The Judgments That Made Legal Aid a Right

1979: the right is stated generally

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

The facts. A writ petition brought on behalf of undertrial prisoners in Bihar, many of whom had been in jail awaiting trial for longer than the maximum sentence their alleged offences carried. At this hearing the Court turned from release to the reason the prisoners had been forgotten, which was that none of them had a lawyer.

Held. The procedure by which a person may be deprived of life or liberty must be reasonable, fair and just, and free legal services to the poor and the needy is an essential element of any such procedure. Article 39A emphasises that free legal service is an inalienable element of reasonable, fair and just procedure, because without it a person suffering economic or other disability is deprived of the opportunity of securing justice. The right to free legal service is therefore implicit in the guarantee of Article 21: it is a constitutional right of every accused person unable to engage a lawyer by reason of poverty, indigence or an incommunicado situation, and the State is under a mandate to provide one where the circumstances of the case and the needs of justice so require, unless the accused objects.

And note where it came from. The Court also observed that the poor in their contact with the legal system have always been on the wrong side of the law, meeting law for the poor rather than law of the poor, so that the legal system has lost its credibility for the weaker sections.

A companion judgment on the same petition, dated 12 February 1979 and reported at (1980) 1 SCC 81, held speedy trial to be an integral and essential part of the fundamental right under Article 21. A further order of 4 May 1979, at (1980) 1 SCC 115, directed the release of undertrials who had already been in jail for the maximum term they could have received even on consecutive sentences, holding that continued detention violated both human dignity and Article 21, and called for information on the location of courts, pendency and the causes of delay.

1980: the right is made usable

Khatri v. State of Bihar, (1981) 1 SCC 627, decided on 19 December 1980.

The facts. The Bhagalpur blindings. Prisoners in Bihar had been blinded in police custody, and the proceedings examined, among much else, whether any of them had been offered a lawyer when they were produced before a magistrate.

Held, and there are three limbs. First, the right to free legal services is implicit in Article 21 and the State cannot escape it by pleading financial or administrative inability. Second, the obligation arises not only at the trial but when the accused is first produced before the magistrate and at every remand. Third, the right is illusory unless the magistrate or Sessions Judge informs the accused of it, because it would make a mockery of legal aid to leave a poor, ignorant and illiterate accused to ask for it.

Why it matters. The first two judgments created a right; this one made it operable, by fixing the moment it arises and placing the duty to speak on the court rather than the accused.

1983: the right reaches the jail

Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, decided on 15 February 1983.

The facts. A journalist wrote to the Court after interviewing fifteen women prisoners in Bombay Central Jail; five said they had been assaulted by the police in the lock up. The letter was treated as a writ petition, and the Director of the College of Social Work, Nirmala Niketan, was directed to interview the women alone. Her report found, among other things, that there was no adequate arrangement for legal assistance to women prisoners, and that two foreign nationals said a lawyer had defrauded them.

Held. Legal assistance to a poor or indigent accused who is arrested and put in jeopardy of life or personal liberty is a constitutional imperative mandated not only by Article 39A but by Articles 14 and 21. It is a necessary condition of justice, and where it is not provided injustice is likely to result. A prisoner may not know to whom to turn to establish innocence, to defend constitutional or legal rights or to protect himself against torture and ill-treatment, and his family may be unable to obtain advice; so legal assistance must be made available to prisoners in jails, whether undertrials or convicts. The Court gave directions to the Inspector General of Prisons and to the legal aid machinery.

Why it matters. It carries the duty to where most people who need it are, and it is a worked example of a letter plus a field investigation becoming law. That investigation is itself a legal survey, chapter 700.

1986: the consequence of failure

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

The facts. The appellant was tried and convicted without a lawyer. The Additional Deputy Commissioner who tried him neither told him that he could have free legal assistance nor asked whether he wanted a lawyer at State cost. He was convicted and then dismissed from service on the strength of the conviction.

Held. Free legal assistance at State cost is a fundamental right of a person accused of an offence which may put life or personal liberty in jeopardy, implicit in the fair procedure Article 21 requires. Failure to inform the accused of that right and to enquire whether he wanted a lawyer vitiated the trial, and the conviction, the sentence and the dismissal founded on it were all set aside. The Court noted that there may be classes of offence, such as economic offences, where social justice does not require free legal service.

Why it matters. It supplies the sanction. Without it the duty in Khatri is a direction; with it, a trial conducted in breach is void.

The line in one paragraph

Read together, the five build a complete rule. The right exists and binds the State, Hoskot; it belongs to every accused person unable to engage a lawyer, Hussainara Khatoon; the State cannot plead poverty, it arises at first production and at every remand, and the court must tell the accused, Khatri; it reaches prisoners in jail, undertrial or convicted, Sheela Barse; and a trial conducted without it is vitiated, Suk Das.

And notice what the Legal Services Authorities Act did, chapter 550. Every one of these judgments predates the Act's commencement on 9 November 1995. The Act did not create the right; it built the machinery to deliver a right the courts had already created.

A worked example

One set of facts, and each judgment applied to it in turn.

The facts. A man with no money is arrested, produced before a magistrate, remanded three times over six weeks, tried without a lawyer and convicted. He is then dismissed from his employment because of the conviction.

Hoskot. Fair procedure under Article 21 required that free legal services be provided to him where the ends of justice called for it, and that he receive the judgment in time to appeal. Two State duties, neither performed.

Hussainara Khatoon. The right was his, as an accused person unable to engage a lawyer by reason of poverty, and the State was under a mandate to provide one unless he objected. He never objected, because he was never asked.

Khatri. The duty arose not at the trial but when he was first produced, and again at each of the three remands. The State cannot answer that it had no funds. And the magistrate was obliged to tell him, since leaving a poor and unrepresented man to ask would make a mockery of legal aid.

Sheela Barse. Even in custody between remands the duty followed him, because legal assistance must be made available to prisoners in jail whether undertrial or convicted.

Suk Das. The failure to inform him and to enquire whether he wanted a lawyer vitiated the trial, so the conviction is set aside; and the dismissal founded on that conviction falls with it.

Five judgments, one man, and the last of them is the one that gives him a remedy. That is why the line is learned in the order it was decided.

Quick revision

Hoskot, (1978) 3 SCC 544, 17 August 1978: fair procedure under Article 21 requires service of the judgment in time to appeal and free legal services to an indigent prisoner; right to counsel in the peremptory sense of Article 21, with Article 142 and Article 39A.

Hussainara Khatoon, (1980) 1 SCC 98, 9 March 1979: the right to free legal service is implicit in Article 21, Article 39A showing it to be an inalienable element of reasonable, fair and just procedure. The companion judgment of 12 February 1979, (1980) 1 SCC 81, holds speedy trial part of Article 21.

Khatri, (1981) 1 SCC 627, 19 December 1980: no plea of financial or administrative inability; the duty arises at first production and every remand; and the court must inform the accused.

Sheela Barse, (1983) 2 SCC 96, 15 February 1983: a constitutional imperative under Articles 14, 21 and 39A; legal assistance must reach prisoners in jail, undertrial or convicted.

Suk Das, (1986) 2 SCC 401, 10 March 1986: failure to inform and to enquire vitiates the trial; conviction, sentence and consequent dismissal set aside.

All five predate the Act's commencement on 9 November 1995.

Test yourself

1. Put the five judgments in order and give what each added. Hoskot 1978 located free legal services for an indigent prisoner in Article 21 as a State responsibility; Hussainara Khatoon 1979 held the right implicit in Article 21 for every accused unable to engage a lawyer; Khatri 1980 held that the State cannot plead inability, that the duty arises at first production and every remand, and that the court must inform the accused; Sheela Barse 1983 carried the duty into the jail for undertrials and convicts alike; and Suk Das 1986 held that a trial conducted without informing the accused is vitiated.

2. Which judgment supplies the sanction, and what is it? Suk Das. The conviction, the sentence and the dismissal from service founded on the conviction were all set aside, because failure to inform the accused of the right to free legal assistance and to enquire whether he wanted a lawyer vitiated the trial.

3. What did Khatri add that made the right usable rather than merely declared? That the obligation arises when the accused is first produced before the magistrate and at every remand, not only at trial; and that the magistrate or Sessions Judge must inform the accused of the right, since it would make a mockery of legal aid to leave a poor, ignorant and illiterate accused to ask for it.

4. What does the fact that all five predate 9 November 1995 tell you about the Legal Services Authorities Act? That the Act did not create the right to free legal services. The courts had already created it out of Article 21 read with Article 39A, and the Act supplied the machinery, the entitlement criteria and the funding to deliver a right that already existed.