under trials and accused are hanged to death or sentenced for life imprisonment only because they cannot afford adequate legal representation. I am writing this research paper under the category:
Sub Theme V - Human Rights Advocacy, Legal Aid and Ethics
(i) Role of the Union
This research paper completely fits into sub theme V as the paper deals with legal aid which is not being provided by the Union of India to the needy. The same is leading to gross human right violations as the number and quantity of undertrials in prisons is increasing every day. Also the sub category of Role of Union is also being mandated in the present case as the paper shall be proposing certain reforms which the central government could execute to ensure that quality legal representation is being given to the needy and poor.
I would be highlighting through this paper, the inadequacies of the Central Government in India due to which a lot of people who were not even guilty of the crime framed for, are suffering in the prisons. It is very evident that the privileged one, easily escape the prisons because of the money power through which they get adequate legal representation whereas the accused who cannot afford the same quality of legal representation has to suffer even after being innocent. Right to be represented through a lawyer remains one of the most basic and essential right of human beings. It could be easily stated that this basic human right is being violated at mass through the present legal system.
The state has not mandated the taking up of legal aid cases as a compulsion in any case for any class of advocates. The same has been done to ensure that the right to freedom of profession of advocates is not violated. Although, the problematic is that advocates in our country do not take up legal aid cases voluntarily in order to serve the society. As a result of this the state has been largely unsuccessful in providing legal aid to the needy. In order to remedy this situation, many Non Governmental Organizations and Human Rights activists have raised the issue that the government should make taking of a specified number of legal aid cases mandatory for the advocates. I shall be critically examining this proposal and also the existing situation through my paper. The important issues which would be raised through this paper are:
1. Whether the state has been able to discharge its co relative duty of providing legal aid for the accused criminals which is a fundamental right guaranteed?
2. Whether taking up of a certain number of legal aid cases should be made mandatory for all the advocates?
3. Whether the fundamental right of one section of the society can be infringed in order to do justice for the larger section of the society?
2. Structure & Chapterisation Of This Research Paper
I have used a purely doctrinal method in writing this research paper and the research tools used have been the NALSAR Library, manupatra and search engines like google on the internet. The paper has started by introducing the topic along with mentioning some of the important questions which I have tried to raise through this paper. In chapter 3, the fundamental right of the indigent citizens to get legal representation has been discussed by quoting from some of the apex court decisions for the same. In chapter 4, the advocate`s fundamental right of profession and his/her choice of taking up selected cases has been dealt with. In chapter 5, the mechanism which has been presently instituted like the Legal Services Authority Act, 1987 has been discussed. Finally, the research paper sums up by providing for a possible solution to the entire problem.
3. Fundamental Right & Human Right Of The Accused To Get Legal Aid Under Article 21 Of The Indian Constitution.
The Apex Court of the country has read right to legal aid as one of the fundamental rights of all the citizens who due to poverty cannot afford legal representation. The same has been mandated through an expansive interpretation of Article 21 of the Indian Constitution. Article 39 A of the Indian Constitution also talks about legal aid and equal justice opportunities. Although, this right under Article 39A is non justiciable and non enforceable in a court of law. Therefore, it is evident that the state has a co relative duty of providing this legal aid to all the citizens who are not able to provide for adequate legal representations for themselves.
4. Advocate `S Right To Freedom Of Profession & Arguments Raised By Advocates For Denying Cases Of Indigent Accussed: Counter Viewpoint And Whether The Advocates Are Complying Legal Ethics In The Present Scenario
The advocates have a fundamental right to freedom of profession as mandated by the Constitution. The guarantee under Article 19(1)(g) extends to practicing any profession, or to carry on any occupation, trade or business. It is also settled position of law that the citizens of the country cannot be forced into any particular employment and every citizen of the country has full freedom of entering into any profession and regulating the same. Right to livelihood and right to means of income has also been read as a fundamental right guaranteed to the citizens under Article 21 of the Indian Constitution. Therefore, it is of no doubt that even the advocates have a fundamental right to practice advocacy in the manner that they want. The state has to ensure that this right is not taken away and they are not forced up to take any case which they don't feel like doing.
It will be apt for me to quote some instances from the American Jurisprudence which affirms this view that legal aid cases should not be made compulsory for any class of advocates. The American Bar Association proposed new Model Rules for Professional Conduct and inserted a “mandatory pro bono service” provision. The same had to be scrapped down because of the heated opposition by the legal profession. The Rules were then amended and the provision was thus made voluntary urging the lawyers to on their own provide a minimum of 50 hours towards pro bono litigation. Any attempt to compel personal conscience is seen as incompatible with, and thus destructive of the very essence of professionalism.
Therefore, in light of the above arguments it would be safe for me to conclude that it is important in a rights based society that this right of freedom of profession and choice to advocates should not be curtailed under any circumstance and taking up of legal aid cases should be left only at the volition of an advocate.
5. Present Legal Mechanism For Providing Legal Aid To Accused: Gross Neglect Of Human Rights
The problem which exists is that the state expects too highly out of the advocates and has left the duty of providing legal aid on this anticipation that the advocates would be socially inclined and shall engage in pro bono services. If the state claims to be a rights based society then it has to make sure that rights of both advocates and indigent citizens needing legal representation shall be protected in a concurrent manner. One of the major reasons why advocates in India have refused to take up legal aid cases is because the state has prescribed a very low fee which is to be paid by the state in return of the legal aid extended by the advocates.
Bar Council of India also provides rules/ethics for Advocate in providing Legal Aid. It has been stated in one of the bar council rules that every Advocate shall in practice of the profession of law, bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligation an advocate owes to the society.
Although, it is imperative for me to also state another bar council rule which provides that an advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. This clearly means that the fee which is liable to be paid to the advocate has to be consistent with his standing at the bar and could not be any random fees prescribed by the state. It has also been held by the apex court of the country that providing legal aid to accused is a State's duty and not Government's charity, while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. It further held in the same case that the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner.
Therefore, it is evident that if that state wants to allow for freedom of profession and at the same time insure that voluntary participation of advocates in legal aid takes place, it has to ensure that the fees provided in lieu of legal aid to the advocates is not merely a token money but a fee which is reasonably appropriate and commensurate to the quality and quantity of work being done by the advocate.
6. Jurisprudential Thought Over The Raised Issues.
A duty or a legal obligation is that which one ought or ought not to do. “Duty” and “right” are co relative terms. When a right is invaded, a duty is violated. The right of one entity automatically means that a duty will fall on some other entity to fulfill this right. In the present context, the state has the duty towards both the indigent citizens who cannot provide for legal representations for themselves and the advocates who have a right to freedom of profession. Although, the state in the former has a positive obligation towards the state i.e. it is duty bound to provide legal aid in appropriate cases whereas in the latter category has a negative obligation i.e. it is duty bound to make sure that no act of state takes away the freedom of profession of the advocates.
Conventional lawyers and politicians take it as a point of pride that our legal system recognizes, for example, individual rights of free speech, equality and due process. If we cannot insist that the government reach the right answers about the rights of it citizens, we can insist at least that it try. A right against the Government must be a right to do something even when the majority thinks it would be wrong to do it, and even when the majority would be worse off for having it done. The state cannot take the excuse that since the majority of the population i.e. the indigent citizens needing legal representation would be benefited, therefore the lawyers could be mandated to take up legal aid cases and hence fulfill one duty at the cost of another. The utilitarian approach towards issues concerning fundamental rights has been completely rejected by jurisprudential scholars.
7. An Alternative Model Which Might Redress The Human Rights Violations To A Large Extent
It is true that the task of providing legal aid to all the people who cannot afford legal representation for themselves is a very difficult and onerous obligation lying on the state. It is also agreed that while carrying out this duty, there could remain certain loopholes in the process due to which complete obligation of the state is not discharged. But, the problem is that the Indian Government has by and large not been able to provide legal aid on a consistent basis to the needy citizens.
One of the major problems in the entire system of provisions of legal aid is that the state is expecting too much from the advocates in terms of their moral obligation. It is true that the advocates gain a lot out of the profession but it is also true that every case involves substantial expenditure which has to be met by the advocate appointed for the case as the accused/party is an indigent. There remains a plethora of cases where the legal aid lawyer which was appointed for an indigent accused/party could not represent his/ her case intentionally because the advocate thought that he/she is not getting good enough fee for the case.
I shall like to conclude by saying that if the Indian Government is serious about providing the right to legal aid to the indigent citizens of our country then it cannot merely anticipate that the advocates shall be duty bound by their morals and therefore keep taking up legal aid cases. It will also not be feasible if the state makes it compulsory for advocates to take a specific number of legal aid cases as the same shall violate their freedom of profession which is also a fundamental right in the strong sense provided to the advocates.
One of the possible ways in which quality legal aid along with a higher frequency of the same could take place is when the fee prescribed would be much higher then what is presently being provided for this service to the advocates. It would definitely mean a higher burden on the state`s exchequer but that would be one of the costs that our society has to pay for ensuring this vital fundamental right to the needy citizens. Another, interesting strategy which could be adopted is the awarding of bar credits to the lawyers who represents the indigent parties in the legal aid cases. This shall ensure that an incentive in the form of bar credits is given to the advocates in return of the service they provide along with a nominal fee. These credits could be later used to get promotion at bar like from advocate to senior advocate or to enter into judiciary along with the written examination which takes place. This alternative would not burden the state` s exchequer with additional cost and at the same time the advocates would be provided for incentive to take up legal aid cases. I must state that the feasibility of these options are yet to be tested through empirical research.
Law, Poverty and Legal Aid: Access to Criminal Justice, by S Muralidhar, Lexis Nexis, New Delhi.
American Bar Foundation Research Journal, “The Lawyer's Pro Bono Publico Responsibility”, by Barlow F Christensen ,Vol. 6, No. 1 (Winter, 1981), pp. 1-19.
Taking Rights Seriously, by Ronald Dworkin, Fourth Indian Reprint 2008, Universal Law Publishing House, Delhi.
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, by Wesley Newcomb Hohfeld, 23 Yale Law Journal 16.
Constitution of India
Bar Council of India Rules issued under the Advocates Act, 1961
Case Laws -
Hussainara Khatoon v. State of Bihar, MANU/SC/0121/1979
Khatri v. State of Bihar, MANU/SC/0518/1981
Saghir Ahmed v. State of U.P., (1955) 1 SCR 707
Saudan Singh v. N.D.M.C., AIR. 1989 S.C. 1988
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
Delhi Transport Organisation v. D.T.C Mazdoor Union, AIR 1991 SC 101
Workmen of Meenakshi Mills v. Meenakshi Mills, AIR 1994 SC 2696
MH Hoskot v. State of Maharashtra, AIR 1978 SC 1548
T Suthendraraja v. Tamil Nadu, 1995 CriLJ 1496