Article 39A and the Constitutional Duty

In one line

Article 39A tells the State to make the legal system work equally for everybody and to provide free legal aid so that nobody is denied justice because they are poor, and although it is a directive principle the Supreme Court has read it into Article 21 and made it enforceable.

In the wording a student can write in an exam: Article 39A of the Constitution, inserted by the Constitution (Forty-second Amendment) Act 1976, directs that 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 Part IV it is not enforceable of itself, but the Supreme Court has held free legal services to be an essential ingredient of the reasonable, fair and just procedure Article 21 requires, so that the substance of the direction is enforceable through Article 21.

The text, taken apart

The article as printed. 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.

Clause by clause, and each phrase does work.

The State shall secure. A positive obligation to bring about a state of affairs, not merely to refrain from obstructing it.

That the operation of the legal system promotes justice. Not that the law is just, but that the operation of the system is. This is the phrase that makes delay, distance and cost constitutional questions and not administrative ones.

On a basis of equal opportunity. The standard is equality of opportunity to use the system, which is exactly the point chapter 530 makes about formal against substantive equality.

And shall in particular provide free legal aid. One specific means, named, out of the general obligation.

By suitable legislation or schemes or in any other way. The means are left open, which is why the obligation was discharged partly by scheme long before the Legal Services Authorities Act 1987 was passed.

To ensure that opportunities for securing justice are not denied to any citizen. The test is denial of opportunity, not denial of a favourable outcome.

By reason of economic or other disabilities. Not only poverty. Disability, illiteracy, custody, distance, language and social position are all within other disabilities, and this is the phrase that carries section 12's non-income categories, chapter 570.