RANJAN DWIVEDi

UNION OF INDIA

April 26, 1983

[R. S. PATHAK AND A. P. SEN, JJ.)

Criminal Proceedings-Art. 22(1) and Art. 39A of Constitution of India- Accused facing Criminal trial not entitled to engage counsel of his choice at State expense-c-l; lis remedy _ii to make application for free legal aid under s. 304(1), Cr. P. C., 1973. "' .

The petitioner, an Advocate facing trial under s. 302 read with s. 12-0~B, J .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. 39A, as a matter of processual fairplay, 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 thepetitioner was to make an applica tion under sub-s. (!)of s. 304, Cr. P.C., 1973 before the Court of Sessions.

During thependency of the petition the Court passed interim orders asking t_he petitioner to inform the Court of Sessions the name of the counsel who would be appearing' for hin1 and directing the State to make necessary arrangements for payment of the amoriilt required to be expened on his fees.

Dismissing the petition,

HELD (a) The petitioner is not entitled to the grant of writ of Manda• mus for the enforcement of the Directive Principle enshrined in Art. 39-A by ordaining the respondent to give financiiil assistance to him to engage a counsel of his choice on a scale equivalent to, or commnsurate with, the fees that are being paid to the counsel appearing for the State. As i! clear from the tenns 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-EJ

(b) The traditional view expressed by this Court on the interpr.etatlort of Art. 22(1) that "the right to be defended by a legal Practitioner of his

'\...-

- .

. _j -

RANJAN DWIVEDI v. uNION

choice" could only mean a right or the ac.cused 10 have the opportunity to engage a laywer and does nguarantee an absolute right to be supplied with

I;\- laywer by the State, has now undergone a change .with the intI:oductjon of Art. 39-A in the Constitution, the_enactment of sub-s. (I) 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 .Jead to certaJn guidelines in the administration of justice. One of these is that

whn the accused is unable to engage a _counsel -owing to poverty orsimil_~_r circumstances, the trial would be vitiitedunless te State offers ftee legal aid for his defence to engage a lawyer, whose engagement the accused does ilot object. [986 F-H, 987 A-q

Janardan Reddy & Ors. v. The State of Hyderabad & Ots. (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.

Sltetty v. The International Airport Authority of India & Ors., (1979) 3 S.C.R. 1014; Keshavanand Bharti v. Unibn of India, (1973) 4 S.C.C. 225; M. H. Hoskot -v. The State of Maharashtra, (1979) I S.C.R. 192; State of Haryana v. Darshana _

Devi & Ors., (1979) 3 S.C.R. 184; Hussainara Kjratoon & 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. 20 799 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 a:nd 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 an1ount of fee payable to Counsel _appearing fOr

- the petitioner -having regard to the interim orders pissed by this_ Court~ But, i{

he feels that he is bound by the conStraiµts of the rules framed by the Delhi High-Court prescribing scales of remuneration for empanelled lawyers, be .shall make a reference to the High Court and the High Court shall consider whether the scales of remuneration prescribed for empanelled layers appea.ring in Sessions trials are not grossly insufficient and call for a revision. The High Court has atnple power to fix a reasonable amount as fee payable to -courise1: apPeating foi the pftitiotiet in the Tacts and circutnstaaces of the , present Case . .Jn case the amount so fixed islower than the scales of-fee fixed

by this Court by its interim order!i, the_ exss amou, nt _paid to the petitioner . irrterms thereof shall not be recoverable._ (990 A, 991 A-F] "

ORIGINAL JuR1so1crmN : Writ Petition (Cr!) No. 1792 of .,.. 1981. -

(Under article 32 of the Constitution oflndia)

V. M. J'arkunde, G. C. Patel an(K. Ptasad for the Petitioner.

M. K. Banrjee, Additional • Sitbh<iahilJi for the ResPQ11dent. , Solicitter General and Miss A,

SUPREME COURT REPORTs (!983j i S.C.R.

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 peti tioner as a matter of professional courtesy to a fellow member of the Bar. The evidence of the first approver P.W. 1 Madan Moban 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 complains 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 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

Q, efence on a basis of equal opportunity as guaranteed under Art.

J -

itANJAN.DWIVEDI v. UNION (Sen, J.)

39A of the Constitution. Upon this basis, he seeks the issuance of l a writ in the nature of Mandamus and other appropriate writs, directions and orders to ordain the Union of Iudia to give financial assistance to him to engage a counsel of his choice on a scale equi valentto, or comme.nsurate 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 bis 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 w.ith 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 SJate 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 peti tioner 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 thepetitioner 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 bis

choie. According to him, the remedy of the petitioner is to make an application before the learned Additional Sessions Judge under subs. (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 peti ti oner is not possessed .of sufficient means to --engage a counsel. The submission is that it is upon the fulfilment of this condition that a : direction can be made to provide a counsel for hisdefence at the expense of the State. He accordingly contends that no petition under Art. 32 of the Constitution is maintainable.

9S6 SUPRtlME CoORt REPOltTS [1983) 2 s.c.R..

The petition is virtually for the euforcement of the Directive Principle of State Policy eushrined in Art. 39A of the Constitution' -r

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. 39 A 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 interpre tat ion of Art. 22( I) 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 enact ment of subs. (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. Aa/bama(') founded on the doc trine of 'due process' was not applicable to India and that under Art. 22(1) there wasno absolute right to an accused to be supplied

(1) [1951) S.C.R. 344.

(2) 77 L.Ed. 158.

RANIA, N DW!YEDI v. UNION (Sen, J.) 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('), E. P~ Royappa v. State of Tamil Nudu(•) R. D. Shetty v. The International Airport. Authority of India & Ors.(') 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 Jay 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 n~ '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 rea<hed its culmination in Keshavanand Bharti v. Union of Indili(') 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 hav~ 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 statut~ before them for construction, the Courts to"o are bound by >this -mandate.

(I) [1978] 2 S.C.R. 621.


(4) [1973] 4 S C.C. 22S,

. SUPREME COURT REPORTS [1983} 2 s.c.i.

Read with Art. 21, the Directive Principle in Att. 39A has been taken cognizance of by the Court in M. H. Hoskot v. The State of Maharashtra('), State of Haryana v. Durs/lana Devi & Ors.(') and Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna(') to lead to certain guidelines in the administration of justice. One of these is that when the accused is unabfe 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 ob}ect. This more or Jess 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 i;; dicate 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 oflaw.

If charged with crime, he is incapable, generally, of <, letermining 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 adequate'y 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 con• viction because he does not know how to establish his

innocence."

But he did not Mop 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

(1) [1979] 1 s.c.R. 192.


l\ANJAN DWIVEDI v. UNiON (Sen, J.) 989

effective appointment of counsel'. This was new Jaw, and so it was natural that the Court would set careful limits for the new principle :

"Whether this would be so iu 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

o( making his own defence because of ignorance, feeble mindedness, illiteracy, or the like, it is the dnty of the Court, whether requested or not, to assign counsel for him as a necessary requisite of due process of Jaw; 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 punish ment 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(') 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 require ment 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 ease indicated that. the absence of counsel would result in a trial lacking 'fundamental fairness'. Ever since the decision In Belt'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.(') Under the rule laid down in Belt'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

(I) 86 L.Ed. 1595.

(2) 9th L.Ed. 799,

( 1983] 2 S.C.R.

defectin the trial and in an era: Of constantly expanding fdel restrictions on State criminal processes, it \'las hardly startling that y the Court in Gideon's case explicitly rejected the rule laid down iri Belt's case and held that 'Sixt!J. Amendment's (unqualified) guarantee of counsel for all indigent accused' was a "fundamental right made obligatory upon the State by the Fourteenth Amnndment". 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 Com• mission 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. (I) of s. 304 of the Code of Criminal Procedure which reads :

"304. Legal aid to accused at state expense in certain cases:

(I) Where, in a trial before the Court of Session,

the accused is not respresented by a pleader, and where it appears to the Court that the cccused

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 ac.cuscd who are undefended by a lawyer for want of means. This recommendation still remains to be implemented. Many a time, it ma:,; be difficult for the accused to find sufficient means to engage a lawyer of competence. Jn 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 fr~

IV\NJAN DWIVEDI v. UNION (Sen. J,) ~91

legal aid and if the learned Additional Sessions Judge 'is satisfied that the requirements of sub-s. (I} of s. 304 of the Code are fulfilled, he 'I 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 havillg '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 empanelkd lawyers, he shall make a reference to the High Court for suitable direcations. On such reference beiug 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 sayno 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 ethpaneiled lawyers appearing in sessions trials, it is impossible • for a person facing a sessions trial on a capital charge to get com petent professional assistance. Surely, the High Court has ample power IQ fix a reasonable amount as fee payable to counsel appearing for the petitioner m 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.