Fighting a legal case in the country could take one’s grit and gut out. This is correct, more so, if the litigant belongs to poor, illiterate and weaker section of the society.
Entangled in matrimonial dispute, Rajni Khera (not her real name), a Delhi resident, learnt it the hard way when she approached a city court for monthly maintenance from estranged husband for herself and their 9-year-old daughter. Assisted by a local social activist, she urged the court to provide her legal aid as she was unable to afford a proper counsel.
Much to her chagrin, she realised, after a few days, that the counsellor, supposed to protect her rights as well as her legal aid counsel, simply colluded with her husband’s advocates.
All her concerns on her right to residence and maintenance were not advanced during the proceedings. She was asked to sign compromise deeds. She did not know where to go or whom to approach.
In any case, now she has to approach the court again. But she does not have the wherewithal to afford fees of the private counsel matching with the advocates hired by her husband.
Worse is the situation in courts in smaller and mofussil towns. The poor and ignorant litigants are left at the mercy of fleecing counsel. This is so despite the passage Legal Services Authorities Act, 1987.
The Act mandated setting up of legal services authorities for providing competent legal services to the weaker sections of the society in order to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities.
“Equal justice to all and free legal aid are hallmark of Article 39-A,” said Justices R M Lodha and A R Dave on August 3, 2012, while dealing with a petition filed by the Bar Council of India.
The BCI’s plea challenging vires of the Legal Services Authorities Act, 1987 and Amendment Act 2002, mooting permanent Lok Adalats to settle certain disputes being violative of Article 14 was dismissed by the court.
“The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the court,” the bench said.
In Maneka Gandhi versus Union of India, a Constitution Bench of the Supreme Court held that the procedure for depriving a person of his life or liberty should be fair, reasonable and just.
“If an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just,” said another bench of the apex court, which held trial of a Pakistani national as illegal in absence of a counsel.
“A guiding hand of counsel at every step in the proceeding is needed for fair trial. If it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect. An accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence,” it said. The court set aside the death penalty awarded to Mohd Hussain alias Julfikar Ali in 2012 and ordered his deportation.
Thus, the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trial.
Right to defend
Actually, the right to be defended by a legal practitioner, flowed from Article 22(1) of the Constitution, which has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub-Section 1 of Section 304 of the Code of Criminal Procedure.
Legal assistance to a poor person is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations.
According to National Crime Record Bureau, out of 4,11,992 prisoners, as many as 67,386 were provided legal aid during the year 2013. In 2012, the figure of those given free legal aid was recorded at 62,050.
Many top-notch lawyers of the country, be it Harish Salve, Ram Jethmalani or Raju Ramachandran, have appeared for cases pro-bono (for the public good, at reduced fee) on the request of the court or just when they feel necessary to lend their support to the cause.
But still, a lot was required to be done to take the legal aid movement to the grassroot level. Though legal aid services authority has been established from national to district level, the judges in all courts are to be sensitised to ensure the litigants get respectable pleaders to put forth their case to ensure fair justice particularly to the poor, backward and weaker sections and women, who cannot afford counsel.
The legal aid counsel also need to deal with the clients with due empathy and sensitivity to help them fight their case.