In an authoritative ruling in 1979, the Supreme Court, perhaps for the first time, categorically stated that the right to free legal services is “an essential ingredient of reasonable, fair and just procedure for a person accused of an offence.” The ruling came in the case of Hossainara Khatun vs. the state of Bihar, which brought to light the fact that hundreds of undertrial prisoners were languishing in various jails for a period longer than the maximum terms for which they would have been sentenced, if convicted.

Justices P N Bhagwati and D A Desai, hearing the case, were appalled by the state of affairs and the callous attitude of the judicial system. “This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programmes, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them,” stated Bhagwati.

Observing that detaining those who were yet to be convicted was “totally unjustified and in violation of the fundamental rights to personal liberty under Article 21 of the Constitution,” the apex court said: “We would strongly recommend to the Government of India and the state Government that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and to right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.”

Subsequent to this came another decision in 1981, where Justice Bhagwati again reminded states of their “constitutional mandate” to provide free legal aid to an accused person who is unable to secure legal services on account of indigence.

This was the case of Khatri vs State of Bihar, where the Bench presided by Justice Bhagwati, the former Chief Justice of India, lamented: “It is unfortunate that though this court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the states in the country have not taken note of this decision and provided free legal services to a person accused of an offence.”

He went on to state, “The state may have its financial constraints and its priorities in expenditure but the law does not permit any Government to deprive its citizens of constitutional rights on the plea of poverty.”

What followed was another historic decision in 1986, incidentally again by Justice Bhagwati (Sukhdev vs. Union Territory of Arunachal Pradesh), where the apex court expressed its concerns over the fact that about 70 per cent of the people living in rural areas are illiterate and an even greater number are not aware of the rights conferred upon them by law.

“Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land,” said the Bench, while stressing the need for creating legal awareness amongst the poor. “This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst them. That is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would be in these circumstances made a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become merely a paper promise and it would fail of its purpose.”

Tomorrow: Legal aid policy in other countries