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

Article 22(1) guarantees to a person arrested the right to consult, and to be defended by, a legal practitioner of his choice. That is a fundamental right, but on its face it is a right to engage a lawyer, not a right to be given one.

Article 21 was read, in a line of cases, as including a right to free legal services where a person cannot afford one, so that a trial without representation is not a procedure established by law.

The four cases in that line are the ones a question on this topic expects, and all four are verified in this book's case bank.

Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548, on the right of a prisoner to legal services for an appeal.

Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369, the undertrial prisoners case, in which the Court dealt with free legal services as part of a reasonable, fair and just procedure under Article 21.

Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, holding that a trial can be vitiated where an accused was not provided with legal assistance and did not apply for it, because a poor and illiterate accused cannot be expected to ask.

Bar Council of India v. Union of India, AIR 2012 SC 3246, on the Bar Councils' own role in the scheme.

Suk Das is the one to be precise about, because it decides the point students get wrong: the duty does not depend on the accused asking. A person who does not know he has the right cannot exercise it, so the obligation is on the State and the court.

Layer three: the machinery that pays for it

Neither a professional rule nor a constitutional right delivers a lawyer to a courtroom. The Legal Services Authorities Act 1987 does.

Section 12 lists who is entitled, and the list should be learnt because it is short and is regularly asked. Every person who has to file or defend a case is entitled to legal services if that person is:

• (a) a member of a Scheduled Caste or Scheduled Tribe;
• (b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
• (c) a woman or a child;
• (d) a person with disability as defined in the disability legislation;
• (e) a person under circumstances of undeserved want, such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
• (f) an industrial workman;
• (g) a person in custody, including in a protective home, a juvenile home, or a psychiatric hospital or nursing home;
• (h) a person in receipt of annual income less than rupees nine thousand, or such higher amount as the State Government prescribes, for a case before a court other than the Supreme Court; and less than rupees twelve thousand, or such higher amount as the Central Government prescribes, for a case before the Supreme Court.

Two points about clause (h) that a careful answer makes. The figures in the Act are the floor, not the ceiling: the section expressly contemplates a higher amount prescribed by the appropriate Government, and the prescribed limits are today far above the printed figures. And the other seven clauses carry no income test at all: a woman, a child, a member of a Scheduled Caste or Scheduled Tribe, or a person in custody is entitled regardless of income.

Section 13 adds the two qualifications.

Section 13(1): persons who satisfy all or any of the criteria in section 12 are entitled to receive legal services, provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.

Section 13(2): an affidavit by a person as to his income may be regarded as sufficient for eligibility, unless the concerned Authority has reason to disbelieve it.

So the two filters are a prima facie case and, for the income route, a simple affidavit.

The Bar Councils' own statutory role

The Advocates Act does not leave legal aid entirely to the legal services authorities.

• Section 6(1)(eee): it is a function of a State Bar Council to organise legal aid to the poor in the prescribed manner.
• Section 7(1)(ib): the same function for the Bar Council of India.
• Section 9A: a Bar Council may constitute one or more legal aid committees, each of not more than nine and not fewer than five members, whose qualifications, method of selection and term of office are as prescribed.
• Sections 6(2)(b) and 7(2)(b): a Bar Council may constitute funds for giving legal aid or advice.

So the profession's own bodies are part of the machinery, which is what closes the loop from rule 46 back to the Act.

A worked example

Sunita earns eleven thousand rupees a year as an agricultural labourer. Her husband has been arrested and she wants to defend a civil suit about her hut.

Is she entitled under section 12? Yes, on at least two independent grounds. She is a woman, clause (c), which carries no income test at all. And on income, clause (h) applies with the amount prescribed by the State Government, the Act's printed figure of nine thousand rupees being a floor which the Government may raise.

What must she show under section 13? That she has a prima facie case to prosecute or defend, of which the concerned Authority must be satisfied. For the income route, section 13(2) allows an affidavit as to her income to be treated as sufficient unless the Authority has reason to disbelieve it.

Her husband is in custody and has no lawyer at his trial. He is entitled under clause (g), being in custody. And on Suk Das, the fact that he has not applied does not answer the point: a poor and illiterate accused cannot be expected to ask, and a trial without legal assistance can be vitiated.

A lawyer is asked to appear for her and she cannot pay. Rule 46 describes free legal assistance to the indigent and oppressed, within the limits of the advocate's economic condition, as one of the highest obligations an advocate owes to society. Rule 38 does not stand in the way, because that rule applies only where the client is able to pay the taxed fee.

Change one fact. Suppose Sunita earns three lakh rupees a year and is not within any of clauses (a) to (g). She is not entitled under section 12 as a matter of right. Rule 46 still speaks to any one genuinely in need of a lawyer who cannot pay fully or adequately, but it binds the advocate professionally and gives Sunita nothing she can enforce.

What beginners get wrong

Rule 46 is not a right the client can enforce. It is a professional obligation on the advocate.

Article 39A is a Directive Principle. The enforceable right comes from Article 21, read with Article 22(1), in the line of cases from Hoskot to Suk Das.

Legal aid is not only for the poor. Seven of section 12's eight clauses carry no income test.

The income figures in section 12(h) are not current amounts. The section itself contemplates higher amounts prescribed by the State or Central Government.

Entitlement is not automatic. Section 13(1) requires the Authority to be satisfied of a prima facie case.

The accused need not ask. Suk Das is the authority.

An amicus curiae is not legal aid. He assists the court and does not represent the party, as chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae] explains.

Quick revision

• Three layers: rule 46, the professional obligation; Article 39A with Articles 21 and 22(1), the constitutional right; and the Legal Services Authorities Act 1987, the machinery.
• Rule 46: any one genuinely in need is entitled to legal assistance even though he cannot pay fully or adequately, and 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.
• Article 39A, inserted by the 42nd Amendment, 1976: the State shall secure that the legal system promotes justice on a basis of equal opportunity and shall provide free legal aid so that opportunities for securing justice are not denied by reason of economic or other disabilities.
• Article 22(1): an arrested person's right to consult and be defended by a legal practitioner of his choice. Article 21: read to include free legal services where the person cannot afford one.
• The four cases: Hoskot (1978), Hussainara Khatoon (1979), Suk Das (1986), and Bar Council of India v. Union of India (2012). Suk Das: the accused need not apply.
• Section 12: entitlement for SC or ST; a victim of trafficking or begar; a woman or child; a person with disability; a person in undeserved want; an industrial workman; a person in custody; and on income, below Rs 9,000 a year, or Rs 12,000 for the Supreme Court, or such higher amount as may be prescribed.
• Section 13(1): a prima facie case to prosecute or defend. Section 13(2): an affidavit as to income may suffice.
• Bar Councils: section 6(1)(eee), section 7(1)(ib), and section 9A legal aid committees of five to nine members.

Test yourself

1. State rule 46 and its two qualifications. Every advocate shall bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay 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. The qualifications are that the need be genuine and that the obligation operates within the limits of the advocate's own economic condition.

2. Is Article 39A directly enforceable? No. It is a Directive Principle in Part IV. The enforceable right to free legal services comes from Article 21, read with Article 22(1), as developed in Hoskot, Hussainara Khatoon and Suk Das.

3. Name four categories entitled under section 12 that carry no income test. A member of a Scheduled Caste or Scheduled Tribe; a woman or a child; a person in custody; and an industrial workman. Also a victim of trafficking or begar, a person with disability, and a person in circumstances of undeserved want.

4. What two conditions does section 13 add? That the concerned Authority is satisfied the person has a prima facie case to prosecute or to defend; and, for the income criterion, that an affidavit by the person as to his income may be regarded as sufficient unless the Authority has reason to disbelieve it.

5. Must an accused apply before he is given legal aid? No. Suk Das v. Union Territory of Arunachal Pradesh holds that a trial can be vitiated where the accused was not provided with legal assistance and did not apply for it, because a poor and illiterate accused cannot be expected to ask for what he does not know he has.

6. What role do the Bar Councils themselves have in legal aid? Organising legal aid to the poor in the prescribed manner is a function of a State Bar Council under section 6(1)(eee) and of the Bar Council of India under section 7(1)(ib); a Bar Council may constitute legal aid committees of between five and nine members under section 9A, and funds for giving legal aid or advice under sections 6(2)(b) and 7(2)(b).