11 Access to Criminal Justice

Dr. Bharti Yadav

1. Introduction

In our country there are large numbers of problems which debar the weaker sections from approaching to the courts. Poverty is one of such problems. It makes the social structure unequal. Due to this inequality, the Indian society is divided into the rich and poor. Litigation has become highly expensive and not remained within the reach of common man. Poor person has to bear number of expenses i.e. counsel fee, court fee, clerk fee and other miscellaneous expenses from filing of the suit till the getting of copy of the judgment or award. There is no meaning of fundamental guarantees and other legal rights for such people unless they can afford these services. An indigent person even does not know to whom he should approach for assistance in order to defend his rights provided under various laws. If the poor person attends the court, he will have to lose money which he would have earned by putting his labour into some job throughout the day. In such circumstances, he often decides to give up his precious right rather to face a mighty with vast wealth. Such people feel themselves severed from the mainstream of the nation. Sometimes they get dismayed and the adverse consequence of this can be extremely hurtful for the society. They find themselves unsafe under such circumstances which force them to come on the streets to achieve their purpose by any means.

2. Constitutional Obligation

The founding fathers of the Constitution of India took a positive approach towards the above stated needs which becomes apparent on the plain reading of the preamble of the constitution. Preamble of constitution provides for securing all citizens equality of status and opportunity along with justice-social, economic and political. Equality in a country like India where differences among people prevail because of Social, Economic and Political factors is a far cry without the support of provisions like legal aid. Legal aid brings less advantageous people at par with affluent counterpart so that they could get equal opportunity to seek justice. The preamble promise is further strengthened by provisions in Articles 14, 21, 22(1), 32, 38, 39-A, 41, 46, 226, 228 and142 of the Constitution of India.

Article 14 provided equal protection of law to all the citizens of India. Legal Aid is implicit in Article 14 as it promotes equal protection of law. Article 21 provides that right to life and liberty can’t be taken away except according to procedure establish by law. Procedure established by law to take away life and liberty of a person should be just, fair and reasonable. Right to legal assistance for indigenous is implicit in Article 21 as it promotes fair representation before court.

Further, Article 22 states that no person who is arrested should be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal petitioner of his choice. If State fails to fulfil its obligation to provide legal assistance to those who cannot afford it, which is the fundamental right, the aggrieved party can get it enforced under Article 32 or Article 226 of the constitution by approaching the apex court or the concerned High Court.

Apart from fundamental rights other constitutional provision equally promotes access to criminal justice. Article 38 cast a duty on the State to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Under Article 38 (2), the state shall, in particular, strive to minimize 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 different vocations.

Article 39-A provides that State shall secure the operation of the legal system which 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. Article 41 provides for public assistance in case of unemployment, old age, sickness and disability and other cases of undeserved want. Under Article 46 State is under an obligation to protect SC/ST from social injustice and all forms of exploitations. Article 282 the Union or a State may make any grant for any public purpose and under Article the Supreme Court can pass any decree for the end of justice.

All these Articles provide sufficient constitutional backing for free legal aid and speedy disposal of criminal cases.

3. Access to Criminal Justice under the Code of Criminal Procedure, 1973

Equal access to justice is very essential ingredient of fair administration of justice. The concept compels Government to provide free legal aid to those who can’t afford it. Un-affordability, ignorance and illiteracy contribute to unequal access to justice. Principle of Criminal law that nine culprits may escape but one innocent person should not be convicted highlights the need of equal legal representation in a country like India where difference and disabilities prevail because of social economic factors. The code of criminal procedure contains the two provisions which are section 303 and section 304 to fulfil the above stated need.

3.1 Right to be defended by a pleader of his choice

Under section 303 any person accused of an offence before a criminal court or against whom proceedings are instituted under this code has a right to be defended by a pleader of his choice. The accused in police custody should have reasonable opportunity of getting into communication with his legal advisor for the purpose of preparing his defense. Where a person is denied the right to be defended by a pleader of his own choice in violation of this section, the trial shall be illegal. The accused must ask for a lawyer if he wants to engage one. Under this section the accused has no right to be provided with a lawyer by State or police or Magistrate. The only duty of the magistrate is to afford the accused necessary opportunity to engage lawyer. The court must ensure that the time granted to the counsel is sufficient to prepare for the defence.

Similar under Section 41 D, any person who has been arrested or interrogated by the police has a right to consult an advocate of his choice during interrogation. It is to be noted that the right to consult advocate of his choice under this section does not extend throughout the interrogation.

3.2 Right to Legal Aid at State’s Expense

Section 304 of Criminal Procedure Code makes it clear that in a criminal trial, the sessions court before whom the accused appears is under a duty to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or any other disability, he is entitled to free legal services. Right guaranteed for being represented by a counsel applies to appeals also. The High Court may with the previous approval of the State Government make rules for the mode of selecting such pleaders, facilities to be allowed to such pleaders by the court and the fees payable to such pleaders by the Government. The State Government can by notification direct that as from such date as may be specified in the notification, the provision of free legal aid shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before courts of sessions.

4. Legal Services Authorities Act, 1987

The Government of India took serious note of all the lacunae in the existing laws so that people in this country could get equal access to justice. The union government in exercise of its duty under Article 39-A enacted The Legal Services Authorities Act, 1987 which came into force with effect from 9.11.1995.

4.1 Entitlement to Free Legal Aid:

Legal Services Authorities Act, 1987 under section 12 provides for free legal aid to people falling under following categories:

5. Judicial Discourse

Justice delivery system being a guardian of fundamental rights is under an obligation to deliver prompt and inexpensive justice to its consumers without compromising in any manner on the quality of justice or the element of fairness and impartiality. A great responsibility lies on the shoulders of judicial system not to allow people’s faith to be eroded on account of delayed justice. Our judiciary being one of the important pillars of the democracy has shown a deep concern to these issues and has taken a bold stand in handling out path breaking judgments for ensuring adherence to the constitutional mandate.

5.1 Right to Fair Procedure

It’s most notable work in this connection is in the field of criminal justice and it has flowed directly from the dynamic interpretation given to Article 21 in the important case of Maneka Gandhi V. Union Of India1. The Supreme Court in this case widened the scope of Article 21 to include in it the provisions of free legal aid because any procedure established by law which does not provide for free legal aid for poor and illiterate people can’t be treated as just, fair and reasonable.

The right to free legal service is clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence. It must be held to be implicit in the guarantee of Art. 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty indigence. The state is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require. Provided the accused person does not object to the provision of such lawyer.2

5.2 Right to access all documents in custody of court

Examination of accused provides him an opportunity to explain incriminating circumstances stated in prosecution case against him and also to produce his own version. The right to access all documents in custody of court is implicit in right to fair investigation and trial. Therefore if an accused person is denied the access to any document in custody of court, though not relied by prosecution, may cause prejudice to accuse in defending his case. Such prejudice would amount to denial of fail investigation and trial. This right to access documents in custody of court extents to advance stage of examination of accused under section 313 and cannot be confined to the stage of supplying documents to accused under section 207.3

5.3 Right to free copy of judgment & legal assistance

Our laws have laid great emphasis on the procedural and substantive safeguards designed to assure fair trials in which every defendant stands equal before the law. An important ingredient of fair procedure to a prisoner, who has to seek his liberation through the Court process, is lawyer’s services. The Court considered two main aspects of the criminal justice delivery system in India, namely, service of a copy of the judgment to the prisoner in time to file an appeal and the provision of free legal services to a prisoner.4

5.4 Qualification and disqualification for free legal aid

If the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment then the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the state.5 It must be recognized that there may be cases involving offences, such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the state.6

If such exceptions can be carved out keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty then there may be a tendency to add some more, such as in cases of terrorism. Thereby diluting the constitutional mandate and the fundamental right guaranteed under Art. 21 of the Constitution. However, we need not say anything on this subject since the issue is not before us.7

5.5 Obligation to inform about right to legal aid

Free legal aid at the State’s cost is a fundamental right of a person accused of an offence and this right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.This right cannot be denied to him on the ground that he failed to apply for it. The magistrate is under an obligation to inform the accused about this right and to inquire about his wish of legal representation at the State’s cost, unless he refused to take advantage of it.8

The right to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. It is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. All the magistrates in the country were directed to faithfully discharge the aforesaid duty and obligation. Any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.9

Every judicial officer of the State is under a legal obligation to see that this benefit of free legal services is received by litigant who is entitled to such benefit under Section 12 of the Act. If it is not taken this way, the very purpose and object of enacting this benevolent provision shall be frustrated. The members of the Bar being the Officer of the Court are also equally concerned to see that this legal right is being received by the litigants of the categories as enumerated under Section 12 of the Act, 1987. It is the duty of the members of the Bar as well as the judicial officers to effectively implement this Act and to provide the benefits of this Act in reality.10

6. Legal Implications for absence of legal representation

Representation by an advocate is very essential ingredient of fair trial. Absence of an advocate vitiates the criminal trial if the case of an accused could not be properly represented. If the accused represents his case properly without the assistance of an advocate then absence of advocate from trial does not vitiate the trial.11 But in the case of Mohd. Hussain @ Julfiquar Ali Vs. State12, the Supreme Court ordered retrial, as an accused who was a Pakistani national accused of terrorist act was not given effective right to legal representation.

7. Scope of Legal Aid

The rights of arrested person to have someone informed about his arrest and to consult privately with his lawyer are inherent in Article 21 and 22. Thus the right to consult the lawyer means the right to consult him away from the hearing of the police.13

The right to consult and be defended by a legal practitioner of his choice is guaranteed with a view to enable the detenue to prepare for his defence. This right belongs to the arrested person not only at the pre-trial stage, but also at the trial before a criminal court or before a special tribunal and whether the arrest is made under the general law or under a special statute.14

While, it is settled position of law that to provide Legal Aid to accused persons without means in all cases tried by a court of session, is a mandatory constitutional necessity, it is further necessary that such lawyer should be competent. Indigence should never be a ground for denying fair trial or equal justice. Therefore, advocates competent to handle cases should be appointed.15

Sufficient time and complete papers should also be made available to them so that they may prepare the case and the accused may also feel confident that the counsel chosen by the court has adequate time and material to defend him properly. Failure to provide complete brief and adequate time to prepare the case is a denial of proper representation of the accused and vitiates the trial. 16

No counsel can be thrust upon the accused without ascertaining the wishes of the accused and without giving him any choice in selecting his lawyer as Article 22(1) of the Constitution guarantees that choice to the accused.17

8. Summary

It is an obligation of every democratic country that it must protect the rights of every individual. The poor has suffered lot of injustices and fallen into deprived or exploited section of our society. The poor people need to be made literate and aware about their legal rights so that they can stand at equal footing with rich litigants. The Legal Services Authorities Act has to go a long way in solving the problems of needy litigants and brining poor person in the forefront. This Act came as a new hope of securing justice to the economically disadvantaged section of the society, even though large number of people are unaware of the laws which are enacted for their welfare but it seems to be satisfactory that something have been done for poor and weaker section which comprise the large population of the country. Such laws aim at elimination of injustice from its roots. The poor people are now looking for these laws for the enforcement of their rights and to secure justice. They do not feel that the poverty is their guilt because they can afford a lawyer in the legal battle against the affluent counterpart. Now securing justice does not remain an illusion but has become a reality. The laws not only remain for wealthy person but now poor and weaker people can also afford litigation which was earlier thought a luxury.

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