Article 39A and the Constitutional Duty

Where it came from

Inserted by the Constitution (Forty-second Amendment) Act 1976, which added it to Part IV among the Directive Principles of State Policy.

Article 38 and Article 41 are its neighbours in argument. Article 38 requires the State to promote the welfare of the people by securing a social order in which justice, social, economic and political, informs all the institutions of national life; Article 41 requires public assistance in cases of disablement and undeserved want, which is the article Darshana Devi used, chapter 530.

And Article 51A(h), on the citizen's side, makes it a fundamental duty to develop the spirit of inquiry and reform, which is where legal literacy connects.

How a directive principle became enforceable

The problem. Article 37 provides that the directive principles are not enforceable by any court, though they are fundamental in the governance of the country and it is the duty of the State to apply them in making laws.

The route the Court took. Not to enforce Article 39A directly, but to use it in construing Article 21.

In Madhav Hayawadanrao Hoskot v. State of Maharashtra, (1978) 3 SCC 544, decided on 17 August 1978, a prisoner was denied in time the copy of a High Court judgment he needed in order to appeal, and served his whole sentence before he could seek special leave. The Supreme Court held that procedure established by law in Article 21 means fair and reasonable procedure; that a first appeal on facts is basic where conviction carries a long loss of liberty; and that two things are State responsibilities under Article 21, namely service of a copy of the judgment in time to appeal and the provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice require it. It located the power to assign counsel in Article 142 read with Articles 21 and 39A.

And in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98, decided on 9 March 1979, on a petition about undertrial prisoners in Bihar, the Court held that free legal services to the poor and needy is an essential element of any reasonable, fair and just procedure; that Article 39A emphasises that free legal service is an inalienable element of such procedure, because without it a person suffering economic or other disability is deprived of the opportunity of securing justice; and that the right to free legal service is therefore implicit in the guarantee of Article 21, being a constitutional right of every accused person unable to engage a lawyer by reason of poverty, indigence or an incommunicado situation, the State being under a mandate to provide one where the circumstances of the case and the needs of justice so require, unless the accused objects.

The technique is worth naming in an answer. A directive principle is not enforced as such; it is used to give content to a fundamental right, so that what the principle directs becomes part of what the right requires. Article 39A plus Article 21 equals an enforceable right to free legal services.

The Advocates Act's own provision

Section 9A of the Advocates Act 1961 empowers a Bar Council to constitute one or more legal aid committees, each with the prescribed number of members.

Why it matters here. Legal aid existed inside the profession's own statute before the Legal Services Authorities Act 1987, and section 6 makes organising legal aid to the poor a function of a State Bar Council. Chapter 550 traces what the Bar Councils and the committees actually did.

Article 39A in argument

Its first use is to make legal aid a duty rather than a policy. A State that provides no legal aid is in breach of a constitutional direction, whatever its budget.

Its second use is interpretive. It gives content to Article 21 in criminal matters and, through Manubhai Pragaji Vashi at chapter 40, reaches even the funding of law colleges.

Its third use is as a standard. Because the article speaks of the operation of the legal system, delay, distance, cost and complexity are all measurable against it, which is the connection to Anita Kushwaha's four facets at chapter 530.

And a limit worth conceding. Article 39A does not create a right to win, to a lawyer of one's choice, or to legal aid in every proceeding. Its standard is the denial of the opportunity to secure justice.

A worked example

A man is produced before a magistrate on a Monday morning, twelfth on a list of thirty-one. He has no lawyer and no money.

Trace Article 39A through what happens to him.

The article itself gives him nothing directly. It is in Part IV, and Article 37 provides that the directive principles are not enforceable by any court. If Article 39A were the whole of the law, the magistrate could remand him in silence and no court could be asked to intervene.

Hoskot supplies the first step. Procedure established by law in Article 21 means fair and reasonable procedure, and free legal services to an indigent prisoner where the ends of justice require it is a State responsibility under that article.

Hussainara Khatoon supplies the second. The right to free legal service is implicit in Article 21, and Article 39A shows why: without it a person suffering economic or other disability is deprived of the opportunity of securing justice.

So Article 39A has done its work without being enforced. It has told a court what fair procedure must include, and the fair procedure requirement is enforceable.

Now change one fact. Suppose the man is not poor but is deaf and has no interpreter. Article 39A speaks of economic or other disabilities, so the same reasoning reaches him, and that phrase is what makes the article wider than a means test.

And change it again. Suppose he is not an accused at all but a tenant facing eviction in a civil suit. The judgments above are criminal, and the reasoning of Article 39A is general while the Article 21 route is not. That is the honest limit of the article as it has been developed, and it is the point at which a candidate should stop rather than assert.

Quick revision

Article 39A, inserted by the Constitution (Forty-second Amendment) Act 1976: 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, so that opportunities for securing justice are not denied by reason of economic or other disabilities.

Not enforceable of itself, being in Part IV and subject to Article 37.

Made enforceable through Article 21: Hoskot, (1978) 3 SCC 544, free legal services to an indigent prisoner as a State responsibility under Article 21 read with Articles 39A and 142; Hussainara Khatoon, (1980) 1 SCC 98, the right to free legal service is implicit in Article 21 and the State is under a mandate to provide a lawyer.

Neighbours: Articles 38 and 41; Article 51A(h) on the citizen's side.

The Act's own provision: section 9A of the Advocates Act 1961, legal aid committees of a Bar Council, with section 6 making legal aid a function of a State Bar Council.

Test yourself

1. Quote the substance of Article 39A and identify the amendment that inserted it. 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. It was inserted by the Constitution (Forty-second Amendment) Act 1976.

2. Explain how a directive principle became enforceable, naming the two judgments. Not by enforcing Article 39A directly, since Article 37 makes the directive principles unenforceable, but by using it to give content to Article 21. In Hoskot the Court held free legal services to an indigent prisoner to be a State responsibility under Article 21 read with Articles 39A and 142; in Hussainara Khatoon it held the right to free legal service to be implicit in Article 21, Article 39A showing it to be an inalienable element of reasonable, fair and just procedure.

3. Which phrase in Article 39A carries the non-income categories of entitlement, and why? The words economic or other disabilities. They extend the article beyond poverty to disability, illiteracy, custody, distance, language and social position, which is what section 12 of the Legal Services Authorities Act reflects in its non-income categories.

4. State one limit of Article 39A that an answer should concede. It does not create a right to succeed, a right to a lawyer of one's choice, or a right to legal aid in every proceeding. Its standard is the denial of the opportunity to secure justice by reason of economic or other disability.