What is Legal Aid?
“The poor and the illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining Justice from the Courts.”
— Justice P.N. Bhagwati (17th Chief Justice of India)
One of the main principles of natural justice is “audi alterem partem” which means that the other side must be heard. This principle necessitates that everyone should have access to the justice system in order for them to be heard, in a fair and just manner. Legal aid is a tool used by the state to ensure that everyone has access to the legal institutions of the country. One of the main pillars on which the Indian constitution rests is the existence of an independent judiciary which ensures a fair trial. Consequently, it follows that all those who belong to disadvantaged socio-economic positions must have support from the state in order to ensure that the justice system caters equally to all members of the society.
Article 39A of the Constitution of India guarantees equal access to the justice system to persons who are not in a financially sound condition, by providing legal and professional assistance free of cost or at lower fees. Section 304 of the Criminal Procedure Code, 1973 provides that the state is under an obligation to provide legal assistance to a person charged with an offence triable before the Court of Session. Order 33 of the Code of Civil Procedure, 1908 enables persons who are too poor to pay court fees to institute suits without payment of requisite court fees, and in case they are not represented by a pleader, the court may assign a pleader to them at the expense of the state. In 1987, the Legal Services Authorities Act was enacted by the Parliament and came into force on November 09, 1995, with the objective to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate the implementation of legal services available under the said Act.
In the landmark judgment of Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98, the apex court categorically held that Article 39A emphasizes on free legal service as an inalienable element of reasonable, fair, and just procedure, and that the right to free legal services is implicit in the guarantee of Article 21. In Khatri v. State of Bihar, AIR 1981 SC 262, the court reiterated 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 guaranteed under Article 21 hence 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 highest court went a step further in the case of Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, and emphasised on the importance of creating legal awareness amongst those who have the right of free legal aid as most of the people in the country are unaware of this right.
It is necessary that we, in our capacity as law students, participate in all initiatives that aim at bridging the lacuna between legal rights and their effective actualization by the underprivileged and impoverished. Through the Legal Aid Society, Campus Law Centre, we aim to provide a platform to all students to be an inseparable element of this cause of creating equality in access to legal services.