Division bench of the Supreme Court comprising Vikramajit Sen and C. Nagappan, JJ while considering an interesting case dealing with the issue of an interim custody of a minor child, ordered interim custody of the child to the Mother.
While dealing with the instant case, the apex court considered the provisions of Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 and Juvenile Justice (Care & Protection) Act, 2000 and in detail explained the concept of guardianship under Indian legal system.
After giving due consideration to above mentioned statutes, court ruled that, mother is the best suited guardian for the custody of children below the age of five years, an in all such cases, where the dispute is on the guardianship of an infant below the age of five years, then the focal point of consideration shall be given to the welfare of the child.
In the present case, the father of the child initiated legal proceedings alleging that, due to the bi-polar disorder, the mother is not fit for the custody of the child. However, apex court rejected such contention and set aside lower court’s judgment imposing the onus on mother to establish the sustainability of granting interim custody of the child, and further observed that, onus is on the father to prove that, it is not in the welfare of the infant child to be placed in the custody of mother and that, the wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.
It is believed across the globe that, God created this world, and the creation of life is assumed to be the most precious thing in the earth. It is immaterial, how advanced Science and technology we have, the secret behind the cause of life and death remains uncertain.
Well, legally speaking, every human being has got a right to life. In India, Article 21 of the Constitution guarantees Right to life and personal liberty to all Indian Citizens. By virtue of said Article of Indian Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law.
Further, by virtue of the provisions of Indian Penal Code, no one has got right to take away the life of another person, doing so is a punishable offence under the same Code. However, there are certain exceptions to the same.
In this context, let us have a look at the legal issues related to the right to life. One of such case is that of “Euthanasia” OR “Mercy Killing”. Euthanasia, was always been a topic of debate. Hope you all remember the Hrithik Roshan & Aishwarya Rai starter movie Guzaarish, where the issue of mercy killing was pictured.
The term “Euthanasia” is nothing but Mercy Killing. It is the practice of intentionally ending the life of a human being in order to relieve him/her from the pain and sufferings. As we know human beings life is not smooth always, and not all human beings die at peace. Sometimes, people go through extreme physical pain in their last days, and they see euthanasia as a compassionate way of ending such pain.
Different patients may ask for wilful Euthanasia to stay away from the shortcoming and loss of intellectual capacities that a few infections reason, and numerous vibe these wishes ought to be regarded.The increased significance given to individual autonomy in this century has been one of the reason for lateral thinking in the direction of legalising euthanasia.
As stated earlier, we all expect a happy and fruitful life. However, not all of us get the same. Many people end their life out of various frustrations in their life. However, it is presumed to be a sign of abnormality. The act of killing oneself is generally called as Suicide and if one ends his life with the help of authorities on his request is called “euthanasia” or “mercy killing”.
Normally those people who are suffering with terminal illness or who have become incapacitated and do not want to go through any sufferingrest of their life, and request OR file petition for “euthanasia” or “mercy killing”.
Euthanasia is a debatable issue, which comprehends the morals, values and beliefs of our society, and I am of the view that, the right to choose between live or die should not be a right allocated for bodied individuals of sound mind but to all human beings.
Controversy over the concept of euthanasia became significant with the recent developments in the European Countries viz. United Kingdom and Netherlands, were euthanasia was legalised OR allowed. Said incident triggered the debate across the world that, whether euthanasia shall be legalised OR not?
Not only in the West, even in India, euthanasia was a hot topic of debate. The best example is the Hindi movie, Guzaarish. Though the Law Commission of India has recommended for legalising euthanasia, it is not possible with the existing legal system. i.e., by virtue of Section 300 of Indian Penal Code, 1860euthanasia is illegal. Because, there is a criminal intend on the part of the Doctor who execute euthanasia.
However, one may take a plea that, euthanasia was executed only after due consideration from the appropriate authority as well as the consent of the deceased himself, the Doctor can still be punishable under the provisions of Section 304 of the Indian Penal Code for the offence of culpable homicide not amounting to murder.
However, Supreme Court in its recent judgment in Aruna Shanbaug case broke new ground with respect to the concept of euthanasia. In the said case, apex court allowed passive euthanasia viz.,withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state. However, Supreme Court made it clear in its judgement that; an active euthanasia shall continue to be a crime under the existing Indian legal system.
Rashi Gupta, 5thYear Student of Law, Amity Law School, Guru Gobind Singh Indraprastha University (GGSIPU), Delhi
“To no man will we deny justice, to no man will we delay justice or right ((Magna Carta, 1215)).”
The main aim of any rational society would be to deliver justice and equity to each and every individual who comprises to be the part of that society. Legal aid is internationally recognized as a fundamental human right to ensure that every individual has access to fairness and impartiality of justice. Legal aid is the award of freedom, to represent oneself in the way or manner which best interest him.
Legal aid means nothing more than legal representation in court, to that extent that there is a right to legal aid, although of limited availability. For legal aid in its broadest sense is a fundamental human right, a right guaranteeing public access not only to legal institutions or legal representation, but also to legal information, legal advice as well as legal education and knowledge.
There are issues which need to be addressed such as whether we have been successful in implementing this technique. The present stratum of the society is completely ignorant to the proper implementation of legal aid services. For the purpose of the rendering justice we have formed the concrete base of legal aid but the concerns still arises that whether on the real ground they are really existing and working.
This paper describes the importance and need of free legal aid with the help of case laws in a constitutional democracy like India where a striking section of the society has still not seen the constitutional promises of even the very basic fundamental rights being fulfilled for them.
Legal aid is the accolade of freedom, to speak to oneself in the way or ways which best advantage him. It is the system of permitting access to one who is not aware of rights from which he is encroached by the irrational elements of society. Legal aid to poor people and powerless is vital for the safeguarding of rule of law which is important for the existence of the orderly society. Until and unless poor ignorant man is not legally assisted, he is denied equality in the chance to look for justice. Subsequently as a stage towards making the legal service serve poor people and the deprived; the judiciary has taken dynamic enthusiasm for giving legal aid to the needy in the recent past. The Indian Constitution accommodates independent and impartial judiciary and the courts are given power to protect the constitution and safeguard the rights of individuals irrespective of their monetary capacity. Since the aim of the constitution is to provide justice to all, the constitution dictates that judiciary has obligation to secure privileges of poor people as moreover society in general.
In the context of constitutional demands and state obligations, legal aid has accepted a more positive and dynamic part which must incorporate strategic and preventive administrations. Relieving ‘legal poverty’, i.e., the insufficiency of numerous individuals to make full utilization of law and its foundations has now been acknowledged as a function of a ‘welfare state.’ Apart from the social, monetary and political necessities on which the case of legal aid rests, it is currently perceived as emerging under Articles 14 ((Equality before law—The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.)), 21, ((Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to the procedure established by law.))22(1) ((Protection against arrest and detention in certain cases—-(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.))and 39A ((Equal justice and free legal aid—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.))of the Constitution and additionally under distinctive statutes and legislations which likewise gets their forces from the constitution.
Concept of Legal Aid
In laymen’s dialect it is a legal assistance to the individual at whatever point he is in a bad position and that to additionally in the lawful viewpoint. Traditionally legal aid has been required to imply organised effort of the bar, the community and the government to provide services of legal advisors free, or for a token charge, to persons who can’t bear to pay lawyers’ expense ((N.R.M. Menon, “ Legal Aid and Justice for the Poor” edited by Upendra Baxi, “Law and Poverty” p. 341)). It is likewise to mean not just the representation through legal advisor at a state cost in court continuing yet will incorporate legal advice, legal awareness, legal mobilisation, public interest litigation law reform and a variety of strategies and preventive services which rather than helping every person on a case by case premise will help them as a class to avoid helplessness the arising from poverty and promote equal access to justice.
Legal aid essentially does not only include the providing of services of an advocate to poor persons in various litigations but it additionally incorporates payment of every expense required while conducting the case in court and in addition court costs. Legal aid likewise can be given to the needy persons even in those disputes which are at pre-litigative stage. The holding of lok adalats of pending and at pre-litigative stage keeping in mind the end goal to give speedy and cheap justice to the parties and to lessen the court’s’ burden is likewise a noteworthy obligation of each state legal authority. Carrying out permanent and continuous lok adalats in different fields and public utility services is likewise a noteworthy step towards accomplishing the objectives as set up in the Legal Aid Act. In this regard Justice P.N. Bhagwati rightly observed that ((Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel, Principal, New Lal College, Ahemdabad)):
“The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and 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. Legal aid should be available to the poor and illiterate, who don’t have access to courts. One need not be a litigant to seek aid by means of legal aid.”
Likewise the critical components of legal aid is that it ought to for the general population who are in genuine need of it that is, one who are not capable manage the cost of it because of a few reasons like poverty, lack of awareness, time consuming i.e., delay in access to justice
Therefore, from the very beginning, the reason behind Legal Aid is the supposition that in each general public there are people who are not able to take part in the Legal System. In this manner, it is of prime significance for the system of justice and for the general public all in all to give such people deliberate voluntary services of advocates.
It is worthy to mention that the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal basis, and shall in particular, provide free legal aid, by 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 disability ((Article 39A of the Indian Constitution)). Constitution of India also makes 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 ((Articles 14 and 22(1) of the Indian Constitution)).
Historical Background of Legal Aid
After coming into power, in order to implement the basic fundamental rights of the citizens and in order to give effect to the constitution mandate of the right of life and liberty particularly for the poor and needy individuals of the nation, government began doing preparation for giving free legal aid to deserving persons and for this purpose some discussions took place in various conferences of Law Ministers and Law Commissions however no compelling proposition could come forwards.
The major step taken in this regard prior to independence of the country was when State of Bombay in 1945, a society named as Bombay Legal Aid Society was set up which welcomed the idea of the government of India towards Report of Lord Rushcliffe regarding legal aid and advice in England and Wales.. The post-independence legal aid development was started by arrangement of Bombay Committee in 1949 under the chairmanship of Mr. N.H. Bhagwati, in 1949, Sir Arthur Trevor Harries Committee in West Bengal, activities by the state governments, for example, The Legal Aid Committee framed in 1952 in UP, the Legal Aid Committee shaped in Madras in 1954 etc. Similarly; 14th Report of the Law Commission of India, National Conference on Legal Aid, 1970 came in presence.
At first the government was of the perspective that making provisions of legal aid to poor was the whole obligations of the state and states need to make budgetary provisions in such manner. In January, 1956 government again requested that state governments expand the extent of legal assistance to the poor people. In spite of the fact that some private societies attempted to take initiative in such manner yet couldn’t do much because of lack of funds.
Law Commission Report (1958): Government of India set up 14th Law Commission under the chairmanship of Mr. M.C. Setalvad, the then Attorney General of India, who in its 14th report investigated various aspects of system of judicial administration of the country. The Commission comprised of other 10 members likewise which included two serving Chief Justices of High Courts, two retired High Court judge, advocates general of different states and prominent advocates besides co-opted members. The commission proposed wide layouts of a few changes to make legal framework speedier and less costly.
In its 14th Report, Law Commission which dealt with the issue of legal aid was aware that unless provisions are made for helping poor individual for giving court expenses, legal advisors fees and other incidental charges of litigation, he is denied equal opportunity of access to justice.
Commission further held that it is the state’s commitment to provide legal aid and rejected the plea that giving of legal aid would make individual more litigious, would increase litigation, put additional financial burden and would welcome corrupt persons to abuse this facility. It was proposed that some scale ought to be made for giving expense structure, however similarly at lesser rate than normal fee for lawyers who offers to do such service for poor persons. Making of provisions of significant budgetary provision was additionally prescribed for giving legal aid to poor. It was additionally suggested that Report of N.H. Bhagwati Committee’ given in the context of state of Bombay with a few alterations be made applicable to every state ((Summary of Bhagwati Committee’s report was annexed as appendix-1 of chapter-27 of 14thLaw Commission report)). Commission suggested for prompt setting up legal aid committees by every bar associations in every state, making changes in High Court rules etc.
P.N. Bhagwati Board Report (1971): The another significant step towards giving free legal aid occurred with the constitution of a committee under the chairmanship of Justice P.N. Bhagwati, observed “even while retaining the adversary system, some changes may be effected whereby the judge is given greater participatory role in the trial so as to place poor, as far as possible, on a footing of equality with the rich in the administration of justice.“((Committee of Justice Bhagwati on Free Legal Aid constituted in the year 1971))The focus of the committee was the indigent person seeking to access justice. The report plainly expressed that there can be no rule of law unless the regular man regardless of the truth whether he is rich or poor has the capacity affirm and vindicate to the rights given to him by the law. It expressed that the imbalance between the rich and the poor in administration of the justice can be uprooted by building up and creating viable effective system of the legal aid programme. Legal aid and advice ought to be viewed not as an issue of charity but rather as an issue of right. Obligation of the state was fixed for providing legal assistance to poor people and indigent by expressing that this commitment is not simply, financial or political but rather is constitutional by reason of Articles 14 and 22(1).
The report additionally dealt withtrue scope and extent and of the legal aid and pressed for setting up legal aid fund for giving cost and expenses of litigations. The report additionally in detail expressed the constitution and the working of different legal committees, for example, (a) The District or Taluka Legal Aid Committee, (b) The State Legal Aid Committee. Committee also proposed for implementation of legal research and innovation, institutional changes and organization of the poor etc. may be deferred yet there ought not to be delay in implementation of the things of the legal service and education ((Varun Pathak, “A Brief History of Legal Aid” available at http://www.legalserviceindia.com/articles/laid.htm accessed on 18 October 2015)).
Krishna Iyer Committee Report (1973):Justice Krishna Iyer presided over another similar committee set up on 22 October, 1972 and managed the topic of nexus in between law and poverty. He, in his 275 pages report submitted on 27th May, 1973 in favour of concept of public interest litigation and stressed the requirement for dynamic and widespread legal aid system that empowers law to reach the people, rather than requiring people to reach the law ((Committee on Legal Aid titled as “processionals justice to poor” set up in the year 1972)).
The report of this committee urged upon the democratic obligation of the state towards its subject to guarantee that the legal system becomes an effective tool in aiding secure the ends of social justice and an effort was made to characterize those classes of persons who are most needing legal aid and the poor man’s confidence in the legal system ought to be improved by giving him non- governmental as well as governmental assistance ((Varun Pathak,”A Brief History of Legal Aid”, Legal Service India http://www.legalserviceindia.com/articles/laid.htm accessed on 18 October 2015)).
Some advancement in this course was made with the incorporation of Article 39(A) through the 42nd Amendment Act, 1976, in view of the recommendations of the Expert Committee on Legal Aid, 1973, on “Procedural Justice to the People” under Justice V.R. Krishna Iyer. The Amendment added Directive Principles of State Policy which recommended that:
“The State shall secure that the operation of the legal system promotes justice on a basis ofequal 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((Expert Committee on Legal Aid, 1973, on “Procedural Justice to the People” under Justice V.R. Krishna Iyer)).”
With the end goal of effective delivery of legal aid Indian government has passed the legislation Legal Services Authority Act, 1995. The demonstration gives numerous recommendations for the advancement of legal aid movement in India.
Juridicare committee report (1977): Another committee of two judges Justice P.N. Bhagwati and Justice Krishna Iyer was set up for giving satisfactory legal service programme in every one of the states on uniform basis. This committee in its final report famously known- as ‘Report on National Juridicare: Equal Justice-Social Justice” submitted in the year 1977 focused upon the requirement for another philosophyof legal service programme to be framed in the light of socio-economic conditions prevailing in the country. It likewise opined that the customary legal service programme which is basically a court or litigation oriented, cannot meet the particular needs and peculiar issues of the poor in our nation. Committee in its report also included draft legislation for legal services in the name of National Legal Services Bill, 1977. It additionally prescribed that legal service organisation ought not be an department of the government but rather a self-governing establishment headed by the Judge of the Supreme Court having representations from Bar Associations, the Government, the Parliament and the judiciary as well as voluntary associations and social workers and that would be a multi tier set up for the legal aid organization. The substance of this report clearly call attention to that it was in continuation of the 1973 report with an extensive revision, updating, revaluating and adding. The various suggestions made by him can be summarized as under:
“A national legal service authority accountable to the parliament but protected from official control was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down for determining eligibility: Means test—to determine people entitled to legal aid. Prima facie test—to determine whether there was a prima facie case to give legal aid or not. Reasonableness test—to see whether the defence sought by a person is ethical and moral.”
Committee for Implementing Legal Aid Scheme (CILAS):The Justice Bhagwati and Justice Krishna Iyer’s report was revolutionary it stayed on the rack alongside it the National lawful Services Bill. To build up the justice delivery mechanism, the Central Government on 26 September, 1980 constituted another high-powered Committee for implementing legal aid schemes, to monitor and implement comprehensive legal aid programme and to work out mechanism which could operate at all levels on uniform basis. The said Committee was called as ‘Committee for Implementing Legal Aid Schemes’ (CILAS) and the same was constituted under the Chairmanship of Mr. Justice P. N. Bhagwati which was funded by grants from the central government. It was assigned to screen the implementation of legal aid programmes on uniform premise in every state and union domains and to satisfy the goal of providing free legal aid. CILAS developed a model plan for legal aid programs material all through the nation by which a few Legal Aid and Advice Boards were set up in the states and union domains.
Legal Services Authorities Act:A review, be that as it may, of the working of the CILAS uncovered that there were inadequacies and it was therefore felt that it will be desirable to constitute a statutory legal services authorities on National, State and District levels in order to give monitoring of the legal aid programmes and with this attempt and objective and for accommodating for the composition of such statutory legal services authorities and for the funding of such authorities by means of grants from the central government and state the Legal Services Authorities Act, 1987 was authorized which came into power with effect from 9 November, 1995 after specific alterations were presented in it. The year 1987, ended up being exceptionally huge in Legal Aid history, as the “Legal Services Authorities Act” was sanctioned to give a statutory base legal aid programs all through the nation and achieve a uniform pattern.
Mr. Justice R.N. Mishra, the then Chief Justice of India assumed a key part in the Act’s implementation. The Legal Services Authorities Act, 1987, uprooted the “CILAS” and introduced a hierarchy of judicial and administrative agencies.
Statutory Recognition to Legal Aid in India
The requirement for legal aid is expressly and impliedly found in the constitution itself. The express provision of social and economic justice in the preamble and concept of substantive equality under article fourteen are the primary mandate on the state to provide legal aid to the needy people. The concept of “liberty” and “life with all human dignity” as expressly given in article 21 and interpreted by the Supreme Court clearly establishes the mandate of the legal aid to poor and helpless citizen of this country.
In spite of the fact that there was a statutory system giving free legal aid ((Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure))by selecting the by appointing the advocate for defending criminal case and by exempting court expenses in civil cases, it was not by any stretch of the imagination making any huge effect on the capacity of the underprivileged individuals to get the legal redressal for their grievances. Thus under tremendous constitutional persuasion from the Supreme Court the Legal Services Authorities Act, 1987 was passed by the parliament of India. The Act endorses the criteria for giving legal services to the qualified persons. Legal Aid can be divided into two categories ((Section 12 of the Legal Services Authorities Act, 1987)): one category embraces seven groups as follows:
a member of a Scheduled Caste or Scheduled Tribe;
a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
a woman or a child;
a mentally ill or otherwise disabled person;
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
an industrial workman; or
in custody, including custody in a protective home or in a juvenile home
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
The other category embraces people with economic difficulty, namely persons with an annual income less than rupees 25,000/- or such other higher amount as may be prescribed by the State Government if the case is before a court other than Supreme court and less than rupees 50,000/- or such other higher amount as may be prescribed by the Central Government if the case is before the Supreme Court. In accordance with this Act the number of people eligible for legal aid could be around 75% of the population.
As indicated by the Act the “court” is a civil, criminal or revenue court and incorporates any tribunal or any other authority constituted under any law for now in power, to exercise judicial or quasi-judicial functions ((Section 2(1) (a) of the Legal Service Authority Act,1987)). Under the Act ‘legal service’ incorporates 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 guidance on any legal matter ((Section 2(1)(c) of the Legal Service Authority Act,1987)).
Legal Services Authorities subsequent to looking at the eligibility criteria of a candidate and the presence of a prima facie case in his favour give him counsel at State cost, pay the required Court Fee in the matter and bear every bear all incidental expenses regarding the case. The individual to whom legal aid is given is not called upon to spend anything on the prosecution once it is supported by a Legal Services Authority. In India, the provision of legal aid has been written into the Constitution as a State obligation ((Article 39(1) of the Constitution of the India)).
Bodies under the Act and Their Hierarchy
National Legal Services Authority is the zenith body constituted to set down policies and principles for making legal services accessible under the Act’s provisions and to outline most effective and economical schemes for legal services.
In each State a State Legal Services Authority headed by the Chief Justice of the State High Court and a serving or resigned Judge of the High Court is constituted to give effect to the policies and directions of the Central Authority i.e. National Legal Service Authority and to give legal services to the general population and conduct Lok Adalats in the State. Lok Adalat as an alternative dispute resolution forum not only minimises expenses of litigation but it saves the valuable time of the parties and their witnesses and facilitates settlement to the satisfaction of the parties ((Justice K. Ramaswamy: Legal Aid News Letter,December, 1995)). District Legal Services Authority is constituted in every District to implement Legal Aid Programmes and Schemes in the District. Taluk Legal Services Committees are likewise constituted for each of the Taluk to facilitate the activities of legal services in the Taluk and organize Lok Adalats which is headed by a senior Civil Judge
So as to give free and equipped legal service, the National Legal Service Authority has framed the National Legal Service Authority (Free and competent Legal service) Regulations, 2010. The salient feature of Regulation is engaging senior competent lawyers on payment of regular fees in special cases like where the life and liberty of a person are in jeopardy.
Supreme Court of India has additionally set up Supreme Court Legal Services Committee to guarantee free legal aid to poor and under special under the Legal Services Authorities Act. It is headed by a judge of Supreme Court of India and has distinguished members nominated by Chief justice of India. .
Judicial Approach towards Constitutional Responsibility to Legal Aid
The judicial attitude towards recognising the rights of the poor litigants remained indifferent for almost three decades till the decision of Supreme Court in M.H. Hoskot v. State of Maharashtra. (())InJanardhan Reddy v. State of Hyderabad ((AIR 1951 SC 217))the Supreme Court held that it could not be laid as a rule of law that in every criminal case trial would be vitiated if the accused was not represented by the counsel. Thus it can be pointed out that newly Independent India was not clear about the wide point of view of its legal aid programme.
Although legal aid was perceived by the Courts as a fundamental right under Article 21 turning around their prior position, the scope and ambit of the right was not clear till this time. The step was taken in Sunil Batra v. Delhi Administration(( 4 SCC 494))where the two circumstances in which a detainee would be entitled for legal aid were given. Firstly, to seek justice from the prison authorities and secondly, to challenge the decision of such authorities in the court. Thus, the requirement of legal aid was brought about in not only judicial proceedings but also proceedings before the prison authorities which were administrative in nature.
In the case of M.H. Hoskot v. State of Maharashtra,((1978 Crii. L.J. 1678 (SC).))Justice Krishna Iyer, 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.”
The Supreme Court of India got a noteworthy chance to make a pronouncement in regards to the rights of the poor and indigent in judgment of Hussainara Khatoon v. State of Bihar(( 1 SCC 98))where the petitioner brought to the notice of Supreme Court that a large portion of the under trails have effectively under gone the punishment substantially more than what they would must they been sentenced immediately. 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. Hence, for this situation the court pointed out that Article 39- 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.
After two years, in the case of Khatri v. State of Bihar, ((AIR 1981 SC 926))the court addressed 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 give such aid at the phase of trial as well as when they are initially produced before the magistrate or remanded from time to time and 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 understood 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 arguing 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, ((AIR 1986 SC 991))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 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.
The Supreme Court as of late in its two judgments maintained that the right to consult and be defended by a legal practitioner as constitutional right available to all accused persons by virtue of Articles 21 and 22(1) of the Indian Constitution. While upholding the death sentence handed out in the of case of Ajmal Kasab vs. State of Maharashtra (( 9 SCC 1))the apex Court held that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, one would be provided legal aid at the expense of the State. The Court held that the duty provide him with a lawyer at the commencement of the trial is absolute unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he doesn’t need the help of any lawyer and would rather defend himself personally. Inability to do as such would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. The Court in the directed all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.
The Supreme Court, once more, in Rajoo @ Ramakant vs State Of M.P (( 8 SCC 553))decided that free help must be given to all poor accused, regardless of the severity of the crime ascribed to them, at each stage of justice delivery system and could not be restricted to the trial stage only. Neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of providing free legal aid to an accused or a person in custody. This makes it clear that legal services shall be provided to an eligible person at all stages of the proceedings, trial as well as appellate.
Delhi Legal Services Authority
To fulfill the object of legal aid in Delhi, a state authority in the name of Delhi Legal Services Authority was set up in Patiala House court complex. The Delhi Legal Services Authority has been performing the difficult obligation to improve the social disparities between the wealthy and the less wealthy and accomplishing extraordinary steps. Various legal aid activities undertaken by the authority are as follows ((<http://dlsa.nic.in/legalaid.html> accessed on 17 October 2015)):
Legal Aid Counsel Scheme: The Authority has implemented legal aid counsel scheme in Courts of Metropolitan Magistrates, Special Executive Magistrates, Children Welfare Board and so forth. Remand Advocates have been designated to take up and guard the instances of captured persons. Presently, every unrepresented individual in custody stands guaranteed of legal representation at distinctive phases of trial. The Authority has also a panel of advocates.
Appointment of Jail Visiting Advocates: The Authority has additionally appointed Jail Visiting Advocates to visit diverse Jails routinely on fixed days of the week to help poor people and unrepresented detainees as of provisions of Section 12(g) of the Legal Services Authority Act, 1987. Any jail inmate can seek aid and advice; file any bail/parole application; appeal(s) and so on through these Advocates.
Raising of Income Ceiling:The income-ceiling limit U/s 12(h) of the Legal Services Authority Act, 1987 has been enhanced to Rs. 50,000/- per annum to extend the benefits of the Act to more people.
Emphasis on Competent and Quality Legal Services to the Aided Persons:The nature of legal services is the need of the hour for giving competent legal aid to the applicant. Delhi Legal Services Authority takes regular feed back of the Advocates on its panel and strikes of the Advocates’ names who neglect to give productive efficient services to the applicants/aided persons.
Accreditation of Non-Governmental Organizations: The Authority is working altogether with Govt. Divisions and offices have likewise collaborated with Non-Governmental Organizations working directly or indirectly in the field of Legal Services. Most of the NGOs are registered.
Observance of Legal Services Day: On 9TH November which is seen as LEGAL SERVICES DAY in all the state Authorities, The Authority issued Press Release in driving National daily paper both in Hindi and English spelling out the salient features of the Legal Services Authorities Act; plans made there under by the Authority and the services being given by it. The Authority organizes many functions and legal literacy camps at various places in Delhi where various Non-governmental organizations and prominent citizens of Delhi participate.
Helpline: The Helpline is functional on all the working days from 10.00 A.M to 5.00 P.M in Central Office, Patiala House Courts It saves time, money and energy of the needy individuals and keeps them from being financially exploited. The Legal Aid Helpline has tremendous response and 4693 number of people have got benefited.
The table demonstrates the aggregate number of recipients of the legal aid services by the Delhi State Legal Service Authorities:
STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES (Excluding Lok Adalats)((Based on Statistical Information in respect of Legal Aid Beneficaries provided on Delhi Legal Service Authority website.)).
NAME OF THE STATE AUTHORITY – Delhi State Legal Services Authority STATISTICAL INFORMATION FOR 2014
*Beneficiaries under directions of Hon’ble High Court of Delhi in various cases.
The Authority has been organizing various legal awareness programmes from time to time to sensitize the public about their legal right by way of giving advertisements through electronic media, print media and by publishing articles in various newspapers.The Authority celebrates events of National Importance like Womens Day, Labour Day, World Anti-Tobacco Day. The Authority is also organizing Nukkad Nataks, street plays, etc. to generate public awareness on social and legal issues like Female Foeticide, Child Labour, Domestic Violence against Women etc.
Statistical Information of the number of legal literacy/ legal awareness camps and number of its beneficiaries for the year of 2014 is as under:
STATISTICAL INFORMATION IN RESPECT OF LEGAL LITERACY/
LEGAL AWARENESS CAMPS ((Based on Statistical Information in respect of Legal Aid Beneficiaries provided on Delhi Legal Service Authority website.)).
*As far as state of Delhi is concerned, most of the awareness programmes are jointly organized by State Legal Services Authority and District Legal Services Authorities.
Suggestive Measures:Despite the fact that the execution of the legal aid programme has been yielding great results however significantly more should be improved. The suggestive measures in this area are:
Exploring ADRs:Utilizing the different types of ADRs like Arbitration, Conciliation, Negotiation and Mediation in the settling of dispute particularly those including marital issues can turn out to be a viable legal aid device giving speedy and cheap justice to the masses. Lok Adalats, a permanent feature of the working of legal services authorities is to a great extent being utilized as a device of case management to help the over burdened judiciary and not so much as a instrument of the justice delivery to the litigant. If the `success’ of the lok adalat originates from negative reasons owing to the disappointments of the formal legal system, the utility of this component might likewise be short-lived.
No compromise on Quality: Free legal aid must not be perused to suggest poor or inferior legal services. The legal counselors in the board ought to be experienced. The law ministry ought to guarantee the senior lawyers do at least ten cases a year free of charge in the courts.
Inform individuals: Lack of awareness is the fundamental impendent in compelling ‘legal aid’. Efforts ought to be made to inform the general public of the presence of these services by utilizing electronic media and forceful campaigns.
Sharpening of the judiciary:
Consciousness of schemes and projects to have the capacity to guide the poor litigants in such manner.
Performance appraisal by all legal aid authorities:Where each district legal aid service authority should be ought to be assessed arenot compared with other district legal service authority inter as well as intra states to encourage legal aid
A reverse osmosis approach should be taken rather than to wait for the poor to come and approach for legal aid a system with the assistance of NGO’s to recognize individuals in need of such services might be created, all the more so in light of the fact that individuals are oblivious both of their rights furthermore the availability of legal aid.
In this manner, the legal aid programme, if executed will go far toward large number of our kinsmen, by advancing social justice and providing them equal access to the law and justice institutions of the country.The question that whether it is a myth or reality, can be translated that the vision of the pioneers of legal world is certainly transforming into reality the myth is only of its implementation which will likewise take a genuine shape once certain minor changes executed.
In this manner we can discover a change in the outlook of the Supreme Court towards the idea of legal aid from an ‘duty of the accused to ask for a lawyer’ to a ‘fundamental right of an accused to seek free legal aid’ in spite of the fact that free legal aid has been held to be necessary adjunct of the rule of law ((Khatri v. State of Bihar, A.I.R. 1981 SC 928)), the legal aid movement has not accomplished its objective. There is a wide gap between the objectives set and met. The significant obstruction to the legal aid movement in India is the absence of legal awareness. Individuals are still not aware of their basic rights because of which the legal aid movement has not accomplished its objective yet. It is the absence of legal awareness which exploitation and deprivation of rights and benefits of poor people. Subsequently it is the need of great importance that the poor uneducated individuals ought to be bestowed with legal knowledge and ought to be educated on their fundamental rights which should be done from the grass root level of the nation. Since if the poor persons fails to enforce their rights in view of poverty etc. they may lose in the administration of justice and instead of knocking the door of law and Courts to seek justice, they may attempt to settle their dispute through muscle power and in such condition there will be anarchy and complete dearth of the rule of law. In this way legal aid to poor people and weak person is important for the safeguarding of rule of law which is essential for the presence of the orderly society. Until and unless poor uneducated man is not legally assisted, he is denied equality in the chance to seek justice.
Hence, even though there has been immense number of laws as judgments and legislation however they have turned out to be a myth for the masses because of their inadequate execution. The need of the hour is that we have to concentrate on successful and appropriate execution of the laws which we already have rather than passing new legislation to make legal aid in the nation a reality rather than only a myth.