The article is an excerpt from the judgment of Madhav Hayawadanrao Hoskot v. State of Maharashtra
Procedure established by law
‘Procedure established by law’ are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified, activist fashion, ‘procedure’ means ‘fair and reasonable procedure’ which comports with civilised norms like natural justice rooted firm in community consciousness, not primitive processual barbarity nor legislated normative mockery.
In a land-mark case, Maneka Gandhi (1978), Bhagwati, J. (on this point the Court was unanimous) explained:
“Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights”.
“Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.”
“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article ’21 would not be satisfied.
Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21″.
Law is reasonable law, not any enacted piece.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as bad politics.
To sum up, ‘procedure’ in Article 21 means fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece.’` One component of fair procedure is natural justice.
Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty is basic to civilised jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on Lt collegiate basis. Ill short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Art. 21.
What follows from the appellate imperative? Every step that makes the right of appeal fruitful is obligatory and every action or in- action which stultifies it is unfair and, ergo, unconstitutional ( In a sense, even Art. 19 may join hands with Art. 21, as the Menka Gandhi reasoning discloses). Pertinent to the point before us are two requirements:
(1) service of a copy of the judgment to the prisoner in time to file all appeal and (ii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under Art. 21. Where the procedural law provides for further appeals what we have said regarding first appeals will similarly apply.
lawyer’s services is an integral part to Fair Procedure
The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer’s services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side.
Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power or steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said:
“What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?”
Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours.
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him”.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot he realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court. In the present petition, the party, though preferred legal aid by the court, preferred to argue himself. Even so we uphold the right to counsel not in the permissive sense of Art. 22(1) and its wider amplitude but in the peremptory sense of Art. 21 confined to prison situations.
While dismissing the Special Leave Petition we declare the legal position to put it beyond doubt:
1. Courts shall forthwith furnish a free transcript of the judgment when sentencing a person to prison term;
2. In the event of any such copy being sent to the jail authorities for delivery to the prisoner, by the appellate, revisional or other court, the official concerned shall, with quick despatch, get it delivered to the sentence and obtain written acknowledgment thereof from him.
3. Where the prisoner seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the Jail Administration.
4. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so requires assign competent counsel of for the prisoner’s defence, provided the party does not object to that lawyer
5. The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to assigned counsel such sum s the court may equitably fix.
6. These benign prescriptions operate by force of Art. 21 [strengthened by Art. 19(1)(d)] read with sub-article (5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril.
Reference
Madhav Hayawadanrao Hoskot vs State Of Maharashtra: 1978 AIR 1548