DUTY TO RENDER LEGAL AID

The concept of seeking justice cannot be equated with the value of dollars. Money plays no
role in seeking justice.

Justice Blackmun in Jackson v Bish

The legal profession is regarded as a profession of honour and a lawyer ias an officer of the law and a
friend of the court. The concept of legal aid emegrges from this idea of social justice i.e to open
doors of justice and increase accessibility to justice. The statement, “A lawyer is and must ever
be the high priest at the shrine of justice”, a religious metaphor, reflects the view of the lawyer’s
special role on the administration of justice as contemplated by the American Bar Association in
the first national code of legal ethics in the USA.( The religious metaphor was developed in the
context of viewing Courts as the ‘shrines of justice’, and lawyers as the ministers of the “courts
of justice robed in the priestly garments of truth, honor and integrity” .  ) In inida it is is parallel
with letter and spirit of Indian Constitiution
(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)
(Article21-Protection of life and personal liberty – No person shall be deprived of his life or
personal liberty except according to procedure established by law)
It is a method to provide equal justice to the downtrodden and weaker sections of the society who annot afford the
services of a lawyer for the conduct of a case or a legal proceeding in any court. Free Legal aid services are closely
related with the welfare state and the provision of legal aid by the State, is influenced by attitudes towards welfare.
The right to free legal service is an essential ingredient of ‘just, fair and reasonable’ procedure which can take away
the life and liberty of a person accused of an offence .Legal aid is a welfare provision by the state to people who
could otherwise not afford access to the legal system. Legal aid also helps to ensure that providing people entitled to
welfare provisions, such as social housing, with access to legal advice and the courts, enforces welfare provisions.
Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are
engaged in relation to social security, housing, social care, health and education service provision, which may be
provided publicly or privately, as well as employment law and anti-discrimination legislation. However, despite this
Constitutional mandate, poor remain deprived of appropriate legal assistance for a long time even after
independence.

Here the advocates and legal practitioners have a role to play. Legal profession is monopolistic
in character and this monopoly itself inheres certain high traditions, which its members are
expected to upkeep and uphold. But, this directive has been elevated to the status of a
Fundamental Right by Justice Bhagwati in the landmark decision of Hussainara Khatoon (1979) by
ruling that free legal aid is a necessary concomitant of right to life and personal liberty guaranteed
under Article 21 of the Constitution of India. He observed, “Article 39A emphasizes 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.”
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In Mohd. Ajmal Amir Kasab vs. State of Maharashtra the hon’ble Supreme Court directed all magistrates in
India to discharge their duty of informing about free legal aid. It was held that the right to legal aid, consult and
defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first
produced before a magistrate. So 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, that one would be
provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the
Constitution and needs to be strictly enforced. All the magistrates in the country were directed to faithfully discharge
the aforesaid duty and obligation Any failure to fully discharge the duty would amount to dereliction in duty and
would make the concerned magistrate liable to departmental proceedings.

PROVISIONS: The duties of legal practitioners have been laid out in different
enactments over the years. As the legal system evolved and intecracies
increases, the scope of the legal practitioners also grew.

Legal Services Authorities Act, 1987 was passed by the parliament of India. The Act prescribes
the criteria for giving legal services to the eligible persons. It makes a person eligible for
assistance under the act if he is -
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or begar as referred to in
Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) 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
(f) an industrial workman; or
(g) in custody, including custody in a protective home or in a juvenile
home
(h) 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
(i) A person whose annual income less than rupees fifty thousand or
such other higher amount as may be prescribed by the State Government .

Section 32 of Advocates Act in context of free legal aid

Legal Aid is a concept in India that provides legal aid to people who are economically disadvantaged
in society or live in rural areas where they have no access to courts.
This concept corresponds to Article 14 of the Indian Constitution which guarantees all citizens of
India equality before the law. In addition, Article 39A of the Indian Constitution guarantees free legal
aid to those in need.

It states that the legal system promotes justice based on equal opportunities and must offer free legal
aid in all forms to ensure equal opportunities for all citizens.

The Legal Services Authorities Act, 1987, as amended by the Act of 1994, which came into force on 9 November
1995, aims at establishing a nation-wide network for providing free and comprehensive legal services to the weaker
sections. It 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. 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.

Order 33 rule 18 of the Code of civil procedure lays down that state shall provide free legal aid to
indigents. Under Section 303 of the Criminal procedure Code, every accused has a right to be
defended by a lawyer of his choice. Section 304 also provides for free legal aid to indigents at State
expense. 

According to Section 30428 of the Cr PC, an indict person must be provided with legal services of a legal profession
at the expense of the state. It is an obligation upon the state to ensure the compliance of the provision during
pendency of cases before the Court of Session. The state has the discretion to extend the application of the provision
to any class or trials before other courts in the State. In case of violation of the provision under Section 304, the
decision, delivered by the court, shall be declared null and void. The Supreme Court in catena of case betten has
reiterated the same. The Supreme Court of India in Khatri and Ors (II) v. State of Bihar29, while examining the
nature and scope of Section 304 of Cr P C, observed that:

“... [T]he State is under a constitutional mandate to provide free legal aid to an accused person who is unable to
secure legal services on account of indigent and whatever is necessary for his purpose has to be done by the State.
The State may have its financial constraints and its priorities in expenditure... the law does not empower any
Government to deprive its citizens of constitutional rights on a plea of poverty” Moreover, this constitutional
obligation to provide free legal services to an indigent accused docs not arise only when the trial commences but
also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy
to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage
that he gets the first opportunity to apply for bail and obtain his release as to resist remand to police or jail custody.
That is the stage at which an accused person needs competent legal advice, representation and no procedure can be
said to be reasonable, fair, and just, which denies legal advice and representation to him at this stage. We must,
therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused
not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is
remanded from time to time

Network of institutions imparting legal aid .Article 14 of the Indian Constitution implies a right
in every individual within the territory of India, and a duty on State to ensure that legal protection is
accessible to all irrespective of social or economic constraints. 

The Legal Services Authorities Act, 1987

The acts provides for creation of some legal services authorities for ensuring that, free and competent services of
the empaneled legal practioners, to the disadvantageous strata of the society. The basic objective of the Act is to
secure social justice to those who are not in a position to approach judicial/administrative authorities due to legal,
social, economic, or other disabilities. Free legal aid services are provided before the judicial and quasi-judicial
authorities, at different levels such as tribunals subordinate courts, high courts and the Supreme Court, by the
specified agencies under the LSA.

Professionals alone can render expert assistance in the field of law .

But between the lawyer and the justice ,consumer is a long distance
this distance can be bridged by the social service organisations and
lawyers wings of social welfare society.
In present days, lawyers are providing free legal aid to indigent
persons by way of Public Interest Lawyering. The lawyers are more
concerned to maintain the rule of law than to protect the interest of
their clients. The Public spirited Lawyers through PIL protected the
Liberty of under trail prisoners, speedy trail, environment, forest,
prevented water pollution, tanniers industrial pollution, banning of
injurious and harmful drugs.