Articles 38 and 39 of The Constitution of India

Introduction

India is a welfare state. The fact that the preamble of the Constitution itself envisages India to be a ‘socialist’ state bears enough evidence for this.

What do we understand by the word socialism? Socialism in India is not understood in the Russian context where all resources are owned by the state and the state secures the welfare of all. Socialism, as envisioned in the Indian Constitution, aims at elimination of inequality in income, status and standards of life. In many decisions, courts have interpreted ‘socialism’ to mean a kind of social democracy which comes closer to the conception of a social welfare state as seen in the Constitutions of France and Germany. The Constitution itself, however, does not define the term, but merely implies the above meaning through the rest of its provisions.

In exercise of socialism, the Constitution provides what are called the Directive Principles of State Policy in Part four. These principles are not justiciable in a court of law, meaning that one cannot file a proceeding because a Directive Principle has not been enacted or been denied. However, this does not render them redundant as they recognize the long-term but fundamental goals of a welfare state which help in defining the path of development the country is to follow, and it is the duty of the State to apply them while making laws. By their very name, they are “Directive” principles, principles which help the government direct their functions in order to make India what the Constitution-makers wanted it to be. Further, Article 38 provides a mandate for the State to ‘secure a social order for the promotion of welfare of the people’.

Article 39 lays down six Directive Principles. Some of these are to ensure means of equal livelihood to men and women, ownership and control of resources be distributed to serve the best interests of the people, there is no concentration of wealth, there is equal pay for equal work of men and women, etc.

Article 39A, inserted by the Constitution (Forty-second Amendment) Act of 1976, imposes a mandate on the state to provide equal justice and free legal aid. This particular provision shall be the focus of this project, as the questions to which we seek answers are:

•  
• Whether free legal aid is meant to achieve speedy and equal justice.
• Does it achieve this aim.

The answers may be arrived at by attempting to inquire into the following questions:

1. What exactly does Article 39A provide for?
2. If it is not enforceable, what is the legal value of this provision?
3. What has been the position of courts regarding Article 39A? What do the judgments lay down?
4. So does Article 39A, along with decided cases, provide a way to ensure speedy and equal justice by way of free legal aid?
5. If yes, how is this implemented? Is it effective or does it only seem theoretically sound but practically unsound?

In this project report, the chapter plan shall be as follows:

• Chapter 1 shall discuss Article 39A in detail. Along with this, its legal weight shall be discussed, in spite of it being not enforceable.
• Chapter 2 shall discuss the judgments of courts in this regard and the positions of law they have decided upon with respect to Article 39A.
• Chapter 3 shall discuss if free legal aid is capable of accomplishing speedy and equal justice.
• Chapter 4 shall analyze whether this possibility is being practically implemented properly.

The researcher hopes that through the following research, answers to the research questions and hence to the main question may be arrived at satisfactorily.

Scope And Enforceability

Article 39A states:

“39A. Equal justice and free legal aid – 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.”

The Article implies that free legal service is inalienable from the requirements of reasonable, fair and just, as without it people would suffer economic disabilities, which cannot be a ground for someone not getting access to justice. This should be held to be implicit in Article 21, that is, the fundamental right to life and personal liberty.

Article 21 states:

“21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.”

When Article 21 and 39A are read together, it becomes quite clear that equal justice required in the latter is included within life and liberty of the former. 39A further gives the State a way to ensure that this Fundamental Right of the accused is not infringed, that is by provision of free legal aid and opportunity. This was stated in Maneka Gandhi v Union of India.

So although Article 39A is not enforceable in a court of law by virtue of it being a Directive Principle, it may draw its mandate from Article 21. That is, in fact, how the various cases regarding free legal aid have come up in the courts.

The State must provide services of a lawyer to the accused if the he or she is incapable of securing one on their own and if the circumstance demands it. This they must do to secure their credibility by virtue of being a socialist state. When the enjoyment of justice becomes a right only of the rich and is denied to the poor, the threat to democracy becomes a real one because the existence of a democracy depends on the belief of the people in its efficiency. It also defeats the Preambular requirements of economic justice and equality of status and opportunity.

In pursuance of Article 39A, the Parliament enacted the Legal Services Authorities Act, 1987. Enforceability can also be derived from this act. The further provisions of this act shall be discussed in the subsequent sections.

Position Of Courts On Article 39A

Petitions invoking Article 39A have come up many a time in courts of law. Most of these seek maintainability through Article 21 as 39A is not enforceable. In this chapter, a series of the main decisions shall be discussed.

The first of these judgments is a 1978 decision of the Supreme Court in Madhav Hayawadanrao Hoskot v State of Maharashtra. The case came up as a Special Leave Petition by the accused, M.H. Hoskot, who was charged with forgery and misrepresentation of a college degree. The shopkeeper to whom he went for getting a fake seal made, however, turned out to be clever and he gave pre-emptive information to the police. The Sessions court held the accused guilty beyond reasonable doubt for grave offences, but softened his punishment to a large degree. This gave rise to two appeals to the High Court: one by the Petitioner against the conviction and the other by the Respondents for the nominal punishment. High Court dismissed the Petitioner’s appeal and allowed the Repondent’s, increasing the punishment to three years rigorous imprisonment. The appeal in the Supreme Court came up against this harsh punishment, but after a period of four years. The reasons stated by the Petitioner for this delay was that a copy of the High Court had not been served to him. The Supreme Court identified to perils of the legal system in this: first, the fact that prisoners are at the mercy of the prison officials with regard to their right to appeal; second, there is no statutory provision for free legal serives to a prisoner because of which a right of appeal for the legal illiterates is nugatory and, therefore, a negation of that fair legal procedure which is implicit in Article 21 of the Constitution as was stated in the Maneka Gandhi case. Though the Supreme Court provided the petitioner a lawyer, he decided to argue on his own.

The Court in its judgment categorically stated that the provision of the Code of Criminal Procedure granting Right to Appeal was implicit in Article 21 of the Constitution. It could not be denied under any circumstances and it is the duty of courts to facilitate an accused invoking this right. It further states that Article 39A is an ‘interpretive tool’ for Article 21. It affirms the position in Maneka Gandhi v Union of India that personal liberty could not be cut down without fair legal procedure. To ensure this was a State’s duty and not any form of charity. Further, though the services were to be free to the beneficiary, the lawyer had to be remunerated at the State’s cost.

The decree of the High Court was not changed. The Supreme Court only laid down the said principles. But it confined this liberty to a prisoner alone.

The decision that came after this was Hussainara Khatoon v Home Secretary, State of Bihar. The case came up to the court by writ petition on account of counter-affidavits filed by respondents pursuant to directions given by the same court on 26th February, 1979. In the directions, state of Bihar was required to file a revised chart of all under-trial prisoners, categorizing them between major and minor offences, which had not been carried out. But respondents in affidavits assured that the procedure was under way.

It was found from lists of under-trial prisoners filed by the state that many of the prisoners had been kept in jail longer than the maximum period for which they could be sentenced, if convicted. These convicts were to be released with immediate effect as further detention would be illegal and violative of Article 21.

It was further discovered that many prisoners, charged for bailable offences, were still in jail because no application for bail had been made, or they were to poor to furnish it. This could be because of their inability to avail a lawyer who could avail their right to bail for them. The Court thinks such a situation signifies a desperate needed for an appropriate legal service program, but nothing has been done in this context so far. It affirmed Maneka Gandhi v Union of India and MH Hoskot v State of Maharashtra.

The court strongly recommended to government that it was high time to get a comprehensive legal service program into the country which would ensure not only the mandates of stretched interpretations of art 14 (equal justice) and art 21 (life and liberty), but also compulsion embodied in 39A. Also, for an accused unable to get representation, it was a constitutional right that he may demand from the state. If the state fails to provide such machinery, it amounts to a denial of liberty under 21. Also, trial itself may be vitiated solely because article 21 is being denied to the accused.

In Khatri v State of Bihar, affidavits were filed by the Respondents including particulars of the Bhagalpur Central Jail. One of the issues discussed here was that the blinded prisoners brought before the Judicial Magistrates were not provided legal representation. The reason given was that none of them asked for representation.

The court stated that this was a gross violation of the principles established by the apex court in Hussainara Khatoon case.

It further states that the constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested.

The exercise of this right is not conditional on the accused asking for assistance. The magistrate or sessions court before which accused appears has the obligation to inform the accused of his right to avail free legal services if he is unable to afford it.

In Sukh Das v Union Territory of Arunachal Pradesh, it was settled that free legal assistance at the State’s cost is a fundamental right of the accused if the offence is such that it may involve jeopardy to his life or personal liberty. This is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.

But this leads to a question: what about cases involving economic offences or offences against laws prohibiting child abuse or prostitution? Here social justice may require that accused is not provided free legal aid. But it may be argued here that the maxim ‘innocent till proven guilty’ should apply. If one assumes the accused to be innocent till it is shown that he is guilty, till that point the accused must be provided full rights.

In Centre for legal research v State of Kerala, the question was whether voluntary organizations or social action groups engaged in legal aid programs should be supported by the state government, and if yes, then till what extent? CJ Bhagwati said that legal service was not a charity but a social entitlement of the people. Those in need of assistance were not mere beneficiaries but participants in the entire process. Voluntary organizations and social action groups engaged in legal aid programs were the best way to ensure participation of the people. These organizations, because of the specialized nature of their functions, are well-versed with the people and their needs. Thus they must be encouraged and supported by the State. But they shall not be under control or direction of the State.

In the most recent case on this point, State of Maharashtra v Manubhai Pragaji Vashi, the particular question of grants-in-aid to non-governmental law colleges was dealt with. It was held that provision of grants was duty of State which came out of reading of Article 39A with 21. It also affirmed the position of Supreme Court in the previous cases.

This is the present view of the apex court on this issue.

Is Free Legal Aid Capable Of Achieving Speedy And Equal Justice?

The requirement of equal justice is mandated in the Preamble of our Constitution in the words ‘equality of status and opportunity’. This is manifested in Article 14 under part three that deals with Fundamental Rights.

Article 14 guarantees the right to equality in the following words:

“14. Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Interpreting these two provisions, it is evident how the requirement of equal justice is manifested in the Constitution.

Article 14 has been interpreted in various ways. The ‘new rule’ in this regard was laid down by J. Bhagwati in EP Royappa v State of Tamil Nadu, and reiterated in the Maneka Gandhi Case. He said that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. State action must not be guided by any extraneous or the relevant considerations because that would be a denial of equality.

This means that the aim is to provide opportunities to those who lack them, but with a reasonable cause, and without arbitrariness.

In this situation, there is a reasonable cause. The cause is provision of legal representation to persons who cannot avail it. This is reasonable as without representation, an accused cannot defend himself fairly in a court of law. Such a person may be convicted merely because he could not seek protection of the law and not because he was guilty. Our criminal justice system is based on the principle of innocent until proven guilty. This is a tool to ensure that nobody who is innocent is made to suffer. In such a system, is it not unfair to convict a person merely because he is not bestowed enough to seek protection under the law? Also, such a provision is in no way arbitrary. It merely seeks to provide to a disadvantaged class of persons an opportunity by which they can be placed on an equal plane with those who are wealthy enough.

Thus it is submitted that free legal aid is expedient in achieving equal justice.

Is Speedy And Equal Justice Through Free Legal Aid Actually Being Achieved?

In this chapter, we shall be analyze the Legal Services Authorities Act, 1987 and its impact.

The Act was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society, to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity.

However, a major drawback in the existing scheme of organization of the Lok Adalats under that Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the court of law or the parties are advised to seek remedy in a court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merit when parties fails to arrive at any compromise, this problem can be tackled to a great extent.

Further, cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre-litigation stage and thus most of the petty cases which ought not to go in the regular courts would be settled at the pre-litigation stage itself which would result in reducing the workload of the regular courts to a great extent.

It was, therefore, proposed to amend the Legal Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to public utility services.

This amendment was implemented at a later date. It sought to do away with the problems mentioned above. However, though the law now provided, implementation was lacking to a large extent.

Justice Krishna Iyer criticized the Act saying that at times such Adalats solved disputes not by relying on established legal principles but with aims like ending feuds, securing peace to the family, etc. Although these goals are to be kept in mind, such goals are only peripheral and not cardinal, they do not deal with the core issues.

Conclusion & Suggestions

As a conclusion to this project report, I would like to lay down the following observations.

• • Although Article 39A is a directive principle and so is not enforceable per se, it still derives its enforceability from Article 21 and the Legal Services Authorities Act, 1987.
  • The series of judgments by the Supreme Court dealing with this issue concur in their view that free legal aid is a fundamental right of the accused under Article 21 and cannot be denied. It is the duty of the State to ensure that justice is imparted equally and in furtherance of this, Magistrates and Sessions Courts (starting points of trials) have the onus of informing the accused of their right to legal service, and it is no excuse to say that the accused did not ask the court for assistance in representation. The State’s duty also extends to funding of voluntary organizations and social groups that promote legal services to the deprived in order to ensure that the aim of Article 39A is achieved.
  • Free legal aid helps achieve the aim of equal justice by rationale of the Preamble and Article 14 (equality before the law) by placing all accused on an equal footing and making sure nobody is disadvantaged due to their economic position.
  • The legalization of this provision happened in 1987 by way of the Legal Services Authorities Act. Many problems were identified herein, some of them being that in the imparting of justice, legal principles were overshadowed by social aims like restoring peace to the family, no matter at what cost. These were amended. This made the law somewhat sound in theory. Its practice, however, is another story.

In the light of these observations, I would like to put forth the following suggestions:

• • There should be some degree of accountability in the Constitution wherein courts are held responsible for the dispensation of equal justice by periodical review. If every time that an accused is denied an equal opportunity, he has to file a fresh case, it would hamper the working of the judicial system.
  • People generally should be educated about their rights under a judicial system. If this is done, they would be more aware and would not need guidance. Also, they would know what protection to invoke in their defence and would be aware of their options. They would not be hard done by solely due to their ignorance.

Based on the conclusions arrived at, if the said suggestions are implemented, the society would see a brighter day where justice is not denied to one solely because of their financial incapabilities. If such a day comes, it could be said safely that we would have achieved at least part of the vision our forefathers saw as the India of the future.

With this I would like to conclude this project report.

Bibliography

Primary Sources

Statutes

1. The Constitution of India, 1950

2. The Legal Services Authorities Act, 1987

3. Constitution of the Fifth French Republic, 1952

4. Basic Law for the Federal Republic of Germany, 1949

Judgments

1. Balbir Kaur v Steel Authority of India Ltd (2000) 6 SCC 493

2. Centre for legal research v State of Kerala AIR 1986 SC 1322

3. DS Nakara v Union of India (1983) 1 SCC 305

4. EP Royappa v State of Tamil Nadu AIR 1974 SC 555

5. Hussainara Khatoon v Home Secretary, State of Bihar AIR 1979 SC 1369

6. Khatri v State of Bihar AIR 1981 SC 928

7. Madhav Hayawadanrao Hoskot v State of Maharashtra AIR 1978 SC 1548

8. Maneka Gandhi v Union of India (1978) 1 SCC 248

9. State of Maharashtra v Manubhai Pragaji Vashi (1995) 5 SCC 730

10. Sukh Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991

Secondary Sources

Agarwal, Divyam; An Introduction to the Legal Services Authorities Act; http://www.legalserviceindia.com/articles/legaut.htm; last visited on 23 March 2010

Basu, DD; Constitutional Law of India; Lexis Nexis Butterworths; (New Delhi, 8th edition, 2008)

Raju, CB; Social Justice and the Constitution of India; Serials Publications, (New Delhi, 2007)

Rainwater, Lee; Social Policy and Public Policy; Aldine Transaction Publishers; (New Jersey, 2009)

Singh, MP; VN Shukla’s Constitution of India; Eastern Book Company; (Lucknow, 2008)