Mukesh Patel School of Technology and Management Constitution of India Article 39A

Equal justice and Free Legal Aid.

Name:-Vaishali P B.Tech Computer Science Div.:-B Roll No.:- 359 Trimester :- 7

Contents
1. Introduction..................................................................................... 2 1.1 History of Legal Aid Movement in India- The Development ........ 3 2. Other Provisions Relating to Legal Aid .......................................... 4 3. Importance of Legal Aid in Democratic Society like India ............. 5 4. Conclusion ...................................................................................... 6 5.Case Study ....................................................................................... 7 6. Bibliography .................................................................................... 9

Art.39A: Equal justice and free legal aid.

By the constitutional 42nd Amendment Act of 1976, a new provision was included in the Constitution under Article 39A, for dispensing free Legal Aid. To uphold the democratic values and attain social justice Article 39A which was included under Directive Principles of State Policy (part IV) reads as under:-

The State shall secure 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.

1. Introduction
India is a modern state that has accepted the concept of 'welfare state'. Hence it has to work for the welfare of the general public. It is the function of the State to establish a just social order by enacting just laws and by providing equal opportunity to all to grow. Every Government is constituted to respond to the needs and aspirations of the people and to remove social inequalities among its citizens. This promotes social justice among poor and the downtrodden. The concept of social justice must be the underlying principle in the administration of justice in the country. Today with the plethora of legislative enactments, statutory rules and regulations, and judicial precedents, Courts are a maze not only to the poor but also to a large number of persons who may not be poor financially but so intellectually on account of the lack of knowledge of the relevant laws and of the procedure for obtaining benefit thereof. They have got out of the maze by engaging lawyers and paying their fees. This route of getting out of the maze was not available to the have-nots, who may be described as poor or indigent. Resultantly, to make available the law channels of justice to the poor, free legal services have been incorporated in the legal system. Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour 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. So By the constitutional 42nd Amendment Act of 1976, a new provision was included in the Constitution under Article 39A, for dispensing free Legal Aid.
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Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. Thus the concept of Legal aid in India has slowly but steadily acquired a solid footing in the Indian legal system and this extraordinary concept of free legal aid boils down to proving the following services to the indigent litigants: 1. Providing:

free legal advice; lawyers for litigation in courts; knowledge on legal rights and remedies.

2. Payment of :

court and other processing fees; charges for preparing, drafting and filing of any legal proceedings; charges of a legal practitioner or legal advisor; costs of obtaining decrees, judgments, orders or any other documents in a legal proceeding; costs of paper work, including printing, translation etc

1.1 History of Legal Aid Movement in India- The Development

The concept of equal justice was not unknown in ancient India. Manusmriti states that it includes administration of justice in social, economic and political aspects, whose sanctity has to be preserved and developed. In the medieval period, though the king was required to administer Islamic law in deciding all cases irrespective of religion of the parties to the suit. Yet Hindus were administered by Hindu Law in deciding civil and religious of which the parties were Hindus. It was Jahangir who took the credit for dispensing even-handed justice to all irrespective of birth, rank of the official position. He used to say that God forbid to favour nobles or even princes in that matter of dispensation of justice. In the modern period, the earliest Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the indigent. In Britain, The Rushcliffe Committee was formed which was under Lord Chancellor, Viscount Simon .The Committee also recommended four-tier machinery [i.e. (i) at Taluka (tehsil) level, (ii) at district level, (iii) at
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greater Bombay level and (iv) at State level.] for giving legal aid although the same could not be implemented due to certain reasons. In the same year, another Committee on "Legal Aid and Legal Advice" was appointed under the Chairmanship of Justice Arthur Trevor Harries, the then Chief Justice of Calcutta High Court. This Committee recommended giving legal assistance to the poor. Since the fifties the Govt. of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In the sixties, some guidelines were drawn by the Govt. for legal aid schemes. In different states legal aid schemes were floated through Legal Aid Boards, Societies and Law Departments. In 1980, a Committee at the national level was constituted to oversee and supervise legal aid programmes throughout the country under the Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme Court of India. This Committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes) and started monitoring legal aid activities throughout the country. But significant change came in the late seventies. While disclosing shocking state of affairs of our legal and judicial system causing enormous misery and sufferings to the poor and illiterate citizens resulting into totally unjustified deprivation of personal liberty, Justice P.N. Bhagwati, made following observations:"This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programmes, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them."

2. Other Provisions Relating to Legal Aid

1. Criminal Procedure Code, 1973 Section 304 provides that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State; and the section further empowers the State Government to extend the application of the above provision in relation to any class or trials before other courts in the State. 2. Civil Procedure Code, 1908 Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to pay court-fees and allows them to institute suits without payment of requisite court fees.
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3. Universal Declaration of Human Rights: Article 8. Everyone has the right or an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law. 4. International Covenant on Civil and Political Right Article 14(3) guarantees to everyone: The 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 his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him any such case if he does not have sufficient means to pay for it.

3. Importance of Legal Aid in Democratic Society like India

Law and social welfare are the twin objectives of any developing country as India. Unless there is due emphasis on and implementation of social welfare schemes to help the underdog in a democratic society, the Rule of Law cannot be a reality. It is one of the fortunes of India that we have a well-organized and fairly efficient Judiciary without any trace of corruption on the whole. The above question can be answered by vividly portraying how court-fees was exorbitant, as also Lawyers fees and the cost of litigation occasioned by that Constant menace called 'Law's delays'. It is sometimes said that Article 14 (equality before law and equal protection of laws) is not a positive guarantee of Legal Aid to the deserving citizens. We fail to see how the doctrine of Equality before Law or the equal protection of laws can be guarantee under Article 14 without vouchsafing equal access to Courts of Justice. In the matter of breach of a fundamental right by State action a millionaire as well as a pauper are affected, the former can rush to court at all levels, engage the best lawyer and wins his case despite all law's delays and law's heavy cost. But the latter, the poor chap cannot afford to do so. Even if he engages some lawyer within his means, he is at a great disadvantage when pitted against the able advocacy of a Senior Counsel at fabulous fees engaged by the other side. Thus it can be said that to the extent that a person does not have the means of obtaining access to a court, justice become unequal. This inequality, instead of being lessened, has enormously increased in a welfare State which has spawned legislation of such complexity that the citizen often finds it difficult to know what his rights are and even more difficult, unless he has ample means, to defend them in a court. The equality of access to the courts that a democratic Constitution provides is rendered meaningless, unless the right to proper representation for the needy
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litigant is also guaranteed. Thus litigation had become a luxury that the poor litigant could hardly afford. Legal aid is, therefore, primarily the Government's duty else the case of the poor coming to court without a proper counsel was like their entering the lists in an unequal (gladiatorial) contest.

4. Conclusion
Despite of the numerous efforts made by the Government in regards of providing free legal aid and hence ensure the true prevalence of welfare state in India, there are many problems in implementing it in true sense in the Indian society. The problem of knowledge is one of the major problems as most of the people are not aware of law. For every action they have to think for their resources and means because they usually do not have any knowledge about any legal aid which can be provided to them. Fear, ignorance and fatalism were the attitudes toward the legal system in the past Indian society, which has got its aftereffects in the present society as well. Lawyers use the ignorance of these poor peoples and usually demand fee as per their will. To improve the condition all legal aid plans should be accountable to independent institutions. The Criminal Code and other penal laws should be modified to ensure that everyone who fails to pay a fine is given the opportunity to settle the debt by doing community service work. Governments should recognize the strong links which exist between poverty, child abuse and neglect, unemployment, inequality and crime, and should give their unqualified support to measures which will correct these problems. Legal aid plans should have objective studies done by independent outside evaluators to determine which models of service delivery would best serve their clients, and should adjust their services in accordance with the results. Legal aid plans should make maximum use of non-traditional methods of dealing with conflicts such as mediation, conciliation and self-help. It also needs to be stressed that legal aid is an issue of extreme importance not just to the poor but also for other groups who are vulnerable such as under trials, those in preventive detention, sex workers and the mentally ill and many others.

5.Case Study
Sugreev Singh And Ors. vs State Of Madhya Pradesh And Ors. on 2 March, 1993 Sugreev Singh and Mohd. Saleem were the petitioners who were employed as conductors in the buses operated by the Madhya Pradesh State Road Transport Corporation, for short, the 'Corporation', established under Section 3 of the Road Transport Corporation Act, 1950. Petitioner, Sugreev Singh was on duty on 3-71986 in the bus operating on the route Mahua to Morena and the other petitioner Mohd. Saleem was Conductor in a different bus on 2-7-1986, operating on the route Dholpur to Bhind when the Traffic Supervisor of the Corporation detected the offence. In both cases, the offence alleged was that the two petitioners, as Conductors, had realised fares from passengers, but had not issued them tickets. On the complaint filed before the learned Magistrate, holding Mobile Court, petitioner Sugreev Singh admitted his guilt, but the other petitioner Mohammad Saleem did not, necessitating prosecution witnesses being examined in his case and they were cross-examined by him. For decision in one case, conviction is recorded on plea of guilty and in the other case, on the basis of the evidence adduced, on which the offence was found proved. The common plea of both petitioners that the convictions and sentences passed against them are illegal and unconstitutional due to their being denied reasonable opportunity to defend themselves with the aid of a lawyer as per article 39A is indeed the kernel (core) of the controversy leading to the Reference. Before the provisions of the Act or of the Code are examined, with respect to which contentions are raised before us in this Reference, we may usefully point out that in Hiralal Gopilal (supra), on similar facts, the conviction was quashed and a retrial was ordered and he was entitled to free legal services at the cost of the State if he was unable to engage a lawyer , But in Khatris case, the plea was negative Because this law of legal aid was only for was poverty-stricken or indigent person but Khatri was well- to- do. So the judge rejected the contention. Section 3 of the Act 7 provides that a servant (in this case:-Conductor) of the State Transport Undertaking authorised in this behalf shall supply to a person desirous of travelling on a road transport Service provided by the undertaking a ticket on his
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making payment of the fare. Section 6 punishes a person travelling without ticket and Under Section 7, a servant of the undertaking for breach of his duty to supply the ticket is also punished. Section 9 punishes similarly, any person wilfully obstructing or impeding any servant of the undertaking in the discharge of his duty while power to remove a person who travels or attempts to travel without ticket on the undertaking's transport, is contemplated under Section 8. Now as we saw in Sugreev Singh and Mohd. Saleem case , a retrial was ordered and according to Free legal Aid Law a Lawyer has to be appointed by the Government. Shri Kaushik, learned Counsel, appeared for Mohammad Saleem which is now well-settled that "procedure" contemplated under Article 21 is referable to statutory provisions made for trial and Shri Saxena, learned Counsel appeared for Sugreev Singh. Shri Saxena, learned Counsel appearing for Sugreev Singh,
submitted that though the accused was convicted on his plea of guilty, his plea could not be recorded without allowing him to consult a lawyer beforehand. That contention is also meritless. Section 251 authorises the Magistrate to record accused's plea when it was brought before him and the particulars of the offence are explained to him by the Magistrate

The upshot of the above discussion is that both accused Sugreev Singh and Mohammad Saleem , convicted under Section 7 of the Act, cannot assail their conviction on the ground that their trials are vitiated as a result of infringement of their fundamental right Contemplated under Article 21 because the Magistrate failed to inform them that they were entitled to free legal services at the cost of the State if they were unable to engage a lawyer before the accused person paid their fine of Rs. 50 and Rs. 100 respectively

6. Bibliography

Books:Dr. Durga Das Basu- Introduction to the Constitution of India V. N. Shukla's Constitution of India

Internet References:http://www.goforthelaw.com/articles/fromlawstu/article20.htm http://www.indiankanoon.org/search/?formInput=39A http://www.indiankanoon.org/search/?formInput=article%2039a+author:T%20Sin gh