The Supreme Court has said that an accused getting free legal aid was a matter of right and no distinction could be made in upholding this right irrespective of whether the legal aid sought was for the trial or an appeal against an adverse verdict.
“We are of the opinion that neither the Constitution nor the Legal Services Authorities Act makes any distinction between a trial and an appeal for the purposes of providing free legal aid to an accused or a person in custody,” said a bench of Justice A.K. Patnaik and Justice Madan B. Lokur in their judgment Thursday, but made available Friday.
Pronouncing the judgment, Justice Lokur said that the Legal Services Authorities Act, 1987, provides, inter alia, that “every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody”.
Section 13 of the act provides that persons meeting the criteria laid down in Section 12 will be entitled to legal services provided the concerned authority is satisfied that such person has a prima facie case to prosecute or defend, the judgment noted.
The judgment came as the court set aside a Sep 5, 2006 judgment and order of Madhya Pradesh High Court and sent back the case to it for rehearing of the appeal as one of the accused, Rajoo, was not represented by a lawyer.
While saying so, the apex court relied on its earlier judgments wherein it was said that the right to be represented by a lawyer was a constitutional right of every accused person who is unable to engage a lawyer on account of poverty, indigence or incommunicado situation and the state was mandated to provide a lawyer to such an accused.
The court also expressed its disagreement with observation in one of its earlier judgments wherein it sought to deny the free legal aid to the accused in cases of economic offences or offences against law prohibiting prostitution or child abuse and so on.
“We have some reservations whether such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty,” it said.
“If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism thereby diluting the constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution,” it cautioned.
The judgment said that apex court had taken a “rather pro-active role in the matter of providing free legal assistance to persons accused of an offence or convicted of an offence.”
The court referred to the recent verdict of New Zealand’s Court of Appeal where in it said that “the right of a fair trial is guaranteed by the Bill of Rights Act and it is an absolute right. A fundamental feature of a fair trial is a right to legal representation under the Bill of Rights Act.”
Asking the Madhya Pradesh High Court to rehear the matter, the apex court said: “We are also of the view that the high court was under an obligation to enquire from Rajoo whether he required legal assistance and if he did, it should have been provided to him at state expense.”
Since the record of the case does not indicate any such endeavour having been made by the high court, this case ought to be re-heard by it after providing Rajoo an opportunity of obtaining legal representation, ruled the apex court.