LLM Notes: Role of the Legal Profession in the Juvenile Justice System in India

 Legal Representation and Protection of Rights

• The legal profession plays a pivotal role in safeguarding the rights of children in conflict with the law within India’s juvenile justice system. Legal aid counsel ensures that the system remains child-centric, upholding the principles of care, protection, and rehabilitation rather than punishment.

• Lawyers are responsible for making juveniles aware of their rights, including the right to remain silent and the right to legal representation. This is crucial for ensuring a fair process and protecting children from coercion or procedural lapses.

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Supreme Court directs all courts to append a coversheet to judgment informing the convict about availability of free legal aid facilities for pursuing higher remedies while furnishing copy of judgment of conviction/dismissal/reversal of acquittal/dismissal of bail applications

xvi. We direct the Registry to forward a copy of this judgment to all the High Courts in the country. The High Courts may consider the feasibility of issuing a practice direction to the effect that all courts including the High Court while furnishing the copy of the judgment of conviction/dismissal/reversal of acquittal/dismissal of bail applications, may append a coversheet to the judgment informing the convict about the availability of free legal aid facilities for pursuing higher remedies. The coversheet may set out the contact address and phone number of the legal aid committee attached to the court for seeking appropriate guidance. Similar information may be made available in the notices issued to the Respondents by the concerned courts in appeals against acquittal. The High Courts may on their webpage carry information about the legal aid facilities available in the State.

REPORTABLE

IN THE SUPREME COURT OF INDIA

Writ Petition No. 1082 of 2020

Decided On: 23.10.2024

Suhas Chakma Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/1147/2024,2024 INSC 813.

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Right to get free legal aid under Indian criminal law

 The right to free legal aid in Indian criminal law is a fundamental aspect of the legal system designed to ensure that justice is accessible to all, particularly to those who cannot afford legal representation. This right is enshrined in various constitutional provisions and statutes, primarily aimed at protecting the rights of the accused and promoting equality before the law.

Constitutional Framework

Article 21 of the Constitution of India guarantees the right to life and personal liberty, which has been interpreted by the Supreme Court to include the right to free legal aid. In landmark cases such as Hussainara Khatoon v. State of Bihar, it was established that if an accused cannot afford legal services, they are entitled to free legal aid provided by the state. 

Article 39A mandates that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and provides free legal aid to ensure that opportunities for securing justice are not denied to any citizen due to economic or other disabilities. Furthermore, Article 22 emphasizes that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of their choice.

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What are rights of accused under Criminal procedure Code and Indian constitution after he is arrested by police?

In India, the rights of an accused person under the Criminal Procedure Code (CrPC) after arrest are designed to ensure fair treatment and protect individual liberties. Here’s a detailed overview of these rights:

 Key Rights of the Accused

1. Right to be Informed of Grounds for Arrest

   - Under Section 50 of the CrPC, an accused must be informed of the reasons for their arrest at the time it occurs. This includes a clear explanation of the specific charges against them.

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Delhi high court guidelines to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor of sexual offences

 34. Furthermore, as a sequitur to the above, this court issues the following directions:

34.1. It is directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained;

34.2. To be more specific, in order to maintain confidentiality as aforesaid, the following must be done :

34.2.1. The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties;

34.2.2. Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner;

34.2.3. The name, parentage and address of family members of the prosecutrix/victim/survivor - through whom the prosecutrix/victim/survivor could be identified - must not be disclosed in the filings, including in the memo of parties, even if they are accused in the case, since this may indirectly lead to the identification of the prosecutrix/victim/survivor;

34.2.4. Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is also directed that the files/paper-books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons;

34.2.5. At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted;

34.2.6. To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor;

34.2.7. In effecting service as aforesaid, the Investigating Officer must remain in 'plain clothes' so as to avoid any unwarranted attention;

34.2.8. Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors; MANU/SC/0519/1995 : (1995) 1 SCC 14 cf. para 15

34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

34.3. The foregoing directions are not intended to be exhaustive; and at the stage of scrutiny, the Registry is expected to apply its mind to any peculiarities of a given case, with the aim and intent of scrupulously applying the directions of the Supreme Court in Nipun Saxena (supra).

 IN THE HIGH COURT OF DELHI

Bail Appln. 3635/2022

Decided On: 19.04.2023

Saleem Vs. The State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: 2023:DHC:2622,MANU/DE/2515/2023.

Read full Judgment here: Click here.

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Leading Supreme Court on right to free legal-aid of prosecutrix/victim/survivor of sexual offences

 In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.

1) The complainants of sexual assault cases should be provided with legal representation. It is important to have same one who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in Court but to provide her with guidance was to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.

2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should stage that the victim was so informed.

4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the Court was sought or obtained.

6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment.

8) Compensation for victims shall be awarded by the Court on conviction of the offender any by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. {Para 16}

 IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 362 of 1993

Decided On: 19.10.1994

Delhi Domestic Working Women's Forum Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

M.N. Venkatachaliah, C.J., S. Mohan and S.B. Majmudar, JJ.

Author: S. Mohan, J.

Citation:  MANU/SC/0519/1995,( 1995 ) 1 SCC 14.

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Questions and answers on law (Part 71)

Q 1:-  Who is entitled to get free legal aid

Ans:- Scheduled Castes and Scheduled Tribes

• Victims of Trafficking or Begar
• Women and Children.
• Mentally Ill or Disabled Persons
• A person who is going through tough times, like being a affected by a big disaster, violence based on ethnicity or caste, a flood, drought, earthquake, or a big industrial accident.
• Industrial Workmen

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Income limit for getting free legal aid is increased in Maharashtra

https://drive.google.com/file/d/18rDFxhEYweD6H8aX2k6wvwPNDRTFEJzf/view?usp=sharing

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Criteria for grant of free legal aid under legal services authorities Act

Chapter IV

ENTITLEMENT TO LEGAL SERVICES

12. Criteria for giving legal services.—Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is—

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;

(c) a woman or a child;

18[(d) a person with disability as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;]

(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987); or

19[(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.]

13. Entitlement for legal services.—(1) Persons who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.

(2) An affidavit made by a person as to his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless the concerned Authority has reason to disbelieve such affidavit.

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Whether Suit can be rejected by trial courts for non-payment of court fee alone?

Further, in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Others MANU/SC/0001/1996 : (1995) 5 SCC 730, it has been held that:

17. ... we have to consider the combined effect of Article 21 and Article 39A of the Constitution of India. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures 'justice, social, economic and political'. Article 39A of the Constitution provides 'equal justice' and 'free legal aid'. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system. Article 39A mandates that the State shall 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 principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way-by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid 'by suitable legislation or by schemes' of 'in any other way', so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (Emphasis supplied)....

13. Further, Article 39A of the Constitution of India provides for holistic approach in imparting justice to the litigating parties. It not only includes providing free legal aid via appointment of counsel for the litigants, but also includes ensuring that justice is not denied to litigating parties due to financial difficulties. Therefore, in the light of the legal principle laid down by this Court, the Appellant deserved waiver of court fee so that he could contest his claim on merit which involved his substantive right. The Court of sub Judge erred in rejecting the case of the Appellant due to non-payment of court fee. Hence, we set aside the findings and the decision of the Court of sub Judge and condone the delay of the Appellant in non-payment of court fee which resulted in rejection of his suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10581 of 2013 (Arising of SLP (C) No. 23918 of 2012)

Decided On: 25.11.2013

 Manoharan Vs. Sivarajan and Ors.

Hon'ble Judges/Coram:

S.J. Mukhopadhaya and V. Gopala Gowda, JJ.

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Leading Supreme Court judgment on right of accused to get free legal aid at pre-trial stage and during trial

 We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.

485. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the chargesheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice.

486. At this stage the question arises, what would be the legal consequence of failure to provide legal aid to an indigent who is not in a position, on account of indigence or any other similar reasons, to engage a lawyer of his own choice?

487. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh[95]).

488. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case.

Supreme Court of India

Md.Ajmal Md.Amir Kasab @Abu ... vs State Of Maharashtra on 29 August, 2012

Author: ……………………………………

Bench: Aftab Alam, Chandramauli Kr. Prasad

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