INTRODUCTION
This article seeks to define and study the state’s duty to provide free legal assistance to individuals accused of any offence. Legal aid broadly refers to both legal representations in courtrooms and outside. Considering that access to justice is a fundamental human right, a human right is a natural place to start when establishing a duty to offer free legal assistance. The major takeaway from this essay is that legal aid is a matter of human rights, and those nations have a duty to provide legal aid programs that are reinforced by access regulations. Without systems for redress and remedies for rights violations, human rights cannot be fully realized.
Contrary to the general belief and assumption this area of law is not left unexplored and ample of legal research has already taken place in this context. In the context of socio-economic litigation, where the loss of livelihood and possibly life is frequently the result of a restriction or violation of a socio-economic right, Andrea Durbach depicts the development of facts and legal reasoning in favor of increasing the right to legal aid.[1] Paula Galowitz gives a summary of the legal arguments in favor of the requirement to offer legal assistance for the protection of economic, social, and cultural rights.[2] But most of the existing literature on this area of jurisprudence in the context of economic, social, and cultural rights, concentrates on the presence and need for a right to legal aid. This blog will make an effort to advance the field of study by mainstreaming a fairness-and-anti-discrimination perspective on legal aid.
QUANDRY OF ARTICLE 39A
Free legal aid is described as a force for societal systems that are biased and discriminatory to change. In this instance, the development of a requirement to offer free legal aid is based on the fundamental human right to access justice. The term “access to justice” serves as a catch-all for a number of essential human rights, including the right to a fair trial, access to the courts, effective redress, and equality before the law. The claim that free legal aid is a human right touches on all facets of the comprehensive right to access justice by utilizing access to justice as a point of departure. Several legal sources, including human rights agreements, decisions of regional and global treaty bodies, general remarks, concluding notes, and other soft law instruments, are used to describe the content of this obligation.
In her annual report to the Human Rights Council of 15 March 2013, Knaul argues that ‘legal aid is an essential component of a fair and efficient justice system founded on the rule of law. It is also a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the right to a fair trial and effective remedy. The Special Rapporteur emphasizes that legal aid should cover all phases of judicial or extrajudicial proceedings and is not just concerned with determining rights and obligations in a particular dispute. Early dispute resolution is unquestionably more economical than going to court. The Rapporteur comes to the conclusion that states must set up a legal aid program that guarantees everyone has access to the judicial system. According to her, the purpose of legal aid is to help eliminate impediments and roadblocks that limit access to justice.[3] The right to equality before the law is recognized in some form or another by the majority of nations, but few have policies in place to really implement this right for those who are most at risk of being excluded. Financial restrictions on access to justice sustain a legal system in which the underprivileged lack meaningful rights. The most accurate term for this is structural discrimination. The Inter-American Commission on Human Rights has recognized structural injustices that prevent some groups in society, such as women from underprivileged and rural areas, indigenous women[4], and undocumented migrants[5], from accessing justice. In Simone Andre Diniz v. Brazil[6], the Commission highlighted that the majority of racism victims in Brazil are impoverished and unable to afford legal representation. It is clear that for a huge section of the population, free legal aid is the sole option for legal assistance, and the most disadvantaged people are shut out of the judicial system when such programs are absent or poorly designed.[7]
CONCLUSIOn
One cannot avoid the necessity for attorneys who can help non-lawyers comprehend the law and pursue their legal interests inside the judicial system since legislation is one of the most crucial tools for putting policies into practice. States should put in place cost-effective policies that stop legal disputes from arising and the development of legal requirements that can only be satisfied with the help of lawyers. It is necessary to alter legal systems that create unfulfilled legal needs and have a negative impact on welfare. Examples of actions that can lower unmet legal demands include rights awareness training and legal education in the school curriculum. Improvements to the legislation’s clarity, accessibility, and predictability, as well as participation by civil society in its creation and revision. Each state should direct its resources toward ensuring that the most disadvantaged groups have access to justice in both individual cases that result in the greatest welfare gains for the parties involved and in cases that generally have an impact on the empowerment of these groups. Free legal assistance may remove obstacles to equitable access to human rights. Upholding social structures of inequality requires denying the existence of a right to free legal assistance.
Authors Name: Shreya Mittal & Himanshu K. Mishra (National Law Institute University, Bhopal)
References:
[1]A Durbach‘The Right to Legal Aid in Social Rights Litigation’, in M Langford (ed), Social Rights Jurisprudence-EmergingTrends inInternationaland Comparative Law’ (Cambridge University Press, 2008).Pp. 59-75.
[2]Galowitz‘Right to Legal Aid and Economic, Social and Cultural Rights Litigation’, in Legal Practitioner’
Dossier, Centre on Housing Rights & Evictions (2006), <http://www.right-to-education.org/
resource/litigating-economic-social-cultural-rights-legal-practitioners-dossier>accessed on 22 June 2015.
[3]Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul (21 May2013),UN Doc A/HRC/23 /43, para 20.
[4]Inter-American Commission of Human Rights OEA/Ser.L/V/II. Doc 68, Access to justice for womenvictims of violence in the Americas, 20 January 2007.
[5] Inter-American Court of Human Rights Advisory Opinion OC-18/03 of 17 September 2003,Requested by the United Mexican States, Juridical Condition and Rights of the UndocumentedMigrants.
[6]Simone André Diniz v. Brazil, Case 12.001, Report No. 37/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 167 (2002).
[7]Report of the Special Rapporteur on the Independence ofJudges and Lawyers, Leandro Despouy (n 3 above),
para 65.
