LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHANAKYA NATIONAL LAW

UNIVERSITY

Final draft for fulfilment of project of Alternate Dispute Resolution

On

“LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM”

Submitted to: - Mr. Hrishikesh Manu

Faculty of Alternate Dispute Resolution Submitted by: Kartikay Trivedi
Roll no.1532
3rd year B.A. LL.B. (Hons.)

Page 1 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

TABLE OF CONTENTS

RESEARCH METHODOLOGY ................................................................................................ 4

CHAPTER 1- INTRODUCTION ................................................................................................... 5
CHAPTER 2 – CONSTITUTIONAL PROVISIONS DEALING WITH LEGAL AID ................ 8
CHAPTER 3 – RIGHT TO FREE LEGAL AID AND CONTRIBUTION OF JUDICIARY ..... 11
CHAPTER 4 – LEGAL AID: STATUTORY RECOGNITION .................................................. 14
CHAPTER 5 – CONCLUSION, CRITICISM AND SUGGESTIONS ....................................... 16
BIBLIOGRAPHY ......................................................................................................................... 18

Page 2 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

ACKNOWLEDGEMENT

I would like to thank my faculty Mr. Hrishikesh Manu without the kind and support of whom the
completion of the project would have been a herculean task for me. He took out time from his busy
schedule to help me to complete this project and suggested me from where and how to collect data.

Acknowledges are also due to my friends who gave their valuable and meticulous advice which
was very useful in writing the project.

I would also like to express my gratitude towards the library staff for working long hours to
facilitate us with required material going a long way in quenching our thirst for education.

I would also like to express my gratitude towards my parents and all those unseen hands who
helped me out at every stage of my project.

KARTIKAY TRIVEDI

Page 3 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES-

The research will do the research to understand the role of Legal Aid in Criminal Justice System.

HYPOTHESIS-

The researcher strongly believes that Legal Aid is to help the poor and needy people to get justice
and there are various provisions regarding it in our Constitution and Criminal Law.

METHOD OF RESEARCH-

The researcher will emphasize and use the doctrinal method to prepare the project.

SOURCES-

Primary Sources-

 Books
 Websites

Secondary sources-

 Journals
 Articles

Page 4 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHAPTER 1- INTRODUCTION

Legal aid to the poor and weak is necessary for the preservation of rule of law which is necessary
for the existence of the orderly society. Until and unless poor illiterate man is not legally assisted,
he is denied equality in the opportunity to seek justice. Therefore as a step towards making the
legal service serve the poor and the deprived; the judiciary has taken active interest in providing
legal aid to the needy in the recent past. The Indian Constitution provides for an independent and
impartial judiciary and the courts are given power to protect the constitution and safeguard the
rights of people irrespective of their financial status. Since the aim of the constitution is to provide
justice to all and the directive principles are in its integral part of the constitution, the constitution
dictates that judiciary has duty to protect rights of the poor as also society as a whole.1

The judiciary through its significant judicial interventions has compelled as well as guided the
legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest
sections of the society. Public Interest Litigation is one shining example of how Indian judiciary
has played the role of the vanguard of the rights of Indian citizens especially the poor. 2 It
encouraged the public spirited people to seek justice for the poor. For that Supreme Court relaxed
procedure substantially. Apart from Public Interest Litigation and judicial activism, there are
reforms in the judicial process, where it aims to make justice cheap and easy by introducing Lok
Adalat system as a one of the methods to provide free legal aid and speedy justice at the door steps
of the poor. In this article the author highlights the importance of free legal aid in a constitutional
democracy like India where a significant section of the population has still not seen the
constitutional promises of even the very basic fundamental rights being fulfilled for them.
Inability to consult, engage or represented by a lawyer during any kind of legal proceedings in
courts, government offices, authorities and departments etc. for defending or prosecuting a
person's legal rights and obligations may amount to the same thing as being deprived of the
security and equal protection of the laws.3

1
http://www.epitomejournals.com/VolumeArticles/FullTextPDF/169_Research_Paper.pdf
2
http://ijlljs.in/wp-content/uploads/2016/07/cpl1_FINL.pdf
3
http://www.commonlii.org/in/journals/NALSARLawRw/2013/13.pdf

Page 5 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

Each one should have an equal right to the most extensive system of basic liberties compatible
with a similar system of liberties for all. One need not be a litigant in the court to seek aid by
means of legal aid. Legal aid or help should be available to anybody on the road, workplace and
even in his house. Due to a multitude of factors such like illiteracy, destitution, absence of
knowledge of rights and corruption heading the list, disadvantaged groups remain largely invisible
to the formal legal system and therefore, continue to suffer the substantive inequalities that plague
their lives.4The Indian Constitution has put in place a legal system which endeavors to protect the
rights of everyone.

However, one must realize that existence of rules and regulations and law is one thing and its
implementation is another. As per the Preamble of the Constitution, the people of India have given
themselves a Constitution which constitutes India a sovereign, socialist, secular, democratic
republic which secures to all its citizens justice—social, economic and political, liberty of thought,
expression, belief, faith and worship; equality of status and of opportunity; and to promote among
them all fraternity assuring the dignity of the individual and the unity and integrity of the
nation.5The Constitution has defined and declared the common goal for its citizens in its Preamble.
The eternal value of constitutionalism is the rule of law which has three facets, i.e., rule by law,
rule under law and rule according to law. Under Constitution, it is the primary responsibility of
the state to maintain law and order so that the citizens can enjoy peace and security. In the context
of constitutional demands and state obligations, legal aid has assumed a more positive and dynamic
role which must include strategic and preventive services.6 Relieving ‘legal poverty’, i.e., the
incapacity of many people to make full use of law and its institutions has now been accepted as a
function of a ‘welfare state.’

Apart from the social, economic and political requirements on which the claim of legal aid rests,
it is now recognized as a constitutional imperative arising under articles 14, 21, 22(1) and 39A of
the Constitution as well as under different statutes and legislations which also derives their powers
from the constitution. The Constitution guarantees ‘Right to Constitutional Remedies’ as a

4
http://janhitlaw.in/K-%20113%20LEGAL%20HISTORY%20by%20Mr.%20Zeshaan%20Sir.pdf
5
http://www.slideshare.net/suvamsinha91/charter-of-1726
6
http://www.legalservicesindia.com/article/article/development-of-adalat-system-during-the-time-of-warren-
hastings-252-1.html

Page 6 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

fundamental right. The system as guaranteed above under Constitution w.e.f. 26 January, 1950
worked satisfactorily in the initial years. However, with the rapid growth and boom in population
over the years, it was being felt that the justice delivery mechanism of the Indian society and Indian
polity was costly for the poor, the laws a little too complex for the illiterate to understand and the
procedure is as slow to bring about instant relief.7

7
http://www.realityviews.in/2010/04/part-9-indian-legal-history-judicial.html

Page 7 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHAPTER 2 – CONSTITUTIONAL PROVISIONS DEALING WITH

LEGAL AID

Under, Art. 14 fundamental rights of the constitution of India provide that the state shall not deny
to any person equality before the law or equal protection of the laws within the territory of India.
Equality before law necessarily involves the concept that all the parties to a legal proceeding must
have an equal opportunity of access to the court and of presenting their cases to the court.
Therefore, under Article 14, rendering legal services to the poor litigant is not just a problem of
procedural law but a question of a fundamental character. Under Art. 21 of the constitution of India
provides the fundamental right including the protection of life and personal liberty. This right
cannot be taken away except by procedure established by law. A procedure is fair and just only
when it follows the principles of natural justice.

Right to hearing is an integral part of natural justice. If the right to counsel is essential to fair trial
then it is equally important to see that the accused has sufficient means to defend themselves.
Further counsel for the accused must be given time and facility for preparing the defence. Breach
of these safeguards of fair trial would invalidate the trial and conviction, even if the accused did
not ask for legal aid. Article 22(1) provides that a person arrested should not be detained in custody
without being informed of the grounds for such arrest and should not be denied the right to consult
and be defended by a legal practitioner of his choice.8

Article 38 provides that the State should strive to promote the welfare of the people by securing
and protecting as effectively as it may be a social order in which justice: social, economic and
political shall inform all the institutions of national life. Art. 39 (A) is inserted by constitution
(forty second amendment) Act, 1976, it provides equal justice and free legal aid. It states that the
state shall secure that the operation of the legal system promote justice, on a basic of equal
opportunity and shall in particular, provide free legal aid, by suitable legislation or scheme or in
any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economics and other disabilities. Article 39 A of the Constitution of India provides for

8
http://www.slideshare.net/suvamsinha91/charter-of-1726

Page 8 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a
legal system, which promotes justice on the basis of equal opportunity.

 Objective Behind Article 39A

GRANVILLE AUSTIN9 said “Seeking justice in court was expensive for the common man, often
prohibitively so. Two reasons were the cost of the lawyer, and the existence of the fee system
under which the litigant had to pay a fee to register his case. This had to change the law commission
said indicating out that that India was the lone countries under the modern system of government
that prevents a person who has been deprived of his property or whose legal rights have been
encroach on from seeking recompense by imposing tax on the remedy he seeks. Fees for the
petitioner acting under Article 32 and Article 226 of the Constitution ought to be low, if not
minimal , the Commission suggested , but did not recommend stopping the practice altogether.
Fees calculated according to the damages sought are still charged, with the exception of the fee of
the two hundred and fifty rupees charged for approaching the Supreme Court under Article 32 –
its original jurisdiction over the fundamental rights.

The Law Commission advocated legal aid, so that the poor could afford a lawyer. Citing the
Preamble’s pledges and Article 14’s assurance of equality before law and equal protection of the
law, the Commission said that “In so far as a person is unable to obtain access to a court of law for
having his wrongs redressed, or for defending himself against a criminal charge, justice becomes
unequal and laws meant for the poor man’s protection having no meaning. Legal aid should be
available for all and not be confined to those “normally closed” as poor. Those unable to pay
should get aid free others would pay on the graduated scale. With this recommendation, as with
many others, the Fourteenth Report would be far ahead of its time- and consequently ignored.10

The scope of Article 39A is envisaged by the Supreme Court of India in Air India Statutory
Corporation v. United Labour Union,11 that Article 39A furnishes beacon light that justice is done
on the basis of equal opportunity and no one is denied justice by reason of economic or other

9
Austin Granville, WORKING A DEMOCRATIC CONSTITUTION(2003 edn, Oxford University Press, USA
2000) 141
10
Durga Das basu, Commentary on the Constitution of India(a comparative treatiseon the universal principles of
justice and constitutional government with special reference to the organic instrument of india (8 edn, LexisNexis)
4097
11
AIR[ 1997] SC 645: [1997] 9 SCC 377: [1997]1 LLJ 113

Page 9 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

disabilities. Again in Abdul Hasan v. Delhi Vidhyut Board,12 it was held that “it is emphasized
that the legal system should be able to deliver expeditiously on the basis of equal opportunity and
provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities.13

12
AIR 1999 Del.80.
13
Ibid 10, pp 4097,4098

Page 10 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHAPTER 3 – RIGHT TO FREE LEGAL AID AND CONTRIBUTION OF

JUDICIARY

The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of Hussainara Khatoon14 where the
petitioner brought to the notice of Supreme Court that most of the under trails have already under
gone the punishment much more than what they would have got had they been convicted without
any delay. The delay was caused due to inability of the persons involved to engage a legal counsel
to defend them in the court and the main reason behind their inability was their poverty. Thus, in
this case the court pointed out that 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.

Two years later, in the case of Khatri v. State of Bihar ,15 the court answered the question the right
to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It held that
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.
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 implicit in the guarantee of Article 21 and the
State is under a constitutional mandate to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so require…The State cannot avoid this
obligation by pleading financial or administrative inability or that none of the aggrieved prisoners
asked for any legal aid.

In Suk Das v. Union Territory of Arunachal Pradesh,16 Justice P.N. Bhagwati, emphasized the
need of the creating the legal awareness to the poor as they do not know the their rights more

14
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
15
Khatri v. State of Bihar, AIR 1981 SC 262.
16
AIR 1986 SC 991.

Page 11 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

particularly right to free legal aid and further observed that in India most of the people are living
in rural areas are illiterates and 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 they are not approaching a lawyer for consultation and advice. Moreover,
because of their ignorance and illiteracy, they cannot become self-reliant and they cannot even
help themselves. That is why promotion of legal literacy has always been recognized as one of the
principal items of the program of the legal aid movement in the country. I would say that even
right to education would not fulfill its real objective if education about legal entitlements is not
made accessible to people and our constitutional promise of bringing justice to the door steps of
the people would remain an illusion.

Justice Krishna Iyer, who is crusader of social justice in India, had rightly said that if a prisoner
sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of
appeal inclusive of special leave 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, the power to
assign counsel for such imprisoned individual for doing complete justice.17

It is a statutorily recognized public duty of each great branch of government to obey the rule of
law and uphold the tryst with the constitution by making rules to effectuate legislation meant to
help the poor.18 Though the law has been enacted to protect the poor the governments are lazy to
implement the enacted law. The same was observed by Supreme Courtin State of Haryana v.
Darshana Devi,19 that 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. The state of Haryana,
mindless of the mandate of equal justice to the indigent under the magna carta of republic,
expressed in article 14 and stressed in article 39A of the constitution, has sought leave to appeal
against the order of the high court which has rightly extended the 'pauper' provisions to auto-
accident claims. Order XXXIII will apply to tribunals, which have the trappings of the civil
court‖…even court also expressed its poignant feeling that ―no state has, as yet, framed rules to
give effect to the benignant provision of legal aid to the poor in order xxxiii, rule 9A, civil

17
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 81.
18
Order 33, Rule 9A,Code Civil Procedure,1908.
19
AIR 1972 SC 855.

Page 12 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

procedure code, although several years have passed since the enactment. Parliament is stultified
and the people are frustrated. Even after a law has been enacted for the benefit of the poor, the
state does not bring it into force by willful default.

Page 13 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHAPTER 4 – LEGAL AID: STATUTORY RECOGNITION

Though there was a statutory procedure providing free legal aid20 by appointing the advocate for
defending criminal case and by exempting court fees in civil cases, it was not really making any
significant impact on the ability of the underprivileged people to get the judicial redressal for their
grievances. Hence under tremendous constitutional persuasion from the Supreme Court the Legal
Services Authorities Act, 1987 was passed by the parliament of India. The Act prescribes the
criteria for giving legal services to the eligible persons. It makes a person eligible for assistance
under the act if he is –

(a) A member of a Scheduled Caste or Scheduled Tribe;

(b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the

Constitution;

(c) A woman or a child;

(d) A mentally ill or otherwise disabled person;

(e) 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; or

(f) An industrial workman; or

(g) In custody, including custody in a protective home or in a juvenile home

(h) Of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of
section 2 of the Mental Health Act, 1987; or

20
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure.Section 12 of
the Legal Services Authorities Act, 1987.

Page 14 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

(i) A person whose annual income less than rupees fifty thousand or such other higher amount as
may be prescribed by the State Government.

This limit on income can be increased by the state governments.

Limitation as to the income does not apply in the case of persons belonging to the scheduled castes,
scheduled tribes, women, children, handicapped, etc. Thus by this the Indian Parliament took a
step forward in making the legal aid possible in the country.

According to the Act the 'court' is a civil, criminal or revenue court and includes any tribunal or
any other authority constituted under any law for the time being in force, to exercise judicial or
quasi-judicial functions.21 Under the Act 'legal service' includes the rendering of any service in the
conduct of any case or other legal proceeding before any court or other authority or tribunal and
the giving of advice on any legal matter.

Legal Services Authorities after examining the eligibility criteria of an applicant and the existence
of a prima facie case in his favor provide him counsel at State expense, pay the required Court Fee
in the matter and bear all incidental expenses in connection with the case. The person to whom
legal aid is provided is not called upon to spend anything on the litigation once it is supported by
a Legal Services Authority.

21
Section 2(1) (a) of the Legal Service Authority Act,1987. 13 Section 2(1)(c) of the Legal Service Authority
Act,1987.

Page 15 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

CHAPTER 5 – CONCLUSION, CRITICISM AND SUGGESTIONS

Legal aid is not a charity or bounty, but is an obligation of the state and right of the citizens. The
prime object of the state should be ―equal justice for all‖. Thus, legal aid strives to ensure that the
constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the
downtrodden and weaker sections of the society. But in spite of the fact that free legal aid has been
held to be necessary adjunct of the rule of law, the legal aid movement has not achieved its goal.
There is a wide gap between the goals set and met. The major obstacle to the legal aid movement
in India is the lack of legal awareness. People are still not aware of their basic rights due to which
the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which
leads to exploitation and deprivation of rights and benefits of the poor. Provisions of Criminal
Procedure Code play a vital role in the practical applicability of legal aid in India till Legal Services
Authorities came into force in 1995. Because of its importance the Legal Aid under various statutes
in India and their judicial interpretation with regard to legal aid. In most of the instances courts
have interpreted and stated that trial is vitiated and conviction has to be set aside when there is no
advocate for the accused i.e. implying that appointment of legal aid advocate is mandatory.
Thus we can find a paradigm shift in the approach of the Supreme Court towards the concept of
legal aid from a ‘duty of the accused to ask for a lawyer’ to a ‘fundamental right of an accused to
seek free legal aid’. But in spite of the fact that free legal aid has been held to be necessary adjunct
of the rule of law, the legal aid movement has not achieved its goal. There is a wide gap between
the goals set and met. The major obstacle to the legal aid movement in India is the lack of legal
awareness. People are still not aware of their basic rights due to which the legal aid movement has
not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and
deprivation of rights and benefits of the poor. Thus it is the need of the hour that the poor illiterate
people should be imparted with legal knowledge and should be educated on their basic rights which
should be done from the grass root level of the country. Because if the poor persons fail to enforce
their rights etc. because of poverty, etc. they may lose faith in the administration of justice and
instead of knocking the door of law and Courts to seek justice, they may try to settle their disputes
on the streets or to protect their rights through muscle power and in such condition there will be
anarchy and complete dearth of the rule of law. Thus legal aid to the poor and weak person is

Page 16 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

necessary for the preservation of rule of law which is necessary for the existence of the orderly
society. Until and unless poor illiterate man is not legally assisted, he is denied equality in the
opportunity to seek justice.

Hence in this area we have a huge number of laws in the form of judgements as well as legislations
but they have just proven to be a myth for the masses due to their ineffective implementation. Thus
the need of the hour is that we need to focus on effective and proper implementation of the laws
which we already possess 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.

 SUGGESTIONS
 It is suggested that it is the need of the hour that the poor illiterate people should be
imparted with legal knowledge and should be educated on their basic rights which should
be done from the grass root level of the country. For that judiciary needs the support from
state administration to conduct legal literacy programme.
 The judiciary should focus more on Legal Aid because it is essential in this present scenario
where gulf between haves and have-nots is increasing day by day. And elimination of
social and structural discrimination against the poor will be achieved when free Legal Aid
is used as an important tool in bringing about distributive justice.
 There are number of precedents as well as legislations to up hold the right to free legal aid
but they have just proven to be a myth for the masses 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.
 In providing Legal Aid, the Legal Aid institutions at all level should use proper ADR
methods so as to speed up the process of compromise between parties to the case and with
that matter will be settled without further appeal.
Free Legal Services Authorities must be provided with sufficient funds by the State because no
one should be deprived of professional advice and advice due to lack of funds.

Page 17 of 18
 LEGAL AID UNDER CRIMINAL JUSTICE SYSTEM

BIBLIOGRAPHY

 Websites

1. www.epitomejournals.com
2. www.ijlljs.in
3. www.commonlii.org
4. www.janhitlaw.in
5. www.slideshare.net
6. www.legalservicesindia.com
7. www.realityviews.in

 Statutes
1. Constitution of India, 1950.
2. Code of Criminal Procedure, 1973.
3. Code of Civil Procedure, 1908.
4. Legal Services Authority Act, 1987.

Page 18 of 18