ol XL (9) 2013 tice but also z legal aid in unity effort So there is erly so that RIGHT TO LEGAL AID IN HUMAN RIGHTS PERSPECTIVE - A JUDICIAL RESPONSE Dr. M. Asad Malik" INTRODUCTION HUMAN rights are those rights which a person has simply because he | or she is a human being. For the proper development of a human being, | some rights are essential. These rights belong to them because of their very | existence and became operative on their birth. Human rights provide legal mandate to fulfil human needs. Basic human rights and freedoms are ‘inherent in mankind. Human right is a concept that has been constantly evolving with the passage of time. It seems that the concept of human Jrights is as old as human civilization. Human rights are traditionally known as ‘natural rights’ and can be said to have originated from the divine law of nature. The idea of human rights is used to affirm that individuals have [imoral rights by the very fact of being human which no society or state Ishould deny. Abstract notions of human rights assumed a more concrete land universally accepted form with the adoption of the Universal Yeclaration of Human Rights (UDHR) in the year 1948. Human rights [get transformed into legal rights when they are recognized and lncorporated in the law of, the state. Therefore, practically all the Civil and ‘litical Rights have been incorporated in the Constitution of India as ‘undamental Rights whereas Economic, Social and Cultural Rights have een included as Directive Principles of State Policy. Another significant tp was the enactment of the Protection of Human Rights Act in the year ‘993, which defines human rights as: “the rights relating to life, liberty, Pquality and dignity of the individual guaranteed by the Constitution or | Assistant Prot Faculty of Law, Jamia Milla islamia, New Delhi 7 ! | Scanned with CamScannerNOUN BAR REVIEW a3 2019 embodied in the International Covenants and enforceable by Courts in Indio’ ‘The mere embodiment ofa right ina covenant isnot sliient butts necessary that the legal system should strive to achieve through appropriate laws and policies, In fat the dea of human rights ls much wider. Under the constant gaze of judiciary, our law ensures basic rights even fo those who are suspacted of involsement in cies. The increasing importance that the concept of human rights has attained loball i indeed impressive. The Indian criminal jusie system is based on an adversarial ‘model and characterized by the concept of 'dve proces’, which involes ‘numerous rights ef accused who ate facing til in criminal cours. These Tights consistently insisted upon by the lndlan arsprudence include ight to lie & liberty: right against torture or inhuman degrading treatment; Hight to due process & fair treatment bafore lau; right of legal aid & advice et, Right fo legal aid in the criminal justice systom is considered as non- derogable and an essential constituent of fair tri both in international ‘numan rights law and domestic aus, Through its various pronouncements, the Supreme Cour of India has been succesful in creating human rights jurisprudence and helping the poor people of our county. The role ofthe falieiry, of course I primarily to ensure the most effective and proper implementation of Rule of Law which begins from the protection of Human Rights. This paper Is aimed to analyse the law and practice in relation to legal aid ond the role of the Apex Court for protection of the right to legal aid in human rights perspective in the present day CONCEPT AND MEANING OF LEGAL AID seeestreereerey ees : a eget tra ten sewer atten on Ce redone oonatte wien erate odie oes pai umen eer siete tas i co eeoema mttaer gare sete teen ety aed an ag ini pemaee mae ust He tl of he Bt te community od ihe Goverment equality and is movement bs 10 the poor. It requires @ 1. BN. Mani Tap, Jurisprad 8 57-58 2002) e GATTO LEGAL NO INHUMAN IIGTS FERSPECTVE—A JUDE RESPONSE {0 provide the services of layers ree or for ‘who cannat afford to pay ue’ fee Indigent persons in need of such help."? ca Inthe words of Justice P, N, Bhagwati 2 token charge to persons “the egal ld mean proiding on srangamest i society's thatthe machinery of adminstion 9 Iusce becomes coi ccens rsnot os of enh 2 those have ota or eneceme ote "ahs gen otham yaw In suk on conpene the poor ond the itr shouldbe ole oooh the fours ond thr igreanc nd poverty shu at bon impala too of er ang aes Fon “Thus, legal aid isa socal assistance or help extended tothe one who is facing a legal problem but eannt afford, being handicapped by is scarce ‘means and resources, to stand equal o his opposite pany in is execs to et justice, Legal aid has now boen accepted a8 a meson of the well slote which impli afirmatne scion fom the Sate, providing effective ‘access to individuals and groups to aval themsaives of legal entitlements. Legolas 9 service of the lawyer in gratis to the chants who do not bare ‘means to afford for ligation. li, poor perons ae unale to approsch the cours it could be denial of egal protection ofthe aw, spy because he ‘aggrieved person has no means to approach the court Hence legal ad bas row been recognized as an essential pao function ofthe dination fi, partyin denocat an soa rue of ey nd ‘The provisions of legal ald tothe poor and the dsacvantaged exis in all civilised counties, often guided by chartable and philanthropic ‘concems. Ina democratic setup, the philosophy of legs has sequel a ‘new meaning, wth an emphasis onthe concept of equalsy ofall human balngs, increasingly draun ftom the univers principles of hsman rights € INTERNATIONAL PERSPECTIVE OF RIGHT TO LEGAL AID ‘The right of access to justice and to legal aid inthe criminal Justice 2 The New Enoylopedie Banna, Vo. MI, 122{ 1978 ‘3. Govemmnt of Guat, Report ofthe lgl Aid Commit, 51979 44 U.Sarthchacan, “Bringing Legal A Step Coser Hore”, The Hind, 10 (Novem 9,201), ~ Scanned with CamScannerINDIAN BAR REVIEW system is considered non-derogable and an esset in nts law3 and in dom Jersal Declaration of Hum: 1948 provides — Everyone Is er to defence, including right to be defended choice. le 6 (3) (c) of the European Convention on Human Rights, 1998 cctors thet charge against hi ha cr “to defend himself in person or 3 Je 14 of the International Covenant on Civil and to be given it free when the interests of justice so I Rights (ICCPR), 1966 provides-— require.” All persons shall be equal before the courts ond inals. In the determination of any criminal charge or of his rights and obligations in a suit at inal offence has the right As discussed above the right to legal aid has been adopted as a part of temational level. The Universal Declaration of Human Rights, nal Covenants and Conventions would help in effective ‘everyone shall be entitled to a fair and publ ‘implementation of right to legal aid. hearing by a competent, independent and impartial asieRICA tribunal established by low. ee Further, Article 14(3) lared certain “The right of an accused fo be to defend himself in person or throug! of his own choosing, to srmed, if he does not egal assistance, of ; and to have istance assigned to ts of justice so require, and him in any such case if he does not means to pay for it’ Thus, Article 14 (3) (d) enti either to defend himself in person his choice and he does not have legal assistance, to be informed of his right and provide him legal assistance without payment. ti rican Convention of Human Rights, to white gis on a 4569 ronden of American Conwention of Hw a Tennessee and Alabama, Their tral was be to blacks was intense. The tral ved the ight ofthe accused to defend ae tral judge appot to be assisted by legal coun a (aca This s implicitly recognized in Article & of the Universal Declari Human Rights which states: ‘Everyone has the rl remedy by the competent na ibunals for oct iJundamenial rights granted him by the cons 6. The Cr PC, 1973 incorporates many of the international independence, 1776 the United States of America by the Sixth Amendment. The Amendment to al aid to the indigent accused in all ion for the US Supreme Court rose in Powell Vs. Alabama.? The facts aged 13 to 21, wore ing of the trial, appointed a local reluctance. The defendants were 80 at Scanned with CamScannerhave a perfect one. counsel at every step in the procee though he be not guiln proceadings. again addressed the issue of the serious non-capital crimes. ‘Betts case. The court held that an indigent person serious crime wi wtitled to the defence counsel at state expense i sate coun as well dusce Hugo Back obsaned— ‘a. Governments, both State and 10. 407 US. 25, 37 (1972). . The right nsel may not be to counsel also applies to misdemeanor would iciary extended the right to legal ad to all types of criminal tials, and at all stages, at bod = on Scanned with CamScannerINDIAN BAR REVIEW _—A—— Th X09 2013, 12 Nuremberg trials the Naat war criminals, responsible fr klling millions say that the io existence a but simply recognizing what already existed and which le have long enjoyed. 11 Of persons, were yet provided counsel. Therefore when accused should be provided counsel we are not bringi new princi civilized been governed in the past by a series of he notion The overreaching theme acts by the King. The Magna Carta was subsequer Edward Ill in 1354. Later, the Bill of Rights, freedoms to all citizens. Any person accused of an offence before a ccriminal court, or against whom proceedings are instituted, may, of right, be defended by a pleader. ‘The principle is that every person, at any stage of an investigation and all people in police detention must be informed that they may at any time consult and communicate privately, whether in person, in writing or by telephone with a solicitor, and that independent legal advice is available free of charge from the duty solictor.44 In 1973, the Green Form Scher roduced which enabled solicitors to offer free legal advice on all cases. including criminal matt ler conducting @ quick means test themselves.15 The concept of Assistance by Way of Representation was introduced in 1979 which provided representation in prison disciplinary hearings. parole hearings and bail petitions; this also covers representation TL. Md. Sukur Ali Vs. State of Assam, AIR 2011 SC 1222. Advice Act, 1949 provide should be given free of Bor 1988 under wich loge ad wast be administered by the Legal Aid Board. The Access to Justice Act, 1999 replaced the Legal Aid Board and i uted the Legal Service Commission. The Regulation of Investigatory sets, abe Cuminal sce and Pole At, 2001 andthe Fluman Fights Act, 1998 are the signfcont enactments. 13. Magna Carta proclaimed: ‘to no one will we sell, to no one will we refuse fr dey, ight oF sie” 14. Duty aoistor isa solctor in private practice who hss conrated wth the Legal Service Commission to be present or on cal at the police station. 15. Muralighar, S., Law, Poverty and Legal Aid Access to Criminal Justice 309 (2004). aid from public funds | ig area of every police station, they have informed the arrestee ol ‘Thus, in England everyone is hearing by an independent a schemes help people with limited resources to mee by a lawyer. Human Rights Act, 1998 and t increased the scope of access to just INDIA India is a democracy where the ru of law is a fundamental principle in its governance and is important since for the preservation of peace and prosperity ofthe society itis imperative the rule of law should preva. The importance of is a developing country and in order to confront the proble impediments and difficulties faced on the way to davalopmant and growth, legal aid for the poor and the destitute and deprived members ef the society isan indispensable part of the system ‘The Founding Fat fighters who had seen «i cour Constitution were themselves freedom importance of counsel particularly i that they provided for assistance by counsel under provision must be given the widest construction to of the Founding Fathers.18 The preamble of the Indian Constitu 16. Lid 17. Duty solicitor scheme was introduced on the recommendation of Samuels Committee. 18. Supra note 1, Scanned with CamScannerVol XL (8) 2013 Poor, free legal services have ‘onder to ensure equality of Beh and poor equally, but the poor must be in forced and should put up prop 8 for any liability. Law is useless, less the machinery of justice that defence when they are sued of legislative THE CONS STATUTORY PROVISIONS FOR ‘The Constitution treats all citizens as being equal and provides them equ] protection under the law.?# Article 21 of the Constitution says: "No person shall be deprived of his life or personal liberty except according to procedure established by law.” This wrtcle guarantees the protection to life and personal liberty. When any person is to be deprived of his life or personal liberty. the state is under a mandatory obligation to follow the procedure established by law. This is the most important Human Right in present day scenario. In our own country; Article 22( person who is arrested shall be detained in custody informed, as soon as may be, of the grounds for which arrest nor sh he be denied the right to consult, and to be defended by, a legal Practitioner of his choice”. Article 39-A?? of the Constitution provides that secure that the operation of the of equal opportunities, and sh pa by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citlzen by reason of economic or other disabilities. This article was added to the 19. yer. VIR Krishna, Justice and Beyond, 157-58 (1980), 20. Supra note 4 at 4. 21. Anicle 14 says that “The State shall not deny to any person equallty before law or the equal protection of the laus. Within the territory of India’. 22. Inserted by the Constitution (Forty-Second Amendment) Act, 1976. 86 RIGHT TOLEGAL WD sv Funan TS PERSPECTIVE A JUDICIAL RESPONSE Legal Services Authorities af and the existence of a prima legal ad tn NNALSA has come up with 9 alll wilages, aubject to financial wabilty assist and empower people who face than rupees ning thousand or such prescribed by the State Government igher amount as may be e case 1s before the 87 Scanned with CamScannerMot X43) 2013 E OF CRIMINAL PROCEDURE The Cr.P-C. provides that in al eriminal prosecutions gal assistance of a counsel the accused has ent means to engage at the expense of . vhere any person is arrested . he shall be entitled to meet an is exideat that in a tal they require no sanction from ‘been held to be fundamental rights under Article 21 of the s able to al persons and enforceable by the courts in India. The Stzte is under 2 duty to provide Lawyer to @ poor person and it must juman rights are ne a! Procedure, 1973. 3B. ee . 26. Escnad ty The Code of Criminal Procedure (Amendment) Act, 2008. RAE TO MESA ADH IS RONS SICH A ‘country. The role of the elfective and p: ot represented by coun: ‘even the modem concé In Maneka Geni said that “Today, Human Righ Soles ining hhas Constitutional stat 27. ULR. 13 All 171 6.8). 28. AIR 1978 SC 597. 29, AIR 1980 SC 1579. 30. AIR 1973 SC 1548. Scanned with CamScanner“INDIAN BAR REVIEW Vol. XL (3) 2013, Justice under the law is on the cards where such Supportive skill is absent for one side. O1 side. Our judicature, moulded by Angio-Americen models ond cn Process, engineered ial y kindred legal technology, of lawyerpower for steering ¢ under the low. A free legal ‘poor he needy is an essential element of any “reasonable, fair and just” procedure. It is not necessary to quote authoritative pronouncements by Judges and Jurists in support of the view that ut the service of a lawyer an accused person would be denied “reasonable, fair and just” procedure.”3 Regarding the right to legal aid, Krishna state's duty and not government charity”. In Nandini Satpathy Vs. P.L.Dani®? the court h ‘must be allowed legal representation during custodi police must wait for a reasonable time for the arrival of a lawyer. The Apex Court observed:— J. declared, “This is the “Not that a lawyer's presence is a problems of involuntary cannot supply answers or interfere with intercept where i anacea for all incrimination, for he questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue In Hussainera Khatoon Vs. Home Secretary, State of Bi Supreme Court has observed tt Is the const nal right accused person who is unable to engage a lawyer and secure legal services RIGHT TO LEGAL AID IN HUMAN RIGHTS PERSPECTIVE - A JUDICIAL RESPONSE mandate to provide a laviyer to such accused person if the needs of justice so require, The court furt th services are not provided to. such an accused, the tun the risk of being vitiated as contravening Article 21 o' ion, In Khatr! Vs. State of Bihar,35 the Supreme Court emphasized that the state Governments cann provide free legal service to administrative 's at that stage that the ¢ bail and obtain his release as nt legal advice and representation at that stage. The accused can jer he has been sentenced by a court. but is entitled to dolivering the judgemer 86 directed that the petitioners ly competent lawyer at the c legal represe Since legal aid 21 of the Cons n. In Sheela Barse Vs. State of Maharashtra®? the court held that legal assistance at the cast of the state should be given to indigent persons under police custody also, besides the under trials and convicts which is a constitutional imperative by Article 39-A and also by Articles 14 and 21 of the Constitution, In Centre of Legal Research Vs. State of Kerala.3# it has been held that in order to achieve Article 39-A, the State must encourage and support the participation of voluntary organisations ot social action groups programme. The legal aid programme which ial justice to the people cannot remain confined t ypproach. The voluntary organi: iplementing legal aid programme and Scanned with CamScannerbbe left to a poor, ignorant and il “Legal aid would be an idle fon application by such poor or ignora In a notable judgement 40 the Supreme Court has to free legal aid. The necessary to have if there are adequat good teachers and stat In Chairman, Re ‘Court has held that: INDIAN BAR REVIEW TORR va en z019 in Suk Das Vs. Union Territory, rate people do not know what their rights ld make a mockery “Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the Fundamental Rights is contained in part Ill of the Constitution of India. The purpose of this part Is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond reach of the political parties who, by virtue o) majority, may come to form the Government at the Centre or in the State.” In Md, Sukur Ali Vs. State of Assam‘? the court held that in a criminal case if the counsel for the accused d« reasons, case cannot be decided against the appoint Amicus Curiae to defend the accused. In AS. Mohammed Rafi Vs. State of Tamil Nadu*® the Supreme Court held that:-— “Professional ethics requires that a lawyer cannot refuse @ brief, provided a client Is the lawyer Is not otherwise engaged. Hence, the action ig to pay his fee, and ‘AIR 1986 SC 991. (1995) 5 SCC 730. . AIR 2000 SC 988, ‘Supra Note 11 AIR 2011 SC 308. 29 the Court held that the bulk literate and are not aware of their was to depend upon a specific on for such legal assistance.” fe of Maharashtra Vs, Manubhal Ba jerably widened the scope of joes not appear, for whatever accused. The Court should RIGHT TO LEGAL AID IN HUMAN RIGHTS PERSPECTIVE - A JUDICIAL RESPONSE of any Bar Association in passing such a resol none of its members. ippear for a pa accused, whether an the ground that he fs @ pol id ignore and defy such resol icy and rule of law to be upi the duty of a lawyer to defen matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita”.## In Mohammad Hussain alias Zulfikur Ali, Vs. State (Government of 45 the Supreme Court underlining contemplated under Article 21 aside the death sentence awarded to 2 in the 1997 Delhi bomb blast case. In this jas Zulfiur Ali, the appellant, was awarded death after being found lacing @ bomb in a blue line bus at Rampura bus stand here on December 30, 1997, causing an explosion in which four persons were killed and 24 sustained injuries. Thougit the g Justices H.L. Dattu and C.K. Prasad, #2t aside the ihe judges gave a split verdict in the case. jlding that the trial was vitiated as the 2 counsel to defend himself properly trial was ilegal and directed him to be set n. However, in view of the split verdict, x be placed before the Chief Justice of ide whether the case was to be given 2 fresh hearing or the accused should be set at liberty In Mohd, Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharashtra.*® A Bench of Justices Aftab Alam and C.K. Prasad gave this direction while upholding the death sentence handed out 16 Ajmal Ocoee bene mena nae al liberty and ordered the Bench requested tt 44, Ibid 45, AIR 2012 SC 750. 46. (2012) 9 SCC 1 93. Scanned with CamScannerINNAN ly a be defended by @ departmental proceedings."*7 ‘The Court further held that:— “Every accused unrepresented by a lawyer has to be provided o lawyer at the commencement of the trial, engaged to represent him during the entire course of Even if the accused does not ask for a lauyer nal duty of the assistance of an} himself personally, the obligation to provide him with a lawyer at the commencement of the trial Is absolute, and failure to do so would the trial and the resultant conviction and sentence, if any, given to the accused."#8 yer end would 47. Bid, 25, 48. bid, 94 iportar Larger Interests, harmony and jrisprudential coheson. id purpose of providing legal aid to unrepresented accused persons is to sec that the accused gets free and fair iol, The provisions in Tegal aid are adequate enough to meet our needs but their implementation is not adequate and proper. The emergence of human rights jurisprudence in the light of human rights philosophy is @ positive ing that judiciary has undertaken the task of protecting the india has laid down certain f a binding nature to be .9 of this right. The role of iary is remarkably well towards the poor and destitute. It is, necessary to constitute a regular mechanism, whereby, we can ram for necessary, urgent and effective {onal mandate into a reality. The litigant sr of justice must receive effective & inexpensive speedy tril. But in reaching that result, the accused charged must not be stripped of his valuable right of a fair and impartial trial. Denial of a fair trial is 2s much injustice to the accused as itis to the victim and the society. Since there is lack of awareness about the right to legal aid, for effective implementation, it is essential to promote legal literacy 2s a part of the programme for legal aid. Our law students can play an important role just like in foreign countries where they can involve themselves in the work of legal aid and make the people aware about their rights. For a society to 49. Behera Avimanyu, ‘Protection of Human Rights and Criminal Justice Process’; 102 Human Rights Year Book (2009). 95, Scanned with CamScannerVol XL (4 2018, INDIAN BAR REVIEW remain peaceful and prospering, law must not only speak justice but also behave justly and do justice. This can be done only by injecting legal aid in the arteries of our legal system, Social awareness and community effort both should go together to achieve the objectives of legal ald. So there is tan urgent need to implement the provisions of legal aid properly so that the needy and poor can be benefited, Scanned with CamScanner