Counsel and Legal Aid

In one line

An accused person may not be denied the right to consult and be defended by a lawyer of his choice, and where he cannot secure one the State must provide him with free legal services, because a trial without counsel is not a fair procedure under article 21.

The three provisions

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

Article 39A, a Directive Principle inserted by amendment. 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.

Article 21. No person shall be deprived of life or personal liberty except according to procedure established by law, which since Maneka Gandhi v. Union of India, AIR 1978 SC 597, must be fair, just and reasonable, not fanciful, oppressive or arbitrary.

Reading them in that order shows the problem the courts had to solve. Article 22(1) forbids the state to deny a lawyer, which is not the same as requiring it to provide one. Article 39A requires provision, but a Directive Principle is not by itself enforceable in a court. The bridge is article 21.

Crossing the bridge

M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, is where it was crossed, and the facts are the reason the reasoning is memorable.

The petitioner had been given a very light sentence by the Sessions Court. On the State's appeal the High Court enhanced it to three years. Within a fortnight he applied through the jail authorities for a certified copy of the judgment so that he could appeal. The copy reached the jail from the High Court in March 1974 and was never delivered to him. He served the whole sentence, and only afterwards obtained another copy and filed a special leave petition with an application to condone the delay.

Freedom is what freedom does. The right of appeal manifests a value upheld by article 21, so every step that makes the right of appeal fruitful is obligatory, and every action or inaction which stultifies it is unfair and therefore unconstitutional.

Two requirements follow, and both are State responsibilities under article 21: service of a copy of the judgment on the prisoner in time to file an appeal, and 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.