Source: Supreme Court 

Why in News?

A bench of Justice KV Viswanathan and Justice BR Gavai issued guidelines regarding free legal aid to prison inmates.           

• The Supreme Court held this in the case of Suhas Chakma v. Union of India & Others. 

What was the Background of Suhas Chakma v. Union of India & Others Case? 

• In the present case a writ petition was filed under Article 32 of the Constitution of India, 1950 (COI). Following were the pleas in the writ petition: 
  • Direct the Respondents Union of India, States and the Union Territories to ensure that no prisoner is subjected to torture, cruel, inhumane and degrading treatment because of living in overcrowded and unhygienic conditions in jail. 
  • All person deprived of their dignity should be treated with respect for the inherent dignity. 
  • Create a permanent mechanism to decongest the overcrowded prisons.  
• The Court in it’s order on 17th May 2024 identified two issues: 
  • Pertaining to Open Correctional Institutions 
  • Modalities for visitation by lawyers in jail so as to ensure free legal aid to the deserving prison inmates. 
• This judgment is however confined to only the aspect of free legal aid for prison inmates.  

What were the Court’s Observations?

• The Court gave the following directions with regard to free legal aid to the prison inmates : 
  • The Court directed that the National Legal Services Authority (NALSA) in cooperation with State Legal Services Authority (SLSA’s) and District Legal Services Authority (DLSA’s) will ensure that the Standard of Procedure (SOP) on Access to Legal Services to prisoners and functioning of Prison Legal Aid Clinics (PLACs) are operated efficiently in practice. 
  • The Legal Services Authorities at different levels will adopt measures to strengthen the monitoring of PLACs and review their functioning periodically. 
  • The Legal Services Authorities will periodically update the statistical data. 
  • The Legal Services Authorities will ensure that the Legal Aid Defence Counsel System will function to the best of it’s potential. 
  • Awareness of the legal aid mechanism is very important. The Court directed that a robust mechanism should be in place to ensure that the various beneficial schemes promoted by the Legal Services Authorities reach the maximum number of persons. 
  • The Court directed that following steps should be taken in order to create awareness as enunciated above: 
    • In public places like police stations, post offices, bus stands, railway stations etc. boards in prominent places be displayed furnishing the address for contact and the phone numbers of the nearest legal aid office. 
    • Promotional campaigns should be undertaken through Radio in addition to through digitalization process. 
    • Promotional campaigns may also include other creative measure like organizing street corner plays. 
    • The Legal Services Authorities will update the SOP –2022 for the Undertrial Review Committee (UTRC). 
    • The huge gap between the total number of persons identified by the UTRC and the number of persons recommended for release should be looked into and adequate corrective measures be taken.  
      • Similarly, the difference between the number of prisoners/inmates recommended for release and the number of bail applications filed should be particularly looked into by NALSA/SLSAs/DLSAs and adequate corrective measures taken. 
    • The “Early Access to Justice at Pre-arrest, Arrest and Remand Stage Framework” established by NALSA for pre-litigation assistance should be diligently pursued and the work undertaken under the framework be periodically reviewed. 
    • The convicts should be informed of their right to free legal aid. 
      • The Legal Service Authorities at different levels should interact with convicts who had not preferred appeals and this exercise should be periodically undertaken. 
    • Periodic interaction should be held with Jail Visiting Lawyers (JVLs) and Para Legal Volunteers (PLVs). This is to ensure updation of their knowledge so that the system functions efficiently as a whole. 
    • Pre-litigation assistance:  
      • Steps for continuing education of lawyers involved in prelitigation assistance and those associated with the Legal Aid Defence Counsel set-up should be provided by Legal Services Authorities. 
      • Apart from this, it should also be ensured that adequate law books and access to online libraries are available to lawyers engaged at the pre-litigation assistance stage and those involved with the Legal Defence Counsel set-up. 
  • Periodic reports should be submitted by the DLSAs to the SLSAs to the NALSA. The digitisation of the above must be done. 
  • The State Government and Union of India shall continue to cooperate with the Legal Services Authorities at different levels for effective implementation of the measures. 
  • The Court further directed that a copy of the judgment shall be forwarded to all the High Courts. 
    • The Court observed that the High Court may consider the feasibility of issuing a practice direction to the effect that all courts including the High Court while furnishing the copy of the judgment of conviction/dismissal/reversal of acquittal/dismissal of bail applications, may append a coversheet to the judgment informing the convict about the availability of free legal aid facilities for pursuing higher remedies. 
    • The coversheet may set out the contact address and phone number of the legal aid committee attached to the court for seeking appropriate guidance. 
    • Similar information may be made available in the notices issued to the respondents by the courts concerned in appeals against acquittal. 
    • The High Courts may on their webpage carry information about the legal aid facilities available in the State. 

What is Free Legal Aid? 

About 

• Legal aid refers to providing free legal services to the individual who is unable to afford legal representation. 
• It is to be noted that India is a welfare State and endeavors to promote welfare of the people by protecting social order. 
• Article 14 of the COI ensures justice based on fairness and hence it is the duty of the State to provide free legal aid. 
• The right to free legal aid is found in the COI under Section 39 A and is also given formal recognition under LSA Act.  

History of Free Legal Aid in India 

Persons eligible for getting free Legal Aid 

What are the Legal Provisions with Regard to Free Legal Aid? 

• Article 39 A: Equal Justice and Free Legal Aid 
  • Free Legal Aid can be found in the Constitution under Part IV i.e. Directive Principles of State Policy (DPSP). 
  • This has been added by the 42nd Constitutional Amendment. 
  • This provision states that the State 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. 
  • Thus, the above is the constitutional goal. 
• The Legal Services Authorities Act, 1987 (LSA Act) 
  • The legislation has been enacted to constitute legal services authorities to provide free and competent legal services to the weaker sections of society. 
  • The aim of the legislation is to ensure that opportunities for securing justice are not denied to any citizen by reason of any economic or other disabilities.  
  • Section 3 of the LSA Act constituted the National Legal Services Authority (NALSA). 
  • Section 4 of LSA lays down the functions of the NALSA and the relevant ones are as follows: 
    • lay down policies and principles for making legal services available under the provisions of this Act 
    • frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act 
    • utilise the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities 
    • monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act  
• Section 341 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)   
  • This provision under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides for Legal aid to accused at the State expense in certain cases. 
  • Section 341 (1) provides that the Court assign an advocate for the defence of accused at the expense of State in following cases: 
    • Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and 
    • Where it appears to the Court that the accused has not sufficient means to engage an advocate 
  • Section 341 (2) provides that the High Court may with the previous approval of the State Government make the rules providing for: 
    • the mode of selecting advocates for defence under sub-section (1) 
    • the facilities to be allowed to such advocates by the Courts 
    • the fees payable to such advocates by the Government, and generally, for carrying out the purposes of sub-section (1) 
  • Section 341 (3) provides that State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) 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 Session. 

What are the Important Judgments with Respect to Free Legal Aid?  

• Hussainara Khatoon and Others v. Home Secretary, State of Bihar, Patna (1980)  
  • A procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as “reasonable, fair and just”. 
  • It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him. 
• Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 
  • Right to counsel for a prisoner is a fundamental right traceable to Article 21. 
  • Right to legal aid is a State’s duty and not Government’s charity. 
  • The Court held that procedural safeguards are indispensable to the essence of liberty under Article 21.