Right to get legal aid is a fundamental right of the accused: Supreme Court

In Ashok vs. State of Uttar Pradesh (2024), the Supreme Court has issued comprehensive guidelines to ensure fair trials, effective legal aid, and the proper role of public prosecutors. Justice  Abhay S.Oka pronounced the reportable  judgment of the Bench comprising Justices  Ahsanuddin Amanullah and Augustine George Masih on December 2, 2024.

The Court observed: "the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution. Even under Section 303 of the CrPC, every accused has a right to be defended by a pleader of his choice. Section 304 provides for the grant of legal aid to an accused free of costs. When an accused has either not engaged an advocate or does not have sufficient means to engage an advocate, it is the trial court's duty to inform the accused of his right to obtain free legal aid, which is a right covered by Article 21 of the Constitution of India." 

Sub-Section (1) of Section 304 reads thus:"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."

Notably, Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are the Sections which correspond to Sections 303 and 304 of the CrPC. Thus, under Section 304 of the CrPC, it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused.

Ashok, the appellant was accused of raping and murdering a 10-year-old girl on May 27, 2009, in Uttar Pradesh. He was convicted by the trial court under Sections 376 (rape), 302 (murder), and 201 (causing disappearance of evidence) of the Indian Penal Code (IPC). 

Supreme Court has set aside the judgments and orders and  acquitted the appellant of offences alleged against him. 

The judgement reads: A copy of this judgment shall be forwarded to all State Legal Services Authorities to enable the authorities to take necessary measures." 

The Court has given directions on the role of the Public Prosecutor and appointment of legal aid lawyers are as follows:

"a. It is the duty of the Court to ensure that proper legal aid is provided to the accused. 

b.  When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully;

c. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is  incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused;

d. It is the duty of the Public Prosecutor to assist 

the Trial Court in recording the statement of 

the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;

e. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions;

f. At all material stages, including the stage of framing the charge, recording the evidence, 

etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal 

aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused;

g. As held in the case of Anokhilal, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not 

covered by the categories mentioned above, the 

accused is entitled to a legal aid advocate who has good knowledge of the law and has an 

experience of conducting trials on the criminal 

side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials;

h. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them

are fixed;

i. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice;

j. In the cases where the offences are of a very 

serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance;

k. The right of the accused to defend himself in a 

criminal trial is guaranteed by Article 21 of the 

Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21;

l. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent enough to conduct the trial efficiently, the rights of the accused will be violated."