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PETITIONER: RANJAN DWIVEDI

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT26/04/1983

BENCH: SEN, A.P. (J) BENCH: 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

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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]

JUDGMENT:      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.

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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

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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

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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:

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         "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

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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

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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. 992