Arijeet Shukla and Adoorya Harish demystify access to legal aid during communal tensions:
Article 39-A of the Constitution provides for equal justice and free legal aid. In the case of Hussainara Khatoon v. State of Bihar it has been held by the Supreme Court that legal aid and speedy trial are to be treated as a part of the fundamental rights under Article 21 of the Constitution. It is enforceable by the Courts and the State is under a duty to provide legal aid and legal assistance to a poor and needy person at its own expense.
The statutory right to legal aid arises from the Legal Services Authority Act, 1987. This act aims to establish legal services organs that could provide with free legal aid and assistance to the marginalised sections. The Act provides for a nationwide network to provide legal aid and assistance. The ‘National Legal Services Authority’ is the apex body constituted to lay down policies and principles for making legal services available under the provisions of the Act.
The Act sets up a provision to distribute grants to State Legal Services Authorities and NGOs as and when required, implementing policies and the mandate of the NALSA.
Section 12(e) of the Legal Services Authority Act prescribes the victim of mass disaster, ethnic violence, caste atrocities, flood, drought, earthquake and industrial disasters, eligible for free legal assistance. The Legal Service Authorities by virtue the above section play an effective role by coordinating the activities of the State Administration in the ethnic/sectarian/communal clashes by way of strategic implementation of various government policies and thus avoiding any damage to life and property.
The constitution of India and various laws in India protect religious freedom. The constitution and other laws and policies protect religious freedom. The Ministry of Home Affairs in 2008 issued guidelines known as the ‘Guidelines On Communal Harmony, 2008’ that intends to promote communal harmony and provides for stringent action against anyone found fuelling communal tension by means of inflammatory speech or any such conduct that could possibly result in aggravating communal passion.
The guidelines attempt to prevent and impede communal disharmony/tension/riots. It also provides with action to control the same and measures to provide assistance and relief to the affected persons including rehabilitation. The detailed guidelines have been issued to take preventive/remedial measures and to impose responsibilities of the administration and to enforce the same. Various modalities have been formulated to deal with the issue which have been emphasised on participation of the stake holders.
Following are the various provisions under various statutes that could be used while filing a complaint when there is a communal clash (because of the reasons mentioned in those provisions).
- Section 124A of Indian Penal Code, 1860 makes sedition an offence punishable, i.e., when any person attempts to bring into hatred or contempt or attempts to excite disaffection towards the Government established by law. (Kedar Nath Singh v. State of Bihar)
- Sections 153A and 153B IPC makes any act which promotes enmity between the groups on grounds of religions and race or which are prejudicial to national integration punishable. The purpose of enactment of such a provision was to “check fissiparous communal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation”. Undoubtedly, religious freedom may be accompanied by liberty of expression of religious opinions together with the liberty to reasonably criticise the religious beliefs of others, but as has been held by courts time and again, with powers come responsibility.
- Section 295A IPC deals with offences related to religion and provides for a punishment upto 3 years for speech, writings or signs which are made with deliberate and malicious intention to insult the religion or the religious beliefs of any class of citizens. The Supreme Court in Ramji Lal Modi v. State of U.P has upheld the Constitutional validity of the section.
- Section 298 IPC provides that any act with deliberate and malicious intention of hurting the religious feelings of any person is punishable. However, Section 295A IPC deals with far more serious offences.
- Furthermore, Section 505(2) IPC provides that making statements that create or promote enmity, hatred or ill-will between different classes of society is a punishable offence involving imprisonment upto three years or fine or both.
- The Protection of Civil Rights Act 1955, which was enacted to supplement the constitutional mandate of abolishing ‘untouchability’ in India, contains provisions penalizing hate speech against the historically marginalised ‘dalit’ communities. Section 7(1)(c) of the Act prohibits the incitement or encouragement of the practice of ‘untouchability’ in any form (by words, either spoken or written, or by signs or by visible representations or otherwise) by any person or class of persons or the public generally. Similarly, intentional public humiliation of members of the ‘Scheduled Castes’ and ‘Scheduled Tribes’ is penalized under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
- Section 123(3) of the Representation of the People Act, provides inter-alia that no party or candidate shall appeal for vote on the ground of religion, race, caste, community, language etc.
- Section 125 of the Representation of the People Act further restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence.
- Adequate steps should be taken to ensure that no damage is caused to places of worship, and provisions of “Places of Worship (Special Provisions) Act, 1991” which provide punishment of imprisonment for damaging religious places and premises and for the establishment of special courts for speedy trial of all such offences, should be invoked.
- “The Religious Institutions (Prevention of Misuse) Act, 1988” has been enacted with a view to maintaining sanctity of religious places and to prevent their misuse for political, criminal, subversive or communal purposes. It, inter-alia, casts responsibility on the manager to inform the police in the event of misuse of the place of worship. The Act also, inter-alia, prohibits storage of arms and ammunition inside any place of worship.
As per various Supreme Court decisions, it is the responsibility of the courts to introduce the aggrieved party with the judicial help and alternatives that are present and to inform the party of their legal entitlement of representation at the state’s cost in case they belong to the marginalised community. Also, a party is eligible for legal aid at any point of the suit, be it trial or appellate. Therefore, an aggrieved person/party of communal violence could take any of the abovementioned recourse.
 Hussainara Khatoon & Ors. v. State of Bihar, AIR 1979 SC 1360.
 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955
 Ramji Lal Modi v. State of U.P., AIR 1957 SC 620
 Khatri v. State of Bihar, (1981) 1 SCC 627.
 Rajoo v. State of Madhya Pradesh, (2012) 8 SCC 553.
Arijeet Shukla (III Year) and Adoorya Harish (I Year) are law students at the National Law School of India University, Bangalore (NLSIU) and can be contacted at firstname.lastname@example.org | email@example.com