Free Legal Aid Cannot Be Poor Legal Aid : Justice Vikram Nath

Justice Vikram Nath of the Supreme Court recently reiterated that the quality of legal aid for the poor cannot itself be poor. He said that if legal aid is only rendered in form but not in spirit, it may follow the procedure, but then it fails the Constitution and therefore, the true idea of justice itself. This is because an essential facet of Articles 21 and 39A of the Constitution is meant to ensure that justice is not denied because of poverty or ignorance, as it is not an act of charity, but an act of faith—faith in the Constitution and equality of all before the law. "It needs to be understood that this is not merely a formality. It is a constitutional duty- one that can decide whether a person spends years in confinement or walks free with dignity. When legal aid is rendered in form but not in spirit, it may still comply with procedure, but it fails the Constitution. It fails the idea of justice itself. The Supreme Court has repeatedly emphasised that the quality of legal aid for the poor cannot itself be poor. This is an essential facet of Articles 21 and 39A- the twin pillars that ensure that justice is not denied because of poverty or ignorance. It is not an act of charity, but an act of faith - faith in the Constitution and faith in the equality of all before the law."Justice Nath was speaking on 'Between Custody and Constitution: Field Lessons in Delivering Fair Trial Rights-Legal Aid for Undertrial Prisoners: Report of the Fair Trial Programme in Pune and Nagpur(2019-2024),' organised by the Square Circle Clinic, NALSAR. Justice Nath remarked that we must try to make the legal aid truly accessible, and in order to achieve that, we must move from mere sympathy to structural empathy. It is to ensure that representation reaches not only those who can approach the Court, but also those for whom the Court must reach out. Stating this, he congratulated the Square Circle Clinic for its brilliant work in this field. There is distrust in the legal aid system due to past experiences Pointing out the key findings of the report, Justice Nath stated that there is a gap between the constitutional promises and the lived reality of lakhs of undertrial prisoners in this country, which unfortunately comprises over 70% of the total prison population. In this context, he said that Square Circle Clinic's work reminds us that justice does not end at the courtroom door; it continues in the lived experiences of those who depend upon it. He emphasised that this is the challenge that our criminal justice system is currently facing-undertrial detention and legal aid. Despite the fundamental principle of innocent until proven guilty, more than 70% undertrials continue to languish in jail and in most cases, they don't even know they have a right to legal aid. Particularly, Justice Nath remarked that many do not want to reach out to legal aid as there is distrust owing to experience, so they would rather engage a private advocate than ask someone to fight for them for free."And what is more concerning is that, in most cases, they don't even know that they have a right to legal aid. Out of the 74% of undertrials, only 7.91% have utilized legal aid available to them. Even in cases where they do know, they often refrain from seeking it due to distrust stemming from past experiences. They rather go ahead with engaging some private advocate believing that if they pay someone, he'll do better than the person who is getting nothing out of it."System responsible for failing the poorJustice Nath also averred that in many cases of undertrial prisoners, bail applications are mechanically filed without support documents and without sureties because the poor accused can't afford it. Because of all this, he continues to languish in jail, and this results in them often spending time exceeding the maximum sentence."Bail applications are filed mechanically, without supporting documents, without sureties that the accused can actually produce. The accused cannot afford the bail amount, cannot find sureties and he is back to square one. He just waits, not because the law makes him, but because the system has failed him. There are undertrials who have spent time in prison exceeding the maximum sentence for the very offense they are accused of. There are undertrials charged with bailable offenses who remain in custody simply because they could not furnish bail. There are undertrials who would have been acquitted or given suspended sentences had their trials concluded promptly- yet they continue to languish."Sharing his experience, he said that he comes across many such cases on a daily basis where even chargesheet is not filed despite the undertrial having suffered significant time in custody. He remarked that the Courts have given monumental judgments in the aspect of legal aid, but such judgments are not enough to restore faith in the system. It will only be restored if the legal aid system is made meaningful. "I come across such cases on a...

Free Legal Aid Cannot Be Poor Legal Aid : Justice Vikram Nath

Gursimran Kaur Bakshi

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