Right to free legal aid though included in Chapter 4 on Directive Principles of State Policy in the Constitution of India, has been recognized by the courts as a judicially enforceable right and the courts, from time to time, have issued directions to the Union and State Governments to secure free legal aid to all persons who cannot afford legal representation.
The Parliament had introduced Article 39-A vide Constitutional Amendment Act, 1976. It reads as follows:- “Article 39-A Equal Justice and free legal aid. – 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.” Being in the form of a directive to the State, the right to free legal aid was not enforceable by the courts, though the Union and State Governments were expected to implement the same. Unfortunately, tangibly little was done by the Union and State Governments to ensure free legal aid. The Hon’ble Apex Court had to step in and in a landmark case, M. H. Haskot v. State of Maharashtra, 1978 (3) SCC 544, the court recognized the right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty, indigence or incommunicado situation as part of fair, just and reasonable procedure implicit in the guarantee of Article 21, and directed the State to provide a lawyer at its own cost for making a bail application of an undertrial. Further, in the case of Khatri v. State of Bihar, 1981 (1) SCC 627 and Suk Das v. U.T. of Arunachal Pradesh, 1986 (2) SCC 401 the Supreme Court has held that the trial court is under an obligation to tell an accused who fails to afford legal representation that he is entitled to representation by a lawyer at the cost of the State. In case an accused is not told of this right and, therefore, he remains unrepresented by a lawyer, his trial is vitiated by constitutional infirmity and any conviction as a result of such trial is liable to be set aside.
Taking a step further, in a series of judgments in the case of Hussainara Khatoom v. State of Bihar, the Supreme Court has recognized the right of speedy trial and right of free legal aid services of undertrial prisoners. The Supreme Court issued directions for expeditious disposal of cases of undertrials languishing in jails and also in some cases for early release of undertrials who had already undergone maximum term imposable on them on conviction. Further, the Supreme Court also addressed the issue of denial of justice to poor and the needy because the system of bail with its misdirected emphasis in furnishing financial security operated adversely against the accused. Following the judicial precedents, the Parliament has introduced Section 436-A in the Code of Criminal Procedure vide Amendment Act of 2005, wherein maximum period for which an undertrial can be detained during the period of investigation, inquiry or trial has been laid down. Under no circumstances can a person be detained during investigation, inquiry or trial for a period longer than the maximum period of imprisonment provided for the offence with which he has been charged. Further, it has been laid down that except in offences punishable with death, an undertrial cannot be detained during investigation, inquiry or trial for a period longer than one- half of the maximum period of imprisonment specified as the punishment for the offence with which he has been charged and he shall be released by the Court on his personal bond with or without sureties. However, the period of detention passed due to delay in proceedings caused by the accused shall be excluded.
In the end, it can be inferred that the right of free legal aid has evolved over the years and today it is recognized as a part of enjoyment of right to life and liberty guaranteed under Article 21 of the Constitution. However, more needs to be done, so as to enhance the efficacy of free legal aid to all those unprivileged persons who cannot afford legal representation.