Free Legal Aid in the Supreme Court: Who Is Eligible and How to Apply

Article 39A, inserted in 1976, directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and in particular to provide free legal aid so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Supreme Court read the same requirement into Article 21. In M.H. Hoskot v. State of Maharashtra, it held that the right of appeal includes the right to be supplied a copy of the judgment in time and, where a prisoner cannot engage counsel, the right to have counsel assigned.

In Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, dealing with undertrial prisoners held for years in Bihar, the Court held that free legal services to the poor and the needy is an essential element of any 'reasonable, fair and just' procedure, and that the State must provide a lawyer to an accused person who cannot afford one, if the circumstances of the case and the needs of justice require it, unless the accused objects.

The right does not wait for the trial. In Khatri (II) v. State of Bihar, the Court held that the State's obligation to provide legal aid arises when the accused is first produced before a magistrate and at remand, and that the magistrate must inform the accused of the right to free legal aid. In Suk Das v. Union Territory of Arunachal Pradesh, it held that an accused need not apply for legal aid to be entitled to it, and that a conviction recorded after a trial in which an indigent accused was not informed of the right and was left unrepresented was vitiated. The Court reiterated in Mohd. Ajmal Mohammad Amir Kasab v. State of Maharashtra that the magistrate before whom an accused is first produced must make him aware of the right to consult a lawyer and, if he cannot afford one, to have one provided at the State's expense.

Legal aid must also be effective. In Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), where an accused facing a capital charge had been tried without a lawyer, the Court held that the denial of legal representation vitiated the trial. In Anokhilal v. State of Madhya Pradesh, where counsel had been appointed for an accused in a capital case only on the day the charges were framed and the trial was concluded within a very short time, the Court set aside the conviction and directed that, in cases punishable with death or imprisonment for life, only advocates with at least ten years' practice be appointed, and that appointed counsel be given reasonable time, ordinarily at least seven days, to prepare.

Section 3A of the Legal Services Authorities Act provides for the Supreme Court Legal Services Committee, constituted by the National Legal Services Authority, to administer legal services in cases before the Supreme Court. The Committee maintains a panel of advocates, examines applications, and assigns counsel to eligible persons whose cases it considers fit.

Legal aid is available to petitioners and respondents alike, in civil and criminal matters. A person who is a respondent to a petition filed by another party, for instance by the State against an acquittal, may also apply for legal aid to defend it. The services include the work of the advocate and the costs of the proceedings, such as court fees, certified copies, translation and the preparation of paper-books.

The Committee decides whether to take up a case largely on the papers, so a complete and organised application saves time. A short note setting out the facts, the decisions of the courts below and, in plain language, why the applicant believes the High Court's judgment is wrong helps the Committee and its panel advocate assess the case quickly. The dates of the judgments, and the date on which the certified copy was applied for and received, should be stated clearly, since limitation depends on them.

Where documents are in a regional language, translations should be supplied if they are available; otherwise the applicant should say so, so that the Committee can arrange them. Applicants should keep copies of everything they send and respond quickly to any query, because each round of correspondence uses up time within the limitation period.

Litigants whose income is above the legal aid limit but who cannot afford the usual cost of litigation in the Supreme Court may apply under the Supreme Court Middle Income Group Legal Aid Scheme, run by the Supreme Court Middle Income Group Legal Aid Society from the Supreme Court compound. According to the Supreme Court's website, the scheme is open to citizens whose gross income does not exceed twelve lakh rupees a year. It is not free: the applicant pays a service charge and fees at rates fixed by the scheme, which are lower than the usual market rates, and the Society assigns an advocate from its panel.

A prisoner who wishes to challenge a conviction or sentence in the Supreme Court can send a petition through the jail superintendent. Such jail petitions are registered by the Registry and referred to the Committee, which assigns an advocate to prepare and argue the case. Legal services institutions also work through jails to identify prisoners who are eligible for bail, for release under the provisions on maximum periods of undertrial detention, or for remission, and the guide to bail in the Supreme Court explains those remedies.