Right To Get Legal Aid Is Accused’s Fundamental Right; Legal Aid Must Be Effective; Prosecutors Must Ensure Fair Trial: SC Issues Directions On Role Of Public Prosecutors & Appointment Of Legal Aid Lawyers
It is most significant to note that while most commendably upholding the right of the accused to get legal aid, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Ashok vs State of Uttar Pradesh in Criminal Appeal No. 771 of 2024 and cited in Neutral Citation No.: 2024 INSC 919 and so also in 2024 LiveLaw (SC) 941 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on December 2, 2024 has minced absolutely just no words to make it indubitably clear that right to get legal aid is the fundamental right of the accused. It is also made clear that the legal aid must be effective. The Bench made it crystal clear that ineffective legal representation could lead to the violation of fundamental rights.
Above all and most intriguingly, the top court noted that no lawyer represented Ashok during crucial stages of trial like even the statement of the accused was recorded under Section 313 of the CrPC was done in absence of lawyer which is the stage when incriminating material is put to the accused by the prosecution and even the legal aid lawyer provided to him was absent from several hearings when the trial was conducted. It also cannot be glossed over that while going through the records, the Bench noted that the legal aid lawyer did not put the relevant questions during the cross-examination of witnesses with the legal aid lawyer getting changed thrice during the entire trial. The evidence of more than one prosecution witness was recorded in the absence of legal aid advocate.
Moreover, we cannot be oblivious of the undeniable fact that Article 39A of Constitution obligates the State to ensure that free legal aid is available to the accused. It was also made crystal clear by the top court that prosecutors must ensure fair trial. We need to note that the Apex Court’s judgment was delivered while acquitting Ashok who was previously sentenced in a 2009 rape and murder case in Uttar Pradesh on the ground that he was not properly represented by a lawyer during the trial and as the incident was fifteen and a half years old, it rejected the option of sending the matter back to the Trial Court. The Apex Court held that, “After such a long gap it will be unjust if the appellant is now told to explain the circumstances and material specifically appearing against him in the evidence.”
It was also made explicitly clear by the Apex Court that if effective legal aid is not made available to an accused, unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21 of the Constitution. It was due to blatant disregard of procedural aspects that Apex Court granted bail to Ashok in May 2022. The Apex Court most sagaciously issues the most commendable slew of directions on the role of public prosecutors and appointment of legal aid lawyers. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself, Hon’ble Mr Justice Ahsanuddin Amanullah and Hon’ble Mr Justice Augustine George Masih sets the ball in motion by first and foremost putting forth in para 1 that, “This is a very unfortunate case. The victim of the offence was ten years old at the time of the incident. On 27th May 2009, around 9.00 a.m., she and her first cousin, PW-2, had gone to a pasture to graze her goats. The age of PW-2 was seven years at that time. As the victim was thirsty, she went near a tubewell cabin. The appellant-accused was working as an operator of the tubewell appointed by the owner of the tubewell. The victim requested the appellant to provide drinking water. The allegation of the prosecution is that, with evil intentions, the appellant took her inside the cabin. He committed rape on her and, after that, murdered her. According to the prosecution’s case, PW-2 saw the appellant forcibly taking the victim inside the cabin and raping her. By 11.00 a.m., PW-2 returned to PW-1, the victim’s father. PW-1 was the uncle of PW-2. After PW-2 narrated the story to PW-1, he went to the tubewell cabin to find the victim and found the dead body of the victim hidden in a haystack in that cabin. On being questioned by PW-1, the appellant fled from the spot and thereafter, PW-1 registered the First Information Report.”
As we see, the Bench then discloses in para 2 that, “The Trial Court, by judgment and order dated 24th December 2012, convicted the appellant for the offences punishable under Sections 376, 302 and 201 of the Indian Penal Code (for short, ‘the IPC’). The Trial Court also convicted the appellant under the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the SCST Act’). The Trial Court imposed capital punishment.”
As it turned out, the Bench enunciates in para 3 that, “The High Court heard the reference under Section 366 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) with an appeal preferred by the appellant. Though the High Court confirmed the conviction, the death penalty was set aside and the appellant was sentenced to undergo life imprisonment for the remainder of his natural life subject to the exercise of powers of grant of remission or grant of clemency by the constitutional functionaries.”
It is worth noting that the Bench notes in para 4 that, “The present appeal is against the judgments mentioned above. By order dated 20th May 2022, this Court granted bail to the appellant after noting that he had undergone actual incarceration for about 13 years. We may note here that earlier, learned counsel Shri M Shoeb Alam was appointed as amicus curiae to espouse the cause of the appellant. After his designation as a senior advocate, he continued to assist this Court. Shri Talha Abdul Rahman, Advocate-on-Record, was appointed amicus curiae to assist the learned senior counsel.”
It would be worthwhile to note that the Bench notes in para 20 that, “Thus, the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution. Even under Section 303 of the CrPC, every accused has a right to be defended by a pleader of his choice. Section 304 provides for the grant of legal aid to an accused free of costs. When an accused has either not engaged an advocate or does not have sufficient means to engage an advocate, it is the trial court’s duty to inform the accused of his right to obtain free legal aid, which is a right covered by Article 21 of the Constitution of India. Sub-Section (1) of Section 304 reads thus:
“304. Legal aid to accused at State expense in certain cases.—(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2) ………………………………………………..
(3) ………………………………..…………………”
(emphasis added)
Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) are the Sections which correspond to Sections 303 and 304 of the CrPC. Thus, under Section 304 of the CrPC, it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused.”
Most forthrightly, the Bench points out in para 22 that, “At the stage of framing the charge, the appellant was not represented by an advocate. From 8th June 2011, the appellant never declined legal aid. We are surprised to note that the examination-in-chief of PW-1 was allowed to be recorded without giving legal aid counsel to the appellant, who was not represented by an advocate. If the examination-in-chief of a prosecution witness is recorded in the absence of the advocate for the accused, a very valuable right of objecting to the questions asked in examination-in-chief is taken away. The accused is also deprived of the right to object to leading questions. It will not be appropriate to comment on the capabilities of the two legal aid lawyers appointed in this case as they are not parties before us. But suffice it to say that the cross-examination of the witnesses was not up to the mark. Some of the crucial questions that normally would have been put in the cross-examination have not been asked.”
CONCLUDING PART
Most significantly, the Bench encapsulates in para 23 what constitutes the cornerstone of this notable judgment postulating that, “Our conclusions and directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers are as follows:
a. It is the duty of the Court to ensure that proper legal aid is provided to an accused;
b. When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully;
c. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused;
d. It is the duty of the Public Prosecutor to assist the Trial Court in recording the statement of the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;
e. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions;
f. At all material stages, including the stage of framing the charge, recording the evidence, etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused;
g. As held in the case of Anokhilal vs State of MP (2019) 20 SCC 196, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of the law and has an experience of conducting trials on the criminal side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials;
h. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed;
i. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice;
j. In the cases where the offences are of a very serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance;
k. The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21;
l. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent enough to conduct the trial efficiently, the rights of the accused will be violated.”
As a corollary, the Bench then holds in para 24 that, “For the reasons recorded earlier, the appeal is allowed. The impugned judgments and orders are set aside, and the appellant is acquitted of offences alleged against him. The bail bonds of the appellant stand cancelled.”
Be it noted, the Bench then directs in para 25 noting that, “A copy of this judgment shall be forwarded to all State Legal Services Authorities to enable the authorities to take necessary measures.”
Finally, the Bench then concludes by holding in para 26 that, “We record our appreciation for the able assistance rendered to the Court by the learned senior counsel Shri M.Shoeb Alam, appointed to espouse the cause of the appellant. We must also record that the learned senior counsel, Shri K.Parameshwar, appearing for the respondent, has fairly assisted the Court.”
In sum, we thus see that the Apex Court has made it indubitably clear that in cases with a possibility of a life sentence or death sentence, only advocates having a minimum of 10 years of practice on the criminal side should be considered to be appointed as amicus curiae/legal aid advocate. It was also made absolutely clear by the top court stating that, “Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of the law and has an experience of conducting trials on the criminal side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials.” No denying it!
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