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Equal justice and free legal aid under the constitution of india
Before 1976 there was no concept of free legal aid in India. Bombay Legal Aid Society was the first one to propose the idea of free legal aid to poor litigants. It was first time in the year 1949 under the chairmanship of Justice P.N. Bhagawati a committee was set up and was called “The Committee on Legal Aid and Legal Advice in Bombay”. Later on following Justice Bhagawati, Sir Arthur Trevol Harris being the Chief Justice of Calcutta High Court also established a committee to look into the matter. Also in the Law Commission report of 1958 it was held that “rendering of legal aid to poor litigants is not a minor problem of procedural law but a question of fundamental character” which clearly shows the importance to address the issue if providing free legal aid and advice to all the needy ones in the country.
A committee headed by Justice V.R. Krishna Iyer was formed in the year 1972 to consider the question of free legal aid and advice to the socially, economically and educationally backward classes of people to make them aware of the constitutional and other legal rights and to help them to seek redressal in civil, criminal and revenue courts respectively.[3] By the forty second amendment to the Indian Constitution Article 39A was added which discussed about “Equal Justice and Free Legal Aid” in the year 1976.
Free legal aid not only means free representation or helping the litigant who is economically backward or has any disability in litigating the case but it also means awareness in the citizens of this country through various programs, conducting Lok Adalat to ensure speedy and expeditious justice and also help the people who cannot afford to travel all the way to the court. It also includes providing victim compensation in the matters listed out in the schedule or the follow up actions of the respective authorities.
India is a welfare state and it is the responsibility of the state to work towards the welfare of its people. Even if the idea of free legal aid and equal justice was enshrined in the constitution long back but in reality it was not actually implemented until the case of Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar[4].
In this case the facts were that a lot of men, women and children were put behind the bars for a long period of time that were waiting for their trial to begin. Many of them were arrested for trivial (Minor) offences for which the punishment was imprisonment for some months but they were kept in the jail from three years to ten years of time period which was much more than the punishment for the offence that they have committed.
Some of them were not even charged. The court in this case acknowledged the importance of Art 39A and held that all of them should be released with immediate effect and it stated that the state cannot deny the constitutional right of speedy trial only on the basis that it does not have adequate financial resources.
This was also discussed in the case of Sheela Barse v. Union of India[5] in which Sheela Barse who was a journalist and activist for prisoner’s rights informed the Hon’ble SC about the plight of 15 women prisoners who were in Bombay Central Jail. Five women among them admitted that they were assaulted by the police inside the lockup.
In the Writ Petition and the report filed stated about the inadequacy of legal assistance to these women in the prison.
The Court held that it violates Art 39A and gave certain guidelines regarding the same which gave the duty of the state as well as the magistrate.
Earlier the Constitution was the one law which discussed the idea of free legal aid and imposed the responsibility on the central government.
The procedure for proving the same came up with the enactment of the Legal Services Authorities Act, 1987 in which the delegation of responsibility and authority was mentioned and also the procedure for legal aid was provided.
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