Concept of Legal Aid

Concept of Legal Aid

Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracys very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness. Justice Brennan

One of the fundamental cornerstones of modern constitutional governments is rule of law. Rule of law postulates equality before law. The horizons and inner core of this equality before law has been subjected to intense debate. However one thing is ingrained in the concept of welfare state that equality before law does not mean mechanical equality but admits of certain levelers which will put persons in almost equal status before law treats them equal. Free legal aid is one of such leveler whereby state seeks to make access to justice open to all before equal treatment is accorded by law to them. In order to ensure equality of justice, it is not only sufficient that law treats rich and poor equally, but it is also necessary that the poor must be in a position to get their rights enforced and should put up proper and adequate defense when they are sued for any liability.1 If this is not done, the law despite its equality will become discriminatory against the poor.2

1 2

B.N.Mani Tripathi, Jurisprudence, p. 400. Ibid at p. 401.

Concept of Legal Aid

Frederick H. Zemans3 underlines the need for free legal Aid in the following words:
True access to Justice is achieved only when no person is deterred by financial, psychological, or physical barriers from seeking a legal solution for the assertion of a right, for making a claim, or for defending a civil claim or criminal charge. While the ultimate realization of this goal may indeed be realization of this goal may indeed be utopian, it can partially achieved by making the path to the court, the normal dispenser of justice, easier for the underprivileged, by ensuring equality before that court, or by creating new methods of dispute resolution that do not embody the inequalities inherent in the adversarial court structure.

The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger v. Raymond Hamlin4:
The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how
3 4

Perspectives on Legal Aid, Introduction, p. 10. 407 U.S. 25.

Concept of Legal Aid

much more true is it of the ignorant and illiterate or those of feeble intellect.

Equality before law implies free legal aid was sufficiently pointed out by the First Law Commission of India5 in following words:
The preamble to the Constitution of India speaks of justice, social, economic and political and of equality of status and opportunity. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws. Equality in the administration of justice thus forms the basis of all modern systems of jurisprudence and administration of justice. Equality before the law necessarily involves the concept that all parties to a proceeding in which justice is sought must have an equal opportunity of access to the Court and of presenting their cases to the Court. But access to the Courts is by law made dependent upon the payment of court-fees, and the assistance of skilled lawyers is in most cases necessary for the proper presentation of the partys case in a court of law. In so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extend fail in their purpose. Unless some provision is made for assisting the poor man for the payment of court-fees and lawyers fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice. The rendering of legal aid to the poor litigant is, therefore, not a minor problem of procedural law but a question of fundamental character.6

Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life
5 6

14th Report. Ibid at p. 587.

Concept of Legal Aid

conditions and to deliver justice to them. The poor in their contract with the legal system have always been on the wrong side of the law. They have always come across law for the poor rather than law of the poor.7 The law is regarded by them as something mysterious and forbidding always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.8 The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.9 State must be reminded of the famous words of Mr. Justice Brennan:
Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness.

Leeman Abbot years ago in relation to affluent America foretold:

If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow.
7

Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, 1979 AIR 1369;1979 SCR (3) 532. 8 Ibid. 9 Ibid.

Concept of Legal Aid

Thus opening doors of justice are not only needed to maintain the ideals of democratic society but also to protect the very foundation of it from streetjustice, resentments and revolutions.