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Legal aid is a right of an accused, rules apex court
Friday August 10, 2012 05:57:01 PM,
IANS
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New Delhi: 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.
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