“JUSTICE AND LEGAL AID”

____________________________________________________________

SAKSHI REWARIA

ABSTRACT

India is a sovereign, socialist, secular democratic republic, having a living and organic
Constitution which essentially guarantees to all it’s citizens socio-eco political justice,
equality of status and of opportunity and liberty. “Constitution is not to be construed as a
mere Law, but as the machinery by which Laws are made. A constitution is a living and
organic thing which of all instruments has the greatest claim to be construed broadly and
liberally”1.

The Constitution of India also guarantees equality before the Law and equal protection of the
Laws where aim of both the concepts is equal justice. The Indian constitution, in tune with
the British Magna Carta, and International declarations and covenants, proclaims in it’s
preamble the principles of justice, liberty, equality and fraternity.

A sizeable segment of the society owing to poverty, illiteracy ignorance, cultural inhibitions,
socio-economic disadvantages, cannot assert their rights or protect their lawful interests by
moving the judicial machinery. They also face all forms of non co-operations, oppositions,
discriminatory stance from all fronts. The accessibility to the Court and de facto equal
assertiveness of such helpless, poor and disadvantaged people are, thereby, seriously
impaired, resulting often in total denial of justice. On the standard of fairness the system of
law and the administration of justice ought to provide aid to these deprived, disadvantaged
people to help them get equal opportunity, equality before the law or the equal protection of
the laws and also to bring about de facto equality between the rich and the poor or the strong
and the weak, in getting equal justice.

In order to ensure equality of Law and justice, it is not only sufficient that law treats rich and
poor equally, but it is also necessary that the poor or the disadvantaged person must be in a

1
Goodyear India Vs. State of Haryana AIR (1990) SC 781 -791 Para 17

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position to get equal opportunity and equal protections of the laws enabling them to have
easy access to the court and to assert or enforce their rights properly and adequately in the
system of justice so that not only dejure but de facto equality before the law can be ensured,
and equal justice can be dispensed. Lord Hewart said - “Justice should not only be done but
should manifestly and undoubtedly Bo seen to be done”. Legal aid is the indispensable socio
economic tool to achieve and dispense de. facto equal justice to all and without legal aid
equality before the law, an integral part of the rule of -law, cannot be maintained, ensured and
sustained.

Legal aid is an outcome of the emergence of the socio economic philosophy and welfare
state. The focus of legal aid is on distributive justice, effective implementation of welfare
benefits and elimination of social and structural discriminations against the poor, weak,
disadvantaged people of the society. In a developing and poor democratic country like India,
it is the constitutional obligation of the state to provide legal aid to such poor and
disadvantaged people.

The directive principles of State policy, enshrined in the Part IV of the Constitution, set-forth
the ideals and objectives to be achieved by the State for setting up in India a social welfare
State. The Part IV of the Constitution aims at social welfare and common good and to secure
all it’s citizens justice-social and economic and to ensure socio-eco-political equalities.
Articles 38 of the Constitution, being a key stone of the directive principles, contains the
directives to the State to give effect to the objectives for the promotion of the welfare of the
people.

The State shall, in particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in differed vocations”2

The provision of legal aid, as an instrument of socio-eco-political justice, is enshrined in

Article 39A under Part IV of the Constitution of India as directive principles of State Policy
to touch and embody the concept of equal justice and welfare state.

The provisions of Article 39A runs as under

2
Article 38 renumbered as clause (1) thereof by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 9
(w.e.f. 20-6-1979)

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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

To implement the aims and objectives of the provisions of Articles 39A, which happen to be
non-justice able, the Government of India has passed several ordinances, legislations,
Amendment Acts and also formulated several schemes. Ultimately ‘The Legal Services
Authorities Act, 1987’ has been passed and made effective in 1995 through ‘The Legal
Services Authorities Amendment Act of 1994 i.e. Act 59 of 1994’ for implementation of this
socio-eco-welfare legislation in favour of the poor, underprivileged and classified
disadvantaged people of this country, so as to enable them to get equal opportunity for access
to justice.

Yet, in the backdrop of unabated corruption, growing population, continuing onslaught of

poverty and illiteracy and also in view of the global and national economic policy or
equations with a non-socialistic tilt, justice is still now most exorbitant commodity. Although
every element of the administration of justice including the services of the judges,
prosecutors, law enforcement officials are made available free to all citizens, but the access to
it as well as the participation in the processual system of justice, on equal footing, free of
charge as of right, is not so easily available.

The aim of this work is to critically analyse the legal aid provisions of the Constitution of
India and the connected legislations on the background of the prevailing socio-legal
conditions and to review the role of the Apex Court i.e. the Supreme Court of India as the
guardian of the Constitution and the protector of the fundamental rights of the citizen, in
determining the significance and the constitutional status of legal aid. Since the Supreme
Court holds the special Constitutional position with the law making power, the observations,
deliberations of the Supreme Court have only been stressed and referred to and therefore, the
decisions or observations of other lower Courts, on the subject, have not been stressed upon
generally.

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 EQUAL JUSTICE AND FREE LEGAL AID

The concept of equal justice requires an' approach responsive to inequality and injustice; just
allocation of advantages and disadvantages without any discrimination on the basis of social
status, economic status, gender, caste, creed, race, birth etc. in the process of judicial justice.
‘We cannot conceive justice which is not fair, and equal, which is given to one and denied to
another’3. Equal justice is the cardinal principle on which our entire system of Administration
of justice is based.

Moreover, equal justice to an individual should not be construed narrowly or formally since
justice is a bond between the state and the society, where an individual is a member of that
society, to whom just, fair and equal justice is due. The concept of equal justice at this height
is all pervasive, encompassing the society and committed to do justice not only to an
individual but to the society as a whole, taking the form of social justice. “Social justice is a
generous concept which assures to every member of the society a fair deal. Any remedial
injury, injustice, inadequacy or disability suffered by a member, for which he is not directly
responsible, falls within the liberal connotation of social justice”4.

In his valued speech before the Constituent Assembly on 25.11.1949, Dr. B.R. Ambedkar
said “The political equality can not be maintained unless it is backed by social and economic
equalities”. The social justice is, therefore, termed as the balancing wheel amongst liberty,
politics and economy to make the democracy survive and flourish.

The Supreme Court observed that “the basic framework of socialism is to provide a decent
standard of life to the working people and especially provide security from cradle to grave”4.
According to P.B. Gajendragadkar, J., “The Concept of Social Justice takes within its sweep,
the objective of removing all inequalities and affording equal opportunities to all citizens in
social affairs as well as economic activities”5. The demand for equality is the basis of
socialism and economic democracy should precede political democracy. The goal of Indian
socialism is blend of Marxism and Gandhism, calling for mixed economy.

3
PN Bhagwati “legal Aid in India” in Lav/ and the Common Wealth, ed. L.M. Singhvi, 1971 P.206.
4
Sailja Chander, Justice V.R. Krishna layer on Fundamental Rights and Directive principles, 1992 Page 15,
5
P.B. Gajendragadkar, Law, liberty and Social justice 1965, Asia Publishing house

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Modem Concept of social equality consists in the spirit of upliftment of the down-trodden, to
raise the suppressed, to advance the backward. It consists in bringing those at par whose
levels of consciousness have been low either by tradition, or by treatment. In the twentieth
Century, it is firmly established that a state exists for the welfare of the Community and the
legal institutions have been deployed accordingly.

The birth of a law, survival of law and end of a law aim" at and depend.' upon justice. Law is
the instrumentality of justice and the justice includes socioeconomic justice. Social justice
and equality are complementary to each other and the rule of law is a potent instrument to
bring about equality in result. Justice is not a stoic conception but a dynamic one and must be
blended with the de facto equality beside de jure equality and the welfare concept. Social
justice ought to be a dynamic device to mitigate the sufferings of the poor and disadvantaged
people of the society and to elevate them to the Just and standard level of equality to enable
them to live a life with dignity and well being.

JUSTICE AND CONSTITUTION OF INDIA

The Preamble promises to secure Equality of status and opportunity and above all the
LIBERTY in a social democracy. Dr. Ambedkar vividly explained the concepts in his
concluding speech in the Constituent Assembly as follows : “Political democracy cannot last
unless there lies at the base of it social democracy. What does social democracy mean? It
means a way of life which recognises liberty, equality and fraternity which are not be treated
as separate items in a trinity. They form a union of trinity in the sense that to divorce one
from the other is to defeat the very purpose of democracy. Liberty cannot be divorces from
equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced
from fraternity”.

The Supreme Court held that “The goal envisaged by the Constitution, therefore, is that of a
welfare state and the establishment of socialist State”9. Although the goal envisaged by the
Constitution was to establish socialistic pattern of society, the term “SOCIALIST” was only
inserted in the Preamble by the Constitution (42nd Amendment Act) 1976

Emphasising the wider significance of the fundamental provision of equality, contained in

Article 14 of the Constitution, the Supreme Court held that “the socialistic concept of society
was very well laid in part III and Part IV of the Constitution and that it was bounden duty of

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fie law courts to give shape and offer reality to such concept”. The court in the same case said
that “Article 14. was intended to secure socio economic justice to the people” .

Affirming the close relation of the principle of equality with the social justice, the Supreme
Court held that “Social justice and equality were complementary to each other and the rule
law was a potent instrument of social justice to bring about equality in result”6

Article 14 guarantees to every person the right to equality before the law or the equal
protection of the laws. The expression “Equality before the law” is a declaration of equality,
implying thereby the absence of any special privileges for any particular individual and
strikes at arbitrary power on the part of the Government.

The second expression, “the equal protection of the laws is rather a corollary of the first
expression and a pledge of the protection of equal laws having positive content. It means that
equal protection shall be secured to all persons within the territorial jurisdiction of the Union
in the enjoyment of their rights and privileges without favouritism or discrimination. The
Supreme Court interpreted the expression to mean that “all persons have the right to equal
treatment in similar circumstances both in the privileges conferred and the liabilities imposed
by laws”.7

Hence, what it forbids is discrimination between persons who are substantially in similar
circumstances or conditions. It does not forbid different treatment of unequals, and law must
distinguish between those who are equal and to whom they must apply and those who are
different and to whom they should not apply. Article 14 forbids class legislation, but does not
forbid classification or differentiation, which rests upon reasonable ground of distinction
since the varying necessities of different classes of persons require different treatment.

Equal justice demands not only the equality in law but equality in fact so that real equality
can be achieved. Explaining the concept of equality, the Supreme Court, thus observed :
“Equality must become a living reality for the large masses of the people. Those who are
unequal, in fact, cannot be treated by identical standards; that may be equality in law but it
would certainly not be real equality.

In E.P. Royappa Vs. State of Tamil Nadu AIR 1974 SC 555 the Supreme Court, on giving a
dynamic connotation to the equalising principle, contained in Article 14, stated that “Article

6
India Nehru Gandhi Vs. Raj Narayan AIR 1975 SC 2299
7
Satish Chandra Vs. Union of India AIR 1953 SC 250

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14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as philosophically is an essential element
of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence..8

Article 21 has been interpreted to mean in Maneka Gandhi’s case, that the law must be right,
just and fair and not arbitrary, fanciful or oppressive otherwise it would be no procedure at all
and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative
of Article 14”9. It, therefore, be noted that by establishing a relationship between Article 14
and 21, in particular, a requirement of reasonableness of law providing for deprivation of life
or liberty has been created, and has been tested under Article 14. The inter relation of Articles
14 and 21, initially carried the impression of controlling only procedural laws relating to
deprivation of life and personal liberty, has been developed into a general principle of
reasonableness similar to due process of law as understood in the Constitution of USA

Article 39A promotes justice on the basis of equal opportunities imposing an imperative duty
upon the state to provide free legal aid to the poor. “It has been held to be a mandate not only
from Article 39A but also from Article 14 and29 21” to uphold the principles of “Equality
before the law or the equal protection of the laws. “The legal aid constitutes a part of the right
to personal liberty guaranteed under Article 21 and is enforceable by the court”10.

MEANING OF LEGAL AID

The focus of legal aid is on distributive justice, effective implementation of welfare benefits,
elimination of illiteracy, social & structural discriminations. The legal aid is conceptually and
integrally linked to poverty in the context of socioeconomic conditions, overshadowed by the
problems of illiteracy, ignorance.

In comprehensive term, legal aid means and includes legal aid proper in the litigation and
legal advice & preventive legal services. The Legal aid proper is redial legal services whereas
the legal advice and preventive legal services are positive assistance to avoid injustice. The
legal advice is co-related with legal aid but is independent of any court proceeding, having
positive potential. Legal Aid is not a single effort but a concerted positive movement, a

8
E.P. Royappa-Vs. State ofTamil Nadu AIR 1974 SC 555.
9
Sunil Batra Vs. Delhi Administration AIR 1978 SC 1975
10
Sugreev Vs. Sushila Bai AIR 2003 Raj. 149.

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dynamic concept of socio-economic justice and rule of law which endeavours to bring
defacto equal justice to the poor and the people under other disabilities in the backdrop of the
contemporaneous trend of modem society towards egalitarianism and humanism to help and
cause the socio-eco-legal justice reach the common man speedily, fairly, equally and with
little or no expense.

Justice V.R. Krishna Iyer observed that “The spiritual essence of legal aid movement is said
to consist in investing the Law with human soul” 11.

The philosophy of legal aid envisages that the machinery of administration of Justice should
be easily accessible and should never be out of reach to the poor, socially disadvantaged
people and they should be provided with defacto equal opportunity in the process of
administration of Justice for Complete & Just enforcement of rights, ensuring equality before
the law and equal protection of the Laws as promised by the Constitution.

The legal aid scheme is having dual approach for implementation. On the one hand it offers
litigative legal aid to deliver socio-economic Justice by ensuring legal equality in the
processual Justice system. On the other hand it offers preventive legal aid to focus upon the
alleviation of poverty by altering the fringe conditions e.g. illiteracy, legal unawareness about
one’s rights to be understood, protect or assert which are responsible for perpetual poverty, to
help them retrieve from this calamity by infusing self reliance & development.

It is now not only limited to the welfare of individual indigent person who is seeking equal
justice in the court but to the class, all of whom are disadvantaged and helpless in seeking
equal and social justice.

The legal aid programme is being implemented basically by two approaches :

a) Litigative legal aid and

b) Preventive or strategic legal aid.

The Litigative legal aid is remedial legal service and the preventive legal aid or legal advice
is positive assistance to avoid injustice or legal problems. The litigative legal aids are
provided in the process of litigation in respect of court fees, process fee, lawyer’s fees, and
other administrative expenses etc. While the characteristics and aims of Preventive legal
services programme are :

11
Inaugural address at the 2nd State Lawyers’ Conference Andhra Pradesh at Rajmurthy, (1976) 2. Sec.'1,4.

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 a) aims at prevention and elimination of injustices which poor as a class suffer because
of poverty;
b) involves radical, multi dimensional use of lawyer skill for protection of group
interests
c) implies qualitative changes in the system
d) calls for the fusion of legal and political roles on the part of lawyers
e) makes poor self reliant by giving knowledge, organization and power
f) recognizes inter relation between law and socio economic problems of poverty.

FREE LEGAL AID

The legal aid is conceptually and integrally linked and appropriately related to the poor and
other socially, economically disadvantaged people in the society, essentially in the context of
a underdeveloped, emaciated socio-economic condition.

Justice may be itself free but the accessibility and the process through which justice may be
obtained are not free. The machinery of the administration of justice is complex, technical,
cumbersome, costly. It requires adequate resources and means to set machinery of justice in
motion with the help of legal experts to file, plead a case and to duel against an opponent who
may be rich and powerful, backed by high flying legal luminaries. It is popularly said that
everything in the system of justice is free except the access to it. It becomes painfully true
“when the poor got involved in legal proceedings, they hardly received competent legal aid
with the result the system became oppressive and unjust often denying justice to them”41.

It is not only a concern for accessibility to the justice but also in respect of justice delivery
system when an innocent, ignorant, illiterate poor or indigent person cannot provide a lawyer
in his fight for justice in the court. The inequality and discrimination prevail and he has to
submit himself silently through the just less laws to get justice. Delayed finalization of a case,
a poor or disadvantaged person, even on getting free legal aid, fails to enforce his legitimate
rights or to protect some interests or to get the benefits of rights or interests of which he is
entitled to, at the time of his need and requirement, leaving him in a quagmire of judicial
procession system, with no early prospect and where even the legal aid will not work for the
cause. Delayed justice ultimately frustrates the objects of legal aid in the processual justice

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system. Even it is provided to the poor and disadvanted people to help them get equal justice,
but in that circumstances justice itself remains illusory and remote.

Another menace which impedes the way for seeking justice is corruption. Although
corruption is a global problem but it can have a very unsetting impact in a country like India
where the majority of the people live in abject poverty. For a developing country like India,
corruption is a scourge, and it seriously retards the country’s economic development and
thereby making the poor more poorer. Corruption increases injustice. Basic human rights and
freedom are threatened when the administration of justice system becomes victim to it.

Corruption is polar opposite of Justice. Where there is a genuine commitment to justice,

corruption will decline and where corruption is unbridled, justice will be denied. Corruption
subverts development, social justice and also the welfare of the people. Corruption erodes
every segment of a social structure where the poor, weak, ignorant people become easy and
serious victims of corruption..

It is an open secret that the corruption in processual system of the subordinate court,
especially, has become a matter of serious concern. Judiciary’s credibility can be ensured
only when it is transparent and accountable. Corruption and bribery act as necessary lubricant
for a cumbersome, complex and technical system of judicial administration, overburdened
with huge number of cases. But the significance is that the corruption in the judicial system
develops from within. Corruption shakes the public confidence upon the judiciary. The trust
between the citizen and the state may also disappears since the judiciary is one of the three
basic organs of the state. It is imperative for the judiciary itself to take meaningful steps and
preventive measures with intensified surveillance to eradicate this menace from the system.

In the speech of Dr. Radhakrishnan, the then Vice-President of India at the Seminar on
Parliamentary Democracy on 25.02.1956 he said '‘Poor people who wander about, find no
work, no wages and starve, whose lives are a continual round of sore affliction and pinching
poverty, cannot be proud of the Constitution or in law.”12

The constitution is the supreme law and the rules of law prevail in India. The law is supposed
to be applied in all situations and to all persons without fear of favour. A law, which is
applied without discrimination in this way, may be regarded as the embodiment of justice.

12
Raghbir Singh Vs. State ofBihar AIR 1987 SC 149.

10

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The goal envisaged by the Constitution of India is that of a welfare state and the objective of
our planning is socialistic pattern of society where the state has positive duty to ensure to its
citizen socio-eco-political justice and dignity of individual. In a welfare type of state, the
function is to adjust distributive justice. The courts are accustomed to deal with the
individual, socialism deals with the mass. When the distribution is unequal and inequitable,
the society tends to split and destroy itself. So, it is not only the de facto equal justice but the
socialist consciousness of justice have to be applied.

A true democracy requires not only equality or welfare but justice in wider sence where the
people who are the source, origin and the constituents of a democratic country, aspire to
attain the common good, equality, equal opportunity without discrimination or arbitrariness.
The formulation of the social objectives, spirit, Ideals, declarations and promises, as
contained in the Constitution of India, have made India a social welfare state which renders
social services to the people and the Constitution obligates the Government to render equal
justice and promote welfare to the citizens.

LEGAL AID AND THE ROLE OF THE SUPREME COURT OF INDIA

POSITION AND POWER OF THE SUPREME COURT

The Constitution of India is the supreme lex of the land. The validity of laws is tested on the
touchstone of the Constitution by the judiciary. The Supreme Court is neither representative
nor reflective of the entire society. But the Supreme Court possesses and enjoys the largest
judicial power. In its judicial activities, it is accountable to none. “The Judicial power, so
vested cannot be passed over to or shared with the executive and legislative organs under the
Constitution”13.

The law derives its, legitimacy from justice and the end point of law is also justice. Law does
not only mean here as the instrument of state, enforced only to maintain Law and Order, in a

13
A.K. Roy Vs. Union ofIndia, 1982 1 SCC 271,295.

11

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police state. Law here is conceived and construed as a social instrument in the administration
of legal justice to dispense equal justice which is synonymous with social justice.

Equal justice is the cardinal principle on which the entire system of Administration of Justice
is based and it is the constitutional obligation of the state to provide free legal aid. It would
make a mockery of legal aid if it was left to a poor, ignorant and illiterate accused to ask for
free legal services. Legal aid would become merely a paper promise and it would fail in it’s
purpose .

Before 1976, there was no clear cut expressive provisions in the Constitution as to providing
with legal aid to the indigent and disadvantaged people at State expense. However, principles
of equality, Natural justice and their applications have enriched the civil law. Equity and
equality is synonymous. The equality before the law and the principle of equal standing are
the essential principles of civil jurisprudence, especially in the English Law, where aid to the
paupers in the process of litigation was well recognised and accepted in the form of “forma
pauparis”

The Civil Procedure Code 1908 lays down he provisions of providing legal aid, on the
principle of equal standing, to the poor and indigent persons under Order XXXII in respect of
the suits to protect their civil rights and to seek access to the civil justice at par with their
opponents through an application to sue as a pauper. If permission in granted by the Court, he
shall not be liable to pay any Court fees, or fees payable for service of process in respect of
any petition, appointment of pleader or other proceeding connected with the suit (Rule 8 of
order xxxm of c.p.c.).

The Supreme Court as the guardian of the Constitution and the protector of the Fundamental
rights of the citizens cannot distance itself from the harsh reality arising out of poverty and its
impact upon the right to seek equal justice from the Court. The Supreme Court rightly
expressed itself in the following observation - “If the citizen whose right has been violated
does not file petition before the court by reason of poverty or illiteracy etc., the court will be
helpless and can not punish the persons violating the fundamental rights guaranteed by the
Constitution”.14

Since the concept of legal aid is developed, nourished, enriched mainly through the
interpretations of the Constitutional provisions of Fundamental Rights and Directive

14
Daryoo Vs. State of U.P. AIR 1961 SC 1457.

12

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Principles and the Preamble, it would be necessary to discuss the interpretations of some of
the Fundamental Right cases of the Supreme Court which accentuated, promoted this
aspirations and concept to an active reality. Since the concept of legal aid is developed,
nourished, enriched mainly through the interpretations of the Constitutional provisions of
Fundamental Rights and Directive Principles and the Preamble, it would be necessary to
discuss the interpretations of some of the Fundamental Right cases of the Supreme Court
which accentuated, promoted this aspirations and concept to an active reality.

It is not only the question of providing the legal assistance of a Lawyer, but of a equally
competent lawyer against the opposite party, otherwise, it would violate the fundamental
right to equality which is the founding faith of the Constitution.

All the three organs of the state, i.e. legislature, executive and the judiciary are
complimentary to each other, although their functions are different. Legislature to legislate,
executives to implement and carry out the legislation and the judiciary to interpret the law,
supervise and dispense justice to all. “Whenever the other two organs of the state have failed
to implement the policies of the directive principles, the third organ, i.e. the judiciary has to
perform its role of implementing them one way or the other. And such an action or the role
ofthe judiciary, we can not call excessive judicial legislation”. The Supreme Court held that
“Judicial process is also state action under Article 37 and the judiciary is bound to apply the
directive principles in making its judgments”15

Even though, before the 42nd Amendment of the Constitution when there was no clear cut
expressive provision for legal aid, the Supreme Curt did show some concern for legal aid for
the interest of fair trial and equal justice in the Criminal processual Justice system. The
Supreme Court’s concern got honour when in 1973 the specific provision for giving legal aid
under Section 304 was introduced in the new ' i Criminal Procedure Code of 1973. It may be
recalled that in the summer of 1975, emergency was clamped on the Nation, suspending
Indian democracy and making fundamental rights inoperative. The Supreme Court also
received the onslaught of the emergency when the power of Judicial review was attempted to
be curtailed by the Constitutional 42nd Amendment Act, 1976, (Section 5) by inserting
Clause (4), (5) to Article 368.

15
Vasanth Kumar Vs. State of Karnataka AIR 1985 SC 1495 at 1502.

13

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Emboldened by the strength of interpretation of Maneka Gandhi’s case the Supreme Court in
M.H. Hoskot vs. State of Maharastra held that - “benign prescriptions for free legal aid to the
prisoners to be followed by the lowest to the highest Court in the Country where deprivation
of life and personal liberty of a Citizen is in substantial peril ... Partial statutory
implementation ofthe mandate is found in Section 304 Cr. P.C. and in other situations, Courts
cannot be inert in the face ofArticle 21 and 39A”16

In Hussainara Khatoon Vs. State ofBihar17 the Supreme Court held that “it is the
Constitutional right of every accused person, who is unable to engage lawyer and secure
legal services on account of reasons such as poverty or indigence, to have free legal aid
provided to him by the state and the state is under a Constitutional duty to provide a lawyer
to such accused person. If free legal services are not provided, the trial itself may run the risk
of being vitiated as contravening article 21 ofthe constitution”.

In Sunil Batra Vs. Delhi Administration18 the Supreme Court brings the professional Legal
aid society into actions, and calls for their participation in this process and recommended the
District bar to keep a call for prisoner’s relief and observed that - “The prisoner’s rights shall
be protected by the Court by its writ jurisdiction plus contempt power. To make this
jurisdiction viable, free legal services to the prisoner programme shall be promoted by
professional organisations recognised by the Court such as ' e.g. Free legal aid (S.C.)
Society. The district bar shall recommend to keep a cell for prisoner’s relief’.

But due to failure on the part of the Government to bring full literacy, the Supreme Court has,
now, seemed to have taken up the responsibility to legally educate the people, which falls
within domain of pure social justice in the educational front under the Directive Principle of
State Policy. It again proves that legal aid and services are in fact the delivery systems of
social justice. This is no doubt a most significant role and attitude of the Supreme Court in
the sphere of providing equal justice and legal aid.

The sum and substance of the decisions in the Hussainara Khatoon’s case are:

a) recognition of the right to speedy trial, and the right to legal aid services under the
umbrella of Article 21 and

16
M.H. Hoskot Vs. State of Maharastra AIR 1978 SC 1548.
17
Hussainara Khatoon Vs. State of Bihar AIR, 1979 SC 1377-1381.
18
Sunil Batra Vs. Delhi Administration AIR 1980 SC 1579.

14

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 b) reformation in the Law of Bail since the present legal and judicial system denied
justice to the poor and the needy because the system of bail with its misdirected
emphasis in furnishing financial security operated adversely against the accused

c) Bringing the obligation of rehabilitation of the victims of injustice on the part of the
State as a measure of Welfare and Social Justice. Apart from the reformation in the
Law of Bail, the Supreme Court imbued it’s mind with Social Consciousness and
welfare and put the obligation of rehabilitation of the victims of injustice on the part
of the state. This indicates that the constitutional obligation of the Supreme Court
does not end on dispensing equal legal justice only but on doing complete justice,
which cannot be done without taking recourse to socio-economic justice

Finally, in A.R. Antulay Vs. R.S. Nayak, AIR 1992 SC 1701, a constitution Bench of five
learned judges of the Supreme Court dealt with the question of “the right to speedy trial” and
laid down certain guidelines which may be summarized as follows :

a) Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused
to be tried speedily.

b) Right to speedy trial, flowing from Article 21, encompasses all the stages, namely, the
sta§e ofinvestigation, inquity, appeal, revision and re-trial.

c) The concerns, underlying the right to speedy trial from the point of view of the
accused,are :

 the period of remand and pre-conviction detention should be as short as possible. In

other words, the accused should not be subjected do unnecessary or long incarceration
prior to the conviction;
 the worry, anxiety, expense and disturbance to his vocation and peace, resulting from
an unduly prolonged investigation, inquiry or trial should be minimum; and
 undue delay may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance I or non-availability of witnesses
or otherwise.

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 d) Where the right to speedy trial is alleged to have been infringed, the first question to
be put and answered is who is responsible for the delay. Proceedings taken by either
party in good faith, to vindicate their rights and interest, as perceived by them, cannot
be treated and delaying tactics nor can the time taken in pursuing such proceedings be
counted towards delay.

e) White determining whether undue delay has occurred, one must have regard to all the
attendant circumstances, including nature of offence, number of accused and
witnesses, the workload of the Court concerned, prevailing local conditions and so on
- what is called the systemic delays. In such matters, a realistic and practical
approach, instead of a pedantic one, should be adopted by the State including
judiciary as well.

f) Each and every delay does not necessarily prejudice the accused. However,
inordinately long delay may be taken as presumptive proof of prejudice, the
prosecution should not be allowed to become a persecution. But, when does the
prosecution become persecution, again, depends upon the facts of a given case.

g) Ordinarily speaking, where the Court comes to the conclusion that right to speedy
trial of an accused has been infringed, the charges or the ,conviction, as the case may
be, shall, be quashed. In a given case, however, the Court may make such other
appropriate order, if the quashing of proceedings is not in the interest of justice.

h) It is neither advisable not practicable to fix any time limit for trial of offences. In
every case of complaint of denial of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay.

i) An objection based on denial of right to speedy trial and for relief on that account,
should first be addressed to the High Court. Even if the High Court entertains such a
plea, ordinarily it should not stay the proceedings except in a case of grave and
exceptional nature. Such proceedings in High Court must, however, be disposed of on
a priority basis.

The Supreme Court has played the dynamic role by attaching a new dimension in the Laws of
bail bringing it within the sweep of Article 21 and linking it with the legal aid. Here also the

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credit of reform in the Laws of bails goes to the activist judges of the Supreme Court who
activated the constitutional mandate of socio-economic justice and the welfare concept.

PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM

In the horizon of the Constitutional jurisprudence the evolution and introduction of Social
Action Litigation, popularly known, as “Public Interest Litigation” or ‘PIL’ is the major
indicator of the Supreme Court’s activism. The Public Interest Litigation is the outcome of
the expression of the judicial conscience in the process of achievement of the basic vision of
the constitutionally desired social order and justice. It is a process of epistolary jurisdiction of
the Supreme Court. Public Interest Litigation may be taken to mean a legal action initiated in
a court of law for the enforcement of the public interest or general interest in which the public
or a class of the community has pecuniary interest or have some other interest because it will
affect their legal rights or liabilities.

Public Interest Litigation is a device or organised social action for the purpose of bringing
about socio-economic change. PIL is revolutionary step or a great cause to ameliorate
miseries of masses through court system. It is the most tricking innovation in the recent past
in the delivery of legal services and it is a major break through in the delivery of social
justice.

It is described as “a strategic arm of legal aid movement which is intended to bring justice
within the reach of poor masses who constitute the low visibility area of humanity ” PIL is
the result of judicial activism where the Judicial activism and public interest litigation are two
sides of the same coin. The development of PIL has largely modified the traditional rule as to
standing to litigate in constitutional matter relating to social or public interests. Ordinarily,the
person whose fundamental right has been violated may file petition for enforcement thereof
and redress.

The concept of PIL which is attributable to the modem trend of judicial activism, is
comparatively of recent origin. The PIL has been initiated by some socially motivated Judges
of the Supreme Court of India to protect the human rights of the poor, weak, disadvantaged
people who are subjected to torture , exploitation, social injustices, committed by the law.
enforcement machinery, affecting the dignity of and lives of the oppressed and the

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bewildered. According to Dr. Upendra Baxi, “Public Interest Litigation movement is
primarily judge-led and even judge -induced in India”.19

PIL, in India, is the active assertion of judicial power to ameliorate the miseries of the
dispossessed and the deprived masses. PIL movement ushered as a means of legal aid to the
poor, illiterate, ignorant, unprivileged and underprivileged who had been denied justice.

In view of the growing poverty, illiteracy, ignorance, socio economic disadvantages,

exploitation and repression of weaker people, inactions and negligence on the part of the law
implementing organs of the state, “it became necessary for the legal process to ensure that
administrative decisions are made according to the intent of welfare laws so that the
beneficiaries receive their entitlements and protections from the state agencies entrusted with
welfare administration. It is interesting to find that welfare laws create rights for the poor for
which no effective “remedies” exist in contemporary jurisprudence. Overseeing this area of
justice for the poor requires new strategies and approaches. unlike the case-by-case litigation-
oriented traditional legal aid. Representative suits, group action litigation, lay advocacy
before administrative officials and public interest on litigation have been developed in this
context” .

In Bandhu Mukti Morcha Vs. Union of India, AIR 1984 SC 803,the. Supreme Court declared
PIL as a co-operative, non-adversarial exercise to correct justice. It was held to be not
necessary for the Court to follow fire “adversarial procedure under all circumstances”. The
epistolary jurisdiction of Supreme Court and High Courts contributed a lot in the
development of PIL in India, where even a letter started to be treated as writ petition in the
attainment of and to secure justice.

According to Mr., Justice A.M. Ahmadi (Rtd.) “Judicial Activism” may be defined as the
pro-active role played by the judiciary in ensuring that the Rights and liberties of the people
are protected. It may be understood as the role •of the court in stepping out from its normal
interpretative role. When the court moves beyond its normal role of a mere adjudicator of
disputes and becomes a player in the system of country laying down principles and guidelines
that the Executive must carry out, that role of the court, may be said to be judicial activism.
(Dimensions of‘Judicial Activism” JT 2003 Journal 1-2).

19
Upendra Baxi, Taking suffering seriously : Social Action Litigation in the Supreme Court of India, in P.K,
Gandhi, Social Action through Law, Concept Publishing Co. N. Delhi, 1985 P.62.

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Development of Public Interest Litigation has also provided significant assistance in making
the judicial activism meaningful. The judicial activism in the form of PIL has proved to be an
effective means for the protection of civil rights, fundamental rights of the citizens of India. It
helped justice reach the most deprived sections of the society. The judiciary compels the
administrative agencies and the executives to discharge their responsibilities and also reminds
the state of its constitutional as well as social obligations.

For the interests of justice and remedy the inadequacies of socio economic justice, the
traditional and conventional procedures of justice-required changes suitable for the changing
situations and demand of the society. Prof. Kagzi, said that “The demand of access to the
courts by those who demanded social justice, and enforcement of rights of the vast numbers
of hitherto oppressed people required alternations and modifications in the procedures of the
courts and forms and methods of legal remedies. The unequal rules of adversarial court
process had to be changed inversely, and by way of protective discrimination. The
conventional individual litigation had been changed into public interest litigation”.

It is wrong to assume that as if the judges are committing some legal or Constitutional
impropriety by resorting to the proactive approach. Through judicial activism judiciary fills
the vacuum created by a failed political process and bad governance, as a guardian of rule of
law. The judiciary has stepped in to play its role so as to ensure that the Government ruris
according to law and the executives are kept on the tract of the rule of law.

Justice J.S. Verma, former CJ of the Supreme Court observed : If today the judiciary is forced
to stretch its arms beyond what appeared to be its intended limits, it is with a view to undoing
the excess of the executive backed by a stifling majority in the legislatures. Once the
legislatures start behaving with grace and the executive learns to manage within its genuine
power, the judiciary could also shrink back to its intended size20.

It has been realized that the legal justice would be incomplete in absence of socio-economic
justice and de facto equal justice backed by equal opportunity and it has to fulfill the demands
as well as to achieve true objects of the Constitutional fundamental promises of “EQUALITY
BEFORE THE LAW” in the processual justice system including the access to justice without
discrimination. The prominence of Legal aid and it’s indispensability in the processual justice

20
J.S. Varma, “Accountability forjudges ‘The Tribune

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system as well as for the access to justice, as Constitutional mandate, are the outcome of the
endeavors of the socially conscious and spirited Judges of the Supreme Court.

The Supreme Court is the ultimate repository of all Judicial powers of the Country and is
known as the guardian and the protector of the people’s Fundamental Rights. The judicial
conscience cannot rest reconciled to a situation that may expose citizenry to the substantial
risk of grave injustice. Mischief would arise from passivity of the Supreme Court and it
would be unwholesome and against the public interest if justice elude the weak and the poor.

THE LEGAL SERVICES AUTHORITIES ACT 1987

Before passing of the Act, the most serious efforts were made by the Government to provide
free legal aid. By a resolution dated 26th September, 1980 a Committee for implementation
Legal Aid Schemes (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati, was
appointed to monitor and i ' implement Legal aid programmes on a uniform basis in all the
states and union territories by which several legal aid and advice boards were set up in the
State and Union territories. But on review of the working of the CILAS, certain deficiencies
came to the fore which prompted the Government to feel that it would be desirable' to
constitute statutory legal service authorities at the National, State and District levels so as to
provide for the effective monitoring of legal aid programmes. Legal aid has come to
comprehend not only limitative aid in Courts and Tribunals but also legal literacy of every
section of the people, appropriate proactive legal advice and preventive legal services/

Aim, objects and Infrastructure of the Act The aims of the Act are primarily two :

a) To constitute legal service authorities to provide free and competent legal services to
the weaker sections of the society to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities.

b) To organize Lok Adalat to secure that the operation of the legal system promotes
justice on a basis of equal opportunity.

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Legal aid is the operational arm and a dynamic instrument for access to justice. It is a process
of political and social mobilisation of weaker section for legal action, public interest and
social action litigation. It is a process of democratisation of judicial remedies and legal
activism and reform of the law and procedure to facilitate social justice. It is an endeavour to
imbibe and instill a new legal culture, legal consciousness and awareness in tune with the
constitutional values and aspirations.

As regards the means test, it is envisaged in Section 12 of the Act21 that a separate sub section
(h) to the said provision has been substituted by Act 59 of 1994 where the persons whose
annual income is less than a certain limit as prescribed, are also eligible for legal aid for
pursuing. cases before the Supreme Court and other lower Courts. Since the poverty or
economic disability is the prime mover of the philosophy of legal aid and it is also the origin,
the means test should be applied in the cases in common. A member of a Scheduled castes or
Scheduled Tribes or a women or mentally ill/otherwise disabled persons or a Industrial
workmen may be in receipt of income higher than that as shown in sub section 12(h). But the
plain reading of this provision gives the impression that even after receiving the amount more
that the limit of income as prescribed in sub section 12(h) they are entitled to the free legal
aid. Since the means test has not been expressly made common to all the persons as indicated
in Section 12, it appears that the affidavit to be made by a person as to his income, as referred
to in sub section 13(2), is only meant and directed for those coming under sub section (h) of
Section 12 and not for all.

LOK ADALAT

The Institution of Lok Adalat falls within the broad ambit of legal aid. It is a forum meant for
amicable settlement of disputes through speedy process to eliminate delay and expenditure in
seeking justice. Lok Adalat existed since 1980 and was popularized, effectively implemented
under the dynamic programme of Committee for implementing legal aid schemes (CILAS).
Parties by their mutual consent present their cases before Lok Adalat for amicable settlement.
If the matter is settled and compromise is signed by the parties, it is sent to the court where
the matter was pending, to pass a decree in terms of the compromise. The first ever Lok
Adalat was held in the Supreme Court of India on 19.11.1989. Although Lok Adalat has been

21
Hussainara Khatoon Vs. State of Bihar, AIR 1979 SC 1360.

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popularized and implemented under the. programme of CILAS but the consolidated legal
Status, Authority and power of Lok Adalat is endorsed only by the Legal Services Authorities
Act, 1987.

The cognizance of cases by the Lok Adalat is taken where in any case referred to

a) the parties thereof agree or

b) one of the parties thereof makes an application to the court for settlement and
c) if such court is prima facie satisfied that there are chances of such settlement or
d) the court is satisfied that the matter is an appropriate one to be taken cognizance of by
the Lok Adalat.

But no case shall be referred to the Lok Adalat by such court except after giving reasonable
opportunity of being heard to the. parties or other party.

The Lok Adalat has powers of a civil court and the proceeding before it is considered as
judicial proceeding. It is to be guided by the principles of justice, equity and fair play.
Wherever settlement is reached or compromise is arrived at, award is made by the Lok
Adalat, which is deemed to be a binding decree of a civil court and no appeal is permissible
against the award and the petitioner gets back the court fees paid for registering the plaint. If
no settlement is reached before the Lok Adalat the case goes back to the court for regular
hearing or trial.

In Sheela Barse Vs. State of Maharastra22, the Court reminded the lasers of their duty to help
the people in distress. Bhagwati. J. speaking for the Court held that ‘lawyers must positively
reach out to those sections of humanity who are poor, illiterate and ignorant, and who, when
they are placed in crisis, do not know what to do or where to go or to whom they should go”.
The learned judge pointed out that “if lawyers, instead of coming to the rescue of persons in
distress, exploit and prey upon them, they will come into disrepute and large masses of
people in the country would lose faith in lawyers and that would be destruction of democracy
and rule of law”.

Further Section 5 of the said Act directs that “in the discharge of its functions under this Act,
the Central Authority shall wherever appropriate, act in coordination with other government
and non-governmental agencies, universities and others engaged in the work of promoting the

22
Sheela Barse Vs. Stae of maharastra, AIR 1983 SC 378

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cause of legal services to the poor”. Thus in the Legal Services Authorities Act, 1987 the
support, co-ordination and importance of the voluntary organisations are firmly recognised
and appreciated.

CONCLUSION

The mandates of socio economic political justice as well as equal justice, although remain in
the Preamble, Part HI of the Constitution and are also embodied in the various socio eco
welfare provisions of the Constitution of India but to bring these mandates into reality are
still dependent upon the sincere activation and strict implementation of the provisions of Part
IV of the Constitution

The provisions of free legal aid, contained in Article 39A of the Constitution falls within the
fold of Part IV and is therefore, affected by the mischief of Article 37 of t-he Constitution,
rendering it non justiceable and non enforceable through the court of law.

Despite the Supreme Court’s strict observations and rulings in several landmark judgements,
holding there under, the right to legal aid, as envisaged in the ; provisions of Article 39A, as
fundamental right, the said provision is still laying in Part IV of the Constitution with the
rider of prohibitions contained in Article 37. A mere pronouncement of a particular right as
Fundamental Right by the Supreme Court can not give it a Constitutional status of
Fundamental Right or make a provision of Part IV of the Constitution justice able from the
point of view of the Constitutional law making power of the Parliament.

The access to justice poses a challenge to the democratic values. The rights and laws must
reflect contemporary realities to remain meaningful. Equitable availability of legal aid as a
top national priority should be, therefore, made a Fundamental Right for the larger good of
the nation. Legal aid is not only required to be provided for access to the Court of Justice or
during the course of Court proceedings but the legal assistance also needs to .be provided to
the poor persons when they are detained or arrested by the Police or other authorities. This is
a fact that usually the victims of police torture or inhuman treatments, even leading to death,
are those helpless people, having no economic stability or so called socio-economic status.

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Legal aid is no longer a charity of the Government but a constitutional obligation of the State
to provide it to the bonafide and eligible persons. Article 39A is a part of “just fair and
reasonable procedure” under Article 21 of the Constitution and the due process of law, as
affirmed by the Supreme Court.

Relating to statutory limitations for preferring an appeal or filing a suit, it is suggested that
the period, during which an application for legal aid remains pending with the respective
legal aid committee, should be excluded from the computation of the period of limitation.
Further, the economic criteria for making a person eligible for the free legal aid should be
fixed at national level, taking also into account the demographic trends, human development
index, per capita income, Ratio of income and consumption etc. Such criteria should be one
and single for the whole nation and to be followed by every state without variation to bring
certainty.

The legal profession plays important role in the administration of justice. It is a noble
profession, which has been created also for public good and utility. Function of Advocates is
to plead for legal justice. It is the duty of lawyers to provide free legal assistance to the poor
and underprivileged people. Rule VI of the Rules of Bar Council of India provides that it is
the duty of an advocate to render free legal assistance to the indigent and oppressed persons.
The lawyers should play more constructive role in this respect. It needs to be remembered
that the poor quality of legal aid when available, affects the equality before the law.

It is a reality and fact that huge numbers of cases are pending, including trial, in different
courts, number of which is growing from day to day with no early solution, even though
attempts are being made in this respect, such as, creating fast track courts. It is therefore,
suggested that mobile courts need to be created for trying minor offences and the Lok Adalats
as well as permanent Lok Adalats should be invested with more power to help shed some
more burdens of the general courts. In regard to the trials of Criminal cases, the free legal aid,
as provided under section 304 of the Criminal Procedure Code 1973, should be; made
available at all stages of trial and not only at the stage of session trials.

The guarantees of equal justice and equal opportunity to secure justice will be meaningless if
the poor, illiterate or indigent people are not made aware of their rights, privileges of free
legal aid to enforce their rights or to seek redress in the event of its violations. To bring legal
consciousness the Government should introduce basic law papers in the syllabus at the school
and under-graduate levels as additional subject.

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In the context it is suggested that the government needs to take sincere measures to publicise
the legal aid facilities through Television, electronic media, print media etc. regularly, so that
it may reach the grass root people who are the victims of all forms of injustice and
repressions. More and more legal aid workshop should be organised in the rural areas on
weekly holidays with the help of local senior Government officials Judges of the local
Courts, school teacher, lawyers and other eminent personalities to infuse legal awareness, to
promote , legal literary, to reaffirm the faith and confidence in the judicial system and the
administration of justice.

It is hoped that the recommendations and suggestions mentioned by the researcher, are
followed and properly implemented, equal justice may be achieved substantially with the
basie spirit of the Constitution of India.

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