The Right to Free Legal Aid: Article 39A and the Cases That Made It Real

Article 21, and why procedure has to be fair

Article 21 says no person shall be deprived of his life or personal liberty except according to procedure established by law.

Read literally that is a weak protection: any procedure a legislature enacts would do. In Maneka Gandhi v. Union of India the Supreme Court held otherwise, that the procedure contemplated by article 21 must be reasonable, fair and just. Everything in this chapter follows from that sentence.

Article 22(1), the right to consult a legal practitioner

Article 22(1) provides that no person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Note its limit, because this is a classic distinction question. Article 22(1) is a right not to be denied a lawyer. It says nothing about who pays. A person who cannot afford one is not helped by it at all. The right to a lawyer at State cost had to come from article 21, and it did.

Article 14 and the equal-opportunity argument

Article 14 guarantees equality before the law. A system in which the outcome of a case depends on whether the litigant could afford counsel delivers formal equality and nothing else. This reasoning runs underneath the cases rather than being their formal basis, and the long title of the Act picks it up in the words "on a basis of equal opportunity".

The three cases, worked

M.H. Hoskot: legal aid reaches the appeal

Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548, (1978) 3 SCC 544, decided on 17 August 1978, Krishna Iyer J.

Facts. Hoskot, a reader in a university department, was convicted of attempting to make a counterfeit university seal. He was in prison, was given no copy of the judgment in time, and had no lawyer, so his ability to appeal against the sentence was in practice destroyed.

Held. Because procedure under article 21 must be fair and reasonable, the State owes a prisoner who wants to appeal two things: a free copy of the judgment in time to file the appeal, and, where he is indigent and the ends of justice require it, free legal services, meaning a lawyer assigned at State cost. The right to counsel is not spent at the end of the trial. It runs into the appeal, because an appeal a prisoner cannot in practice bring is not an appeal at all.

Why it matters. It is the authority for legal aid at the appellate stage, and it is the earliest of the three. Do not describe it as following Hussainara Khatoon: Hoskot is August 1978 and Hussainara is 1979.

Hussainara Khatoon: the right is stated in terms

Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369, (1980) 1 SCC 98, decided on 9 March 1979, Bhagwati J.

Facts. This is one of a series of orders on a habeas corpus petition about undertrial prisoners in Bihar. Large numbers of them had been in jail for years without their trials being taken up, many for longer than the maximum sentence they could have received if convicted, and most had no lawyer because they could not afford one.

Held. The Court reasoned from Maneka Gandhi. A procedure that makes no legal services available to an accused who is too poor to afford a lawyer, so that he must go through his trial without assistance, cannot possibly be regarded as reasonable, fair and just. Article 39A confirms it, because free legal service is an inalienable element of that procedure. The right to free legal service is therefore implicit in the guarantee of article 21, and it is a constitutional right of every accused person who is unable to engage a lawyer by reason of poverty, indigence or an incommunicado situation. The State is under a mandate to provide a lawyer where the circumstances of the case and the needs of justice so require.

Why it matters. This is the sentence to quote. It is also the judgment the Act of 1987 was eventually passed to implement.

Suk Das: the court must offer, the accused need not ask

Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, (1986) 2 SCC 401, decided on 10 March 1986, Bhagwati CJ.

Facts. Suk Das and five others were tried before an Additional Deputy Commissioner for criminal intimidation under section 506 read with section 34 of the Indian Penal Code, the allegation being that they had threatened an Assistant Engineer of the Central Public Works Department to make him cancel their transfer orders. Suk Das was too poor to afford a lawyer and was not represented, and as a result he could not cross-examine some of the prosecution witnesses. Four of the accused were acquitted; he was convicted and sentenced to two years' simple imprisonment. He was also dismissed from service on the strength of the conviction. The High Court upheld the conviction, reasoning that he had never applied for legal aid.

Held. Allowing the appeal, the Supreme Court set aside the conviction and sentence and quashed the dismissal order that rested on it. 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 it does not depend on the accused asking for it. Most people in India are unaware that they have any such right, so a right that had to be claimed would be no right at all. The court is therefore under a duty to inform the accused that he is entitled to free legal services and to enquire whether he wants them. Where that is not done and the accused goes undefended for want of means, the trial is vitiated.

Why it matters. It is the strongest of the three, because it converts the right from a claim into a duty, and because it attaches a real consequence: not a reprimand, but the conviction going. It is also the answer to the High Court's reasoning, which is exactly what a problem question will put in front of you.

The three cases side by side

A worked example

Rafiq is arrested in Bhiwandi and produced before a Magistrate on a charge under section 324 of the Indian Penal Code. He is a daily-wage painter. Nobody asks him whether he has a lawyer, and he does not know he can ask for one. He is tried, undefended, and convicted.

Which provision does he rely on? Article 22(1) is not enough on its own. Nobody stopped him from engaging a lawyer; he could not pay for one. That is the gap article 22(1) leaves.

So the right comes from article 21, read with article 39A, as Hussainara Khatoon held: free legal service is an essential ingredient of reasonable, fair and just procedure, and it is a constitutional right of an accused unable to engage a lawyer because of poverty.

Does it matter that he never applied? No, and that is the whole of Suk Das. The Magistrate was under a duty to inform him of the right and to enquire whether he wanted it. Failure to do so vitiates the trial.

What about the statute? Section 12(h) of the Legal Services Authorities Act 1987 covers a person whose income falls below the prescribed limit, and section 12(g) covers a person in custody outright, so Rafiq is entitled to legal services under the Act as well. Chapter 70 works that through. He therefore has both a constitutional right and a statutory entitlement, and they are not the same thing.

What beginners get wrong

Article 39A is not enforceable by itself, and saying it is loses marks. It is a Directive Principle. Its force comes from being read into article 21. Say both.

Article 22(1) is not the right to a free lawyer. It is the right not to be denied one you arrange yourself.

The right is not confined to the trial court. Hoskot puts it in the appeal, and it applies from the earliest stage at which the accused's liberty is in jeopardy.

"Legal aid" and "legal services" are not synonyms in this subject. Legal aid is the ordinary phrase. "Legal service" is a defined expression in section 2(1)(c) of the Act and includes giving advice on any legal matter, whether or not there is a case at all.

The constitutional right is not limited to criminal cases, but the cases that establish it are criminal ones. Be careful how you state the scope: what the three judgments above decide is about persons accused of offences, where liberty is in jeopardy. The Act's own entitlement under sections 12 and 13 is much wider and covers civil matters too.

Quick revision

• Article 39A, inserted by the Forty-second Amendment 1976, is a Directive Principle. Not enforceable by itself; used to give content to article 21.
• Article 21 requires procedure to be reasonable, fair and just, per Maneka Gandhi.
• Article 22(1) is the right not to be denied a legal practitioner of one's choice. It says nothing about cost.
• M.H. Hoskot (1978) 3 SCC 544: free copy of the judgment and a lawyer at State cost for an appeal.
• Hussainara Khatoon (1980) 1 SCC 98: free legal service is an essential ingredient of reasonable, fair and just procedure and is implicit in article 21.
• Suk Das (1986) 2 SCC 401: the accused need not ask; the court must inform and enquire, and failure vitiates the trial.
• The Legal Services Authorities Act 1987 is the legislation article 39A called for, and its long title repeats article 39A's words.

Test yourself

1. Can a citizen go to court and enforce article 39A directly? No. It is a Directive Principle in Part IV and article 37 makes it unenforceable by any court. Its effect comes from the Supreme Court reading it together with article 21, which is enforceable.

2. What is the difference between article 22(1) and the right established in Hussainara Khatoon? Article 22(1) guarantees that an arrested person shall not be denied the right to consult and be defended by a legal practitioner of his choice, but does not require the State to pay. Hussainara Khatoon holds that free legal service, at State cost, is implicit in article 21 for a person who cannot afford a lawyer.

3. An accused is tried without a lawyer because he was too poor to engage one and never applied for legal aid. Is the trial good? No. Suk Das holds that the right does not depend on the accused asking. The court must inform him of the entitlement and enquire whether he wants it, and if the accused goes undefended for want of means the trial is vitiated and the conviction must be set aside.

4. Which of the three cases would you cite for legal aid on appeal, and what exactly did it require? M.H. Hoskot v. State of Maharashtra. It requires the State to furnish a prisoner with a free copy of the judgment in time to file his appeal, and to assign a lawyer at State cost where he is indigent and the ends of justice require it.

5. Why does the long title of the Legal Services Authorities Act 1987 matter to this topic? Because it repeats the language of article 39A almost word for word, which shows the Act is the "suitable legislation" that article contemplates, and it is a legitimate aid in construing the Act's purpose.