tition Crl No 1792 of 1981
Under article 32 of the Constitution of India VM 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 article 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 article 221 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 section 302 read section 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 PW 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 PW 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 section
1 section 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 article 32 of the Constitution is maintainable
986 The petition is virtually for the enforcement of the Directive Principle of State Policy enshrined in article 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 article 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 article 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 section
1 of section 304 of the Code of Criminal Procedure 1973 and not by a petition under article 32 of the Constitution
The traditional view expressed by this Court on the interpretation of article 221 of the Constitution in Janardan Reddy  Ors
vs The State of Hyderabad  Ors1 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 article 39A by the Constitution Forty Second Amendment Act 1976 and the enactment of sub section
1 of section 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
vs Aalbama2 founded on the doc trine of due process  was not applicable to India and that under article 221 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 vs Union of India1 E P Royappa vs State of Tamil Nudu2 RD Shetty vs The International Airport Authority of India  Ors3 In Maneka Gandhi s case supra the Court observed that the requirement of compliance with natural justice was implicit in article 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 article 14 because the concept of reasonableness permeated that Article and arbitrariness is the antithesis of equality guaranteed under article 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 vs Union of India4 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 article 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 article 21 the Directive Principle in article 39A has been taken cognizance of by the Court in M H Hoskot vs The State of Maharashtra1 State of Haryana vs Darshana Devi  Ors2 and Hussainara Khatoon  Ors
vs Home Secretary State of Bihar Patna3 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 vs Brady1 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 vs Wainright2 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 section 1 of section 304 of the Code of Criminal Procedure which reads 
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 section
1 of section 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 article 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
HLC Petition dismissed


Summary:
The petitioner an Advocate facing trial under section 302 read with section 120 B IPC 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 article 221 of the Constitution comprehends the right of an accused to be supplied with a lawyer by the State under article 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 article 32 was not maintainable and that the remedy of the petitioner was to make an application under sub section
1 of section 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 article 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 article 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 article 221 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 article 39 A in the Constitution the enactment of sub section
1 of section and the later pronouncement of this Court
Read with article 21 the Directive Principle in article 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
vs The State of Hyderabad  Ors   Powell vs Alabama   Maneka Gandhi vs Union of India 1978 2 SCR 621 EP Royapa vs State of Tamil Nadu   RD Shetty vs The International Airport Authority of India  Ors   Keshavanand Bharti vs Union of India 1973 4 SCC 225 MH Hoskot vs The State of Maharashtra   State of Haryana vs Darshana Devi  Ors   Hussainara Khatoon  Ors
vs Home Secretary State of Bihar Patna   Betts vs Brady  and Gideon vs Wainright 9th LEd
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 section
1 of section 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