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Khatri and Others vs State Of Bihar & Ors (1980)

This article has been written by Soumyadutta Shyam. This article discusses in detail the background of Khatri & Ors. v. State of Bihar & Ors. vis-a-vis free legal aid, the facts of the case, issues raised, arguments of the parties, the laws involved, the judgement and analysis of the case.

It has been published by Rachit Garg.

Introduction

One of the principles of natural justice is “audi alteram partem” which translates into “hear the other side.” This denotes that all the parties to a trial ought to be given an equitable chance to present their case. Giving a fair chance to present their side or the right to defend themselves in a trial is essential to meet the requirements of justice. No one should be punished without being given an adequate chance to present their case. Sometimes, due to poverty, it becomes difficult for a person to afford legal aid. But, if a person cannot get legal advice or the chance to be defended by a legal counsel, the requirement of a fair trial is defeated.

This is the reason the ‘right to free legal aid’ is vital. Article 39-A of the Constitution places a responsibility upon the State to make provisions for free legal aid. The right to free legal aid has been regarded as a component of the right to life and personal liberty within the ambit of Article 21 of the Constitution.

In this case, the Supreme Court again stressed the importance of providing free legal aid to persons accused of a crime. 

Details of the case

Name 

Khatri and Ors v. State of Bihar and Ors

Citation 

1981 SCR (2) 408 

Date of Judgement

19.12.1980

Petitioner

Khatri and others

Respondent 

State of Bihar and others

Advocates appearing for the Petitioners

Adv. K. Hingorani and Adv. Rekha Tiwari

Advocates appearing for the Respondents

Adv. K.G Bhagat and Adv. D. Goburdhun

Bench 

Justices P.N Bhagwati and Justice A.P Sen

Background of the case

In India, where a large section of the population live without adequate means, free legal aid becomes even more vital for ensuring that everyone has equal access to justice. The right to free legal aid and the duty of the state to provide it has been stressed by the Apex Court on a number of occasions.

In M.H Hoskot v. State of Maharashtra(1978), the petitioner was a reader with master’s and doctoral qualifications. He was found guilty for the crime of trying to circulate fake university degrees. He was tried by the Sessions Court which declared him culpable, although he was given very little punishment. The High Court granted the appeal which was presented by the state and sentenced him to three years. The High Court judgement was delivered in November 1973, and awarded greater punishment, however, the special leave petition was presented in front of the Supreme Court after 4 years. The petitioner spent his entire period in incarceration. The explanation given by the petitioner for the condonation of delay was that the copy of the judgement delivered in 1973, was given to him in 1978. It was revealed that though a free copy of the order was sent immediately by the High Court for the petitioner to the Superintendent of the Jail but he claimed that he did not receive it. The Superintendent said that the copy was sent to him however, afterwards it was taken back for attaching it to a mercy petition to the Government for exoneration of his punishment.

The Supreme Court rejected the special leave to appeal since the Court could not meddle with the ruling of two subordinate courts, although it considered it would be appropriate to make the legal stance apparent. The Court ruled that a single right of appeal on facts, where the punishment results in a long loss of liberty, is fundamental to civilised jurisprudence, “one component of fair procedure is natural justice.” Each measure that drives the right of appeal to be effective is essential and every act or omission thereof that hampers it is unjust and thus transgresses Article 21. 

There are two essentials of the right of appeal- delivery of a copy of the judgement to the prisoner timely to allow him to present an appeal and arrangement of free legal assistance to a prisoner who is poor or in any way constrained from availing legal assistance. It was advised that the jail manual should be revised and should add this directive and the state must provide a duplicate of the judgement to the prisoner. Justice Krishna Iyer said, “this is the State’s duty and not the Government’s charity.” If a prisoner is not able to exercise his right of appeal as well as special leave to appeal for the absence of legal aid, the court can, as per  Article 142, read with Articles 21 and 39-A of the Constitution, choose a lawyer for the prisoner. 

Free legal aid 

As the right to be represented by a counsel is crucial to a fair trial, it becomes vital to ensure that people have the essential resources to engage a lawyer for their defence. It needs to be understood that in a court proceeding, indigent people have the vulnerability of denial of a fair trial if they do not have equitable access to the legal services which are accessible to the opposing party. Article 39-A sets out with clarity that it is the liability of the State to make provisions for free legal aid to make sure that everyone has the same chance of getting justice. 

The Code of Criminal Procedure,1973 also makes provision under Section 304 for legal aid to the accused at the State’s cost in specific cases.

The Legal Services Authorities Act, 1987 also envisages the establishment of machinery to ensure legal aid to indigent people.

In the State of Maharashtra v. Manubhai Pragaji Vashi (1995), the Apex Court broadened the purview of the right to free legal aid. The Court said that to provide “the free legal aid”, it is essential to have properly qualified legal practitioners in the nation. It is feasible only if there are an appropriate number of law colleges in the country with proper infrastructure. It also reminded the Government of its duty to provide grants in aid to law colleges.

In Suk Das v. Union Territory of Arunachal Pradesh (1986), the Supreme Court ruled that default in providing free legal assistance to an accused at State expense, except when declined by the accused, would invalidate the trial. The accused do not need to request for this. Free legal service at the State expense is a fundamental right of an accused and this right is intrinsic in the requisite of reasonable, fair and just procedure given by Article 21. The accused cannot be refused this right for the reason that he has not applied for it. The Magistrate has the duty to acquaint the accused of this right.

Facts of the case 

This infamous case involved the blinding of some prisoners inside the Bhagalpur Central Jail. It was one of the worst cases of custodial torture, where several undertrial prisoners were blinded by police officials by pouring acid. In this case, Habeas Corpus petitions were filed in the Supreme Court on behalf of the blinded prisoners under Article 32 of the Constitution. There were counter-affidavits filed by the State as well as the Assistant Jailor of the Bhagalpur Central Jail before the Supreme Court. The State also presented various statements in relation to the blinded prisoners taken from the records of the Judicial Magistrates handling this matter. The Sessions Judge also forwarded a letter to the Registrar of the Supreme Court mentioning that for reasons mentioned in the letter, no survey of the Bhagalpur Central Jail was conducted by the Sessions Judge in 1980. The Registrar also submitted transcripts of statements of the blinded prisoners and a statement of B.L Das, ex-superintendent of the Jail before the Supreme Court. 

While some of the prisoners were granted bail, others continued to suffer under horrible conditions without any remand orders. The blinded prisoners were subsequently transferred to the Rajendra Prashad Ophthalmic Institute in New Delhi. However, the eyesight of the prisoners was so damaged that no surgical or medical treatment could repair it.

Many writ petitions were filed before the Supreme Court. In one of the petitions filed under Article 32 of the Constitution, the petitioners claimed that the prisoners were tortured by the police officers. The police were acting under the authority of the State. Thus, the petitioners claimed that the State was liable to pay compensation to the blinded prisoners for violation of their fundamental rights under Article 21.

Issues raised

The main issues in this case were:-

  1. Whether the State of Bihar was bound to bear the expenses of accommodation of the blinded prisoners while they were kept at the shelter administered by the Blind Relief Association of Delhi or not?
  2. Whether the State of Bihar was obligated to compensate the blinded prisoners for contravention of their fundamental right under Article 21 or not?
  3. Whether the State of Bihar was bound to make provisions for free legal services for the indigent accused persons or not?

Arguments of the parties

Petitioners 

The Advocate representing the blinded persons conveyed the concern that it may be dangerous for the victims to return to Bhagalpur, especially at the time when the investigation into the crimes of blinding was ongoing. It was also contended that the blind victims should be given some provision for accommodation in New Delhi at the expense of the State. 

Another point raised from the side of the petitioners was that the State was under obligation to compensate the blinded prisoners for contravention of their fundamental right under Article 21. It was also argued that the blinded prisoners were left visually impaired by the police personnel who were government employees working for the State and because this was an infringement of the right under Article 21, the State was bound to compensate the blinded persons.

Respondents

The Advocate appearing for the State argued that it was still not proved that the blinding was done by the police as the investigation was still going on. It was also contended that even if the police blinded the prisoners and there was a breach of Constitutional rights under Article 21, the State should not be held responsible for compensating victims. 

Laws discussed 

Article 21: Right to Life and Personal Liberty – Right to Free Legal Aid

Article 21 provides “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. After Maneka Gandhi v. Union of India (1978) judgement, the scope of the term ‘personal liberty’ has considerably expanded. The word ‘personal liberty’ used in this provision has a broad extent and covers a diverse array of rights. The Apex Court has held in a number of instances that the right to free legal aid is a fundamental right under Article 21. 

In this case, the Supreme Court again explained the importance of free legal services under Article 21. The Court reminded the State of its Constitutional commitment to make arrangements for free legal assistance to an accused person if they cannot afford a lawyer due to poverty or any other constraint.

Article 22: Protection against arrest and detention in certain cases – Right to be produced before the Magistrate within 24 hours

Article 22(2) sets out that a person who is arrested should be presented in front of the Magistrate within 24 hours of the arrest. It can be prolonged beyond 24 hours just under judicial custody. No one can be remanded for more than 24 hours other than by order of the Magistrate. If there is omission to present the arrested person in front of the nearest magistrate in 24 hours, that would render the arrest unlawful.

In this case, some of the accused were not presented in front of the Judicial Magistrate in the stipulated time of 24 hours. The Court directed the State and its Police to make sure that this Constitutional and legal requisite to present an accused in front of the Judicial Magistrate in the stipulated time is precisely followed. Some of the accused were not presented in front of the Magistrate after their initial appearance and were kept in jail without any remand orders. The Supreme Court directed the State to investigate such irregularities and make sure that such violations of law are avoided in future.

Article 32: Right to Constitutional Remedies – Writ Petition

Article 32 can be explained as the very essence of the Constitution. The proclamation of fundamental rights is futile until there is an efficient mechanism for the implementation of those rights. A right without a remedy is meaningless. Thus, keeping this view in mind, Article 32 was incorporated into the Constitution by the framers of the Constitution.

Article 32(1) sets out the right to request the Supreme Court by “appropriate proceedings” for the implementation of the fundamental rights vested by Part III of the Constitution. Article 32(2) bestows authority on the Supreme Court to issue appropriate directions, orders or writs, such as habeas corpus, mandamus, prohibition, quo waranto and certiorari for implementation of any of the rights vested by Part III of the Constitution.

The writ can be defined as an official order issued by the Court. Therefore, a writ petition is an application presented before the Court, pleading for issuing a specific writ.

Article 39-A: Free Legal Aid

Article 39-A bestows upon the State the duty to make sure that the functioning of the legal system fosters justice based on equal opportunity and shall specifically arrange free legal aid by appropriate legislation or schemes or in any other manner.

Legal aid has been regarded as a fundamental right within the ambit of Article 21 of the Constitution granted to all accused and executable in a court. The State is bound by duty to grant legal assistance to the indigent as held in M.H Hoskot v. State of Maharashtra and Hussainara Khatoon IV case.

Judgement of the case

The Supreme Court noticed irregularities evident from the record. In some cases, the accused were not presented in front of the Judicial Magistrate in the interval of 24 hours of arrest as mandated by Article 22(2). The Court strongly recommended the State and its Police to make sure this Constitutional and legal requisite to present an accused in front of the Judicial Magistrate within the required time is strictly followed. It was also clear by the records of the Judicial Magistrate that in a few cases, the accused were not presented in front of the Judicial Magistrate after their initial appearance and they remained in jail in the absence of any remand orders given by the Judicial Magistrates. This was blatantly illegal. 

The Court also criticised the action of the State to keep the accused in jail in the absence of any remand orders. It was advised that the State should inquire into the reasons as to why this irregularity was permitted and see that such violations of law do not occur in future. The provision prohibiting detention in the absence of remand is a vital provision that empowers the Magistrate to maintain an eye on the investigation and it is important that the Magistrates must strive to implement this requisite and when it is not fulfilled, the Magistrates should strongly admonish the Police.

The Supreme Court instructed that the blinded prisoners who were released from the Hospital should be kept in a shelter administered by the Blind Relief Association of Delhi. The Court also ordered the State of Bihar to bear the expenses of their stay at the shelter.

The Supreme Court observed that it is the Constitutional obligation of the State to provide free legal aid to the accused at all stages of the trial if an accused suffers from poverty or other disabilities. The Court also held the State liable for the disgraceful act of the police for violating the fundamental rights of the prisoners under Article 21, as the Police are directly employed by the State.

Rationale behind this judgement

It was evident from the details submitted by the State and from records of different Judicial Magistrates considering the matters of the different blinded prisoners that neither at the point when the blinded prisoners were presented in front of the Judicial Magistrate nor at the point the remand orders were issued, there was any legal counsel present for the majority of the blinded prisoners. The only reason given for not availing legal counsel to the blinded prisoners at State expenses was that none of them requested for it. 

The outcome was that other than a few blinded victims who got a counsel to appear for them at the subsequent stages of remand, the majority of them did not have any lawyers. Except for a few of them who were released on bail, the remainder of them continued to suffer in jail. The Court conveyed its shock saying that how could such horrendous conditions prevail even after the Hussainara Khatoon (IV) judgement (1979) was pronounced. The Hussainara Khatoon (IV) judgement explained that free legal services are an important component of reasonable, fair and just procedure under Article 21. 

The State has a Constitutional duty to avail a lawyer for an accused if the necessity arises, keeping the conditions in view. The Supreme Court said that the State should not ignore its Constitutional duty by showing financial or administrative incapacity. The decision of the Rhem v. Malcolm (1974) was quoted by the Supreme Court in light of the situation, “the law does not permit any government to deprive its citizens of the Constitutional rights on a plea of poverty”.

However, still, this prerogative to free legal services would be fallacious for a poor accused until the Magistrate or the Sessions Judge in front of whom he is presented acquaints him about this right. It is widely known that approximately 70 per cent of the population in the rural areas are uneducated and yet a larger number of people are ignorant of the rights given to them by law. The importance of spreading awareness about legal aid was also emphasised by the Supreme Court. In this case, the Judicial Magistrate was unsuccessful in fulfilling this duty in relation to the blind prisoners and it was just mentioned that no legal representation was requested for by the blinded prisoners. 

Thus, the Supreme Court ordered the Magistrates and Sessions Judge in the country to notify all accused who appear before them and who are not represented by a legal counsel because of lack of financial resources or disability that they are permitted to avail free legal services at the expense of the State.

The Supreme Court also instructed the State of Bihar and the rest of the States in the nation to make arrangements for free legal services for the accused who are incapable of engaging a lawyer because of lack of financial means. The Court also observed that necessities of social justice demand that the accused ought to be given free legal representation.

Landmark judgments referred to in this case

The two main cases that were referred to in this case were Hussainara Khatoon and Ors v. Home Secretary, State of Bihar (1979) and Rhem v. Malcolm (1974).

Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1979)

One of the important judgements referred to in this case was Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1979); also known as the Hussainara Khatoon IV judgement. In this case, it was observed that there were many undertrial prisoners who were accused of bailable offences, however were yet in jail since no bail application was filed on behalf of them or for being too poor to furnish bail. It was said that it was not unusual to observe that under-trial prisoners who were presented in front of the Magistrates were ignorant of their prerogative to be let out on bail and because of their poverty, they were incapable of engaging a lawyer who would inform them of their entitlement to apply for bail and assist them to get released on bail by presenting suitable application to the Magistrate in this regard. 

Often the Magistrates as well declined to release the under-trial prisoners presented in front of them on their personal bond but would instead ask for monetary bail with sureties, which because of their lack of financial resources, the under-trial prisoners were incapable of furnishing and this would thus negate any possibility for them to be freed from pre-trial detention. This condition called for the initiation of an adequate and complete legal service program. To make legal aid accessible to the poor, to safeguard them against injustice and to guarantee them their Constitutional and Statutory rights, there should be a national legal service program to accord free legal services to the people. After the Maneka Gandhi judgement, it is effectively established that when Article 21 lays down that no person shall be deprived of their life or liberty other than in conformation with the procedure provided by law, but it is not sufficient there is some procedure provided by law, but the procedure by which a person may be deprived of their life or liberty must be reasonable, fair and just. A procedure which does not ensure that legal services are accessible to a person who is poor and cannot avail a lawyer for that person cannot be considered as reasonable, fair or just. Free legal services to the poor and the deprived is an important component of any reasonable, fair and just process.

Rhem v. Malcolm (1974)

The Supreme Court also referred to an American case, Rhem v. Malcolm (1974). This case was regarding the under-trial detainees who were kept in the Manhattan House of Detention (MHD) and the deprivation of their Constitutional right to a fast trial for the reason that it did not have the financial resources to spend on modernising the administrative and judicial machinery in order to guarantee a speedy trial. It was held that while the Government may have financial limits and expenditure priorities, however, the law forbids any Government from depriving its citizens of fundamental rights on the grounds of lack of resources.

Analysis of the case

This case again revealed the negligent attitude of the State and the jail authorities when it comes to the rights of the prisoners as well as people who are accused of a crime. From the records, it was revealed that some of the blinded prisoners were not presented in front of the Judicial Magistrate within 24 hours as per law. Most of the blinded prisoners had no legal counsel, which the State was bound to accord. These were matters of grave concern.

The Supreme Court, in this case, elucidated that the State shall not evade its Constitutional duty to accord free legal services to poor accused persons by claiming monetary or administrative difficulty. This is a Constitutional directive and the State has to do the needful to ensure legal aid to those incapable of paying for legal assistance. 

The Constitutional duty to accord free legal services to the indigent accused does not accrue just when the trial begins but also becomes necessary when the accused is produced in front of the Magistrate in the initial stage. Since it is at this step that they get the first chance to make an application for bail and get released as well as avoid remand to police or judicial custody. This is the point when legal assistance is most important to the accused.

The right to free legal services may just become notional until the Magistrate or the Court in front of whom the accused is presented informs the accused of this right. Thus, the Supreme Court in this instance advised the Magistrates and Sessions Courts to inform every accused who appears before them and who is not represented by legal counsel because of poverty or disability, of his right to free legal services at the State’s expense.

The Supreme Court also shed light on the lack of awareness about legal aid in the country. In this connection, it may be mentioned that nowadays legal aid and legal awareness camps are being arranged by various governmental and non-governmental organisations to spread awareness about free legal aid in the country. Lack of literacy, especially lack of legal literacy is a problem in our country and this problem needs serious attention.

The right to free legal aid is a fundamental right within the ambit of Article 21. Article 39-A sets out “equal justice” and “free legal aid.” In a civilised nation, administered by the rule of law, one of the chief duties of the State is to have an efficient legal system. The words “provide free legal aid by suitable legislation or by schemes” have been incorporated so that opportunities for attaining justice are not denied to anyone because of economic and other reasons. These terms used in Article 39-A are very important. 

To ensure that legal aid is available to all citizens who require it, the Legal Services Authorities Act, 1987 was enacted. The objective of the act is to provide free and quality legal services to socio-economically disadvantaged groups of society. The significance of free legal aid has now been realised by both the Judiciary as well as the Legislature. Without legal aid, the requirements of justice cannot be fully met.

Relevance of the case today 

This case is still remembered as one of the most barbaric cases of custodial torture. The importance of the right of the accused to be produced before the Magistrate within 24 hours of arrest was highlighted in this case. This case revealed that there is still a lot to be done when it comes to the issue of the rights of accused persons, especially indigent and underprivileged accused persons. 

This case still stands as one of the landmark judgements where the Supreme Court highlighted the importance of free legal aid as well as legal awareness. The Supreme Court also reminded the Magistrates and Sessions Judges of their duty to inform the accused of free legal services. Though, subsequent to the judgement in this case The Legal Services Authorities Act, 1987 was enacted, but the case still retains its importance and serves as a reminder for the State of its obligations towards underprivileged accused persons.

Conclusion

In this instance, the urgency of availing free legal aid to the indigent accused again came to the forefront. In order to meet the requirements of justice, this right is vital. The case involved the issue of blinded prisoners in Bhagalpur Central Jail. The main points of contention, in this case, were, should the State of Bihar give free legal help to the indigent accused and was the State under a duty to compensate the blinded accused for contravention of their fundamental right under Article 21. 

The Supreme Court found out that there were inconsistencies revealed from the records. Few of the blind accused were not presented in front of the Judicial Magistrate as necessitated by law. The Court strictly advised the State of Bihar as well as its Police to ensure that this Constitutional and legal essential to present an accused in front of the Judicial Magistrate is followed. The Supreme Court found that most of the blinded prisoners did not have any legal representation when they were produced before the Judicial Magistrate as well as when the remand orders were passed. The excuse given for not providing legal assistance was that they did not ask for it. The lack of awareness about free legal aid and the responsibility of the Magistrate or the Sessions Judge to acquaint the accused with their right to free legal aid was also stressed upon by the Supreme Court. The State of Bihar as well as other States were directed to ensure free legal aid to the persons who were constrained by economic or other incapacities.

Frequently Asked Questions (FAQs)

What do you mean by free legal aid? 

Free legal aid connotes providing legal services free of cost to financially disadvantaged sections of the society. It means providing free legal assistance to people who are incapable of availing the services of a lawyer due to poverty or other disabilities.

Is free legal aid a constitutional right, fundamental right or statutory right?

The Supreme Court has recognised free legal aid as a fundamental right within the meaning of the ‘Right to Life and Personal Liberty’ under Article 21 of the Constitution. Article 39-A also puts an obligation upon the State to provide free legal aid to the people who cannot afford legal assistance. Besides, free legal aid also has been given statutory recognition by the Legal Services Authorities Act, 1987. Therefore, free legal is a Constitutional right, a fundamental right and a statutory right as well.

References

  1. Dr. J.N Pandey; The Constitutional Law Of India; Central Law Agency
  2. R.V Kelkar; Criminal Procedure; Eastern Book Company
  3. https://legodesk.com/legopedia/free-legal-aid/ 
  4. https://blog.ipleaders.in/writ-petitions-india-file/ 
  5. https://lawfoyer.in/khatri-and-others-v-state-of-bihar-and-others-1981-1-scc-627/ 

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