Provision For Legal Aid in CRPC

Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Conventionally, ‘Legal Aid’ has been understood as an organized effort of the various institutions and bodies in the legal system like the bar council, the lawyer’s community and the government to provide the services of lawyers free, or for merely a token amount, for those class of people who cannot afford costly legal service. Inability to consult or to be represented by a lawyer may amount to the same thing as being deprived of the security of law. This very basic principle of Justice 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 was propounded by Rawls. In the context of our Constitutional demands and State obligations Legal aid has assumed a more positive and dynamic role which should include strategic and preventive services.

Alleviating the incapacity of many people to make full use of the Law and the legal system per se, in short the relieving the acute Legal Poverty in India, is the main objective of the constitutional Mandate under Article 39-A of Part IV dealing with the Directive Principles of State Policy. This Provision in Part IV of the constitution was brought in by the 42nd amendment Act of 1976, it reads as under:-

“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”

Apart from the social, economic and political requirements on which the claim of legal aid rests, it is has been over the time been recognized as a constitutional imperative as is apparent from the changes made in the 42nd amendment it also has its roots back in Articles 14 (2), 21 (3), 22(4)1 of the Constitution.

Apart from the constitutional mandate there is also a specific provision for legal aid in CrPC namely s. 304 [1]

Law Commission Report

This Section only appears in the new CrPC the older code did not have this section. The Law commission in its 41st Report has observed:

“The matter has been engaging the attention of the government of India for a long time, and the need of action in the matter has been impressed upon state governments. But apparently, financial considerations have come in the way of setting up legal aid organisations or putting into effect comprehensive schemes. It is not necessary for our purpose to go in to details of the various possible schemes. But we strongly recommend that the right of the accused to representation at government expense should be placed on a statutory footing in relation to the trials for serious offences, and as a first step in this direction, we propose that such a right should be available in all trials before sessions court. The Code should also contain a provision enabling the state government to extend the right by a notification to any class of trials before other courts in the state.”

The Supreme Court in Hussainara Kathoon V. Home Secretary, State of Bihar, [2] had called upon the Government to frame appropriate scheme for providing legal aid to the poor. The following observations were made by the Supreme Court:

“We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to being about changes in their life conditions and to deliver justice to them. The poor in their contact with legal system have always been on the wrong side of the law. They have always come across ‘law for the poor’ rather than ‘law of the poor’. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services”. [3]

Significance of Legal Aid: Case laws

The Supreme Court in this case also held that the right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held to be implicit in the guarantee of Article 21. This was a case where it was found by Justice P.N. Bhagwati and Justice D.A. Desai that many under-trail prisoners in different jails in the State of Bihar had been in jail for period longer than the maximum terms for which they would have been sentenced, if convicted, and that their retention in jails was totally unjustified and in violation of the fundamental rights to personal liberty under Article 21 of the Constitution. While disclosing shocking state of affairs and callousness of our legal and judicial system causing enormous misery and sufferings to the poor and illiterate citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati, made following observations in paragraph 6 of the judgment, which are thought provoking:-

“This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programs, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service program to provide free legal services to them. We would strongly recommend to the Government of India and the State Government that it is high time that a comprehensive legal service program is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and to right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.”

Two years thereafter, in the case of Khatri v. State of Bihar [4] , Justice P.N. Bhagwati while referring to the Supreme Court’s mandate in the aforesaid Hussainara Khatun’s case, made the following comments, in paragraph 4 of the said judgment:

“It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence, and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but the law does not permit any Government to deprive its priorities in expenditure but the law does not permit any Government to deprive its citizens of constitutional rights on the plea of poverty.”

In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh, [5] Justice P.N. Bhagwati, while referring to the decision of Hussainara Khatun’s case and some other cases had made the following observations in paragraph 6 of the said judgment:-

“Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty because magnifies the impact of the legal troubles and difficulties when they come. Moreover, of their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves. The Law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programs for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor. That is why it has always been recognized as one of the principal items of the program of the legal aid movement in the country to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become merely a paper promise and it would fail of its purpose.”

It was in the above backdrop that he Parliament passed the Legal Services Authorities Act, 1987, which was published in the Gazette of India Extraordinary Part II, Section I No. 55 dated 12th October, 1987. Although the Act was passed in 1987, the provisions of the Act, except Chapter III, were enforced with effect from 9.11.1995 by the Central Government Notification S.O.893 (E) dated 9th November 1995. Chapter III, under the heading “State Legal Services Authorities” was enforced in different States under different Notifications in the years 1995-1998.

In M.H Hoskot v. State of Maharashtra, [6] the Supreme Court laid down some banning prescription for free legal aid to prisoners which are to be followed by all the courts of India, such as furnishing of free transcript of judgment in time, to the sentences; where the prisoner seeks to file an appeal for revision, every facility for exercising such right shall be made available by the jail administration and if a prisoner is unable to exercise his statutory and constitutional right of appeal including special leave to appeal for want of legal assistance, there is implicit in the court under Article 142, read along with Article 21 and 39-A of the Constitution, the power to assign counsel to the prisoner provided he does not object to the lawyer named by the court. [7]

Change in the Traditional view

The Traditional View expressed by the supreme court [8] on the interpretation of article 22(1) of the constitution is that ‘the right to be defended by a legal practitioner of his choice’ could only mean a right of the accused to have the opportunity to engage a lawyer and does not guarantee an absolute right to be supplied with a lawyer when by the state when a person can’t afford one, has now undergone a change by the introduction of the directive principle of the State Policy embodied in Art. 39 A as mention earlier. Although in the earlier decisions the court paid scant regard to the Directives on the ground that the courts had little to do with them swince they were not justiciable or enforceable, like the fundamental Rights, the duty of the Court in Relation to the directives came to be emphasized in the later decisions, [9] laying down broad propositions. One of these is that there is no disharmony between DPSP’s and the Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a Social Revolution and the establishment of welfare state, which is envisaged in the preamble. Primarily, the mandate in Art. 39-A is addressed to the Legislature and the Executive but insofar as the courts of Justice can indulge in some judicial law making within the interstices of the of the constitution or any statute before them for construction, the courts too are bound by this mandate. Read with Art. 21, the Directive Principle in Art. 39-A has been taken cognisance of by the court in few cases to lead to certain guidelines in the administration of Justice. One of these is that when the accused is unable to engage a counsel owning to poverty or similar circumstances, the trial would be vitiated unless the state offers Free legal aid for his defence to engage a counsel to whose engagement the accused does not object. [10]

Free Legal Assistance in the CrPC a Fundamental Right?

The Fundamental Rights of free legal assistance to a person accused of any offence at the cost of the State especially in cases where the offence may involve jeopardy to his life or personal liberty is implicit in the requirement of reasonable fair and just procedure prescribed by article 21 of the constitution. [11] In all democratic societies tight of hearing has been given the highest importance and in fact laws have been enacted periodically providing legal aid to the person who cannot afford professional legal service. The right of being heard cannot be taken away and the sound judicial view would be that reasonable opportunity of being heard must be provided to the accused. While considering the scope of right of hearing due consideration has to be given to this section and Arts. 21 and 39 –A of the constitution. [12] An accused having sufficient means cannot claim for legal assistance of the lawyers at the expenses of the state particularly when he has already engaged a lawyer. [13] The right to free legal aid is not dependent on the question whether the accused applies for it or not. [14] Denial of an adequately competent advocate to defend when he is unable to defend himself, is factually violation of art. 21 of the constitution. Delayed payments to the counsels engaged for the accused is also not proper.

Conclusion

Even though there is provision for Legal aid and so much importance is attached to it by the courts the most important concern= is that this right does not exist in cases which involve economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice is required that free services may not be provided by the state. As this right is subject to the condition that the guilty should have an offence charged against which would result into a sentence of imprisonment on conviction. Free legal assistance at State’s cost is a fundamental right of the person accused of an offence which may involve jeopardy of his life or personal liberty. Right to free assistance was not meant to be limitless. Such a right does not extend to to offences which are punishable with fine, regardless of whether imprisonment in default of payment of fine is expressly provided for such offences or not. Any other interpretation would lead to the right being limitless extending to the most trivial of offences [15] which would be a waste of meagre resource that should be used in much more serious cases.

Looking into its practical enforceability the free legal service should be provided by the state ot the indigent accused as it is under the constitutional mandate to do so and every state should take prompt steps in these directions. As if these services are not provided there is not only a risk of violating S. 304 of CrPC but it will also end up contravening Art. 21 of the constitution. Thus it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening art. 21 and hoped that every State Government would try to avoid such a possible eventuality. Thus the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require. Thus there must be strict measures to ensure that legal aid is actually provided in a way which preserves the essence envisaged by the Constitution as well as the specific provision in CrPC.