The supreme court in the case of Hussainara Khatoon, directed the government to start free legal aid scheme in India. This case originated when a writ petition was filed to release the prisoners who were languishing in the prison of State of Bihar, they had been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted.

Those under-trial prisoners had been in jail for a period of over six to seven years, Therefore, after receiving the writ petition, the court checked if the requirement of the proviso to section 167(2) of Cr.P.C was complied with in their case. The court further directed that the affidavit giving these particulars should be filed by the State Government within three weeks.

There were several under-trial prisoners who were charged with offences which were bailable but who were still in jail because no application for bail has been made on their behalf or being too poor they were unable to furnish bail.

The court noted that under-trial prisoners who were produced before the Magistrates were unaware of their right to obtain release on bail and on account of their poverty, they were unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf.

Sometimes the Magistrates also refused to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty the under-trial prisoners were unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pre-trial detention.

This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme.

The Philosophy of Free Legal Aid

The philosophy of free legal service as an essential element of fair procedure is to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger v. Raymond Hamlin:

“The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect.

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 be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Both Powell and Gideon involved felonies. But their rationale has relevance to any.”

In America, Black, J., observed in Gidian v. Wainwright:

“Not only those precedents but also reason and reffection require us to recognise that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.

Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. 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 Base thought to start the scheme of free legal aid in India

In the present case of Hussainara Khatoon, the court shared the view that it was not possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there was a nationwide legal service programme to provide free legal services to them.

The base of the thought

Because, as a result of the decision of supreme Court in Maneka Gandhi v. Union of India, it is well settled that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be ‘reasonable, fair and just’.

Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable fair and just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him.

The Supreme Court pointed out in M. H. Hoskot v. State of Maharashtra:

“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 for steering the wheels of equal justice under the law”.

Thus, Free legal services to the poor and the needy is an essential element of any ‘reasonable, fair and just’ procedure. It is not necessary to quote authorative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied ‘reasonable, fair and just’ procedure.

Article 39 A of Indian constitution

We may also refer to Article 39A the fundamental constitutional directive which reads as follows:

39A. Equal justice and free legal aid: -The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

This Article also emphasises that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.

Thus, the court held that the right to free legal services is, therefore, clearly an essential ingredient of ‘reasonable, fair and just, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required, provided of course the accused person does not object to the provision of such lawyer.

The court further directed in the case that, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail.

Directions of the court to the state to start Free Legal Aid Scheme in India

In the present case of Hussainara Khatoon, the court expressed its view to introduce a dynamic and comprehensive legal service programme with a view to reaching justice to the common man.

The court further said that,

“In our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contract with the legal system have always been on the wrong side of the law. They have always come across “law for the poor” rather than “law of the poor”. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.

The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.”

The court strongly recommended to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.


Hussainara Khatoon & Ors vs Home Secretary, State of Bihar: 1979 AIR 1369, 1979 SCR (3) 532