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MISSING LEGAL AID FROM OUR PRISONS

The ability to exercise one’s legal right to a fair trial should not be contingent on one’s financial status. Deprivation of the right to fair trial is a loss of fundamental human rights. In Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 148, the Supreme Court of India held that right to fair trial is at the heart of criminal jurisprudence. Therefore, the purpose of legal aid services is to enable anyone who is not either aware or financially potent to enforce her legal rights.

The Constitutional mandate to provide legal aid is enshrined in Article 39-A of the Constitution of India, 1950, which states that “the State shall secure that the operation of the legal system 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.”

A Constitution Bench of the Supreme Court of India, in Maneka Gandhi vs. Union of India – AIR 1978 SC 597, held that the procedure for depriving a person of his right to life & liberty enshrined under Article 21 of the Constitution of India, 1950, should be fair, reasonable and just. Depriving a person of such a fundamental constitutional right cannot be done in absence of representation of the accused by a defense counsel. In this context, Section 304 of the Code of Criminal Procedure,1973 mandates that the accused in all criminal cases shall be provided the aid of legal counsel for his defense, at the expense of the state.

However, there is a vast difference between what the legislature & courts mandate and what the ground reality is. There are various bottlenecks that render legal aid provided to the accused ineffective.

It is no secret that legal aid authorities are complacent in giving briefs to their lawyer in time. And therefore, legal aid counsel doesn’t get the time to prepare her case. In some cases, though a case may be assigned in time, but documents are not provided to the legal aid counsel. Finally, legal aid counsel has no option but to seek an adjournment. And this may not just happen on one hearing.

Many times, a legal aid counsel is appointed at an advanced stage of the case and not right at the beginning. Generally, this happens due to lackadaisical administrative framework of the legal aid authority. For example, where the under-trail files a parole application to perform the last rites of her mother, she is left in a lurch and her plea becomes infructuous. There are many more such examples where due to unavailability of legal aid counsel, the accused are not able to exercise their legal rights.

In many cases, files alone cannot tell the real story to the legal aid counsel. This may make or break the defense of the accused. Meeting or speaking to the accused is hence imperative for effective legal aid. Personal interaction between the legal aid counsel and the accused creates trust and confidence which is essential to defend the case efficiently in the court. But it is common knowledge that one-on-one consultation is scarcely provided to the accused. If the accused is incarcerated in a far off location and meeting the prisoner is cumbersome or where video conference facilities are not available, it hinders the working of the legal aid counsel.

Unfortunately, the fee paid to the legal counsel is miniscule, and in no way matches to the work done by the legal aid counsel. Further, the claim of the fee takes many months to process and hit the bank account of the counsel.

Such procedural flaws plague the legal aid system but small changes such as a stricter screening process for appointment of legal aid counsels, timely intimation of cases to legal aid counsels and better remuneration can go a long way in making the legal aid regime more effective. Further, motivating good quality counsels to render legal aid as a service to the criminal justice system can make a big impact on the quality of legal aid.


*The author is a practicing lawyer at the High Court of Delhi and can be contacted at anshsinghluthra@gmail.com

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