STATE OF KERALA Vs. SAJU ALIAS UNNI

JUDGEMENT

(1.) The Order of the Court was pronounced by R. Basant, J.--(i) Do the arrangements for free legal aid for the appellants in custody in criminal appeal really serve their laudable purpose

(2.) We have been coming across this malady of counsel appointed under Rule 183(1) of the Kerala High Court Rules not having opportunity to interact with persons for whom they are charged with the duty to render legal aid. It is unnecessary to advert to precedents. The sweep of the right to life under Article 21 certainly takes in the right for legal aid and advice in such matters where the accused is facing a sentence of death/life. Specific reference to precedents may appear to be unnecessary. However, we take note of the classic decision of the three Judges Bench in Madhav v. State of Maharashtra, 1978 AIR(SC) 1548. Article 39 (A), it has been held is an interpretative tool for Article 21. Right to life would be rendered meaningless unless a person in disadvantaged circumstances, like the accused herein, is given legal aid not merely in a procedural sense but in the full substantive concept. We may also refer to the latest decision on the point , by two Judges Bench in Mohd. Hussain alias Julfikar Ali v. State, 2012 AIR(SC) 750 (Govt. of NCT), Delhi. It is unnecessary to expatiate on the right to legal assistance as it is so fundamental and basic in our system of law that an indictee is entitled to legal aid at all levels.

(3.) It is of course true that in all cases where the indictees are unrepresented before this Court, the Court invokes the power under Rule 183 of the Kerala High Court Rules and ensures that the services of a counsel is made available to such indictees. But at a practical level and in a realistic sense we find only literal and not substantive compliance with the laudable mandate of law. Some of such indictees contact the counsel through their relatives and the counsel has some meager indirect instructions in the matter. But in the bulk of cases, we do note that the counsel appointed under Rule 183 have only acquaintance with the relevant records. They do not have, and surprisingly according to us, they do not claim, opportunity for effective interaction with the persons on whose behalf they appear and make submissions before Court. If a prisoner does not have the opportunity to interact with his counsel, we need only mention that such legal aid/advice is empty, meaningless and hollow. That would be gross disservice to the laudable mandate under Articles 21 and 39(A) of the Constitution, Section 304 of the Code of Criminal Procedure and Rule 183 of the Kerala High Court Rules. We have no hesitation to agree that this unfortunate state of affairs must be altered and changed. Before every counsel appointed under S. 304 Cr.P.C. or under Rule 183 of the Kerala High Court Rules stands up to advance arguments before the Court concerned, we want them to interact with the persons for whom they are supposed to render legal aid. Without such instructions from the client and interaction between client and the lawyer, the concept of legal aid and assistance would be rendered meaningless. We therefore, feel that specific directions ought to be issued to remedy this malady which is occurring before us every day when such appeals/DSRs are taken up for consideration.