Legal aid may be taken to mean free legal assistance to the poor persons in any judicial proceedings before the Court, Tribunals or any authority. It intends to provide free legal assistance to the poor persons who are not able to enforce the rights given to them by law. The constitution of India gives much importance to rule of law. In India, it is regarded as a part of the basic structure of the Constitution and also of natural justice. Free legal aid to the poor and weak persons has been held to be necessary adjunct of the rule of law.
Legal Aid In India
The preamble of the Indian constitution aims to secure to the people of India justice – socio economic and political. Article 38 and 39A of the Indian constitution are notable. Article 38(1) states- the State shall promote the welfare of the people by securing and protecting the social order including justice and Article 39-A of the constitution states that the state shall in particular, provide free legal aid, by suitable legislation or schemes, to ensure that opportunities for securing justice are not denied to any citizen.
In Sheela Barse vs. State of Maharashtra, it was held that legal assistance to a poor accused who is arrested and put in jeopardy of his life or personal liberty is constitutional imperative mandated not only by article 39-A but also by article 21 and 14 of the constitution.
Article 21 clearly says that every person has an equal right to life and liberty except according to the procedure established by the law. It was said in the case of Hussainara khatoon vs. State of Bihar, that if any accused is not able to afford legal services then he has a right to free legal aid at the cost of the state.
Also in Sukhdas vs. Union Territory of Arunachal Pradesh, it was held, in case an accused is not told of his right and therefore he remains unprecedented by a lawyer, his trial is vitiated by constitutional infirmity and any conviction as a result of such trial is liable to be set aside. Similarly article 14 also talks about equality before law. Section 304 of CrPC imposes an obligation on the courts to provide legal aid at the expense of the state to an accused, who has no sufficient means and finances to engage an advocate. There cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge and a professional assistance.
Obstacles To Legal Assistance
At present the legal aid movement in India is unorganized, diffused and sporadic. There is lack of co-ordination in it. The ideal of equal access and availability of legal justice has reached almost breakdown point. There is a wide gap between the goals set and met. One law firm recently commented in a survey, We no longer do pro bono work, we are too busy trying to survive . Lawyers don’t engage themselves in pro bono activities because of various reasons. There is lack of financial resources. The legal education imparted earlier did not provide social education. Therefore they do not understand or accept their obligation to do so, also the members of the profession do not regularly come into contact with members of the community who need legal assistance.
Illiteracy is also a major obstacle to legal aid. Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more then that are not aware of the rights conferred upon them by law . It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.
Measures For Effective Legal Aid
1. The legal aid movement has to go to the grass root level and help to discover, identify and solve the problems and difficulties of the poor.
2. The participation not only of the practicing lawyers but also of the courts, the law, teachers, senior law students, trained social workers, public at large is also needed.
3. It should also include activities like spreading legal awareness and educating people on their basic rights with the help of NGO’s.
4. Promote more informal paralegal services in places where basic access to justice opportunities and infrastructures are absent.
5. Promote a pro bono service culture and tradition within the legal profession.
6. Offer comparative models of legal aid to government in reforming the movement.
7. Support the development of demonstration legal aid/public defender offices in cooperation with governments.
8. Lok Adalats should be promoted in the right direction as they settle the disputes quickly by counseling and discussions, etc. Its basis is to provide quick justice with the mutual consent of the parties. Their object is to reduce burden on the Courts so that the problem of law’s delay may be solved and people may get justice within due time. The machinery of the Government engaged in the execution of this movement in the state must be geared from bottom to top.
Legal aid means free legal service for the promotion of the welfare of the people.
In India many efforts have been made in this direction for example the introduction of Lok Adalats. According to various articles of the Indian constitution, it is the right of an accused to ask for legal aid if he is not able to afford it.