P-II ADR

DRAFT PROJECT FOR END TERM

CASE COMMENT:

ANALYSIS OF THREE LANDMARK CASES ON FREE LEGAL AID IN INDIA

SUBMITTED BY VIVEK GAUTAM

2017BALLB38, VIIth Semester

SUBMITTED TO PROF. KAVITA SINGH

NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

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 ACKNOWLEDGEMENT

This case comment has been made successful by the help of my professor of ADR Ms. Kavita
Singh. She went into minute details of the subject, which in turn enabled us to benefit from
experience of learning in her classes. Her contribution in teaching us has always enabled us to
think apart from the very obvious. I thank her for her extremely gracious help that she has always
provided to the students in every walk of life.

I would utilize this opportunity to thank all those who have played a part in completion of this
project. Special thanks to my parents for their never ending support and blessings.
-Vivek Gautam

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 CASE I

In the Supreme Court of India

Name of the Judgment-

Hussainara Khatoon & Ors

vs
Home Secretary, State Of Bihar
Citations: 1979 AIR 1369, 1979 SCR (3) 532

Background of the case

 This is the petition filed by the petitioner for release of the under trial prisoners.
 There are instances when under trial prisons were kept in jail for the larger period than
they to be in jail, if convicted. Thousands of under-trial prisoners are languishing in jail
and their trial was not commenced till the date when either have already completed the
sentence for the longer period than what they would have been, if convicted or they are
about to complete it.
 Manyatimes they are guilty of some bailable offence but are still in jails because nobody
files a bail application on their behalf of they being poor and destitute.
 There are few under-trial prisoners in Central jail of Bihar for a period of over six to
seven years and were released after so many years but it is doubtful that the procedure
laid down in Section 167(2) was followed

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Name of the Judge-

P.N. Bhagwati J.

Name of the counsels-

For the Petitioners- K. Hingorani

For the Respondent- U. P. Singh

Details of Judgment

Judgment was delivered by a single judge bench.

Judgment was delivered by P.N. Bhagwati J.

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Material facts of the case

 One of the undertrail prisoners in Ranchi Central Jail named Budhu Mahli was put in jail
on 21st day of November in the year 1972 as he was booked under Section 395 of the IPC
and Section 25 of the Indian Arms Act.
 He has been kept in jail for over six years without being tried. Punishment given in
Section 395 of IPC is 10 years and is the maximum punishment and punishment under
relevant section of Indian Arms Act is very less than the punishment given in IPC.
 Similarly others namely Jairam Manjhi, Somra Manjhi, Jugal Munda and Gulam Munda
were kept in same jail in the capacity of under-trial prisoners for a period of around five
years as they were also booked under the same section.
 Spending so many years in jail without being producing before the magistrate and were
kept on remand amounts to gross injustice to those who are poor and destitute and so the
case addressing the issue.

Issue

1. Whether the under-trial prisoners before the Court have been periodically remanded from
time to time by the Magistrates as required by the proviso to section 167(2)?
2. Whether Right to get legal representation is a fundamental right under Article 21 of the
Constitution?

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 Law and Act involved

Constitution of India –

Article 21 – Procedure established by law.

Article 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.”

Indian Penal Code-

Section 395

“Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

Code of Criminal Procedure-

Section 167

“The Magistrate to whom an accused person is forwarded under this section may, whether he has
or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in
such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.”

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 Precedents cited

1. M. H. Hoskot v. State of Maharashtra:

"Judicial justice, with procedural intricacies, legal submissions and critical examination of
evidence, leans upon professional expertise; and a failure of equal justice under the law is on the
cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-
American models and our judicial process, engineered by kindred legal technology, compel the
collaboration of lawyer-power for steering the wheels of equal justice under the law.”

2. Gidian v. Wainwright

“Justice Black in this case observed that, in our adversary system of criminal justice, any person
haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious truth.”

3. Jon Richard Argersinger v. Raymond Hamlin

Justice Douglas in this case observed that even an intelligent man can be put into jail for lack of
his knowledge on the subject of law and he is not aware of the evidence. If this is true for the
learned men then it is obvious that an illiterate and ignorant person, if not given right to get
counsel will send him to jail even is he is not guilty.

4. Rhem v. Malclm

States can very well deny this constitutional right on the face of financial constraints but in this
case it was held that the law does not permit any government to deny legal right on a plea of
poverty.

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Judgment

 Under-trial prisoners who were named in the petition should be released from the jail.
 There is a settled law under Article 21 that no one shall be deprived of life and liberty
except in accordance with the procedure established by law but this procedure should be
just, reasonable and fair and the procedure which does not provide free legal aid to the
poor and hence they are deprived of justice, then such procedure shall not be regarded as
just and fair procedure.
 Free legal services to the poor and the needy are an essential element of any 'reasonable,
fair and just procedure.
 One of the essential elements to ensure reasonable, just and fair procedure under Article
21 is ensuring fulfillment of state obligation under Article 39 A because without it an
underprivileged or a person suffering from economic disability shall be deprived from
getting access to justice which is guaranteed under Article 21.
 There is a constitutional right of every accused person who is unable to engage a lawyer
and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation and the State has an obligation to provide a legal representation
to a person accused of some offence to meet the end of justice and the condition
precedent is that the accused person has no objection to receive a lawyer from the state.
 Persons accused of offences or those who are under-trial prisoners should be tried
speedily so that if the bail is denied to the accused than they shouldn’t be remained in jail
for the period longer than what was necessary.
 Right to speedy trial is a constitutional right under Article 21 and it is an obligation on
the states to device such mechanisms to ensure speedy trials to the accused

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Concrete Judgment( Judgment in personam)

When the under-trial prisoners are charged with bailable offences then State Government should
provide them a legal representative when they will be produced before the magistrate on their
next remand date provided that they haven’t raised any objection to the legal representation and
if any application for bail is made then the Magistrate should dispose of such application with
accordance with the rules set out by the Court and the State Government will submit its report to
the Patna High Court within a period of six weeks.

There is an urgent necessity of introducing a dynamic and comprehensive legal service

programme with a view to reaching justice to the common man.

Ratio( Judgment in Rem)

 Continuance of their detention more than the period that they would have been punished,
if convicted, is illegal and is in contravention and violation of fundamental right ensured
under Article 21 of the Constitution.
 Comprehensive legal services programmes is not only mandated under Article 14 and 21
but also under Article 39 A.

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 CASE II

In the Supreme Court of India

Name of the Judgment-

KHATRI AND OTHERS

vs
STATE OF BIHAR & ORS.

Citations: 1981 SCR (2) 408, 1981 SCC (1) 627

Background of the case

 The case is with respect to the blinded prisoners.

 Jail authorities are accused to blind these prisoners when they are in prison and were
taken to the hospital of New Delhi.
 Doctors after examining them concluded that their eyesight shall not be retained due to
major complications and henve they should be taken back to Bhagalpur
 Now the question arose shouldn’t they be made to stay in New Delhi owing to their
current situation and ongoing investigation. And so this case.

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Name of the Judges

P.N. BHAGWATI

SEN, A.P. (J)

Name of the counsels

For Petitioner- Mrs. K. Hingorani and Miss Rekha Tiwari

For Respondent- K. G. Bhagat and D. Goburdhan

Details of Judgment

The case was decided by the single judge bench.

The judgment was delivered by P.N. Bhagwati J.

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Material Facts of the case

 It was alleged in the petition that accused were detained but they were not produced
before the Judicial Magistrates within 24 hours as required under Article 22 of the
Constitution.
 Many prisoners were kept in the prison without them being produced before the
Magistrate and among those prisoners, few have alleged that there were rendered blind by
the prison’s authority. There was a person named Umesh Yadav who has sent a petition
to the District and Session Judge of Bhagalpur complaining that he has been blind by the
District Superintendent of Police and since he was not financially strong and his
economic condition was not good so he should be provided a legal representation at
Government expense in order to bring the police atrocities before the court.
 Similar petitions were made by ten other blinded prisoners to the District and Session
Judge. Same petitions were forwarded by the Session Judge to the Superintendent of the
Bhagalpur Central Jail stating that Code of Criminal Procedure do not provide for any
provision to give legal assistance to the blinded prisoners and the petitions are forwarded
to the chief judicial magistrate.
 Inability to take any action was expressed by the Chief Judicial Magistrate and
Superintendent of Bhagalpur Central Jail sent the petitions of these blinded prisoners to
the Inspector General of Prisons and made a request to put this matter before the state
government.
 The petitions were then transferred to the Home Department of the state.

Issue raised

1. Whether the State was liable to pay compensation to the blinded prisoners for violation of
their Fundamental Right under Article 21 of the Constitution?

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 2. Whether the blinded prisoners should send back to Bhagalpur from New Delhi when
investigation is still going on?
3. What relief can a court give for violation of the constitutional right guaranteed in Article
21?

Contention of the petitioners

 As investigation into the offences of blinding is still in progress so it is not safe for them
to go back to Bhagalpur, hence their accommodation should be made in New Delhi at the
cost of the state.
 It was due to the Police Officers who were Government servants and acting on behalf of
the State that they have lost their eye sight and this act of officers amounted to the
violation of the fundamental right of the prisoners under Article 21, therefore the state is
liable to pay to pay compensation to the blinded prisoners.
 The liability to compensate is on the state if its citizen is deprived of their fundamental
rights due to the deeds of public servants, except by the procedure established by law and
this obligation on the state is implicit in Article 21.
 None of the blinded prisoners asked for any legal representation to represent them when
they were produced before the Judicial Magistrate and when they were remanded.

Contentions of the respondent

 State is not liable to compensate because investigation is still ongoing and it isn’t yet
proven that the officers were responsible for rendering the prisoners blind.
 State is not liable to compensate under Article 21.
 In view of the earlier decision of this Court in the case of Hussainara Khatoon, the State
was bound to provide free legal services to an indigent accused but the State might find it
difficult to do so because of the financial constraints.

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Acts and provisions involved

Constitution of India

Article 21- Right to life and personal liberty

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Precedents cited

1. Hussainara Khatoon v State of Bihar

It was held in this case that right to free legal aid is a fundamental right and an essential
ingredient of reasonable, fair and just procedure and state is under an obligation to
provide legal representation to those who are deprived of getting it on their own and this
is guaranteed under Article 21.
2. Rhem v. Malcolm
The court in this case held that “the law does not permit any Government to deprive its
citizens of constitutional rights on a plea of poverty.”
3. Jackson vs. Bishop, 404 F. Supp. 2d, 571
Justice Blackmum in this case said that "humane considerations and constitutional
requirements are not in this day to be measured by dollar considerations."

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Judgment

 State of Bihar cannot avoid its constitutional obligation to provide free legal services to a
poor accused by pleading financial or administrative inability
 State might have financial constraints and preferences but it cannot take this plea when
there is a question of implementing Fundamental Right of an indigenous person who has
been deprived of his life and liberty and state is bound to spend on such person because
of constitutional mandate.
 Right to free legal aid not only arises when the trial commences but it arises since the
vary inception of producing the guilty in front of the Judicial Magistrate.
 District and session judge and judicial magistrates are under an obligation to inform
indigent and poor person about free legal services and legal awareness is very important.

Concrete Judgment(Judgment in personam)

Right to get free legal aid is the fundamental right under Article 21 and legal aid movement
should focus on legal literacy and legal awareness and the State of Bihar is directed to submit
report as to the information received by the Inspector General of Police about police atrocities
and what steps the state government has taken.

Ratio(Judgment in rem)

 Right to life comes to stake as soon as a person is produced before the magistrate and on
this stage a person should get proper legal representation because on this stage only he
can get a bail if professionally and properly represented and any procedure depriving a
person from getting legal representation shall not be regarded as reasonable, just and fair.
 In our country about 70% people residing in the villages are illiterate and not aware of
their legal rights and so it is mandatory and principal item of the legal aid movement to
provide for legal literacy and promoting legal awareness. And so District&Session Judges
and Judicial Magistrates are under obligation to aware people of their right of free legal
aid.

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 CASE III

In the Supreme Court of India

Name of the Judgment-

SUK DAS & ANR.

vs
UNION TERRITORY OF ARUNACHAL PRADESH

Citations: 1986 AIR 991, 1986 SCR (1) 590

Background of the case

 The appellant was convicted by the district court of Annini, Arunachal Pradesh and
subsequently he filed an appeal in High Court.
 Guwahati High Court upheld the conviction of the appellant because it took a view that it
agrees to the contention of the appellant that getting free legal aid and right of
representation is appellant’s fundamental right but the appellant did not made this request
in front of the Addl. Deputy Commissioner and hence he missed an opportunity to get
one.
 Aggrieved appellant then filed an appeal in the Supreme Court.

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Name of the Judges

P.N. Bhagwati J.

D.P. Madon J.

G.L. Oza J.

Name of the counsels

For Appellant- Vijay Hansaria and S.K. Jain

For Respondent- Abdul Khader, G. Chandra and Ms. A. Subhashini

Details of the Judgment

The case was decided by the Division bench on 10 March, 1986

Unanimous opinion of the court was delivered by Justice Bhagwati.

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Material Facts of the case

 The appellant including five others were accused and charged before the Court of Addl.
Deputy Commissioner for an offence under Section 506 of IPC. The allegation on them
was that they have threatened an Assistant Engineer of the Central Public Works
Department in order to compel him to cancel their transfer orders.
 As the appellant was unable to afford legal expenses and lawyer so he wasn’t represented
by any lawyer on account of his poverty and irrespective of all this and as a result he
could not cross-examine some of the witnesses of the prosecution.
 As a result appellant was sentenced and he has undergone simple imprisonment for a
period of two years.
 Appeal was filed before the High Court and he contended that he haven’t got free legal
aid which he ought to and so the trial was vitiated.
 Conviction was upheld by the High Court on the ground that application for legal aid was
not made before the court of Addl. Deputy Commissioner and so it cannot be said that
failure to provide legal assistance vitiated the trial.

Issue raised

 If application for free legal aid, which is a fundamental right under Article 21 was not
made during the trial then whether it can be denied to the appellant?

Acts and provisions involved

Constitution of India

Article 21- Right to life and personal liberty

Indian Penal Code

Section 506

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“Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both; If threat
be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or
to cause the destruction of any property by fire, or to cause an offence punishable with death or
1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to
impute, unchastity to a woman, shall be punished with imprisonment of either description for a
term which may extend to seven years, or with fine, or with both.”

Section 34

“When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.”

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Contention of the appellant

 The appellant were not provided free legal aid for his defence and the trial was therefore
vitiated.
 If the conviction and sentence recorded against him is saved, the request excusing the
appealing party from administration passed based on his conviction by the scholarly
Additional Deputy Commissioner should likewise be suppressed and he should be
restored in assistance with back wages.

Judgment

 Unanimous opinion of the Court was delivered by Justice Bhagwati.

 70% of those residing in villages are illiterate and hence not aware of their rights. It is
this nonappearance of lawful mindfulness which is answerable for the trickiness, misuse
and hardship of rights and advantages from which the poor endure in this land. Their
legitimate requirements consistently remain to become emergency arranged on the
grounds that their obliviousness keeps them from foreseeing lawful difficulties and
moving toward an attorney for conference and exhort as expected and their destitution
amplifies the effect of the lawful difficulties and troubles when they come. Additionally,
on account of their obliviousness and ignorance, they can't get independent: they can't
support themselves.
 Additional Deputy Commissioner didn't illuminate the appealing party that in the event
that he was not in a situation to draw in an attorney by virtue of absence of material assets
he was qualified for nothing lawful help at State cost nor found out if he might want to
have free lawful guide.
 This was obviously an infringement of the key right of the appealing party under Article
21 and the preliminary should in like manner be held to be vitiated because of a deadly
protected ailment, and the conviction and sentence recorded against the litigant must be
saved.
 Because the appellant was dismissed from service and now as his conviction was set
aside and so his dismissal should be reinstated.

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The judgment again upheld the judgment given in earlier case and it held that the Right to
free legal aid is a fundamental right under Article 21 of the constitution. And court
directed that it is the duty of judicial and executive bodies to inform offenders before them
about their legal right of free legal aid and states should work towards creating legal
literacy and legal awareness more efficiently.

Ratio(Judgment in Rem)

The consequence of converting the conviction of the appellants would be that the litigant would
need to be attempted again as per law in the wake of giving free lawful help to him at State cost
and that would imply that the appealing party would keep on being presented to the danger of
conviction and detainment and the chance can't be precluded that the offense charged may
eventually be demonstrated against him and he may land-up in prison and furthermore lose their
administration. We thusly felt that it would meet the closures of equity as well as be in light of a
legitimate concern for the appealing party that no new preliminary should be held against him
and he should be restored in assistance however without back wages.

Concrete judgment(Judgment in personam)

No fresh trial should be held against him and he should be reinstated in service but without back
wages.

Conclusion & substantive analysis

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It is now not disputed that Right to free legal aid is a fundamental right under Article 21 of the
Constitution and a person deprived of this right shall be compensated by the state and it’s an
obligation on the state to provide legal representation to the poor and destitute with the two
qualifications. First, the offence which is charged against the accused is such that it would lead
the accused in jail, if convicted and second, the facts and circumstances of the case is such that
legal representation is needed for the sake of social justice.

While analyzing these cases I can only remember two names that are known as the Godfather of
the concept of legal aid in India and they are Justice P.N. Bhagwati and Justice Krishna Iyer.
These two legal luminaries bought this concept of Free Legal Aid in India for providing
reasonable, just and fair level playing field for all. It took dozens of judgements of the Supreme
Court to remind states of their obligation to grant this right to people, three of them were
announced by Justice Bhagwati. This idea of providing justice to the marginalized section of the
society not only drives authority from the supreme law of the land i.e. our constitution under
Article 39-A but is a fundamental right. But all this less if states will not understand its value and
the objectives it sought to achieve. Our country have national and states legislations on the
subject but the purpose which circumvented it is far-fetched. States legal service authorities are
coming with more such initiatives aimed towards increasing legal awareness and legal literacy
among the poor and destitute. There are millions of illiterate of people who aren’t still aware of
their right of free legal aid which makes the story more fearful that justice we seek to achieve
and justice we seek to impart, being the part of legal fraternity, is an illusion because justice is
not only for those who can afford it but also for those who cannot.

The policies which come out of political compulsions should also include policies on legal
awareness and legal literacy. We have pthelora of cases where one can see Supreme Court’s
advisories and suggestions to the state regarding fundamental rights but are those advisories
followed and suggestions agreed upon is a big question. In a country where most of the educated
people are concerned about self-centered policies and rights, those in governance should be
motivated enough to aware poor and illiterate of their rights.

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