Editorial Articles

Editorial Volume-35

Constitutional Values Ensuring Legal Aid for the Poor

Raghul Sudheesh

The Constituent Assembly of India, which was set up to draft our Constitution, adopted the present Constitution on November 26, 1949. Thirty years later in 1979, the Supreme Court Bar Association decided to celebrate November 26 as Law Day. After this, November 26 has been celebrated as Law Day for the past several years. From November last year, the Government of India decided to celebrate the 26th day of November every year as ‘Constitution Day’ to promote Constitutional values among citizens. The notification reads as follows:

“Whereas the people of India, having solemnly resolved to secure to all its citizens Justice, Liberty, Equality and to promote Fraternity among all, adopted, enacted and gave to themselves the Constitution of India in the Constituent Assembly on the 26th day of November, 1949 ;

And whereas the Drafting Committee of the Constituent Assembly, under the Chairmanship of Dr. B.R. Ambedkar, provided its invaluable services in drafting the Constitution of India and the nation is celebrating the One Hundred and Twenty-fifth Birth Anniversary of Dr. B.R. Ambedkar in recognition of his contribution to building modern India;

Now, therefore, the Government of India has decided to celebrate the 26th day of the November of every year as the "Constitution Day" to promote constitutional values among citizens.”

Our Constitution has provided for many lofty goals mainly under Part III, dealing with Fundamental Rights, and Part IV, dealing with Directive Principles of State Policy.  It is important to promote and preserve these values, and the observance of ‘Constitution Day’ is a right step on that front.

While Part III is enforceable in a Court of Law, it is not the case with Part IV. It is not enforceable before a Court of Law as provided under Article 37. However, the Constitution makes it clear under Article 37 itself that the principles laid down in Part IV are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Among the Directive Principles of State Policy, under Part IV, Article 39A that provides for free legal aid deserves to be discussed with special importance. Unlike in the inquisitorial system of justice, where the Judge is involved in fact findings for the case before him; in India, we follow the adversarial system of justice where the Judge becomes a neutral adjudicator between the defence and the prosecution. Here, the Judge is involved only in determining the right or wrong and not finding the truth as in the inquisitorial system. In such a system, if a person who is in dispute with the State is not represented before a Court of Law, it will be contrary to the Constitutional scheme of dispute resolution envisaged.

Article 39A was added by the 42nd  amendment in 1976 and reads as follows:  “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.”

Few years after the insertion of Article 39A into the Constitution, in the well-known case of Hussainara Khatoon in 1979, the Supreme Court had an opportunity to deal with the issue of legal aid and Article 39A. Justice P. N. Bhagwati held that,

“Article 39A emphasises that free legal service is an inalienable element of 'reasonable, fair and just' procedure; for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly 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.”

Through this case, Justice Bhagwati had made right to free legal services an essential ingredient of Article 21 that deals with Protection of Life and Personal Liberty, a fundamental right under Part III, which is enforceable before a Court of Law. In other words, Justice Bhagwati through judicial interpretation elevated the status of a Directive Principle of State Policy to a Fundamental Right.  This judgment had been a landmark and had gone a long way in providing free legal service to the poor and downtrodden.

To fulfil the Constitutional mandate of providing free legal aid for citizens, the Government introduced the ‘Legal Services Authorities Act’ in 1987. The Act lays down a comprehensive mechanism for ensuring legal aid and services. Under section 12 of the Act, several sections of people are entitled to free legal aid and they include.

I. A member of a Scheduled Caste or Scheduled Tribe;

II. A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;

III. A woman or a child;

IV. A mentally ill or otherwise disabled person;

V. 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;

VI. An industrial workman;

VII. A person in custody;

VIII. A person in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.

The National Legal Service Authority has provided that free legal aid includes the following,

I. Representation by an Advocate in legal proceedings;

II.Payment of process fees, expenses of witnesses and all other charges payable or incurred in connection with any legal proceedings in appropriate cases;

III. Preparation of pleadings, memo of appeal, paper book including printing and translation of documents in legal proceedings;

IV. Drafting of legal documents, special leave petition, etc.

V.Supply of certified copies of judgments, orders, notes of evidence and other documents in legal proceeding.

Further, the Legal Services Authorities Act provides for the establishment of National Legal Services Authority at Central level, State Legal Services Authority at State level, and District Legal Services Authorities at District level. The Act also provides for the establishment of Taluk Legal Services Committee, Supreme Court Legal Services Committee, and also High Court Legal Services Committee. Under section 19 of the Act, these authorities and committees are also required to organise Lok Adalats for settlement of disputes.  Section 21(1) provides that every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court. Section 21(2) provides that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.

Under section 22B of the Act, the Central as well as the State authorities have been given powers to establish permanent Lok Adalats. Section 22D of the Act provides that the Permanent Lok Adalats, while conducting conciliation proceedings or deciding a dispute on merit, shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure and the Indian Evidence Act. This ensures complex procedures involved in regular judicial process are done away with for arriving at a settlement.

It would be apt to conclude that to fulfil the Constitutional mandate of providing free legal aid to the poor, an exhaustive mechanism is in place and is becoming a boon to the poor and downtrodden sections of society. If not for this mechanism, there would have been a miscarriage of justice! 


Raghul Sudheesh is Executive Editor at The Kochi Post (e-mail : raghulsudheesh@gmail.com).