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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     140     OF     2008   

RAJOO @ RAMAKANT  …..Appellant

Versus

THE STATE OF MADHYA PRADESH      …..Respondent

J     U     D     G     M     E     N     T      

Madan     B.     Lokur,     J.   

After hearing arguments in this appeal, we had reserved  

judgment.  While preparing the judgment, it was noticed that the  

appellant (Rajoo) was not represented in the High Court.

The issue that arises, therefore, is whether Rajoo was  

entitled, as a matter of right, to legal representation in the High  

Court.  Our answer is in the affirmative.

The facts:

On 06.12.1998, seven persons including Rajoo are alleged to  

have gang-raped ‘G’.  The Trial Court convicted all of them for the  

offence and sentenced each of them to 10 years rigorous imprisonment  

and a fine of Rs. 500/-.  In default thereof they were required to  

undergo rigorous imprisonment for a further period of 3 months.

Appeals were filed by all the convicted persons before the High  

Court.  By its judgment and order dated 05.09.2006, the High Court  

set aside the conviction in respect of five of the convicts, but  

upheld the conviction in respect of Rajoo and Vijay.  We have been  

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informed that Vijay has accepted the judgment of the High Court.  

Only Rajoo has appealed against his conviction and sentence.  

Before us Rajoo was represented by learned counsel who took us  

through the material on record and made his submissions.  

Constitutional and statutory provisions :

By the 42nd Amendment to the Constitution, effected in 1977,  

Article 39-A was inserted.  This Article provides for free legal aid  

by suitable legislation or schemes or in any other manner, to ensure  

that opportunities for securing justice are not denied to any  

citizen by reason of economic or other disabilities.  Article 39-A  

of the Constitution reads as follows:-

39A.  Equal justice and free legal aid. –  The  State shall secure that the operation of the  legal system promotes justice, on a basis of  equal opportunity, and shall, in particular,  provide free legal aid, by suitable legislation  or schemes or in any other way, to ensure that  opportunities for securing justice are not  denied to any citizen by reason of economic or  other disabilities.

Subsequently, with the intention of providing free legal aid,  

the Central Government resolved (on 26th September, 1980) and  

appointed the “Committee for Implementing the Legal Aid Schemes”.  

This committee was to monitor and implement legal aid programs on a  

uniform basis throughout the country in fulfillment of the  

constitutional mandate.

Experience gained from a review of the working of the committee  

eventually led to the enactment of the Legal Services Authorities  

Act, 1987 (for short, the Act).

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The Act provides, inter alia for the constitution of a National  

Legal Services Authority, a Supreme Court Legal Services Committee,  

State Legal Services Authorities as well as Taluk Legal Services  

Committees. Section 12 of the Act lays down the criteria for  

providing legal services. It provides, inter alia, that every person  

who has to file or defend a case shall be entitled to legal  

services, if he or she is in custody.  Section 13 of the Act  

provides that persons meeting the criteria laid down in Section 12  

of the Act will be entitled to legal services provided the concerned  

authority is satisfied that such person has a prima facie case to  

prosecute or defend.   

It is important to note in this context that Sections 12 and 13  

of the Act do not make any distinction between the trial stage and  

the appellate stage for providing legal services. In other words, an  

eligible person is entitled to legal services at any stage of the  

proceedings which he or she is prosecuting or defending. In fact the  

Supreme Court Legal Services Committee provides legal assistance to  

eligible persons in this Court. This makes it abundantly clear that  

legal services shall be provided to an eligible person at all stages  

of the proceedings, trial as well as appellate. It is also important  

to note that in view of the constitutional mandate of Article 39-A,  

legal services or legal aid is provided to an eligible person free  

of cost.

Decisions     of     this     Court   :

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Pending the enactment of the Legal Services Authorities Act,  

the issue of providing free legal services or free legal aid or free  

legal representation (all terms being understood as synonymous) came  

up for consideration before this Court.   

Among the first few decisions in this regard is Hussainara  

Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98.  In  

that case, reference was made to Article 39-A of the Constitution  

and it was held that free legal service is an inalienable element of  

“reasonable, fair and just procedure for a person accused of an  

offence and it must be held implicit in the guarantee of Article 21  

[of the Constitution].”  It was noted that this is “a constitutional  

right of every accused person who is unable to engage a lawyer and  

secure free legal services on account of reasons such as poverty,  

indigence or incommunicado situation.”  It was held that the State  

is under a mandate to provide a  lawyer to an accused person if the  

circumstances of the case and the needs of justice so require,  

subject of course to the accused person  not objecting  to the  

providing of a lawyer.

The essence of this decision was followed in Khatri (II) v.  

State of Bihar, (1981) 1 SCC 627.  In that case, it was noted that  

the Judicial Magistrate did not provide legal representation to the  

accused persons because they did not ask for it.  This was found to  

be unacceptable.  This Court went further and held that it was the  

obligation of the Judicial Magistrate before whom the accused were  

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produced to inform them of their entitlement to legal representation  

at State cost.  In this context, it was observed that the right to  

free legal services would be illusory unless the Magistrate or the  

Sessions Judge before whom the accused is produced informs him of  

this right.  It would also make a mockery of legal aid if it were to  

be left to a poor, ignorant and illiterate accused to ask for free  

legal services thereby rendering the constitutional mandate a mere  

paper promise.

Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC  

401 reiterated the requirement of providing free and adequate legal  

representation to an indigent person and a person accused of an  

offence.  In that case, it was reiterated that an accused need not  

ask for legal assistance –  the Court dealing with the case is  

obliged to inform him or her of the entitlement to free legal aid.  

This Court observed that it was now “settled law that free legal  

assistance at State cost is a fundamental right of a person accused  

of an offence which may involve jeopardy to his life or personal  

liberty and this fundamental right is implicit in the requirement of  

reasonable, fair and just procedure prescribed by Article 21 [of the  

Constitution].”  

Since the requirements of law were not met in that case, and in  

the absence of the accused person being provided with legal  

representation at State cost, it was held that there was a violation  

of the fundamental right of the accused under Article 21 of the  

Constitution.  The trial was held to be vitiated on account of a  

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fatal constitutional infirmity and the conviction and sentence were  

set aside.

We propose to briefly digress and advert to certain  

observations made, both in Khatri (II) and Suk Das.  In both cases,  

this Court carved out some exceptions in respect of grant of free  

legal aid to an accused person.  It was observed that there “may be  

cases involving offences such as economic offences or offences  

against law prohibiting prostitution or child abuse and the like,  

where social justice may require that free legal services need not  

be provided by the State.”  We have some reservations whether such  

exceptions can be carved out particularly keeping in mind the  

constitutional mandate and the universally accepted principle that a  

person is presumed innocent until proven guilty.  If such exceptions  

are accepted, there may be a tendency to add some more, such as in  

cases of terrorism thereby diluting the constitutional mandate and  

the fundamental right guaranteed under Article 21 of the  

Constitution.  However, we need not say anything more on this  

subject since the issue is not before us.

The above discussion conclusively shows that this Court has  

taken a rather pro-active role in the matter of providing free legal  

assistance to persons accused of an offence or convicted of an  

offence.

Another view:

A slightly different issue had recently arisen in Clark v.  

Registrar of the Manukau District Court, (2012) NZCA 193.  The issue  

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before the Court of Appeal in New Zealand was whether legally aided  

defendants in criminal proceedings are entitled to choose or prefer  

the counsel assigned to represent them.  The discussion in that case  

centered round the New Zealand Bill of Rights Act, 1990 and the  

issue was answered in the negative.   

However, in the course of discussion, the Court observed that  

the right of a fair trial is guaranteed by the Bill of Rights Act  

and it is an absolute right. A fundamental feature of a fair  

trial is a right to legal representation under the Bill of Rights  

Act.  Reference was made to the decision of the Supreme Court of New  

Zealand in Condon v. R, (2006) NZSC 62 wherein it was concluded that  

representation by a lawyer is nearly always necessary for a trial  

for a serious offence to be fair.  An accused person must have legal  

representation or at least should have been afforded a reasonable  

opportunity of attaining it when charged with a serious offence.  

But, the Supreme Court held that:

“An accused has the right to employ a lawyer, but the  state does not guarantee to provide the lawyer’s services  – in this respect its role is passive, in the sense that  it must not impede the exercise of the right by the  accused. The exception is under s 24(f) [of the Bill of  Rights Act], when the accused does not have sufficient  means to provide for legal assistance. Even in such a  case, however, it is the accused who must take the  necessary steps to obtain assistance under the Legal  Services Act.”

It was noted that the Supreme Court agreed with the High Court  

of Australia in Dietrich v. R, 1992 HCA 57 that, other than in  

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exceptional circumstances, “an accused who conducts his or her own  

defence to a serious charge, without having declined or failed to  

exercise the right to legal representation, would not have had a  

fair trial.”  A conviction obtained in such circumstances would be  

quashed unless the prosecution is able to satisfy the appellate  

Court that the trial was actually fair.  

That there is a right of legal representation available to an  

accused is undoubted, even in New Zealand and Australia. The only  

point of disagreement appearing from Condon, as far as we are  

concerned, is whether the accused should be asked whether he or she  

requires legal assistance or not. The Supreme Court in New Zealand  

appears to have taken the view that the role of the State (and  

indeed of the Court) in this regard is passive.  The view taken by  

this Court on issues of legal representation, on the other hand, is  

pro-active and an obligation is cast on the Court to enquire of the  

accused or convict whether he or she requires legal representation  

at State expense.   

Conclusion:

Under the circumstances, we are of the opinion that neither the  

Constitution nor the Legal Services Authorities Act makes any  

distinction between a trial and an appeal for the purposes of  

providing free legal aid to an accused or a person in custody. We  

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are also of the view that the High Court was under an obligation to  

enquire from Rajoo whether he required legal assistance and if he  

did, it should have been provided to him at State expense.  However,  

since the record of the case does not indicate any such endeavour  

having been made by the High Court, this case ought to be re-heard  

by the High Court after providing Rajoo an opportunity of obtaining  

legal representation.

We dispose of this appeal by setting aside the judgment and  

order dated 05.09.2006 passed by the High Court of Madhya Pradesh at  

Jabalpur in Criminal Appeal No.3 of 1991 and remit the case records  

back to the High Court for a fresh hearing. We request the High  

Court to expedite hearing the appeal.  

           ….…….……………………..J.             (A.K. Patnaik)

                                             ...............J.                                               (Madan B. Lokur) New Delhi; August 9, 2012  

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