The Right to Free Legal Aid and Access to Justice: Constitutional Mandate under Article 39A, the NALSA/DLSA Framework, Lok Adalats, Institutional Arbitration and Mediation

1 Trace the constitutional recognition of the right to free legal aid, beginning with M.H. Hoskot v. State of Maharashtra and Hussainara Khatoon v. State of Bihar. Is free legal aid merely a Directive Principle under Article 39A, or has the Supreme Court read it into the fundamental right to a fair trial under Article 21? Explain with reference to Khatri v. State of Bihar and subsequent case law.

The constitutional recognition of the right to free legal aid actually originates from the US’s courts back in 1932 but it later was introduced in India in 1978 in the M.H. Hoskot v. State of Maharashtra . Also parallel to the Indian courts, the European court in the Airey v. Ireland in 1979 introduced state funded legal assistance in legal proceedings. A brief introduction of the United States’ jurisprudence of legal aid, beginning with Powell v. Alabama  in 1932 popularly known as the Scottsboro Boys case where a group of 9 African American teenagers were accused of raping 2 white women on a train near Scottsboro, Alabama. The defendants were tried in three separate one day trials and all were sentenced to death except for 13 year old Roy Wright. The trial judge did not assign specific counsel to each defendant. Instead, he listed all members of the bar as potential attorneys, and only two volunteered on the morning of the trial. The defendants had no meaningful opportunity to consult with counsel or prepare a defence. The Alabama Supreme Court affirmed the convictions, and the defendants appealed to the U.S. Supreme Court. Where one of the most important findings of the Supreme Court were ‘the fact that the right of an accused person to have counsel for his defense was guaranteed expressly (as respects the federal Government) by the Sixth Amendment, notwithstanding the presence of the due process clause in the Fifth Amendment, does not exclude that right from the concept of due process of law. Betts v. Brady  narrowed this to a case-by-case test, before Gideon v. Wainwright overruled Betts and held that the right to appointed counsel in serious criminal cases is a fundamental right binding on the states through the 14th Amendment. 

Article 14(3)(d) of the International Covenant on Civil and Political Rights (1966), to which India is a party, guarantees an accused the right to have legal assistance assigned, free of charge, where the interests of justice so require and the accused cannot pay. The UN's Basic Principles on the Role of Lawyers (1990) and the later UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012) elaborate the same idea globally. To begin with the Indian jurisprudence regarding the free legal aid, the constitutional recognition began with M.H. Hoskot v. State of Maharashtra where Madhav Hayawadanrao Hoskot was convicted in a criminal case relating to cheating and forgery under IPC where the Bombay high court convicted him and he filed a special leave petition under Article 136  which was dismissed and yet the Supreme Court held out that Article 39 is a interpretative aid to Article 21 and that a prisoner’s right to appeal is meaningless without a free copy of the judgment and free legal assistance. The Court read Articles 21, 39A and 142 together to hold that free legal service is part of fair procedure ender Article 21. 

Another important findings in the jurisprudence of free legal aid was held out by the case of Hussainara Khatoon v. State of Bihar  where in the p. 2 it is held that  Article 39A also emphasises that free legal service is  an inalienable  element of  'reasonable,   fair and just' procedure for  without  it  a  person  suffering from economic or  other disabilities would be  deprived  of the opportunity for securing justice.  The right  to free legal service is  therefore, clearly an essential  ingredient  of 'reasonable, fair  and just'  procedure for a person accused of, an offence and it must be held implicit in the guarantee of Art. 21. This is a constitutional right of every accused person who  is unable  to engage  a lawyer  and secure legal services, on  account of  reasons such as poverty, indigence or incommunicado  situation and the State is under a mandate to provide   a lawyer   to  an   accused person   if the circumstances of  the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

Is free legal aid merely a Directive Principle under Article 39A, or has the Supreme Court read it into the fundamental right to a fair trial under Article 21?

As discussed in the previous judgments of M. H. Hoskot vs State of Maharashtra and Hussainara Khatoon vs State of Bihar, it can be concluded that the free legal aid is not just a mere directive principle for the state but it is associated with fundamental right under Article 21 as laid out in hussainara case, in the Hoskot case it was not as clearly defined as it is in the hussainara case. The various judgments of the apex court in India is clearly stating that Article 39A is clearly associated with the Article 21 and right to speedy trial emerged along with. 

REFERENCE TO THE KHATRI v. STATE OF BIHAR 

p. 1 of the case very specifically cites ‘The right  to free legal services is clearly an  essential ingredient  of reasonable,  fair  and just procedure for  a person accused of  an offence  and  it  is implicit in  the guarantee  of Article 21 and the State is under a constitutional mandate to provide  a lawyer  to an accused person if the circumstances of  the case  and the needs of  justice so require, provided of course the accused person does  not object to the provision of such lawyer. The State should provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State.  It cannot avoid its constitutional obligation to provide free legal services  to a poor accused by pleading financial or administrative liability.’ In another p. 2 it is mentioned that this right arises when the accused is first presented to the magistrate. In another case of Sukh Das v. Union Territory of Arunachal Pradesh, the facts stated that Sukh das was convicted for criminal intimidation where he was imprisoned and the high court of Gauhati upheld the sentence stating that the Sukh das didn’t file a application for a right of free legal aid but the Supreme Court of India upheld that right to free legal aid and representation at the state expense of those who can’t afford it is enforceable under Article 21 and not limited merely to a Directive Principle under Article 39A. 

2 Under which provision of BNSS, 2023 and when must a Sessions Court assign a pleader at State expense to an undefended accused? What is the legal consequence for a conviction recorded where the accused was not offered legal aid despite being unable to afford counsel?     

Section 341 of the Bhartiya Nagrik Suraksha Sanhita, 2023 clearly states that where the accused is unrepresented and does not have sufficient means to engage a representation , then in such cases the court must appoint an advocate at the state’s expense. The high court of every state have the rule making powers in cases like this. Also, the Legal Services Authority Act, 1987 provides under section 12 criteria for eligible people to whom legal aid would be provided free of cost or on state’s expense. The criteria includes :

1. A member of SCs or STs

2. A victim of human trafficking or beggar 

3. A woman or a child

4. A person with disability

5. Victim of mass disaster, ethnic, violence, caste atrocity, flood, drought, earthquake or industrial disaster 

6. An industrial workman

7. In custody

8. Annual incomes less than as described 

In case of non compliance of this rule under 341 of BNSS, the Supreme Court has held several key guidelines for such cases through Suk das vs. Union Territory of Arunachal Pradesh where it was stated that failure of Magistrate/Session Judge to inform an indigent, unrepresented accused of the right to free legal aid vitiates the trial, regardless of whether the accused actually asked for a lawyer. In the case of Anokhilal v. State of Madhya Pradesh, it was concluded that the trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside as mentioned in the p. 16 of the judgment. Similarly, it can be stated that if there is non compliance, the court shall vitiate the trial and declare it void and order for re-trial from the stage of framing of charges.

3 The Supreme Court has held that the right to legal aid is not satisfied by the mere presence of a lawyer, but requires ‘effective’ representation. Discuss the standard the Court has applied to distinguish effective legal assistance from token or nominal representation, particularly in cases involving indigent or first-time accused persons.

The standard the court has applied to distinguish effective legal assistance from token or nominal representation from the case of Anokhilal v. State of M.P. in the year 2020 where it was seen that Anokhilal was tried for an offence of rape and murder of a nine year old and was charged under IPC and POSCO but the trial was concluded in 13 days without effective representation of Anokhilal. The supreme court held that fast track of trial shall not override the accessibility of justice, the trial was vitiated by the supreme court as mentioned above. The case of Anokhilal mirrors a case on ineffective assistance of counsel and this emerged as doctrine in US through Strickland v. Washington where the US supreme court held that a conviction can be reversed if counsel’s performance fell below an objective standard of reasonableness and prejudiced the defence. This case is not exactly same as it has the two pronged test but it identical to Anokhilal. It was observed that the trial of Anokhilal was concluded within 13 days, and the advocate was appointed on the day of framing of charges which was found ineffective legal assistance. Also, Anokhilal was a first-time offender with no previous criminal history, under section 47 of the Bharitya Sakshya Adhiniyam, 2023 previous good character is relevant and providing them ineffective legal assistance is violation of their right with association with Article 39A.

4 Discuss the shift towards institutional arbitration in India following the 2019 and 2021 amendments to the Arbitration and Conciliation Act, 1996, including the role envisaged for the Arbitration Council of India. How does institutional arbitration differ from ad hoc arbitration, and what advantages has the Supreme Court/Law Commission of India identified in promoting institutional arbitration as a mode of access to justice?

Arbitration in India has historically operated through ad hoc arbitration, where parties themselves choose their arbitrators, decide procedure,, venue, fees and conduct of proceedings. Whereas, institutional arbitration usually provide appointment mechanisms, procedural rules, timelines and oversight by the institution. There has been observed a shift towards institutional arbitration after the 2019 and 2021 amendments to the Arbitration and Conciliation Act, 1961 because the ad hoc arbitration has several drawbacks which could be overcome by institutional arbitration. The major drawbacks were :

1. Delay in constitution of  tribunals- this delay in ad hoc tribunals were because of the section 11 of the act which gave the power to parties to choose arbitrators and they ended up choosing biased arbitrator and this was later challenged in courts, which led to the loss of purpose of the arbitration. 

2. Uncertainty regarding  fees- institutions generally provide a pre determined or structured system of fees whereas this remains a point of discussion in ad hoc arbitration . 

3. International competitiveness- international commercial parties frequently select established institutions such as, ICC, LCIA, SIAC.

4. The 246th report of Law Commission of India on Amendments to the Arbitration and Conciliation Act, 1961 was significantly important. The Commission observed that institutional arbitration had not become widespread in India and that the existing Arbitration Act was essentially institutionally neutral.  There were several recommendations made by this committee beginning with encouraging courts to promote institutional arbitration, strengthening arbitral institutions, developing institutional rules, improving the arbitrator appointment mechanism, and reducing unnecessary judicial intervention. Also, the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India chaired by Justice B.N. Sri Krishna, submitted its report on 30th July 2017, where it examined  the need for institutional arbitration, deficiencies in existing arbitral institutions, and measures to make India a competitive arbitration jurisdiction. Finally in 2019 a Amendment was passed introducing Part I A, section 43A-43M forming the Arbitration Council of India. The major areas of work the council was grading of the institution on various grounds, accreditation of the arbitrators, depository of awards and regulations. Another amendment in 2021, it modified section 43J. The provision was substituted so that qualifications, experience and accreditation norms would be determined through regulations. The overall objective remained the development of a professional arbitration ecosystem. The major advantages Supreme court and Law Commission of India identified were the reduction in unnecessary judicial intervention, increment in qualified arbitrators, reduction of delays in the appointment stage, and lastly structured and predetermined procedure encouraging access to justice. 

5. The Mediation Act, 2023 introduces a structured framework for pre-litigation mediation, and Section 12A of the Commercial Courts Act, 2015 makes pre-institution mediation mandatory for certain commercial suits. Discuss the legal status and enforceability of a Mediated Settlement Agreement under the Mediation Act, 2023, and compare mediation as an access-to-justice mechanism with the Lok Adalat mode in terms of finality of outcome, voluntariness, and judicial oversight.

There are certain statutes that makes it mandatory for the parties to go to mediation before filing of a civil suit. Beginning with section 89 of Civil Procedure code, 1908 which states to refer the parties to settle the dispute outside court which usually includes mediation, followed by Section 12A of the Commercial Courts Act, 2015 which mandatorily requires mediation before filing of civil suits for certain cases. Also Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd., p.2 states that pre institution mediation under section 12A is mandatory, not just merely directory. A commercial suit filed without first attempting mediation which does not genuinely seeks urgent interim relief is liable to be rejected under Order VII Rule 11 CPC. Another case of Yamini Manohar v. T.K.D. Keerthi, held out that urgent interim relief exception via Patil Automation, leaves no absolute right to bypass section 12A merely by praying for urgent interim relief. The commercial court must examine the plaint, documents and facts to see if urgency is genuine or a camouflage to sidestep mandatory mediation.  Also it is a general practise of courts to refer parties to mediation in family proceedings like divorce and custody cases.

Comparing between Lok Adalat award and Mediated Settled Agreement, Section 21 of the Legal Services Authorities Act, 1987, states that every award of Lok Adalat is deemed as a decree of civil court and is final and binding on the parties and is not a subject of appeal, whereas a mediated settlement agreement is also final and binding on the parties under Section 27 of the Mediation Act, 2023 and is only appealable under 4 grounds mentioned in section 28 of the Mediation Act, 2023. The proceedings of Lok Adalat is voluntary but mediation not mostly voluntarily, it is a mandatory reference under CPC, and Commercial Courts Act, 2015. Also, the Lok Adalat's operate within statutory provisions of Legal Services Authorities Act, 1987 and is usually chaired by a serving or retired judicial officer along with lay members and is quasi  judicial body. Whereas mediation is usually conducted by accredited/empanelled mediator regulated by the Mediation Council of India who are not a judicial officer.

Credit: -Ayush Singh