Report No. 48
23. The extent of legal aid to the poor which may be provided in the Code.-
We now come to a matter which is of vital interest in connection with the subject of law and poverty. That relates to legal aid to the poor. Providing equal justice for the poor and the rich, the weak and the powerful alike is an age-old problem. The needs of the poor for justice had moved poet Ovid to write-"Curia pauperibus clause est" (The courts are closed to the poor)1.
1. Ovid. III, Amores viii, line 55, cited by Cappalleti and Gordley Legal Aid, (January, 1972), 28 Stanford Law Review 347.
In part, the royal concessions of Magna Carta in 1215, dealt with the same problem "To no one will we see, to no one will we refuse, or delay, right of justice.1
1. Magna Carta, clause 40.
24. The last two decades are of significance in this respect, inasmuch as the matter is no longer considered as one of charity or benevolence, but as one of civil right, and the legal machinery itself is now expected to deal specifically with it. This change of thinking has been lucidly expressed in the statement-
"If the law is to be open to everyone on the same terms, the law must be the guardian of its own gates."1
1. Cappalletti and Gordley Legal Aid, (January, 1972), 24 Stanford Law Review 347, 363.
25. The Cr. P.C. Bill does contain a provision for legal aid to the poor in criminal cases. The provision proposed1 in this respect requires that where, in a trial before the court of Session, the accused is not represented by a pleader, the court shall assign a pleader for his defence at the expense of the State. The State Government is given power to make this provision applicable in relation to any class of trials before other courts in the State. It may be noted that the provision in the Bill follows, in substance, the recommendation made by the previous Commission2 on the subject.
1. Cr. P.C. Bill, Clause 311.
2. 41st Report, Vol. 1, paras. 24.34 to 24.39.2.
26. We are of the view that defence of the indigent accused by a pleader assigned by the State should be made available to every person accused of an offence, i.e. in all criminal trials, so that mere poverty may not stand in the way of adequate defence in a proceeding which may result in the deprivation of liberty or property or loss of reputation.
In our view, representation by counsel is so basic an ingredient of a criminal trial, that the law should go as far as possible in seeking that this requirement is not absent. The assistance of counsel is required at every step in the proceedings and irrespective of the nature of the offence under trial.
27. In making this recommendation,1 we do not pause to consider the technical question whether a literal interpretation of the language of Article 14 and 22(1) of the Constitution requires that the State should arrange for counsel in particular classes of cases. The philosophy underlying the Constitution, reflected in the provisions for equal protection of laws and in the chapter on directive principles, shows that the Constitution is imbued with respect for human rights.
That philosophy is sufficient to furnish inspiration for a provision that will put an end to the individious discrimination that otherwise arises between person and person because of poverty. Where a poor man has to defend himself without counsel, there is lacking that equality which is demanded by the spirit of the Constitution. Denial to the indigent of the benefit of counsel's examination of the record, and marshalling of arguments on his behalf, is nothing less than denial of justice. "The indigent, where the record is unclear or the errors are hidden, has only, the right to a meaningless ritual."2
1. As to legal aid in maintenance proceedings, see para. 63, infra.
2. See Douglas v. California, (1963) 9 L Ed. 2nd 811.
28. It is in this spirit that we are recommending a wide provision. We hope that legal practitioners will also appreciate the spirit in which we are making this recommendation, and will readily come forward to defend poor persons who cannot afford to pay. The scheme can be worked successfully if the members of the bar, including senior members, co-operate in its working.