Social Justice and Legal Aid
SOCIAL JUSTICE AND LEGAL AID
- Shipra Agrawal, Symbiosis Law School, Pune
“In the state of nature…all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law.”
-Charles de Montesquieu
Introduction
Legal aid was first coined by ReinaldHerber Smith in his book Justice and The Poor in 1919, which basically instated that legal aid should be provided to poor and the underprivileged as it the basis of a legal system. Legal aid is essentially an instrument which acts as an assistance to people who are poor and underprivileged to afford any help in accessing the court for justice and fair trial. As stated above that legal aid is an important element of any legal system, absence of which will result in failure of the intention behind the legal system. Social Justice focuses on more than individual justice but more on relations between groups within the society by establishing a proper system of just relation and fair trials. Combining both of these concepts, one thing is interpreted that all should have equal access to the legal system irrespective of our financial status in the society.
Development
“Useful function of lawyers is not only to conduct litigation, but to avoid it, wherever possible, by achieving settlement or withholding suit.”
-H.L. A Hart
Although, the term was first coined in 1919 but the concept of legal aid first came into existence nearly 700 hundred years before that, in the historic Magnacarta of 1215 and henceforth it was developed into what it is today with many welfare schemes to come in sync with the ongoing socio-economic development of the society.
Justice Bhagwati Committee established by the Government of Bombay in 1949 for Indian Legal Aid Movement which was essentially the beginning of Legal Aid development which examined the practicability of administering free legal aid to poor, underprivileged and socially disabled person.
All the state governments were ordered to provide legal aid and assistance to everyone with offences punishable with imprisonment exceeding 5 years by Government of India in 1952 as an initiative to encourage legal aid and it’s development as to help in social justice which was seen as an inspiration by Central Government which issued similar directives in 1958. Somewhere in between this, one more encouragement was the National Legal Aid Conference, March 1950 which emphasized the need of a comprehensive scheme of legal Aid in India.
The need of legal aid agencies for redressal of the economic inequalities and provide assistance to poor, underprivileged and socially disabled litigants all over India was pointed out in 14th Law Commission Report which in 1960 led to drafting of Legal Aid Scheme, irony is that states denied from adopting the Legal Aid Scheme because of financial reasons.
To ensure the effective and cheaper justice to the poor, underprivileged and socially disabled person,a blue print scheming the philosophy underlying this social welfare measure was prepared by the chairman of Legal Aid Committee Mr. Justice V.R. Krishna lyer.
The Legal Services Authorities Act, 1987, a step towards Legal Aid, is intended to enable people’s participation in judicial administration through Lok Adalats which in a sense is an expansion of public interest legation in rural areas promoting social justice in India.
Legislation, Judiciary and Legal Aid
"The poor and the 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."
-Justice P.N. Bhagwati
A clear mandate has been laid down under Articles 38 and 39, of the Constitution of India regarding this. It has been established that failure to provide free legal aid to an accused at the cost of the State unless refused by the accused, would vitiate the trial that providing free legal aid is not Government\'s charity but a state’s duty that should not be taken for granted.
Whereto a determinate class orgroup of persons has been caused a specific legal injury and when such a class or person are unable to come to the court because of poverty, disability or a socially or economically disadvantageous position, any member of the society/ public can approach the court for redressal of that specific legal injury caused to that sector of people. The executive failed to bring legal aid to the door steps of millions of Indians and still incurred a lot of money on multiple legal aid schemes at both central and state level, this challenge was taken by court and fulfilled as The court was able to bring legal aid to the door steps of millions of Indians.
Section 304 of Criminal Procedure Code that the court should assign a pleader at the expense of state in case the party is not being represented by a pleader and cannot afford one due to their financial condition. Similarly, other acts like the Code of Civil Procedure also contain provisions in relation to the free legal aid.
On the application to sue as indigent person is being granted the plaintiff shall not be liable to pay court fee as stated under the Civil Procedure Code of India, Order 33: Suits by Indigent Person. The Court may, if the circumstances of the case, assign a pleader to him in case he is not represented by a pleader , which is also extended to the dependant also.
Legal Service Authority of India enacted another act called The Legal Services Authority Act, 1987 to provide free and competent legal services to the poor, underprivileged and socially disabled to ensure that by reason of economic or other disabilities any opportunities for securing justice are not denied to any citizen to secure that the operation of the legal system promotes social justice.
Right to Free Legal Aid is provided as a right under Constitution of India in order to secure justice. The need for lawyers to provide representation in courts, prison appeals and criminal proceedings was first taken in consideration by the First Law Commission of India, and the 1961 Advocates Act exhorted the Bar Council to “organise legal aid to the poor.” A surge was seen in India in the 1970s and 1980s about increasing interest in addressing and raising awareness amongst people for the particular population’s need for legal aid.
Criticism
Lack of legal awareness is the only setback of Legal Aid and Social Justice in India: It is not only Legal Fraternity’s duty but also an equal concern and responsibility of everyone who is aware of rights and protection available under the ambit of law to promote awareness and aware the people regarding legal aid. When the society comes forward to help, care and nourish for its vulnerable population and their legal right, then only can the Constitutional commitment for legal aid can only be cherished and fulfilled.
Conclusion
“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 Bishop
The prime object of the state should be ―equal justice for all and legal aid is an obligation of the state, right of citizens and not a mere charity. Few of the results of failure in providing legal aid will be exploitation and deprivation of poor’s rights and benefits and hence awareness about legal aid and actual implementation of legal aid should be focused upon to ensure the fulfillment of constitutional pledge in its whole spirit of equal and fair justice to all the sections of society and especially the indigent section to ensure social justice.
References :-
1. Madhav Hayawadan Rao v. State of Maharshtra, AIR [1978] SC 1548.
2. State of Maharashtra v. Manubhai Pragaji Vashi, AIR [1989] Bom 296.
3. M.H Hoskot v. State of Maharashtra, AIR [1978] SC 1548.
4. SP Gupta v. Union of India, AIR [1982] SC 149.
5. M.C Mehta v. Union of India, AIR [1987] SC 1087.
6. Sunil Batra v. Delhi Administration, AIR [1978] SC 1675.
7. Khatri v. State of Bihar, AIR [1981] SC 928.
8. Article 39, Constitution of India, 1950
9. Law Commission of India, List of Reports of the Law Commission of India.
<http://bombayhighcourt.nic.in/libweb/commission/Law_Commission_Of_India_Reports.html>
10. Suk Das v. Union Territory of Anuranchal Pradesh, AIR [1986] SC 991.
