Ranjan Dwivedi Vs. Union of India
[1983] INSC 48 (26 April 1983)
SEN, A.P. (J) SEN, A.P. (J) PATHAK, R.S.
CITATION: 1983 SCR (2) 982 1983 SCC (3) 307
1983 SCALE (1)487
ACT:
Criminal Proceedings-Art. 22(1) and Art. 39-A
of Constitution of India- Accused facing Criminal trial not entitled to engage
counsel of his choice at State expense- His remedy is to make application for
free legal aid under s. 304(1), Cr.P.C., 1973.
HEADNOTE:
The petitioner, an Advocate facing trial
under s. 302 read with s. 120-B, I.P.C. submitted that the prosecution case
against him was being conducted by a galaxy of lawyers specially engaged by the
State on large sums of fee but he did not have the means to engage a competent
lawyer for his defence, that no lawyer of sufficient standing would find it
possible to appear as amicus curiae on a fee of Rs. 24 per day fixed by the
Delhi High Court; that while Art. 22(1) of the Constitution comprehends the
right of an accused to be supplied with a lawyer by the State, under Art. 39-A,
as a matter of processual fair play, it is incumbent on the State to provide
him with a counsel on a basis of equal opportunity; and therefore, the
respondent should be directed to give financial assistance to him to engage a
counsel of his choice.
Counsel for respondent contended that the
petition under Art. 32 was not maintainable and that the remedy of the
petitioner was to make an application under sub-s. (1) of s. 304, Cr.P.C., 1973
before the Court of Sessions.
During the pendency of the petition the Court
passed interim orders asking the petitioner to inform the Court of Sessions the
name of the counsel who would be appearing for him and directing the State to
make necessary arrangements for payment of the amount required to be expended
on his fees.
Dismissing the petition,
HELD (a) The petitioner is not entitled to
the grant of writ of Mandamus for the enforcement of the Directive Principle
enshrined in Art. 39-A by ordaining the respondent to give financial assistance
to him to engage a counsel of his choice on a scale equivalent to, or
commensurate with, the fees that are being paid to the counsel appearing for
the State. As is clear from the terms of Art. 39-A, the social objective of
equal justice and free legal aid has to be implemented by suitable legislation
or by formulating schemes for free legal aid. [986 C-E] (b) The traditional
view expressed by this Court on the interpretation of Art. 22(1) that "the
right to be defended by a legal Practitioner of his 983 choice" could only
mean a right of the accused to have the opportunity to engage a lawyer and does
not guarantee . an absolute right to be supplied with a lawyer by the State,
has now undergone a change with the introduction of Art. 39- A in the
Constitution, the enactment of sub-s. (1) of s. 304, Cr. P. C., 1973 and the
later pronouncement of this Court. Read with Art. 21, the Directive Principle
in Art.
39-A has been taken cognizance of by the
Court to lead to certain guidelines in the administration of justice. One or
these is that when the accused is unable to engage a counsel owing to poverty
or similar circumstances, the trial would be vitiated unless the State offers
free legal aid for his defence to engage a lawyer, whose engagement the accused
does not object. [986 F-H, 987 A-C] Janardun Reddy & Ors. v. The State of
Hyderabad & Ors. (1951) S.C.R. 344; Powell v. Alabama, 77 L. Ed. 158;
Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621; E.P. Royapa v. State of
Tamil Nadu, (1974) 2 S.C.R. 348; R.D. Shetty v. The International Airport
Authority of India & Ors., (1979) 3 S.C.R. 1014; Keshavanand Bharti v.
Union of India, (1973) 4 S.C.C. 225; M.H. Hoskot v. The State of Maharashtra,
(1979) 1 S.C.R. 192; State of Haryana v. Darshana Devi & Ors. (1979) 3
S.C.R. 184; Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar,
Patna, (1979) 3 S.C.R. 532; Betts v. Brady, 86 L.Ed. 1595 and Gideon v.
Wainright, 9th L.Ed.
2D 799 referred to.
In the instant case the remedy of the
petitioner is to make an application before the Additional Sessions Judge for
grant of free legal aid and if the latter is satisfied that the requirements of
sub-s. (1) of s. 304 Cr. P.C., 1973 are fulfilled, he may make necessary
directions in that behalf.
The Additional Sessions Judge shall fix the
amount of fee payable to Counsel appearing for the petitioner having regard to
the interim orders passed by this Court. But if he feels that he is bound by
the constraints of the rules framed by the Delhi High Court prescribing scales
of remuneration for empanelled lawyers, he shall make a reference to the High
Court and the High Court shall consider whether the scales of remuneration
prescribed for empanelled lawyers appearing in Sessions trials are not grossly
insufficient and call for a revision. The High Court has ample power to fix a
reasonable amount as fee payable to counsel appearing for the petitioner in the
facts and circumstances of the present case. In case the amount so fixed is
lower than the scales of fee fixed by this Court by its interim orders, the excess
amount paid to the petitioner in terms thereof shall not be recoverable. [990
A, 991 A-F]
ORIGINAL JURISDICTION: Writ Petition (Crl)
No. 1792 of 1981.
(Under article 32 of the Constitution of
India) V.M. Tarkunde, G. C. Patel and K. Prasad for the Petitioner.
M. K. Banerjee, Additional Solicitter General
and Miss A, Subhashini for the Respondent.
984 The Judgment of the Court was delivered
by SEN, J. This petition under Art. 32 of the Constitution raises a question of
some nicety. The question is whether the 'right to be defended by a legal
practitioner of his choice' under Art. 22(1) of the Constitution comprehends
the right of an accused to be supplied with a lawyer by the State.
The petitioner is an advocate-on-record
practising in this Court and has been arraigned along with four others to stand
his trial for the commission of an alleged offence of murder in furtherance of
criminal conspiracy punishable under s. 302 read s. 120-B of the Indian Penal
Penal Code in what is known as the Samastipur Bomb Blast case in the Court of
the Additional Sessions Judge, Delhi. Bawa Gurcharan Singh engaged by the main
accused Santoshanand and Sudevanand as senior counsel was also appearing for
the petitioner as a matter of professional courtesy to a fellow member of the
Bar. The evidence of the first approver P.W. 1 Madan Mohan Srivastava @
Visheshwaranand was concluded on March 25, 1981 and he was cross-examined by
Bawa Gurcharan Singh on behalf of the main accused as well as the petitioner,
and by P. P. Grover appearing on behalf of the other two accused Arteshanand
and Gopalji. On the same day, Bawa Gurcharan Singh withdrew his appearance for
the petitioner and thereafter the petitioner himself has been conducting the
case. The recording of the evidence of the second approver P.W. 2 Jaldhar Dass
@ Vikram has already commenced.
The petitioner contends that although he is
not an indigent person he as a struggling lawyer has neither the capacity nor
the means to engage a competent lawyer for his defence. He com plains that
under the rules framed by the Delhi High Court, a princely sum of Rs. 24 per
day is fixed as fee payable to a lawyer a appearing in the Court of Sessions as
amicus curiae, and as the sessions trial in which he is involved lasts three
days on an average in a week, no lawyer of sufficient standing will find it
possible to appear as counsel for his defence. He alleges that the prosecution
is being conducted by a special public prosecutor assisted by a galaxy of
lawyers specially engaged by the State and large amounts are being paid as
their fees.
As a matter of processual fair play it is
incumbent on the State to provide him with a counsel for his defence on a basis
of equal opportunity as guaranteed under Art, 985 39A of the Constitution. Upon
this basis, he seeks the issuance of a writ in the nature of Mandamus and other
appropriate writs, directions and orders to ordain the Union of India to give
financial assistance to him to engage a counsel of his choice on a scale
equivalent to, or commensurate with, the fees that are being paid to the
counsel appearing for the State.
During the pendency of the writ petition, the
Court by its interim order dated June 4, 1981 having regard to the fact that
the petitioner is a practising lawyer and is involved in a long drawn sessions
trial, directed that the State should undertake to help him in the matter of
his defence so far as the payment of fees to his counsel to defend him in the
trial was concerned. It directed that the petitioner will inform the Court of
Sessions the name of the counsel who would be appearing for him with a
direction that the State would make necessary arrangement to pay the amount
required to be expended on his fees subject to final accounting to be made
depending on the result of the writ petition. By the subsequent order dated
August 18, 1981 the Court in modification of the earlier order quantified that
a sum of Rs. 500 per day will be paid by the State to the senior counsel and
Rs. 250 per day to the junior for representing the petitioner.
At the hearing it was urged by learned
counsel for the petitioner that suitable directions be made in conformity with
the interim orders passed by the Court for payment of a reasonable amount as
fees to the amicus curiae who appears for the petitioner at the trial. The
learned Additional Solicitor-General on the other hand takes serious exception
to the directions made by the Court and contends that the petitioner has no
legal right to be supplied with a lawyer by the State nor is there any corresponding
obligation cast on the State to give financial assistance to him to engage a
counsel of his choice. According to him, the remedy of the petitioner is to
make an application before the learned Additional Sessions Judge under sub-s.
(1) s. 304 of the Code of Criminal Procedure, 1973 to provide him with free
legal aid and it is for the learned Additional Sessions Judge to be satisfied
on material placed before him that the petitioner is not possessed of
sufficient means to engage a counsel. The submission is that it is upon the
fulfillment of this condition that a direction can be made to provide a counsel
for his defence at the expense of the State. He accordingly contends that no
petition under Art. 32 of the Constitution is maintainable.
986 The petition is virtually for the
enforcement of the Directive Principle of State Policy enshrined in Art. 39A of
the Constitution which reads:
"39A. 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." There can be no doubt that the petitioner is not entitled
to the grant of a writ of Mandamus for the enforcement of the Directive
Principle enshrined in Art. 39A by ordaining the Union of India to give
financial assistance to him to engage a counsel of his choice on a scale equivalent
to, or commensurate with, the fees that are being paid to the counsel appearing
for the State. As is clear from the terms of Art. 39A, the social objective of
equal justice and free legal aid has to be implemented by suitable legislation
or by formulating schemes for free legal aid.
The remedy of the petitioner, if any, lies by
way of making an application before the learned Additional Sessions Judge under
sub-s. (1) of s. 304 of the Code of Criminal Procedure, 1973, and not by a
petition under Art. 32 of the Constitution.
The traditional view expressed by this Court
on the interpretation of Art. 22(1) of the Constitution in Janardan Reddy &
Ors. v. The State of Hyderabad & Ors.(1) that 'the right to be defended by
a legal practitioner of his choice' could only mean a right of the accused to
have the opportunity to engage a lawyer and does not guarantee an absolute
right to be supplied with a lawyer by the State, has now undergone a change by
the introduction of the Directive Principle of State Policy embodied in Art.
39A by the Constitution (Forty-Second) Amendment Act, 1976, and the enactment
of sub-s. (1) of s. 304 of the Code of Criminal Procedure. It was in this case
that the Court observed that the American rule enunciated in the case of
Powell. v. Aalbama(2) founded on the doc trine of 'due process' was not
applicable to India and that under Art. 22(1) there was no absolute right to an
accused to be supplied 987 with a lawyer by the State. There has been a
definite shift in the stance adopted by the Court by its decisions in Maneka
Gandhi v. Union of India(1), E. P. Royappa v. State of Tamil Nudu(2) R.D.
Shetty v. The International Airport Authority of India & Ors.(3) In Maneka
Gandhi's case, supra, the Court observed that the requirement of compliance
with natural justice was implicit in Art. 21 and that if any penal law did not
lay down the requirement of hearing before effecting him, that requirement
would be implied by the Court so that the procedure prescribed by law would be
reasonable and not arbitrary procedure. The procedure which was 'arbitrary'
oppressive or fanciful, was no 'procedure' at all. A procedure which was
unreasonable could not be said to be in conformity with Art. 14 because the
concept of reasonableness permeated that Article and arbitrariness is the
antithesis of equality guaranteed under Art. 14. It is difficult to hold in
view of these decisions that the substance of the American doctrine of 'due
process' has not still been infused into the conservative text of Art 21.
Although in the earlier decisions the Court
paid scant regard to the Directives on the ground that the Courts had little to
do with them since they were not justiciable or enforceable, like the
Fundamental Rights, the duty of the Court in relation to the Directives came to
be emphasized in the later decisions which reached its culmination in
Keshavanand Bharti v. Union of India(4) laying down certain broad propositions.
One of these is that there is no disharmony between the Directives and the
Fundamental Rights because they supplement each other in aiming at the same
goal of bringing about a social revolution and the establishment of a welfare
State, which is envisaged in the Preamble. The Courts therefore have a
responsibility in so interpreting the Constitution as to ensure implementation
of the Directives and to harmonize the social objective Underlying the
Directives with the individual rights.
Primarily, the mandate in Art. 39A is
addressed to the Legislature and the Executive but insofar as the Courts of Justice
can indulge in some judicial law-making within the interstices of the
Constitution or any statute before them for construction, the Courts too are
bound by this mandate.
988 Read with Art. 21, the Directive
Principle in Art. 39A has been taken cognizance of by the Court in M. H. Hoskot
v. The State of Maharashtra(1), State of Haryana v. Darshana Devi & Ors.(2)
and Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna(3)
to lead to certain guidelines in the administration of justice. One of these is
that when the accused is unable to engage a counsel owing to poverty or similar
circumstances, the trial would be vitiated unless the State offers free legal
aid for his defence to engage a lawyer whose engagement the accused does not
object. This more or less echoes the moving words of Sutherland, J. in Powell's
case, (supra). 'The right to the aid of counsel', wrote Sutherland, J., 'is of
a fundamental character'. In this country (i e. United States of America)
'historically and in practice', a hearing has always included 'the right to the
aid of counsel when desired and provided by the party asserting the right'.
Sutherland, J.
went on to indicate why this should be so:
"The right to be heard would be, in many
cases, of little avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is incapable, generally,
of determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of counsel he may
be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge
adequately to prepare his defence, even though he have a perfect one. He
requires the guiding hand of counsel at every step in the proceedings against
him. Without it, though he be not guilty, he faces the danger of conviction because
he does not know how to establish his innocence." But he did not stop
there. If the accused were unable to get counsel, even though opportunity were
offered, then the 'due process' clause in the Fourteenth Amendment required the
trial court 'to make 989 effective appointment of counsel'. This was new law,
and so it was natural that the Court would set careful limits for the new
principle;
"Whether this would be so in other
criminal prosecutions, or under other circumstances, we need not deter mine.
All that it is necessary now to decide, as we do decide, is that in a capital
case, where the defendent is unable to employ counsel, and is incapable
adequately of making his own defence because of ignorance, feeble mindedness,
illiteracy, or the like, it is the duty of the Court, whether requested or not,
to assign counsel for him as a necessary requisite of due process of law; and
that duty is not discharged by an assignment at such a time or under such
circumstances as to perclude the giving of effective aid in the preparation and
trial of the case," It must be stated that Powell's case involved a
capital punishment where the accused was unable to employ counsel due to his
indigence and therefore was incapable adequately of making his own defence, and
according to the Supreme Court, the failure of the trial court to give
reasonable time and opportunity to secure counsel was a clear denial of due
process.
There was a clear departure by the Supreme
Court of the United States in Betts v. Brady(1) where the Court made an abrupt
break and held that the 'due process' clause of the Fourteenth Amendment did
not impose upon the States, as the Sixth Amendment imposed upon the Federal
Government, an absolute requirement to appoint counsel for all indigent accused
in criminal cases. It required the State to provide a counsel only where the
the particular circumstance of a case indicated that the absence of counsel
would result in a trial lacking 'fundamental fairness'. Ever since the decision
in Bett's case, the problem of the constitutional right of an accused in a
State Court became a continuing source of controversy until it was set at rest
in the celebrated case of Guideon v. Wainright.(2) Under the rule laid down in
Bett's case, the Court had to consider the 'special circumstances' in each case
to determine whether the denial of counsel had amounted to a constitutional 990
defect in the trial and in an era of constantly expanding federal restrictions
on State criminal processes, it was hardly startling that the Court in Gideon's
case explicitly rejected the rule laid down in Bett's case and held that 'Sixth
Amendment's (unqualified) guarantee of counsel for all indigent accused' was a
"fundamental right made obligatory upon the State by the Fourteenth
Amendment". We are however not in the United States of America and
therefore not strictly governed by the 'due process' clause in the Fourteenth
Amendment. We therefore need not dilate on the subject any further.
In recent years, it has increasingly been
realized that there cannot be any real equality in criminal cases unless the
accused gets a fair trial of defending himself against the charge laid down and
unless he has competent professional assistance. The Law Commission in its
Fourteenth Report Volume I on the subject "Reform of Judicial
Administration" made certain recommendations for State aid. One of those
was that "representation by a lawyer should be made available at
Government expense to accused persons without means in all cases tried by a
Court of Sessions". This recommendation has now been codified in sub- s.
(1) of s. 304 of the Code of Criminal Procedure which reads .
"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."
The Law Commission in its Forty-Eighth Report suggested for making provision
for free legal assistance by the State for all accused who are undefended by a
lawyer for want of means. This recommendation still remains to be implemented.
Many a time, it may be difficult for the
accused to find sufficient means to engage a lawyer of competence. In such a
case, the Court possesses the power to grant free legal aid if the interests of
justice so require. The remedy of the petitioner therefore is to make an
application before the Additional Sessions Judge making out a case for the
grant of free 991 legal aid and if the learned Additional Sessions Judge is
satisfied that the requirements of sub-s. (1) of s. 304 of the Code are
fulfilled, he may make necessary directions in that behalf. While fixing the
fee of counsel appearing for the petitioner, the learned Additional Sessions
Judge shall fix the amount of fee having regard to the interim orders passed by
this Court. But if he feels that he is bound by the constraints of the rules
framed by the Delhi High Court prescribing scales of remuneration for
empanelled lawyers, he shall make a reference to the High Court for suitable
directions. On such reference being made, the High Court shall consider in its
undoubted jurisdiction under Art. 227 (3) of the Constitution whether the scales
of remuneration prescribed for empanelled lawyers appearing in sessions trials
are not grossly insufficient and call for a revision.
That however is a matter which clearly rests
with the High Court and we wish to say no more.
We only wish to impress that the contention
advanced before us has been that the existing rules are wholly antiquated and
do not take into account the realities of the situation. It was urged that
under the present scales of fee as prescribed by the Delhi High Court for
empanelled lawyers appearing in sessions trials, it is impossible for a person
facing a sessions trial on a capital charge to get competent professional
assistance. Surely, the High Court has ample power to fix a reasonable amount
as fee payable to counsel appearing for the petitioner In the facts and
circumstances of the present case. We direct that in case the amount so fixed
is lower than the scales of fee fixed by this Court by its interim orders, the
excess amount paid to the petitioner in terms thereof shall not be recoverable.
With these observations, the writ petition
must fail and is dismissed with no order as to costs.
H.L.C. Petition dismissed.
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