BRIJESH KUMAR versus STATE OF UTTAR PRADESH, THROUGH ITS SECRETARY on 22 March 2021

[2021] 2 S.C.R. 995

BRIJESH KUMAR

v.

STATE OF UTTAR PRADESH, THROUGH ITS SECRETARY

(Special Leave Petition (Criminal) No.773 of 2020)

MARCH 22, 2021

[MOHAN M. SHANTANAGOUDAR ANDAJAY RASTOGI, JJ.]

Legal Services Authorities Act, 1987 – Counsel for thePetitioner in this matter was appointed as amicus curiae for thePetitioner – He brought attention to the Court that in this, as well asother matters he was appointed as amicus curiae, he was onlyprovided with the copies of the impugned judgment and the trialCourt judgment preceding it, severely hampering effectiverepresentation – Held: This, from the frequent grievances raised byadvocates appearing, seems to be reflective of a general practice,particularly in criminal matters – This practice only serves tohandicap those advocates who seek to do a commendable serviceto the legal institutions by offering themselves as legal aid lawyersand amicus curiae for the cause of those otherwise unrepresented– In the absence of being provided with the full record of a particularmatter, the promise of “free and competent legal services” made bythe 1987 Act can only remain unfulfilled for those in the greatestneed for justice and representation – For better and more effectivelegal representation, following directions are issued: a) TheSecretary, National Legal Services Authority shall, with immediateeffect, instruct all concerned authorities under the 1987 Act to makeavailable all documents (along with official translations) pertainingto a matter to the concerned legal aid counsel; b) The SupremeCourt Legal Services Committee, and all the High Court and TalukLegal Services Committees are also instructed to ensure that thelegal aid counsel is provided all relevant records of the matter (alongwith official translations of any documents in vernacular language);c) By way of ample caution, this Court also clarifies that thesedocuments would include, but are not limited to, pleadings, affidavits,applications filed in civil proceedings; and the First InformationReport, Charge Sheet and annexed documents including witness

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Astatements, record of the trial proceedings, testimonies, and exhibitsbrought on record in criminal proceedings.

Rakesh v. State of Madhya Pradesh, (2011) 12 SCC513; Shaik Mukthar & anr. v. State of Andhra Pradesh,(2020) SCC OnLine SC 1091 – referred to.

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Case Law Reference

(2011) 12 SCC 513

referred toPara 6

CRIMINAL APPELLATE JURISDICTION: Special LeavePetition (Criminal) No.773 of 2020

CFrom the Judgment and Order dated 29.08.2018 of the High Courtof Judicature at Allahabad in Jail Appeal No.3220 of 2011.

Gagan Gupta, Adv. for the Appellant.

The Order of the Court was passed by

DMOHAN M. SHANTANAGOUDAR, J.

On merits, we have heard the learned amicus curiae on the matterand gone through the material on record. The Trial Court as well as theHigh Court have gone into, in detail, and meticulously examined materialon record, and came to the conclusion that the Petitioner be convicted.EThe Petitioner is a habitual offender. He is involved in robbery, murdercases, etc. We have also gone through the material on record and we donot find any ground to interfere in the impugned judgments. Hence, theSpecial Leave Petition fails and is dismissed.

2. However, before parting with the matter, we want to makeFcertain observations based on the submissions repeatedly made by thelearned advocate representing the Legal Services Authority both in civiland criminal matters. Generally, reputed advocates are being appointedas advocates for the Legal Services Authority or amicus curiae. Theyfeel handicapped as they are not making any grievance against theAuthority except the grievance that they are not provided with necessaryGassistance to effectively represent the matter. In this context, we wantto make certain observations as under:-

3. The right to legal representation sits at the core of not only theright to life and liberty conferred by Article 21 of the Constitution, but atthe very foundation of the entirety of our justice system, be it civil orH

criminal. For this right to be meaningful, it is imperative that it does notmake distinctions between the rich and the poor, the haves and have-nots. The right to legal representation, as necessitated by the demandsof justice and equity, must be unfazed by the economic class or financialresources of the accused.

4. To this end was enacted the Legal Services Authorities Act,1987 (hereinafter, ‘1987 Act’), setting for itself the following object andpurpose:

“…to provide free and competent legal services to the weakersections of the society, to ensure that opportunities for securingjustice are not denied to any citizen by reason of economic orother disabilities, and to organise Lok Adalats to secure that theoperation of the legal system promotes justice on a basis of equalopportunity.”

5. Having secured for itself the above hallowed purpose, the Acthas created a nationwide network of Legal Services Authorities (at thenational, state, district, and taluk level) for framing policies for legal aidand services, as well as a network of Legal Services Committees (withinthe Supreme Court, the High Court, and the taluk level) for the on-ground implementation of the legal services programme at various levels.

6. In further recognition of the need to fill a dire gap in access tojustice for the poor, it has also become a well-settled position that, thatwhere an accused comes before the Court without legal representation,the Court is duty-bound to either appoint an amicus curiae or refer himto the appropriate Legal Services Committee who shall then appoint anadvocate to represent the accused (Rakesh v. State of MadhyaPradesh, (2011) 12 SCC 513; Shaik Mukthar & anr. v. State of AndhraPradesh, (2020) SCC OnLine SC 1091).

7. The above developments mark significant leaps forward inmaking justice accessible to each Indian citizen. However, the presentmatter has brought to our notice a disconcerting trend in the workings oflegal aid institutions.

8. Learned Counsel for the Petitioner in this matter, Mr. GaganGupta, was appointed as amicus curiae for the Petitioner herein, videletter from the Assistant Registrar, Supreme Court dated 3.12.2019. Mr.

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AGupta has brought to our attention that in this, as well as other mattershe was appointed as amicus curiae, he was only provided with thecopies of the impugned judgment and the trial court judgment precedingit, severely hampering effective representation. This, from the frequentgrievances raised by advocates appearing before us, seems to bereflective of a general practice, particularly in criminal matters.B

9. This practice only serves to handicap those advocates whoseek to do a commendable service to our legal institutions by offeringthemselves as legal aid lawyers and amicus curiae for the cause ofthose otherwise unrepresented. In the absence of being provided withthe full record of a particular matter, the promise of “free and competentClegal services” made by the 1987 Act can only remain unfulfilled forthose in the greatest need for justice and representation. The right tolegal representation must, if it is to mean anything, encapsulate the rightto effective legal representation.

10. Thus, to ensure that the great progress we have made inDestablishing legal aid institutions does not remain a paper tiger in thestruggle against unequal access to justice, we direct as follows:-

a. The Secretary, National Legal Services Authority shall, withimmediate effect, instruct all concerned authorities under the 1987Act to make available all documents (along with officialEtranslations) pertaining to a matter to the concerned legal aidcounsel.

b. The Supreme Court Legal Services Committee, and all theHigh Court and Taluk Legal Services Committees are alsoinstructed to ensure that the legal aid counsel is provided all relevantFrecords of the matter (along with official translations of anydocuments in vernacular language).

c. By way of ample caution, we also clarify that these documentswould include, but are not limited to, pleadings, affidavits,applications filed in civil proceedings; and the First InformationGReport, Charge Sheet and annexed documents including witnessstatements, record of the trial proceedings, testimonies, and exhibitsbrought on record in criminal proceedings.

11. It is our expectation that these directions will be complied withimmediately and the status quo changed for better and more effectiveHlegal representation.

BRIJESH KUMAR v. STATE OF UTTAR PRADESH, THROUGH ITSSECRETARY [MOHAN M. SHANTANAGOUDAR, J.]

12. A copy of this order is directed to be served by the Registry ofthis Court on the National Legal Services Authority and all the StateLegal Services Authorities for necessary action.

13. Pending application(s), if any, stands disposed of accordingly.

Ankit Gyan

Directions issued.

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