Legal aid means providing free legal assistance to the poor and weaker sections of the society. The term Pro bono is derived from the Latin expression pro bono publico meaning “for the public good”. As a concept, pro bono legal service has not gained much momentum in the country and “remains more of an ad hoc, individualized practice lacking an institutional structure”.
Access to justice is a constitutional obligation of state and right of every of citizen. Legal Aid ensures equal justice to the weaker sections of society. Access to Justice has been often read as being synonymous with Access to Courts.
The Right to Free Legal Aid has been adumbrated under Article 39 A of the Constitution of India. Part IV (The Directive Principles of State Policy) inserted by Constitution (42nd Amendment) Act 1976, the state is under an obligation to that legal system should promote equal justice to all its citizens. The state must provide free legal aid to those who cannot access justice due to poor economic conditions.
Right to free legal aid along with the right to speedy trial is an essential fundamental right guaranteed by the Constitution. Further, Article 22(1) of the Constitution states that the accused has a right to be defended by any legal practitioner of his own choice.
In State of Maharashtra v. Manubhai Pragaji Vashi, the Supreme court held that the failure to provide free legal aid to an accused at the cost of the State unless refused by the accused, would impair the trial.
In M.H Hoskot v. State Of Maharashtra, Justice Krishna Iyer said that providing free legal aid is the State’s duty and not Government’s charity.
The Code of criminal Procedure and the Code of Civil Procedure also contain similar provisions related to free legal aid. Section 304 provides that the State is under an obligation to provide legal assistance to a person charged with offence triable before the Court of Session. Order 33 of the Civil Procedure Code enables a person who does not possess sufficient means to pay court fees to seek justice.
A separate legislation, The Legal Services Authority Act, 1987 has been enacted to seek legal aid and enables to defend or file a case if such person is belonging to specific category. This act enables to organize Lok Adalats to secure justice at less expense. This Act led to constitution of statutory legal services authorities at the National, State and District level. The act envisages legal service schemes with respect paralegals, legal clinics, events for unorganized workers etc. The Legal Services Authorities (Amendment) Act of 2002 led to the setting up of Legal Service Committees at the Supreme Court and High Courts.
Article14 (3)(d) of International Covenant on Civil and Political Rights states Legal Aid Representation. It provides that accused has a right to have a Counsel of his own Choice and such Counsel must provide effective representation in the interest of justice.