CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

INTRODUCTION
LEGITIMATION OF LAW: Law consists of rules made by authority for the proper
regulation of community or society.
According to Austin, law is a rule laid down for the guidance of a being by an intelligent
being having power over him1. Law means any set of uniform principles which is generally
followed. It is referred to those rules which are issued by the State for determining the
relationship of men in organized society. The purpose of law is to regulate and control human
action in society.
The salient features of law are:
i)

The laws are made in the form of rules and acts and they are universal in
character;
ii)
The laws are made by the legislature and issued by the sovereign authority in the
form of commands;
iii)
The laws forbids certain types of actions which are harmful;
iv)
The laws prescribe penalty or punishment for breaking them and they are enforced
by sanctions;
v)
The laws confirm
Prof. Baxi, says, The idea that legal rules are binding
rights
and create
upon all sections of society has been rejected in
obligations in specific
practice by the governing elite of the country has been
relations;
rejected in practice by the governing elite of the
vi)
The laws have to be
country. Modern India seems to have at least two
obeyed not as optional
parallel legal systems: one for the rich and the
but as obligation; and
resourceful and those who wield political power and
vii)
Courts interpret the
influence and the other for the same men without
laws and fix the
resources and capabilities to obtain justice or fight
punishments
to
injustice. Normatively, the law is the for all citizens of
offenders
and
India. In practice, the incidence of enforcement of right
compensation to the
and liabilities varies depending on the location of
victims according to
persons involved in the socio-economic structure. It
the law.
seems that there is dual legal system in India.

The miserable thing that exists in India is the lack of respect for rules of law, not just by the
people but also by those who make and enforce them. Both the rulers and the ruled
collectively feel that most legal rules do not set any genuine moral constraints to behaviour
motivated by strong personal or group interests.

1 Dr. S.R.Myneni, law & poverty, 3rd edition,2015, p-275.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

The factors for the sad State of affair s of complex legal values in India are:
i)

The Indian political elite and the upper middle classes have not internalized the

Mahatma Gandhi lamented by saying Law is nothing but the convenience of

the powerful. In a highly unequal society like India, the exploiters will always
have an edge over the exploited and that the legal system will, more or less, act
as a source for the dominant interests as a pliant agency of repression of the
vulnerable people. Though there is beneficial legislation for the weaker section,
it will generally be unable to deliver goods for the beneficiary population and
that, at least initially, the dominant interests will distort the channels and goals
of redistribution n their favour.

ii)

iii)
iv)
v)
vi)
vii)
viii)
ix)

value of legalism.
All this has the effect of convincing of a large segment of the Indian people that
rule following is not merely unjustified but counterproductive in terms of their
interests.
There is corruption to get the things done and thus leads to violation of the values
of legalism.
There is abuse of power and this erodes the very foundation of legalism, as power
is nothing but complex of legal rules, principles and standards.
The countervailing power the manner of its organization, the strategies that are
adopted leads to further weakening of the logic of legalism.
Direct action or politics of protests has shapely exposed the arbitrariness lying at
the root of law and social policy decisions.
Agitation movements or protests have led to distinctive types of structure for
political action.
The causes of the emergence of this existing model of political management are
many and complex.
The cause for the low commitment to legalism, is the point that the failure or
redistribution of resources to meet the basic needs leads also to a situation where
the ethic of rule following is rather hard to inculcate. An enormous range of
deviation from rules is need-based. Begging, prostitution, child-selling, creation of
unauthorized slums, ticketless travelling, pick-pocketing, and cheating and mind
violence is all manifestation of need. The Indian law must learn to enforce the
morality of survival, not by making penal, the behavior of the destitute, but rather
by imposing the moralities of duty and aspiration on people who are resourceful in
order to protect the interests and the dignity of the destitute and the near-poor2.

2 Ibid at p-276-277.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

CRIMINAL JUSTICE SYSTEM

Criminal justice refers to the agencies of government charged with enforcing law,
adjudicating crime and correcting criminal conduct. The Criminal justice system is essentially
an instrument of social control: society considers some behaviours so dangerous and
destructed that it either strictly controls their occurrence or outlaws them outright.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

LAW AND POOR

The law is meant for the people and not the people for the law. Here the word people
means the weaker sections of the society, toiling masses the proletariat, and the poor.
Justices Dwivedi and Chandrachud in Keshavananda Bharti v. State of Kerala, state, The
Constitution is not intended to be the arena of legal quibbling for men with long purses. It is
made for the common people. It should generally be so construed as that they can understand
and appreciate it. The more they understand it, the more they love it and the more they prize
it3.
They further says that The court is not chosen by the people and is not responsible to them
in the sense in which the House of the People is. However, it will win for itself a permanent
place in the hearts of the people and augment its moral authority if it can shift the focus of
judicial review from the numerical concept of minority protection to the humanitarian
concept of the protection of the weaker section of the people. It is really the poor, starved and
mindless millions who need the Courts protection for securing to themselves the enjoyment
of human rights. In the absence of an explicit mandate, the Court should abstain from striking
down a Constitutional Amendment which makes an endeavour to wipe out every tea from
every eye.
Justice Chandrachud was moved to say in Keshavananda Bharti v. State of Kerala, that, But
these landmarks in the development of the law cannot be permitted to be transformed into
weapons for defeating the hopes and aspirations of our teaming millions, half-clad, halfstarved, half-educated. These hopes and aspirations representing the will of the people can
only become articulate through the voice of their elected representatives. If they fail the
people, the nation must face death and destruction. Then, neither the Court nor the
Constitution will save the country.
Justice Krishnan Iyer critically demonstrated the colonial and alienating nature of legal
processes and institution and crusaded for a radical reorientation of the bench and bar towards
the urgent task of development and justice for the Indian masses.
During 1975-77, Justice Krishnan Iyer and Bhagwati spread the nationwide legal aid
movement for the promotion of legal services. They organized legal aid camps in distant
villages; they mobilized many High Court Judges to do long marches through villages to
solve peoples grievances. They through camps and lok adalats (peoples courts) sought to
provide de-professionalized justice. They called for total restructuring of the legal system,
and in particular of the administration of justice.

3 Ibid at p-278.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

RIGHTS OF POOR FOR LEGAL AID

Legal aid means the free legal assistance to the poor and weaker sections of the society at the
state cost with the object to enable them to exercise the rights given to them by law in any
judicial proceedings before the Courts or Tribunals.
Justice P.N.Bhagwati states in the Report of the Legal Aid Committee that the legal aid means
providing an arrangement in the society so that the machinery of administration of justice
becomes easily accessible and is not out of reach of those who have to resort to it for
enforcement of rights given to them by law.
The object of legal aid is to ensure that the opportunities for securing justice are not denied to
any person by reason of poverty, illiteracy, etc. The poor and illiterate should be able to
approach the Courts and their ignorance and poverty should not be an impediment in the way
of their obtaining justice from the Courts. The object of the legal aid is to ensure equal
justice.
Regarding the right to free legal aid, Justice Krishnan Iyer declared, This is the States duty
and not Governments Charity.

CONSTITUTIONAL PROVISIONS OF LEGAL AID

The Preamble of the Constitution of India resolved to secure to all its citizens justice, social,
economic and political and equity of status and of opportunities.
Article 39-A which is incorporated by way of 42nd Amendment of the Constitution deals with
equal justice or distributive justice which states, The State shall secure that 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 other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 14 of the Constitution states that the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India. The Constitution of
India provides the fundamental rights including the protection of life and personal liberty in
Article 21. The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by the Constitution is guaranteed by Article 324.
The economic and social inequalities are prevalent in Indian society. Article 38[1] states that
the State shall strive to promote the welfare of the people by securing and protecting, as
effectively as it may, a social order in which justice, social, economic and political, shall
inform all the institution of the national life.

4 Panday, J.N., The Constitution of India, 52nd edition, 2015.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

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In Hussainara Khatoon v. State of Bihar5, the Supreme Court has held that the right to free
legal aid or free legal service is an essential ingredient of reasonable, fair and just procedure
and implicit in the guarantee of the right to life and personal liberty under Article 21. The
State is under the mandate to provide a lawyer to an accused person who is unable to engage
a lawyer due to poverty, provided the accused person does not object to the provision of such
lawyer.
In H.M.Hostak v. State of Maharashtra6, the Supreme Court has held that it is the
constitutional right of the accused that he is represented by a lawyer and the duty is cast upon
the State to provide free aid to a prisoner who is indigent and unable to secure legal
assistance because of his financial incapacity and such rights are available to the accused
even at the appellate stage when the accused is unable to appeal against the order of
conviction since the service of a lawyer constitutes an integral part of fair procedure.
In Khatri v. Bihar7, it has been held that the only qualification would be that the offence
charged against that accused is such that, on conviction, it would result in a sentence of
imprisonment and is of such a nature that the circumstances of the caste and the
circumstances of the caste and the need of the social justice requires that he should be given
free legal representation but in cases involving offences such as economic offences or
offences against law prohibiting prostitution or child abuse and the like, where the social
justice was abused that free legal services need not be provided by the State. The obligation
of the State to provide free legal services arises at the stage when the accused is first
produced before the Court and also during trial and finally at the appellate stage.
In Ashok Kumar v. State of Rajasthan8, the Supreme Court has held that the rich persons are
not entitled to the free legal aid. If the accused has capacity to appoint an advocate, he is not
entitled to the free legal aid.
In Suk Das v. Union Territory of Arunachal Pradesh9, the Supreme Court has held that failure
to provide free legal aid to an accused at the State cost, useless refused by the accused, would
vitiate the trial. He need not apply for the same. Free legal aid at the State cost is a
fundamental right of a person accused of an offence and this right is implicit in the
requirement of reasonable, fair and just procedure prescribed by Art.21. This right cannot be
denied to him on the ground that he has failed to apply for it. The Magistrate is under an
5 AIR 1979 SC 1369.
6 AIR 1978 SC 1548.
7 1981 (2) SCC 493.
8 1995 Cr. L.J. 1231.
9 (1986) 25 SCC 401.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

obligation to inform the accused of this right and inquire if he wishes to be represented on the
States cost, unless he refuses to take advantage of it.
In State of Maharashtra v. Manubhai pragaji vashi10, it was for the first time that the
Supreme Court considered the scope of Article 21 in the context of Article 39-A of the
Constitution.
While considering the combined effect of Article 21 and Article 39-A of the Constitution, the
Supreme Court in the State of Maharashtra v. M.P.Vashi11, has held that these two articles cast
a duty on the State to afford grant-in-aid to recognized private law colleges, similar to other
facilities, which qualify for receipt of the grant. The aforesaid duty cast on the State cannot be
whittled down in any manner pleading paucity of fund.
The concept of legal aid emerged from the genuine need of the indigent class of human
society to seek legal assistance at no cost.

STATUTORY PROVISIONS OF LEGAL AID

The Criminal Procedure Code and the Civil Procedure Code also contain the provisions for
free legal aid.
I.

CRIMINAL PROCEDURE CODE,1973

Section 304 of the Criminal Procedure Code, 1973, provides that:

1. Where in a trial before the Court of Session, the accused is not represented by a
pleader and where it appears to the Court that the accused has not sufficient means to
engage a pleader; the Court shall assign a pleader for his defence at the expense of the
State.
2. The High Court may, with the approval of the State Government make rules for the
mode of selecting pleaders for defence under aforesaid sub-section (1) of Section 304,
the selection, the facilities to be allowed to such pleaders by the Courts, the fees
payable to such pleaders by the Courts, the fees payable to such pleaders by the
government and for carrying out the purposes of such sub-section (1) stated above.
3. The State Government may, by notification, direct that as from such date as may be
specified in the notification the aforesaid provisions of sub-sections (1) and (2) of
Section 304, shall apply in relation to any class of trials before other courts in the
State as they apply in relation to trial before the Courts of Session.
10 AIR 1996 SC 1.
11 AIR 1998 Bom 296.

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CRIMINAL JUSTICE SYSTEM AND THE POOR

LAW & POVERTY

II.

CIVIL PROCEDURE CODE, 1908

According to Order XXXIII of the Civil Procedure Code, 1908, if on the application
to sue as indigent person or his dependent is being granted, the plaintiff shall not be liable to
pay Court fee and in case he is not represented by a pleader, the Court may, if the
circumstances of the case so require, assign a pleader to him. According to Order XLIV, the
free legal aid is provided in respect of appeals by indigent person.
III.

THE ADVOCATES ACT, 1961

According to Section 9-A(1) of the Advocates Act,1961, a Bar Council may

constitute one or more legal aid Committees, each of which shall consist of such number of
members, not exceeding nine but not less than five, as may be prescribed.
As per Section (6) (1) (e) the functions of a State Bar Council shall be to organize legal aid to
the poor in the prescribed manner, according to Section (6) (2) (b), a State Bar Council may
constitute one or more funds in the prescribed manner for the purpose of giving legal aid or
advice in accordance with the rules made in this behalf.
According to Section7 (1) (b), the function of the Bar Council of India shall be to organize
legal aid to the poor in the prescribed manner.

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