Free Legal Aid is necessary to obliterate the feeling that “Law grinds the poor and rich men rule the law”– The Law Commission of India (14th Report)

Law is a system of rules and regulations put in place by the sovereign in accordance with which all aspects of the society are to be governed and which defines any act or conduct as permissible or forbidden. However, howsoever a society may be developed and advanced in terms of cultural advancement and technological revolution, crimes are nonetheless prevalent everywhere. There is an established principle of
Criminal Jurisprudence that “An accused is presumed to be innocent until proven guilty beyond reasonable doubt”, meaning thereby he is to be provided fair trial and is to be given an opportunity to defend himself against the charges made against him until the court of law reaches a conclusion.
The judicial system of our country is based on an adversarial model, that is, the two parties are represented before an unbiased judge who tries to determine the truth behind the case. Because of many reasons, it is regarded as a desirable system. The police and defence are liable for evidence and an evaluation of that evidence is completed by an unbiased judge. Therefore, an accused of the crime looks for an advocate who can best represent his interests, but there is a significant portion of population who cannot afford the services of the lawyer. This is the stage where the concept of Legal Aid steps in.
Legal Aid means free legal services to poor and needy people who cannot afford the services of a lawyer in any court. The concept of Legal Aid developed during early 1970s at national level so as to meet out the object behind Article 39A of the Constitution of India, which provides that the state shall ensure that the operation of legal system promotes justice on the basis of equal opportunity and in particular provides free legal aid by suitable legislation and schemes, so as to ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
It is on these lines that National Legal Services Authority Act was passed in the year 1987 and it came into operation on 9th of November, 1995. It provided for establishment of National Legal Services Authority (NLSA), State Legal Services Authority (SLSA) and District Legal Services Authority (DLSA) at National, State and District level, respectively. The erstwhile state of Jammu and Kashmir passed its own Act in the year 1997 but it got repealed after the Reorganization Act of 2019 was passed by Parliament, after which the Union Territory of Jammu and Kashmir is governed by National Legal Services Authority Act. A detailed provision with regard to the persons entitled to the Free Legal services is provided in section 12 of the said Act which among other persons include women, children, members of SCs and STs, bonded labour, victims of mass disaster, victims of human trafficking, etc.
The debate that the life and liberty of an individual is paramount and no one should be deprived of his personal life and liberty is an epitome of modern criminal thought. Legal Aid services have been provided throughout the country since the commencement of the National Legal Services Authority Act, 1987. However, an important step has been taken by NALSA wherein full-time Legal Aid Defense Counsel System (public defender system) has been introduced to provide efficacious and timely services to the persons accused of crime who are not able to afford services of a lawyer. In a first, along with other parts of the country, the system has been made operative in ten districts in the Union Territory of Jammu and Kashmir wherein free legal services would be provided to the persons accused of crime who are not able to get themselves represented due to economic disparities and like factors.
The idea is to promote the basic foundational and fundamental doctrine of equality and equal opportunity to justice with its full import and meaning. Legal Aid Defense counsel System will give an impetus to the already established system of providing legal services and will ensure that the interests of the persons are best protected and represented in accordance with the mandate of law. The system is pivotal in the sense it ensures representation of an accused from the stage of investigation including remand, bail, charge, trial to the filing of appeal against any order. The scheme is in line with constitutional rights of a person as provided under Article 21 of the Constitution of India and constitutional obligations as put on state under Article 39A.
It was held by the apex court of the country in the case of Hussainara Khatoon vs State of Bihar ( AIR 1979 SC 1360) “that the right to free legal services is a constitutional right guaranteed under Article 21.” Justice is delivered when it seems to have been delivered and the principles of natural justice demand that no one should be condemned unheard. The judicial approach has been very constructive in interpreting Article 21 of the Constitution and Right to Free Legal Aid has been carved out of it through judicial connotation and activism so that the accused of crime get free trial.
In Khatri v State of Bihar (1981 SC 262) it was held that “Right to free legal aid, just, fair and reasonable procedure is a fundamental right. It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate, for it is at this stage that he gets the first opportunity to apply for bail and obtain his release, as also to resist remaining in police or jail custody. This is the stage at which an accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice/representation to the accused at this stage. Thus, state is under a constitutional obligation to provide free aid to the accused.”
Equal access to justice ensures there is no exploitation of any particular section of people and thus the concept of Public Defender system will act as a channel in achieving the basic constitutional goal.

The writers work as Legal Aid Defense Counsels at Kulgam and can be reached at [email protected] and [email protected]

Basit Farooq & Roshan Aara