Substantive rights under UNODC Model Law on Legal Aid in Criminal Justice systems in

comparison with Indian Legal Aid laws

K.Raghuraman, SJR College of Law, Bangalore

1 Introduction
Legal Aid framework within municipal laws is the foundation for enjoyment of other rights,
including the internationally recognized fundamental right to a fair trial for anyone who is
subject to suit or a proceeding under any law. The right to free trial is one of the fundamental
guarantees under human rights and is also a basic principle of a rule of law. Providing timely and
free legal aid to the persons accused of crime is one among the principles of free and fair trial.1
Providing effective legal aid requires States to have the required legal framework to assess,
identify, and deliver equal access to justice for all, including persons requiring special treatment
such as economically backward persons, women, children, and people with special needs, or
persons belonging to ethnic or religious minority groups. This article looks at the substantive
rights under the model laws on Legal Aid developed and released by the UN Office on Drugs
and Crime (UNODC), in 2017 and compares the same with the Indian legal aid system.

2 Legal Aid under Indian and International law

India’s tryst with legal aid started in 1949, with the formation of the Bombay Committee on
Legal Aid and legal Advice, and was adopted by the Central Government in 1960 as Legal aid
scheme. The current National Legal Services Authority Act of 1987 was passed, based on the
recommendations of the Committee for Implementing Legal Aid Schemes, 1980 under the
chairmanship of Hon. Mr. Justice P.N. Bhagwati, who was then, the Judge of the Supreme Court
of India2.

Indian laws on legal aid are covered under the various provisions of the following laws

1
Model Law on Legal Aid in Criminal Justice Systems with Commentaries (UNODC, Vienna), 1 (2017),
https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/Model_Law_on_Legal_Aid.pdf.
2
Legal Aid Movement in India- Its Development and Current Status, National Legal Services Authority Website,
(Oct. 1, 2021, 9:25 a.m) , https://nalsa.gov.in/about-us.
 1. Constitution of India, 1949
2. Legal Services Authorities Act, 1987
3. Code of Criminal Procedure (CrPC) , 1973
4. Code of Civil Procedure, 1908
5. The National Legal Services Authority Rules, 1995
6. The Supreme Court Legal Services Committee Rules, 2000
7. The Permanent Lok Adalat (Other Terms and Conditions of Appointment of Chairman
And Other Persons) Rules, 2003
8. National Legal Services Authority (Lok Adalat) Regulations, 2009
9. National Legal Services Authority (Free and Competent Legal Services) Regulations,
2010
10. National Legal Services Authority (Legal Services Clinics) Regulations, 2011

The 42nd Amendment in 1976 included Socialism as one of the pillars of the Indian
Constitution. Article 39A, expressly asks the State to endeavor to provide free legal aid in order
to promote social justice. Section 304 of the Code of Criminal Procedure further puts this social
justice principle of “Justice for All” into motion under the criminal justice system.

International laws on Legal Aid are rooted in the Article 11 Sub clause 1 of the UN Declaration
of Human Rights, 1948. It declares that the all those charged with a penal offence to be provided
guarantees for their defence. In 2012, UNODC adopted the Guidelines, principles and guidelines
on access to legal aid in criminal cases, based on the declarations in Article 11 of UNDHR and
the Article 14 of the International Covenant on Civil and Political Rights which call for “State
guarantees to legal assistance”3.

Under UN, the following seminal work has been done in the area of Legal Aid4

3
UNODC Vienna, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
United Nations Office on Drug and Crime, (2013), https://www.unodc.org/documents/justice-and-prison-
reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf.
4
UNODC Vienna, Global Study on Legal Aid, Global Report, 6 (2016), https://www.unodc.org/documents/justice-
and-prison-reform/LegalAid/Global-Study-on-Legal-Aid_Report01.pdf.
 1. Declaration of the high-level meeting of the General Assembly on the rule of law at the
national and international levels, 2012
2. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems, United Nations Office on Drug and Crime, 2012
3. UNODC Model law on Legal Aid in Criminal Justice Systems5

3 Comparison of UN Model Law and Indian Legal Aid system

The UN Model Law which was passed subsequent to the passage of the Legal Services
Authorities Act, 1987 (LSAA) in India, is an additional reservoir of legal jurisprudence available
for the Indian Legal Aid legal system to tap, and to mature it into a world class legal aid system.

3.1 Substantive rights under new model code under International law
Under the UNODC Model law, the right to legal aid has been granted specifically under various
Articles, and can be classified under the following

1. Life and liberty

a. The right to Information ( advice, assistance, information ) ( Article 6)
b. The right to be treated with dignity and respect (Article 12.1.5)
c. The right to confidentiality of information ( Article 12.1.6)
2. Equality and Non-Discrimination
a. The right to equality in access to legal aid without any discrimination and with
equal concern for all (Article 5)
b. The right to early access to legal aid during pre-arrest, detention and remand
procedures. ( Article 8)
3. Access to Justice and Fair Trial
a. The right to legal representation ( Article 11.1.4)
b. The right to remedies where legal aid is denied or delayed or undermined (Article
12.1.2)
c. The right to access legal aid throughout all the stages of the criminal justice
process (Article 12.1.3 and Article 12.1.4)
d. The right to be exempted from the court costs. Article (12.1.7)

5
UNODC, Vienna, supra note 1.
When assessing and comparing any system of law, the terms of reference with respect to the
rights granted and protected under any UNODC Model Law on Legal Aid must be used.

3.2 Four key rights under UNODC Model law

In this article, four important substantive rights granted under the UNODC Model law on Legal
aid are discussed

1. Right to information
2. Right to early access to legal aid
3. Right to equality in access to legal aid without discrimination
4. Right to remedies where legal aid is denied or delayed or undermined

3.2.1 Right to information

CrPC does not have any express provision to inform the right to legal aid to the suspect or
accused before arrest or detention, nor grant the legal aid at the earliest moment in time. The
procedures mentioned under National Legal Services Authority6, says that legal aid applications
must be made by the applicant. Even under the National Legal Services Authority (Free and
Competent Legal Services) Regulations, 2010, the application for free legal aid is moved by the
applicant, and not by the criminal justice process. In most cases, the accused or suspects,
especially those who are illiterate or from economically backward or socially backward groups
are likely to suffer due to the lack of awareness about their entitlement to legal aid till their
arrest.

This issue has been highlighted by the UNODC Model law, in two ways. The Article 4.4 of the
UNODC Model law refers to two key words “Grant”, and “moment”, which needs explanation

1. The text of the UNODC Model law uses the word “grant the legal aid to the accused or
suspect”, whereas the Code of Criminal Procedure, 1973 and the Regulations under
LSAA shifts the onus of getting free legal aid to the beneficiary. The concept of Law
Clinics or Legal Aid Awareness programs ( legal aid providers) within the Indian legal
aid system mitigate this issue to an extent, but the word “grant” employed in the text of
the UNODC Model law is different in import. The word “grant” means that the legal aid

6
Claiming Free Legal Aid/Application procedure, National Legal Services Authority, (Oct. 3, 2021 4:50 p.m),
https://nalsa.gov.in/services/legal-aid/claiming-free-legal-aid-application-procedure.
 is provided or delivered to the legal aid recipient irrespective of whether it is sought for
by the beneficiary. There is a specific need to shift the onus of delivering legal aid from
legal aid providers to the law enforcement machine. If the onus of granting of legal aid is
shifted to the police machinery at time of pre-arrest procedures itself, then it can be
termed as a “grant”, as envisaged by the UNODC Model Law.
2. Article 8 of the UNODC Model law also provides the right to legal aid from the moment
an individual is made aware by the competent authority, by official notification or
otherwise, that he or she is the subject of an investigation or prior to questioning. Here it
must be noted that it refers to the procedure for arrest, detention, for questioning, for
serving of summons and warrant, and for pre-trial procedures. These procedures must
include the delivery of legal aid.

3.2.2 Right to early access to legal aid

Under Indian law, the right to legal aid under CrPC is available under Section 41D of the CrPC,
after arrest. The word “before arrest” has not been defined under Indian law, but it has been
observed as “near custodial interrogation” by the Honourable Supreme Court in the Nandini
7
Satpathy vs Dani (P.L.) And Anr case. The Guidelines issued by the National Legal Services
Authority under the Guideline booklet titled “Early Access to Justice at Pre-Arrest, Arrest and
Remand Stage”8, covers these issues surrounding pre-arrest. Pre-arrest procedures are covered
under the various sections of CrPC as follows

1. where suspect is issued a notice for appearance before a police officer for
questioning under Section 41A
2. where suspect is subjected to preventive detention under Section 151
3. where suspect is detained upto 24 hours in police custody or beyond 24 hours
under judicial remand by special permission provided under Section 167.
4. where, a person is issued a summons or a warrant.

Under UNODC Model law, the need for legal aid is provisioned as early as possible in the
criminal investigation process. Guidelines issued by the National Legal Services Authority also
7
Nandini Satpathy vs Dani (P.L.) And Anr, AIR 1978 SC 1025.
8
National Legal Services Authority, Early Access to Justice at Pre-Arrest, Arrest and Remand Stage, Guidelines
document, 4, https://nalsa.gov.in/acts-rules/guidelines/early-access-to-justice-at-pre-arrest-arrest-and-remand-stage.
capture the need for legal aid at the earliest point in time in the criminal justice process. The
guidelines quote thus

“The presence of a lawyer at the stage of arrest can make a huge difference to how the
accused is treated in police custody. A lawyer at this stage can ensure that the police
respect the rights of the accused and prevent unwarranted harm to the accused. It reduces
the possibility of beating, torture, coercion for disclosures, wrongful detention,
fabrication, false implication and much more.”9

It is however, clear that the criminal procedures under CrPC only specifies that the accused are
entitled to legal aid only upon arrest under Section 41D of CrPC and, during the trial before a
Court of Session or other Courts under Section 304 of CrPC and it does not have any procedures
to inform the suspects or accessed on the right to legal aid during any pre-arrest procedures. It is
in this context that the Article 8 of the UNODC Model law must be read

“The right to legal aid arises from the moment an individual is made aware by the
competent authority, by official notification or otherwise, that he or she is the subject of
an investigation, including when he or she is arrested or detained and prior to
questioning.”

The inspection of the provisions of the UNODC Model law shows that the model law has
provided clarity on pre-arrest criminal justice procedures such as questioning, police custody,
judicial remand, and preventive detention10. From this article, we must conclude the following
learning for the Indian Legal Aid system

1. Legal aid shall be granted, in accordance with the provisions of this article, at all
stages of criminal justice process
2. It should be granted from the moment an individual is notified or otherwise made
aware by the competent authorities that he or she is suspected or accused of
having committed a criminal offence

9
Id at 5.
10
UNODC Model law, art 4.4, supra Note 1, page 12
It is clear that UNODC Model law has clarified a long pending reform required in the criminal
justice system, by introducing the “Early Access to Justice” at the earliest point in time in the
criminal justice process.

3.2.3 Right to equality in access to legal aid without any discrimination

While assessing and comparing the UNODC Model Law and the LSAA on access to legal aid,
the key issues arise in respect of

1. Definition of person
2. Classes of persons eligible

3.2.3.1 Definition of person

Article 3.1 “Definitions” of the UNODC Model Law clearly spells out the definition of
“Applicant” as a natural person.

The Section 12 of the Legal Services Authorities Act, 1987 extends legal aid to all persons, and
therefore must mean that it covers legal aid to both citizens and non-citizen natural persons, and
by implication must also include juridical persons where such criminal liability is imposed on
corporations by imputation. On plain reading of Section 12 of the LSAA, it is clear that the
impugned Act may be applied to juridical persons under sub clause (e) for those corporations
affected by any disasters, ethnic violence, caste atrocity, industrial disaster and application of viz
major. Section 12 sub clause (h) may also apply where the income of such corporation is below
the income ceiling prescribed by the State Government. Section 7 clause (2), sub clause (a)
further specifies the duty of State Authorities to provide legal aid to persons who satisfy the
criteria under the LSAA. So, we must rely upon the definition of “person” in Indian Penal Code,
1860. In Dr. Naresh Agarwal vs Union Of India (Uoi) And Ors11 case, Honourable Supreme
Court observed thus

“Articles 14, 20, 21, 22 and 27 are rights, which are guaranteed in favour of a person,
which may include natural as well as juristic persons, while rights guaranteed under
Articles 19, 26, 29 and 30 are rights which are available to citizens only, who are

11
Dr. Naresh Agarwal vs Union Of India (Uoi) And Ors , 2005 (4) AWC 3745, 2005 (4) ESC 2489.
 necessarily natural persons and therefore said rights are not available to other juristic
legal person.”

Article 22 clause 112 of the Indian Constitution is applicable to all persons and therefore includes
corporate persons also. So, Section 12 of LSAA must be read along with Section 41D of CrPC,
and Section 11 of Indian Penal Code, 1860 which defines “person” to include Company,
Association or body of persons. It allows us to conclude that the Right to Legal Aid is also
available to corporations or other body corporates which do not answer the description of citizen
or natural person.

3.2.3.2 Classes of persons eligible

The UNODC Model law establishes right to legal aid as a statutory right for all natural persons
regardless of financial means13, whereas the LSAA restricts the right to those persons who fall
under the economically and socially backward sections and special classes of persons such as
women, children and people with disabilities under the Indian system14.

The UNODC Model law also establishes the right to legal aid for certain other special classes of
persons such as refugees, immigrants or stateless persons, which is not included under the Legal
Aid System in India. But the Indian Legal Aid system covers any persons (refugees, immigrants
and stateless persons) if they fall into such categories as mentioned under Section 12 of the
LSAA, and do not provide a blanket eligibility for all such special classes except those expressly
indicated.

In summary, legal aid in India is applicable to

1. Those persons who pass the criteria test under Section 12 of the LSAA, and not
otherwise, whereas the UNODC Model Law provides Legal Aid to all natural persons
regardless of their financial means.
2. natural and juridical persons, whereas the UNODC Model law restricts legal aid to
natural persons only.

12
INDIA CONST., art. 22, § 1.
13
UNODC Model Law, art. 4.1, supra note 1.
14
Legal Services Authority Act, 1987, § 12, No.39, Acts of Parliament, 1987 (India).
3.2.4 Right to remedies where legal aid is denied or delayed or undermined
Under the Indian legal aid system, any individual aggrieved by the decision made upon their
application, has an option to appeal to the Executive Chairman or Chairman of the Legal
Services Institution and the decision resulting from the appeal would be a final one.15

4 Conclusion
Following are the key takeaways from the UNODC Model Law, which are useful in clarifying
the substantial rights under legal aid statutes in India

1. Right to legal aid must be separated into its constituent bundle of rights and incorporated
into the Indian legal aid framework.
2. Free Legal representation can be restricted to a class of persons specified under Section
12 of the LSAA under the umbrella of protective discrimination.
3. Right to legal advice and information is an universal right, and must be provided to all
persons whether they are citizens or natural or juridical persons without any exceptions,
so that it passes the test of non-discrimination under Article 15, and equal protection of
law under Article 14
4. The grant of right to early access to legal aid under UNODC is a new concept that must
be imported into Indian legal aid system to bring about a systemic change in approach to
justice during pre-arrest, investigation, detention, judicial remand, and custody. It reduces
the possibility of beating, torture, coercion for disclosures, wrongful detention,
fabrication, false implication and much more during the early stages of criminal
investigation, and puts justice into the hands of the poor, illiterate and under-privileged
persons.

15
National Legal Services Authority, FAQ, https://nalsa.gov.in/faqs ( last visited Oct. 04, 2021).