IN THE SUPREME COURT OF INDIA
AIR 1978 SCC 1548, (1978) 3 SCC 544
Petitioner
Madhav Hayawadanrao Hoskot
Respondent
State of Maharashtra
Date of Judgement
17th August, 1978
Bench
Justice V.R. Krishna Iyer; Justice D.A. Desai; Justice O. Chinnappa Reddy
Introduction:
Legal Assistance means providing free legal services to the poor and the weakest sections of the society that cannot afford to resort to taking the defense of lawyer to carry out a case or any legal procedure in the Court of Justice, any judicial authority or before any Court of Law. Article 39A of the Constitution of India states that the State shall ensure that the operation of the legal system promotes justice based on equal opportunities and, in particular, will provide free legal assistance, through appropriate legislation or plans or any other way, to ensure that opportunities to guarantee justice are not denied to any citizen for reasons of economic or other disability.[1]
Articles 14 and 22 (1) of the Constitution also oblige the State to guarantee equality before law and a legal system that promotes justice on the basis of equal opportunities for all.[2] The Preamble of the Indian constitution aims to guarantee the people of India justice: socio-economic and political.[3] Article 38 (1) declares that the State shall promote the well-being of people by ensuring and protecting the social order, including justice.[4]
Article 21 clearly states that everyone has the same right to life and liberty, except in accordance with the procedure established by law.[5] The State will ensure that the operation of the legal system promotes justice, on the basis of equal opportunities and, in particular, will provide free legal assistance, through appropriate legislation or plans or in any other way, to guarantee that no citizen is denied justice for economic or other disabilities.
In this backdrop, the present case analysis deals with a landmark judgment of M.H. Hoskot v. State of Maharashtra[6].
Background of the Study:
International Background:
UN Covenant on Civil and Political Rights: – Provides certain support for free legal assistance to poor and poor people precisely in criminal proceedings. Article 14 of said covenant clearly establishes in Article 14 (i) that all persons must be treated equally before the Courts and under clause (f) it is established that a person must have the free assistance of an interpreter if cannot understand or speak the language used in Court.[7]
There are several declarations and principles adopted by the United Nations that help operational legal assistance, for example, the Universal Declaration of Human Rights (UDHR) in Article 8 and Article 10 states that all persons have the right to a remedy effective by the competent authorities national tribunals for acts that violate the fundamental rights conferred by the Constitution or the law and all have the right in full equality to a fair and public hearing before an independent and impartial Court, in the declaration of their rights and obligations and any criminal charges in against him.[8]
Legal Aid in Other Countries:
Legal Aid in United Kingdom: – In the United Kingdom, the legal assistance plan is controlled by the Legal Services Commission and is subject to most criminal and civil cases, but with exceptions such as defamation, most personal injury cases (which are now treated under conditional fee agreements, contingency fee interest) and cases associated with the operation of a business. Family law cases are also covered. The first state funding for legal representation under the Poor Prisoners Act was enacted in 1903, which provided legal advice in cases of murder and other serious cases.[9]
The modern system-related to the Law of Judgment of Legal Assistance and Punishment of Offenders (LASPO) of 2012, which entered into force on April 1, 2013, has initiated the deepest cuts to the legal assistance plan since it began.[10]
Legal Aid in Australia: – Legal aid commissions in Australia play a decisive role in achieving equality before the law by striving to ensure that all citizens, including those who cannot pay, have access to the legal services they need to obtain justice are present at each state and territory and are at number eight in total.
The Australian government reserves financial assistance for legal services under certain legal plans and legal services for indigenous Australians. The Australian Government took its first step towards a national legal assistance agreement when it created the Legal Services bureau in 1942.[11] Be that as it may, in the late 1970s there was a movement for States and Territories (not the federal arm of the government) to transmit the administration.
The Australian Government established the Commonwealth Legal Assistance Commission Act of 1977 (Latin American and Caribbean Law), which was established in 1977 for cooperation agreements between the Australian Government and state and territorial governments under of which legal assistance would be provided by independent legal assistance commissions that would be built under state and territory promulgation.[12]
Constitution and Statutory Provisions Discussed:
- Articles 19, 21, 22, 136, 142, 39-A of the Constitution of India.
- Sections 417, 467,468, 471, and 511 of Indian Penal Code (IPC).
- Section 304 and 363 Code of Criminal Procedure (CrPC).
Facts (including procedural history):
The Petitioner, Reader in a university who claimed to be an M.Sc. and Ph.D., around 30 years old, was charged with the offense of attempting to concoct degree-certificates of the University and was found guilty of the grave offenses under Sections 417, 467, 471 and 511 of IPC. The Trial Court sentenced him to simple life imprisonment till the rising of the court and a fine on the grounds that he belonged to a middle-class family, that the modern emphasis is on the corrective aspect of punishment which cannot be ignored and that the Public Prosecutor had no objection to the light sentence. The Appellant and the State filed appeals to the High Court, one against the conviction and the other against the sentence. The High Court dismissed the appellant’s appeal against the conviction but allowed the State’s prayer for enhancement and imposed imprisonment for three years. The judgment of the High Court was pronounced in 1973 but the special leave petition was filed more than four years later after the appellant had undergone his full term of imprisonment. The reason given for the delay was that the High Court granted him a copy of the judgment only in 1978.
Issues:
- Whether the right to free legal aid is guaranteed to prisoners under Article 21 of the Indian Constitution?
Arguments:
Contentions of the Petitioner:
- On 10-12-73 the petitioner had applied under Section 363(2) and Section 387 of CrPC for a copy of the judgment through the jail authorities. The copy was received by the jail authorities from the High Court but was never delivered to him. As a result, the petitioner lost his right to appeal by special leave. To this, the petitioner was forced to come up with a condonation petition after obtaining another certified copy from the High Court.
- The petitioner denies that this copy has been delivered to him and there is nothing in the register that bears his signature as a sign of receipt of the copy of the judgment of the High Court.
Contentions of the Respondents:
- The Prison Superintendent contended that a clerk of his office did deliver it to the prisoner but took it back to enclose it with a mercy petition to the Governor for the remission of sentence.
Judgment:
Ratio Decidendi:
- Freedom is what freedom does. Article 21 of the Constitution guarantees personal liberty. ‘Procedure established by law’ are words of deep meaning and procedure means ‘fair and reasonable procedure’.
- The procedure under Article 21 means a fair procedure. A first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21.
- Article 19 cumulatively read with Article 21 as in the case of Maneka Gandhi,[13] laid down that personal liberty cannot be cut out without fair legal procedures.
- A copy of the judgment should be provided to the prisoner in time to file an appeal. Also, the provision of free legal services is available to a prisoner who is indigent or otherwise disabled from securing legal assistance, where the ends of justice call for such service. And, these are the responsibilities of the State under Article 21.
- If a prisoner sentenced to prison is practically unable to exercise his constitutional and statutory right of appeal, including special permission to appear for lack of legal assistance, it is implied in the Court, according to Article 142, 194 read with Articles 21 and 39A, of the power of the Constitution to assign a lawyer for the prisoner individual “for doing full justice.” And this is also allowed by Article 136 of the Constitution.
- The accused is entitled to a lawyer, not in the permissive sense of Article 22 (1) and its broader scope but the peremptory sense of Article 21 confined to prison situations.
- When the prisoner seeks to file an appeal or review, the prison administration will make all facilities available for the exercise of that right.
- The Court cannot deviate from the special license requested under Article 136 so that the endless prosecution for the justice of every defeated litigator, civil and criminal, floods it into dysfunction.[14]
Obiter Dicta:
- The Appellant was beyond economic compulsions of making a living by criminal means. It is, therefore, surprising that the Public Prosecutor should have, on behalf of the State, consented to a light sentence of conviction for the grave charges.
- The administration should view sternly white-collar offenders and should not abet them by agreeing to a token of punishment. In the present case, the trial court has confused between the correctional approach to prison treatment and nominal punishment in serious social offenses.
- Since the Supreme Court is the last court of justice, every party in person seeks from the Court extra solicitude.
- The social defense is the criminological basis of punishment. In the present case, the trial judge has confused between the correctional approach to prison treatment and nominal punishment on the verge of decriminalizing serious social crimes.
Relevancy & Applicability:
The rationale set in the case of M.H. Hoskot is seen in many other cases and has become a settled law. In the case of Hussainara Khatoon v. State of Bihar,[15] the Supreme Court stated, that the right to free legal services is clearly an essential ingredient under Article 21 for a person accused of an offence.
In Khatri v. State of Bihar,[16] the Court declared that the State had the constitutional mandate to provide free legal assistance to an accused person, that he could not obtain legal services because of the indigence, and that everything that was necessary for this purpose must be done by the State. The State will have its financial limitations and its priorities in spending, but the law does not allow any government to deprive its citizens of constitutional rights in an allegation of poverty.
Judge Blackmun says that “humanitarian considerations and constitutional requirements should not be measured on this day by considerations in dollars,” in that case, the Supreme Court further stated that it was regrettable that, although it had declared the right to legal assistance as a fundamental element right of an accused person, by a process of judicial construction of Article 21, most of the States in the country had not taken note of this decision and provided free legal service to a person accused of a crime.
Suk Das v. Union Territory of Arunachal Pradesh[17]– Justice P.N. Bhagwati stressed the need to build legal awareness for the poor since they do not know their rights specifically to free legal assistance and noted that in India people residing in rural areas are illiterate and are not aware of their innate legal rights conferred upon them by law. Even literate people do not know their rights. This lack of legal knowledge makes them inaccessible for a lawyer to consult.
Conclusion:
The Supreme Court ruled that free assistance should be provided to all poor defendants, regardless of the seriousness of the crime attributed to them, at each stage of the three-tier justice delivery system and cannot be limited only to the trial stage.
The right to free legal aid was for the first time considered by the Supreme Court in this case of M.H. Hoskot v. State of Maharashtra.[18] Justice Krishna Iyer who delivered the judgment took into consideration Article 14(3) of the International Covenant on Civil and Political Rights, 1966 pleasantly explained the importance of free legal aid of an indigent and poor accused.
In this case, the petitioner argued himself and did not claim any legal aid. In India, due to poverty and illiteracy, people are not able to protect and defend their rights. To this, the court rightly concluded that the right to legal aid was considered as an inalienable element of fair procedure.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Press Information Bureau, Government of India, Right to Legal Aid; A Constitutional Commitment, https://pib.gov.in/newsite/mbErel.aspx?relid=118011 (last visited Jan 26, 2020, 3:40 P.M).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Madhav Hayawadanrao Hoskot v. State of Maharashtra, (1978) SCC 544.
[7] United Nations Human Rights Office of High Commissioner, International Covenant on Civil and Political Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (Last accessed Jan 25, 2020, 5:09 P.M).
[8] The Universal Declaration of Human Rights‟ (UN), <http://www.un.org/en/documents/udhr/index.shtml>
Last accessed Jan 24, 2020, 4:50 P.M).
[9] John M. Scheb & John M. Scheb II, Criminal Procedure, 139 (6th Edition, 2012), Linda Schreiber-Ganster, U.S.A.
[10] Dolly Choudhary, CONCEPT OF FREE LEGAL AID- A COMPARATIVE ANALYSIS FREE LEGAL AID IN INDIA, UNITED KINGDOM AND AUSTRALIA, IJLS (2016), http://ijlljs.in/wp-content/uploads/2016/07/cpl1_FINL.pdf.
[11] Id.
[12] Id.
[13] Maneka Gandhi v. Union of India (1978) 1 SCR 621.
[14] Ujjagar Singh & Anr. v. State (Delhi Admn.), order in S.L.P. (Crl.) No. A 1319 etc. Of 1977 dt. 31-7-78.
[15] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
[16] Khatri v. State of Bihar, AIR (1981) SC 262.
[17] Suk Das v. Union Territory of Arunachal Pradesh AIR (1986) SC 991.
[18] Supra note 6.
