Article 39A 42nd Amendment (Free Legal Aid)

Article 39A (42nd Amendment) (Free Legal Aid) is a constitutional provision created by Indian Constitution related to the rights of citizens to have free access to the legal process, without any discrimination on account of class, sex, race and creed. It means that legal services should be made available to the weaker section of society. Further it also enacts that full opportunity be given to women, children, elderly and persons with disabilities.

What is Article 39A?

Article 39A imposes an obligation on the State to provide free legal aid to ensure access to justice for all citizens. Legal aid is defined as “such legal aid” as may be provided by the state under the Legal Services Authorities Act, 1987 or any other law for the time being in force. The right to free legal aid is thus limited only by the extent of funds made available in any particular year by the legislature.

Need for Article 39A

When the draft of the Indian constitution was prepared, it was considered not to include Article 39A in it. But, the absence of this article was strongly felt by the time the Constitution came to force. In order to realize the goal of providing legal aid to all, Article 39A must be seen as part of a process rather than an end in itself. The objective is to afford equal justice and equal opportunity before the law to all without any discrimination on grounds of religion, race, caste or sex.

Article 39A 42nd Amendment (Free Legal Aid): Features

1) This Article is highly significant, as it makes provision for a right to seek legal aid and declares that it is the duty of the state to secure that right.

2) It is not possible to have effective legal recourse without access to legal aid. Access to justice is a prerequisite for any meaningful redress of grievances. When any affected person is denied the right to receive legal aid, his/her complaint will remain unheeded and efforts made to provide it would be futile.

3) Article 39 A suggests that free legal aid should be provided at a reasonable charge, as per prevailing circumstances. This means that there must be an understanding between the government and the individual concerned as to how much should be charged. Only then can it create an atmosphere where access can take place in that particular region in a particular area.

4) It must be remembered that the right to free legal aid is available only to those who require it. To help litigants in person, a lawyer will be appointed as an amicus curiae in cases where the litigant is not entitled to free legal aid but is unable to engage a lawyer.

5) The Supreme Court has clarified that it is not obligatory for the state to provide free legal aid in all matters and that it would depend upon whether it was provided by the central or state government. Any additional grant given under article 39A can only be used for providing legal aid and no other purpose should be considered.

What does Article 39A provide for?

It mandates the Indian Government to create an authority for providing legal aid at the national level and one for each state/ union territory at their respective levels. The national authority shall be called National Legal Services Authority (NALSA) and all other authorities shall be called as State Legal Services Authority (SALSA). National Legal Services Authority shall assist other state legal services authorities in the establishment of their legal services committees at the state level.

These Authorities will be constituted for providing free legal aid to the weaker sections of society and persons with disabilities. The authority will also provide free legal aid on behalf of those who are unable to afford the cost themselves. The authority will be responsible for protecting and enhancing the rights to free legal aid on behalf of all persons.

Conclusion

Article 39A is a highly significant article, which provides a right to seek legal aid. It also states that it is the duty of the state to secure that right and the need to provide free legal aid at reasonable rates. The government will be responsible for providing free legal aid in respect of all persons in future.