"Legal aid is really nothing else but
equal justice in action".
Legal aid is vital to a properly functioning criminal justice system.
Its purpose is to protect the very poorest members of society by
ensuring equality of arms for the accused against State-funded
prosecution. Without legal aid for the neediest defendants the entire
criminal justice system would be undermined, offering justice only to
the rich, excluding the poor from the protection of the law.
Constitution and legal aid
The Constitution of India enshrines a democratic vision of
justice in which the State will take positive steps to ensure that all
individuals have equal access to the system — "It is the duty of the
State to see that the legal system promotes justice on the basis of
equal opportunity for all its citizens. It must therefore arrange to
provide free legal aid to those who cannot access justice due to
economic and other disabilities". The right to legal aid is also set
out in the Criminal Procedure Code 1973 which explicitly covers the
situation of poverty stricken defendants: if an accused does not have
sufficient means to engage a lawyer, the court must provide one for the
defence of the accused, at the State's expense.
The courts have entrenched the rights of the accused to legal aid by
reading Article 39A into Article 21 and have rejected arguments by
state governments that financial and budgetary constraints are
legitimate reasons not to provide legal aid to its poorest citizens.
Despite the commitment shown by the courts to this principle, in order
to achieve true equality of arms in the Indian justice system further
practical reforms should be made. This article will explore the
strengthening of the right to legal aid provision through the case law
before examining some practical reforms to ensure a strong criminal
defence system
Legal aid may be granted.
- For special cases considered 'deserving' of state funding;
- For cases of great public importance
The Supreme Court decision in Maneka Gandhi v. Union of India stated
that when Article 21 provides that no person shall be deprived of his
life or liberty except in accordance with the procedure established by
law, it is not enough that there should be some semblance of procedure
provided by law, but that the procedure under which a person may be
deprived of his life or liberty should be 'reasonable, fair and just'.
These central concepts of reasonableness, fairness and justice equipped
the Supreme Court in Madhav Hayawadanrao Hoskot to state that Article
39A is an interpretative tool for Article 21 and that if a prisoner is
unable to access his right of appeal for want of legal assistance:
"there is implicit… power (in the Constitution) to assign counsel for
such imprisoned individual for doing complete justice". The Supreme
Court's commitment to equality of arms for criminal defendants is
clear: "This is a necessary incident of the right of appeal... (and)
the inference is inevitable that this is a State's duty and not
government's charity". As we will see, legal aid provision being a
State's duty rather than charity is a recurrent theme in the case law.
Having emphasised that legal assistance for a defendant is a necessity
and not a luxury and that the State is responsible for providing it,
the court stated the seemingly unobtrusive fact that: "while legal
services must be free to the beneficiary, the lawyer himself has to be
reasonably remunerated for his services". This may at first seem
obvious and unimportant. In fact, the funding of lawyers carrying out
legal aid work is crucial to ensuring true equality of arms, and
therefore a strong criminal justice system. We will examine this in
more detail later.
The Supreme Court reiterated its finding that the State is under a
constitutional mandate to provide a lawyer to an eligible accused
person under Articles 21 and 39A in Hussainara Khatoon and Others v
Home Secretary, State of Bihar. The case examined the situation of
undertrial prisoners charged with bailable offences but they either
remain in jail because no bail application has been made on their
behalf or because they are too poor to furnish bail. The Court again
emphasised that the right to free legal services is an essential
ingredient of reasonable, fair and just procedure for an accused. The
Court directed that when an under-trial prisoner is produced before a
magistrate and he has been in detention for 90 days or 60 days, the
magistrate must, before making an order of further remand to judicial
custody; point out to the undertrial prisoner that he is entitled to be
released on bail. Here we see the Supreme Court enunciating that the
responsibility and duty of the legal assistance lies with the
authorities, be they governmental or judicial, to furnish the prisoners
with their constitutional right to representation.
In Khatri and Others
v State of Bihar and Others the Supreme Court dealt with a situation in
which prisoners appearing before the judicial magistrate had not been
afforded legal aid. The judicial magistrate had not asked the prisoners
if they wanted legal aid representation and nor had the prisoners
requested it. The court expressed regret that despite their previous
orders that an accused person is entitled to legal assistance as a
constitutional right, most of the state governments had failed to
comply. The respondents argued that the State might find it difficult
to provide legal aid to prisoners due to financial constraints. The
Supreme Court rejected this argument, pointing out that a state cannot
avoid its constitutional obligations by pleading poverty. The court
also held that this right applied to the first appearance before a
magistrate and was not limited to the trial stages. "It is elementary
that the jeopardy to his personal liberty arises as soon as a person is
arrested and produced before a magistrate, for it is at that stage that
he gets the first opportunity to apply for bail and obtain his release
as also to resist remand to police or jail custody. That is the stage
at which an accused person needs competent legal advice and
representation and no procedure can be said to be reasonable, fair and
just which denies legal advice and representation to him at this
stage".
Legal aid is not available for
- Cases where the fine imposed is no more than Rs 50;
- Economic offences;
- Defamation;
- Contempt of court and perjury;
- Malicious prosecution;
- Cases involving electoral disputes;
- Individuals who are not directly concerned with the proceedings
The court stated that the right to free legal representation
would be illusory unless the prisoner was informed of that right. The
court directed that magistrates and session judges should inform every
accused who appears before them and who is not represented by a lawyer
on account of his poverty or indigence that he is entitled to free
legal services at the cost of the State. The State is under a
constitutional mandate to provide free legal aid to the accused, who is
entitled to secure legal services on account of indigence and whatever
is necessary for this purpose has to be done by the State.
Effects of lack of legal aid
Cementing the right of the poor to legal representation funded
by the State, the courts have taken a strong stance in cases where the
right has been violated. The duty of the courts to inquire whether a
defendant would like legal aid is a continuous one. In the majority of
cases where the defendant was not afforded legal representation at
trial or on appeal the courts order a re-trial. There have also been
instances where the courts have set aside convictions on the grounds
that Article 21 has been violated. These cases are, however,
distinguishable on the basis that they involve minor offences. One such
case is Suk Das v Union Territory of Arunachal Pradesh where the
accused were charged with a minor warrant offence. They were not
represented by a lawyer since they were unable to afford the fees. As a
result, the accused represented themselves at trial and cross-examined
the witnesses without legal assistance. The Supreme Court emphasised
that the magistrate or sessions judge is under an obligation to inform
the accused that if he is unable to employ a lawyer he is entitled to
legal aid paid for by the State. If the accused is not informed of his
right to legal aid by the magistrate or sessions judge this is a
violation of Article21 of the Constitution and the trial must be held
to be vitiated on account of a fatal constitutional infirmity. The
conviction and sentence recorded against the appellant were set aside.
In Hiraman Sakharam Borkar v State of Maharashtra the accused was
convicted of raping his 12-year-old granddaughter. He appealed to the
High Court that he had although been granted legal aid at the beginning
of the trial, his lawyer had withdrawn in the early stages and he was
unrepresented during the whole trial. The accused argued that Suk Das
should be followed; that his conviction should be set aside and no
re-trial ordered. The court rejected this argument and distinguished
Suk Das on the ground that the offence in that case was a minor one
whilst the offence involved in the present case was a grave crime. The
court trod a fine line between ensuring that the defendant should not
escape his conviction whilst also acknowledging the serious error of
the sessions judge in allowing the accused to go unrepresented. The
accused had already served eight years, eight months and eight days in
prison of his 10 year sentence. The court took the view that since he
had just over a year left of his sentence, combined with the grave
mistake made by the sessions court, that he should be released from
prison early.
Who is entitled to legal aid?
A person is:
- facing a charge which might result in imprisonment;
- a member of a Scheduled Caste or a Scheduled Tribe;
- a victims of trafficking in human beings or begger as
referred to in article 23 of the Constitution;
- a woman or a child;
- a mentally ill or otherwise disabled person;
- a person under circumstances of undeserved want such as being a
victim of a mass disaster, ethnic violence, caste atrocity, flood,
drought, earthquake or industrial disaster;
- an industrial workman'
- in custody, including protective custody;
- in receipt of an annual income less than Rs. 50,000 for cases in
the Supreme Court and Rs. 25,000 in other courts.
It is clear that the courts are concerned to ensure that justice is
done, whilst at the same time safeguarding the rights of the accused to
legal aid. The same is evident in Roshan @ Loshan @ Narayan s/o
Tulshiram Gedum v State of Maharashtra. The appellant had been tried
for murder in the Sessions Court. On one day of his hearing the
appellant had been in custody and his lawyer had failed to turn up to
court. The prosecution witnesses present on that day were therefore not
cross-examined. The Sessions Judge did not provide any legal assistance
to the accused on this occasion even though he was aware that no
defence was present. As a result of this the appellant submitted that
he had suffered grave injustice and that he had not received a fair
trial and the trial should be held vitiated for lack of legal
assistance. The court stated that denial of the opportunity to cross
examine the prosecution witnesses had "no doubt resulted in a
miscarriage of justice". The court held that the case be remitted to
the trial court to recall only the witnesses who gave testimony on the
day that the accused and his lawyer were absent, in order that they be
cross-examined with the assistance of a lawyer. The intentions of the
court to find a balance between protecting the defendant's right to
legal assistance and ensuring that justice is done were clear: "The
trial court should also see that the no unfair advantage is gained by
the accused in protracting the matter on the pretext of absence of his
advocate".
Money matters
From the case law on the provision of legal aid and the possible
outcomes of a failure to do so, it is clear that the High Courts and
Supreme Court are committed to upholding the constitutional right of
poor defendants to legal assistance. Despite this, the system of legal
aid needs practical reform to ensure that defendants really do achieve
equality of arms in the courtroom. Advocates taking on legally aided
cases are paid very badly. The current fee structure for legal aid
cases dates back to 1997. Advocates are paid Rs. 50 per hearing in the
magistrates court and Rs. 150 per hearing in the sessions court. If we
are to recognise, as the courts have, that legal aid is a fundamental
cornerstone of a fair criminal justice system, the fees paid to
advocates taking on legal aid cases must be increased from these measly
sums to encourage experienced lawyers to represent the poorest
defendants. Legal aid really can mean the difference between life and
death. For the poorest defendants to have truly equal standing before
the law, incentives must be given to encourage experienced and capable
lawyers to represent the most needy. The Madhya Pradesh High Court
recognised this predicament in Sagri v State of Madhya Pradesh. The
appellant was appointed a legal aid lawyer to represent him but the
advocate failed to turn up to court. The court noted that the lawyer
would be paid just Rs. 50 for representing the appellant and that,
"because of this paltry sum, no lawyer is interested in working for
such unfortunate appellants".
The Court went on to set out detailed guidelines for the remuneration
of lawyers conducting legally aided appeals, stating that Rs 250 per
appeal per day should be the proper sum for such work plus a further Rs
100 if the hearing continues into the following day. For capital cases
the sums should be Rs 400 and Rs 150. The court ordered that the state
government make the necessary funds available for the High Court to
implement these practices. In addition to raising the fees that
advocates are paid for their legal aid work, advocates should also be
able to recoup a reasonable amount of expenditure for photocopying,
printing, phone calls and internet access and other associated expenses
incurred. Furthermore, the system of payment to advocates who have
undertaken legally aided work must be reformed. There is often delay in
paying the lawyers for their work. This further dissuades advocates
from taking on legal aid cases. It is proposed that the system should
be reformed to ensure that payments are made within one calendar month
of the case closing.
The Court in Sagri v State of Madhya Pradesh also emphasised the
important fact that to ensure that poor defendants get the best legal
assistance possible the lawyer assigned must be knowledgeable and
experienced. The court directed that the court registrar appoint
advocates of at least five years practice at the Bar to represent
appellants in prison. In cases of capital punishment the court ordered
that the lawyer should have at least 10 years of experience and more
than one lawyer may be appointed if necessary. There should be a system
of accountability in the legal aid system to ensure that advocates who
volunteer to take on legal aid work do actually carry out the work they
have been assigned. One possible way of doing this would be to ask all
advocates to make an undertaking to represent their clients to the best
of their ability. If they fail or neglect to carry out their duties
there should be recourse to a disciplinary committee. Another practical
way to improve the provision of legal aid would be to set up a system
of annual review whereby the legal aid committee would assess the
performance of advocates who have undertaken legal aid work.
Conclusion
To match the courts' recognition, in theory, of the importance
of real and effective legal aid these practical solutions should be
implemented. Only then will the poorest defendants have truly equal
standing before the law.
—The writer is a lawyer with India Centre for Human rights and Law,
Mumbai
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