Duty to Render Legal Aid: Rule 46, Article 39A and the Legal Services Authorities Act

In one line

A lawyer owes free work to those who cannot pay, a person too poor to defend himself has a constitutional right to a lawyer, and there is an Act that supplies and pays for one.

In exam wording: the duty to render legal aid arises at three levels: rule 46 of Section VI of Part VI Chapter II of the Bar Council of India Rules as a professional obligation; Article 39A of the Constitution read with Articles 21 and 22(1) as a constitutional right; and the Legal Services Authorities Act 1987, sections 12 and 13, as the machinery that delivers it.

Layer one: rule 46, the professional obligation

Section VI of the Chapter contains a single rule.

"Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Four things in it are examinable.

"Any one genuinely in need of a lawyer is entitled to legal assistance." The rule states an entitlement, not a favour.

"Even though he cannot pay for it fully or adequately." It covers partial inability as well as total.

"Within the limits of an Advocate's economic condition." The rule is realistic. It does not require a young advocate to ruin himself.

"One of the highest obligations an advocate owes to society." The rule's own characterisation, and the phrase to quote.

Read it with rule 38. Rule 38 forbids accepting a fee less than the taxed fee when the client is able to pay. Where the client is not able to pay, rule 38 does not bite and rule 46 positively encourages free assistance. The two rules fit exactly.

And read it with rule 11. The cab-rank principle already binds an advocate to accept briefs. Rule 46 goes further and speaks to those who cannot pay at all.

Layer two: the constitutional right

Rule 46 binds the advocate. It gives the poor litigant nothing he can enforce. The constitutional layer does.

Article 39A was inserted by the Constitution (Forty-second Amendment) Act 1976 and reads:

"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."

Article 39A is a Directive Principle, in Part IV, and so is not by itself enforceable in a court. Two things gave it force.