Updated: Aug 18, 2021
Fundamental rights – Public interest litigation; Legal Aid; Legal services authority | UPSC Law Optional Topic 2 under Constitutional Law | Paper 1
The horizon of ‘Legal aid* has been widened best, still the impact is totally missing. How would you resolve this crisis which is ruining the life of millions of poor people of our country over the years ? Suggest some concrete measures to make it more effective and implementative .2015 LAW UPSC.
CONCEPT : Legal aid is free legal assistance. TO WHOM ? to the poor and weaker sections of the society. WHY with the object to enable them to exercise the rights given to them by law.
HOW IS IT BEING SECURED :
International Covenant on Civil and Political Rights : Art. 14(3)(d) guarantees to everyone: “Right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”
CONSTITUTION OF INDIA : PREAMBLE- ART 14-21-22-39-39(A)
The preamble of the Constitution secures to its citizen, social, economic and political justice.
ART.14 : equal justice is meaningless if the poor or illiterate or weak persons cannot enforce their rights coz of their poverty or illiteracy or weakness.
ARTS. 14 and 22 (1) : makes it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all.
ART.21 : Right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution. It forms the basis of reasonable, fair and just liberty
ARTS. 38 and 39 : 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.
CrPC : Sec.304 = to provide legal assistance to a person charged with offence triable before the Court of Session- if not represented by a pleader + no sufficient means to do so.
CPC: Order 33 = indigent and dependent person --- shall not be liable to pay court fee and in case he is not represented by a pleader, the Court may, if the circumstances of the case so requires, assign a pleader to him.
STATUTORY LAW :The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes.
BRUSH UP WITH IMPORTANT CASE LAWS:
#1 - Hussainara Khatoon v. State of Bihar :
"Article 39-A Emphasized that free legal service was an inalienable element of reasonable, fair and just‘ procedure and that the right to free legal services was implicit in the guarantee of Article 21"
#2 - Khatri v. State of Bihar :
"the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are 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. Magistrates and Sessions Judges must inform the accused of such rights"
#3- Doing Complete Justice! M.H. Hoskot v. State of Maharashtra:
If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice'.
#4 - State of Haryana v. Darshana Devi :
the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC.