Abstract
Access to legal aid is central to ensuring access to justice. As emphasized by the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, legal aid is an essential aspect of a fair, humane, and efficient criminal justice system based on the rule of law (UNODC, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2013, available at https://www.unodc.org/documents/justice-and-prison-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf. Accessed on 18th July 2022.). Without access to legal aid, millions of people around the world are at high risk of having their rights ignored or violated when they interact with a criminal justice system through arbitrary pre-trial detentions, torture, coerced confessions, and wrongful convictions. Legal aid encourages people to assert their rights and contest cases of violations and discrimination. In addition, it also helps to ensure that people have access to information about rights, entitlements, and obligations. Simply put, access to legal aid is fundamental to safeguarding fair, equal, and meaningful access to justice. This chapter discusses the idea of access to justice vis-à-vis children both in the international and Indian context. The chapter would analyze the domestic legal aid framework, both its principles and practice alike. The Indian legal aid framework envisages a right to legal aid and representation for children by identifying them as eligible beneficiaries. However, on a closer look, one will be able to find that the implementation of the right is lacking in many respects. Specific to the vulnerable category of child refugees and asylum seekers in detention like conditions, access to justice mechanisms presents elementary challenges thereby throttling the common agenda of ‘leaving no one behind’. Furthermore, the deplorable conditions of confinement and violations of socio-cultural rights is a constant reminder that child rights are further at distress. Therefore, the twin need to legally empower children and holistically espouse child-friendly justice proceedings becomes pertinent when seeking remedies and restoration for them. In this context, the chapter attempts to suggest way forward in the realm of the role of legal services authorities either directly or through university led legal aid clinics. For this, it is important that we explore efforts and collaborations to ensure protection and promotion of the rights of the children.
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Notes
- 1.
UNHCR (2021).
- 2.
SDG 16—Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
- 3.
Ending poverty in all its forms.
- 4.
End hunger, achieve food security and improved nutrition and promote sustainable agriculture.
- 5.
Ensure healthy lives and promote well-being for all at all ages.
- 6.
Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all.
- 7.
Achieve gender equality and empower all women and girls.
- 8.
Take urgent action to combat climate change and its impacts.
- 9.
Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
- 10.
Report of the UNHCHR (2017).
- 11.
OHCHR (2020).
- 12.
CRC (1989).
- 13.
Liefaard (2019)
- 14.
CRC (2006).
- 15.
- 16.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
- 17.
ICCPR Article 2(3). Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
- 18.
- 19.
Liefaard (2019).
- 20.
Francioni (2007).
- 21.
Article 17 of the CRC.
- 22.
Article 37(d) of the CRC.
- 23.
Article 12 of the CRC.
- 24.
Convention on the Rights of the Child (2006).
- 25.
Shelton (2015).
- 26.
CRC, General Comment No. 5 (2003).
- 27.
CRC, General Comment No. 5 (2022).
- 28.
Article 39(A) is the Directive Principles of State Policy adopted in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid.
- 29.
The Legal Services Authorities Act (1987).
- 30.
Paul and Dhanuka (2021).
- 31.
Ibid.
- 32.
Ibid.
- 33.
NALSA (2015).
- 34.
Ibid.
- 35.
On one hand the parent legislation being The Legal Services Authorities Act, 1987, National Legal Services Authority (Legal Services Clinics) Regulations, 2011; and on the other hand, Rule 3J(d)(iii) read with 14(2) of Juvenile Justice Rules; Rule 14(3) of Juvenile Justice Rules.
- 36.
Section 30(xvii) of the Juvenile Justice Act.
- 37.
Section 53(1)(viii) of the Juvenile Justice Act read with Rule 2(1)(ix) of the Juvenile Justice (Care and Protection of Children) Model Amendment Rules, 2022.
- 38.
Supra Note 23.
- 39.
- 40.
MWCD (2018).
- 41.
Ibid at Pg 276.
- 42.
https://wcd.nic.in/sites/default/files/CIF%20Report%201_0_0.pdf, Chapter 5, graph 5.4. Accessed on 29th July 2022.
- 43.
- 44.
Supra Note 31 at Pg 13.
- 45.
Wilson and Chaudhary (2018).
- 46.
Ibid.
- 47.
Ibid.
- 48.
NALSA (2019).
- 49.
Sampurna Behrua v. Union of India (2018); Sampurna Behrua matter was a Public Interest Litigation calling for attention to various Articles of the Indian Constitution that impose the primary responsibility of the State to ensure that the needs of children are met and their basic human rights being protected.
- 50.
UN Committee on the Rights of the Child (2003).
- 51.
Fridriksdottir (2015).
- 52.
UNODC (2022).
- 53.
Interviews with persons in custody in West Bengal, Assam, Rajasthan, Karnataka. Remarks recorded when understanding the concerns of persons in incarceration and accessing legal aid services through the framework.
- 54.
- 55.
Supra Note 3.
- 56.
Liefaard (2019).
- 57.
UN Human Rights Council (2013).
- 58.
UNICEF (2015).
- 59.
Ibid.
- 60.
Article 40(2)(b)(ii) of the CRC.
- 61.
Article 40(2)(vi) of the CRC.
- 62.
IPJC and TdH (2014).
- 63.
Rule 13, https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-standard-minimum-rules-administration-juvenile. Accessed on 25th July 2022.
- 64.
Ibid., Rule 15.
- 65.
Ibid., Rule 15.
- 66.
Juvenile Justice Act, 2005.
- 67.
S.3, Juvenile Justice Act, 2015.
- 68.
S.3(ii), Juvenile Justice Act, 2015. The Provision reads “All human beings shall be treated with equal dignity and rights.”
- 69.
S.3(iv), Juvenile Justice Act. The provision reads “All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential”.
- 70.
S.3(xvi), Juvenile Justice Act, 2015, which states that “basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.
- 71.
S.3(iii), Juvenile Justice Act. The provision reads “Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child.”
- 72.
S.3(iv), Juvenile Justice Act, which states that “All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter”.
- 73.
These are covered by two provisions: S. 3(xii), which says that “A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry”; and s. 3(xiii), which says “Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.”
- 74.
Section 3(x). The provisions read as follows: “There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.”
- 75.
Section 8(3)(c) of the Juvenile Justice Act, 2015.
- 76.
Sampurna Behrua v. Union of India, WP (Civil) 473/2005. Order dated 19th August 2011 and 12th October 2011.
- 77.
Ibid.
- 78.
Menon (2020).
- 79.
Amrita (2022).
- 80.
Supra Note 80.
- 81.
AIR 2006 SC 1946.
- 82.
Supra Note 80.
- 83.
Supra Note 83.
- 84.
Mixed Migration Centre (2019).
- 85.
- 86.
Interview conducted with lawyers representing refugees in custody.
- 87.
Shreehari Paliath (2022).
- 88.
Rule 8: (iii a) also inform the child and the parent or guardian immediately regarding the rights and privileges of the child under the Act and rules;
(iii b) rights of the child shall also be displayed in every police station and at prominent places in the Observation Homes, Special Homes, Place of Safety;
- 89.
Interview with Safi Akhter when confined in CCI in West Bengal.
- 90.
Section 2(l3) of the JJ Act defines the former as a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of commission of such offence.
- 91.
Section 2(14) of the JJ Act. As determination is vital to draw up individual care plans and orient the perspective with respect to ensuring care and protection for the child.
- 92.
UNICEF (2016).
- 93.
Ibid., at Pg V–VI.
- 94.
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
- 95.
Rule 13.
- 96.
Section 3(2) in The Juvenile Justice (Care and Protection of Children) Rules, 2007.
- 97.
https://wcd.nic.in/sites/default/files/CIF%20Report%201_0_0.pdf, Chapter 5 at Pg 90. Accessed on 29th July 2022.
- 98.
Ibid., at Pg 103.
- 99.
Ibid., Chapter 6 at Pg 135.
- 100.
Ibid., Chapter 7.
- 101.
Ibid., Chapter 8.
- 102.
Ibid., Chapter 8 at Pg 200.
- 103.
https://wcd.nic.in/sites/default/files/CIF%20Report%202_0_0.pdf Chapter 13, at Pg 298. Accessed on 29th July 2022.
- 104.
Pratichi Institute (2014).
- 105.
Ibid., at Pg 11.
- 106.
Ibid., at Pg 10.
- 107.
Ibid.
- 108.
NCPCR (2010).
- 109.
UN Human Rights Council (2013).
- 110.
Economic and Social Council Res. (2005).
- 111.
Article 9(d)—“Child-sensitive” denotes an approach that balances the child’s right to protection and that takes into account the child’s individual needs and views.
- 112.
UN Human Rights Council (2013).
- 113.
Example being the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2022).
- 114.
Liefaard and Kilkelly (2019).
- 115.
IPJC and TdH (2014).
- 116.
UN Committee on the Rights of the Child, General Comment No. 6 (2005).
- 117.
UN Human Rights Council (2013).
- 118.
Liefaard (2019).
- 119.
See the Handbook developed by Council of Europe for reference, Coron et al. (2023).
- 120.
Article 12(1) of the CRC r/w Section 3(iii) of the Juvenile Justice Act, 2015.
- 121.
Section 14 (5)(c) of the Juvenile Justice Act, 2015.
- 122.
Liefaard (2019).
- 123.
Liefaard (2019)
- 124.
The statement and objects of the JJ Act states that it is a law to “consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation”.
- 125.
Rule 7 (3), Model JJ Rules, 2016.
- 126.
Rule 8, Model JJ Rules, 2016.
- 127.
S.8, JJ Act, 2015 & Rule 10(2), Model JJ Rules, 2016.
- 128.
- 129.
Ghosh (2019).
- 130.
UNODC (2022).
- 131.
Article 39A of the Constitution of India.
- 132.
UNODC (2022).
- 133.
Bloch and Prasad (2006).
- 134.
Govt. of India, Ministry of Law, Justice, and Company Affairs, Processual Justice to The People, Report of The Expert Committee on Legal Aid (1973)
- 135.
Ibid. at p. 26.
- 136.
Bar Council of India (1997).
- 137.
Supra Note 131.
- 138.
NALSA Statistical Snapshot (2021).
- 139.
Supra Note 131.
- 140.
For more information, see The Refugee Law Reader (Hungarian Helsinki Committee) (2019).
- 141.
Liefaard (2019)
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Paul, A. (2023). Beyond Access: Legal Aid for Child Refugees in India. In: Bajpai, A., Tushaus, D.W., Prasad, M.R.K. (eds) Human Rights and Legal Services for Children and Youth. Springer, Singapore. https://doi.org/10.1007/978-981-99-5551-0_11
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