Access To Legal Aid To Non-citizens

Baglekar Akash Kumar[i]

Introduction

Legal aid is an essential element of a fair, humane and efficient justice system that is based on the Rule of Law and access to legal aid to non-citizens who constitute India into 12^th largest immigrant population in the world,[1] is their basic human right and not a privilege, which flows out of the bouquet of rights enshrined in Article 21 of the Indian Constitution which is read along with Article 14 and Article 19 as these three forms the Golden Triangle in the Indian Constitution because the delivery of justice should be impartial and non-discriminatory for the survival of democracy, unity and integrity of India which runs on the lines of Constitutional morality.

Access to Legal aid to non-citizens under the Indian Constitution

The non-citizens deserve the same and equal access to legal aid as the citizens of India do because it is their basic human right guaranteed under Article 21 of the Indian Constitution as Fundamental rights are the modern name for what has been traditionally known as ‘natural rights’.[2]

Even though the non-citizens do not enjoy all the other rights, but Article 21 of the Indian Constitution is the basic and universal provision which every person have access to.[3] The Hon’ble Supreme Court in National Human Rights Commission v. State of Arunachal Pradesh[4] has held that “We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise”.

The Constitutional provision which obliges the State to provide free legal aid to the aggrieved person is Article – 39A of the Indian Constitution.

This provision has been added in the Indian Constitution to achieve the concept of welfare state[5] and the language of Article 39A is couched in mandatory terms. This is made more than clear by the use of the “shall” occurring twice in Article 39A of the Indian Constitution because free legal aid is a State’s duty and not Government’s charity. Moreover, Right to free legal aid has to be read along with Right conferred under Article 21 of the Indian Constitution.[6] Hence, in this regard access to legal aid to non-citizen is an obligation upon the State under the Constitutional mandate.

Further, Article 22(1) of the Indian Constitution mandates that no person who is arrested shall be denied his right to consult, and to be defended by, a legal practitioner of his choice,[7] which implies that every person accused of an offence, whether he is a citizen or not, has right to choose the manner in which he wants to be defended, either by a paid lawyer or through legal aid authority appointed lawyer. Hence, in this context it becomes mandatory on the State to provide legal assistance even to foreign accused person.

Presumption of innocence given to accused under Indian Criminal Jurisprudence

Under our Indian criminal jurisprudence, every accused person is presumed innocent, until proved guilty beyond all reasonable doubts because an accused carries with and around him that cloak of priceless value, more glorious than the robe of any king: “Presumption of innocence”, and that presumption is not a mere legal phrase, a word without real meaning, an ideal expression to be uttered and forgotten, but it is a clear command of Law.

Again the State is under the Statutory mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence, etc. The provision which bars the State is Section – 304 of Criminal Procedure Code, 1973.

“A procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable, fair and just’.”[8] Hence, in this regard the accused non-citizen has right to be provided with appropriate legal aid when demanded.

Access to legal aid to non-citizens under International Law

Even though International laws and precedence are not binding on the sovereign nations like India, but due to it’s persuasive nature and moral obligation on the State, there is swift in trend since Visakha v. State of Rajasthan,[9] where International conventions are taken into consideration to guarantee individuals their basic Human rights and also to fill the vacuum created by void in domestic laws.

Hence in this regard it would pertinent to know that non-citizens derive more strength from international conventions for their right of access to legal aid.

Universal Declaration of Human Rights, 1948.

Legal aid as a human right to every person is implicit in various provisions of Universal Declaration of Human Rights. Article 3 of the Universal Declaration declares that “Everyone has the right to life, liberty and security of person”[10], which shall mean access to legal aid for non-citizens is universally declared right to ensure that he lives a dignified life which is an intrinsic facet of basic human right.

Further, Article 6 of the same declaration provides more strength to the non-citizen’s right to access to legal aid where it recognizes that “Everyone has the right to recognition everywhere as a person before the law”[11], which means that a non-citizen is recognized as a person before the law and has same basic human rights of access to legal aid as citizens have.

Moreover, Article 10 of the above declaration guarantees that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligation and of any criminal charge against him”[12], hence in meeting this universal guarantee of fair and impartial hearing to an accused during his trial of criminal offence, access to legal aid to non-citizen is a pre-requisite for the one who cannot afford a lawyer due to many reasons.

International Covenant on Civil and Political Rights, 1966.

Another important international covenant which mandates for provision of legal aid to non-citizens is International Covenant on Civil and Political Rights of 1966.

Article 3 of this international covenant obliges State parties to ensure equal right to men and women for the enjoyment of all their civil and political rights[13] which includes right to life and liberty, protection from torture, inhuman or degrading treatment.[14]

Article 14(1)[15] of this civil and political rights covenant treats every person equal before the courts and tribunals before which he is tried. Hence, in this regard if the non-citizen is not provided legal assistance by the State party, it would contravene the mandate of Article 14(1) of this covenant which ensures to treat every person as equal before the court, whether he is a citizen or not.

Further, Article 14(3)(d) of the above covenant directs State party to provide for legal assistance to person who cannot afford for the same in order to guarantee his civil and political rights.[16]

Convention on International Access to Justice, 1980.

Article 1 of the Convention on International access to justice provides that along with nationals and habitual residents in any contracting State, even non-citizens have right to access of legal aid.

“….. Persons to whom paragraph 1 does not apply, but who formerly had their habitual residence in a Contracting State in which court proceedings are to be or have been commenced, shall nevertheless be entitled to legal aid as provided by paragraph 1 if the cause of action arose out of their former habitual residence in that State…..”[17]

United Nations Principles and Guidelines on access to legal aid in criminal justice system,2013.[18]

Along with above declarations and conventions the United Nations has adopted a resolution with set of principles and guidelines on access to legal aid to individual persons.

Recognizing legal aid as an essential element of Rule of law and to ensure equality before the law to all persons, Principle 10 of this resolution provides for equity in access to legal aid. It states that – “Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to… foreign nationals…such measures should address the special needs of those groups, including gender‑sensitive and age-appropriate measures.”[19]

Based on this equity principle, the United Nations has issued slew of guidelines to be followed by the State parties to all persons including the non-citizens.

Hence, in view of all the above international conventions, it becomes obligatory on the State to provide with access to legal aid to non-citizens.

LEGAL SERVICES AUTHORITY ACT – A MYTH EVEN FOR CITIZENS.

To secure and promote justice through legal aid on a basis of equal opportunity to all, the Legal Services Authority Act was enacted in 1987. But this Act fails to provide legal aid even to the citizens of India who are in the need of it. Section 12 of this Act lays down criteria to be eligible for legal service.

The criteria laid down as per Section 12 of the Act is that every person who is –

A member of Schedule Caste or Scheduled tribe, or
A victim of trafficking, or
A women or child, or
A person with disability, or
A person under circumstances of undeserved want, or
An industrial workmen, or
In custody, or
Poor as prescribed by the government is entitled to free legal service or aid by the government.[20]

Now, if an accused male who is presumed innocent is not defended by any lawyer from the bar as it happened in Haryana where two bar associations passed a resolution that none of the lawyers will defend the accused of gang-rape of a teenage girl from Rewari district,[21] is it not the State’s constitutional morality to provide legal aid to that accused who has been ostracised by the society?

Further, if a male person of upper caste who is poor wants to file or defend either a civil or criminal case, but due to failure of his proving that he is Below Poverty Line (BPL) Person – a criteria set by the conservative bureaucracy of India to be eligible for legal aid, will this not go against Article 14 of the Indian Constitution which says every person is equal before law? At least, can we make a person who needs legal aid equal before the law, if not equal – the position which a human will attain only when he goes to the grave.

As section 12 of the Act has set a criteria which is limited to a few citizens it is against the concept of equal opportunity in access to justice to all. Hence, when the legislation in regard with legal aid to citizens of India is itself filled with several lacunas, what legal aid will it give to non-citizens which is their basic human right, but is not provided by the State?

CONCLUSION

To uphold the doctrine of socialist India where there shall be equal opportunity to non-citizens in access to legal aid, to uphold the doctrine of sovereign India where supreme power shall mean people’s power, to uphold the doctrine of democratic India where weaker sections (non-citizens in regard with lack of access to legal aid) voices are heard and to assure the dignity of individual that is based on the concept of freedom, all of which, WE THE PEOPLE OF INDIA have promised to everyone, hence, access to legal aid to non-citizens shall be provided by the State and also necessary amendments shall be made to the Section 12 of the Legal Services Authority Act, 1987 in order to ensure that access to legal aid is not denied to anyone by reason of economic or other disabilities.

[i] Author is 4^th L.L.B (5 YDC) student at University College of Law, Osmania University and can be accessed at email: akashbaglekar@gmail.com and Mobile: 8297368722.

[1] INDIA IS A TOP SOURCE AND DESTINATION FOR WORLD’S MIGRANTS. https://www.google.com/amp/www.pewresearch.org/fact-tank/2017/03/03/india-is-a-top-source-and-destination-for-worlds-migrants/%3famp=1

[2] Golaknath v. State of Punjab, AIR 1967 SC 1643 at Pg. – 1656, Para – 16.

[3] Mr. Louis De Raedt v. Union of India, (1991) 3 SCC 554.

[4] (1996) 1 SCC 742 at Pg. – 751, Para – 20.

[5] H.S. Srinivasa Raghavachar v. State of Karnataka, (1987) 2 SCC 692.

[6] Khatri II v. State of Bihar, (1981) 1 SCC 627.

Kishore v. State of Himachal Pradesh, (1991) 1 SCC 286.

[7] Article 22(1), Indian Constitution, 1950.

[8] Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 at Pg. 103, Para – 6.

[9] AIR 1997 SC 3011.

[10] Article 3, Universal Declaration of Human Rights, 1948.

[11] Article 6, Universal Declaration of Human Rights, 1948.

[12] Article 10, Universal Declaration of Human Rights, 1948.

[13] Article 3, International Covenant on Civil and Political Rights, 1966.

[14] Article 7, International Covenant on Civil and Political Rights, 1966.

[15] Article 14(1), International Covenant on Civil and Political Rights, 1966.

[16] Article 14(3)(d), International Covenant on Civil and Political Rights, 1966.

[17] Article 1, Convention on International Access to Justice, 1980.

[18] General Assembly resolution no. A/RES/67/187 of 2013.

[19] Principle 10, United Nations General Assembly principles and guidelines on access to legal aid in criminal justice system, 2013.

[20] Section 12, The Legal Services Authority Act, 1987.

[21] REWARI GANGRAPE : WON’T DEFEND ACCUSED, SAYS DISTRICT BAR ASSOCIATION.

https://www.google.com/amp/s/indianexpress.com/article/cities/chandigarh/rewari-gangrape-won’t-defend-accused-says-district-bar-association-5363399/lite/

[i] Author is 4^th L.L.B (5 YDC) student at University College of Law, Osmania University and can be accessed at email: akashbaglekar@gmail.com and Mobile: 8297368722.