The Judgments That Made Legal Aid a Right

In one line

Five judgments between 1978 and 1986 turned a directive principle into an enforceable right and then made it usable, and they should be learned in the order they were decided because each one answers a problem the last one left.

In the wording a student can write in an exam: the right to free legal services was created by judicial decision before it was created by statute; Hoskot in 1978 held that free legal services to an indigent prisoner is a State responsibility under Article 21; Hussainara Khatoon in 1979 held the right to be implicit in Article 21, Article 39A showing it to be an inalienable element of reasonable, fair and just procedure; Khatri in 1980 held that the State cannot plead poverty, that the duty arises at first production and at every remand, and that the court must inform the accused; Sheela Barse in 1983 carried the duty into the jail; and Suk Das in 1986 held that a trial conducted without informing the accused of the right is vitiated.

1978: the right is located in Article 21

Madhav Hayawadanrao Hoskot v. State of Maharashtra, (1978) 3 SCC 544, decided on 17 August 1978.

The facts. Hoskot was convicted by a Sessions Court and given a nominal sentence; on the State's appeal the High Court raised it to three years. He applied through the jail authorities for a certified copy of the High Court's judgment so that he could appeal. The copy reached the jail in March 1974 and was never given to him, and by the time he obtained another from the High Court his time to appeal had gone. He served the whole sentence and then sought special leave with an application to condone the delay.

Held. The delay was condoned and the petition dismissed, but the Court laid down two State duties. Procedure established by law in Article 21 means fair and reasonable procedure; a first appeal on facts is basic to civilised jurisprudence where conviction carries a long loss of liberty; and every step that makes the right of appeal fruitful is obligatory. Two things follow and are State responsibilities: service of a copy of the judgment on the prisoner in time to appeal, and the provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for it. The accused has a right to counsel not in the permissive sense of Article 22(1) but in the peremptory sense of Article 21, and the Court located the power to assign counsel in Article 142 read with Articles 21 and 39A.

Why it matters. It is the first of the modern legal aid cases and it moved free legal assistance out of charity and into Article 21.