Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih laid down directions regarding public prosecutors and legal aid lawyers.             

• The Supreme Court held this in the case of Ashok v. State of Uttar Pradesh. 

What was the Background of Ashok v. State of Uttar Pradesh Case?  

• On the morning of 27th May 2009, a tragic incident unfolded in a rural pasture area involving a 10-year-old girl and a tubewell operator. 
• The girl had gone to graze goats with her seven-year-old first cousin when she became thirsty and approached the tubewell cabin to request drinking water from the appellant, who was working as the tubewell operator. 
• The prosecution alleges that he raped the young girl and subsequently murdered her. 
• Her seven-year-old cousin reportedly witnessed the appellant forcibly taking her into the cabin. 
• The young cousin narrated the account to the victim’s father who immediately went to the scene from where the accused had fled. 
• There was immediate registration of First Information Report (FIR). 
• The Trial Court convicted the accused under Section 376, Section 302 and Section 201 of Indian Penal Code, 1860 (IPC) and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 
• The High Court sentenced the appellant to life imprisonment with provisions for potential remission or clemency by constitutional authorities.  
• The Supreme Court granted bail to the appellant on 20th May 2022, after carefully noting that he had already undergone actual incarceration for approximately 13 years. 
• Throughout the proceedings the court appointed experienced legal counsel to ensure proper representation and fair hearing of the case. 

What were the Court’s Observations?

• The Court observed that the evidence of the seven-year-old cousin cannot be said to be of sterling quality. Thus, the Court considered several circumstantial evidence as well. 
• The following evidence were considered and analyzed by the Court: 
  • The recovery statement under Section 27 of the Indian Evidence Act, 1872 (IEA) was not accepted in this case as it was doubtful. 
  • There was a failure by the Court to put incriminating circumstances before the accused while examining him under Section 313 of the Criminal Procedure Code, 1973 (CrPC). The Apex Court held that failure to put incriminating circumstances before the accused under Section 313 of CrPC entitles him to acquittal. 
• The Court further observed that a public prosecutor has to play an active role in ensuring that every trial is conducted in a fair manner. 
• The Court also observed that the accused for deprived of his right to proper legal aid. 
• Thus, the Court acquitted the appellants of the offences alleged against him.

What are the Directions Given by the Court Regarding the Role of the Public Prosecutor and Appointment of Legal Aid Lawyers? 

• The Court laid down the following directions in this case: 
  • It is the duty of the Court to ensure that proper legal aid is provided to an accused.  
  • It is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully. Thus, if the 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. 
  • Guarantee that the accused is not left without legal representation. 
    • Before framing charges or recording prosecution witness testimony, the court must ensure the accused has access to legal aid. 
    • The Public Prosecutor is obligated to request the court to halt proceedings until legal representation is offered to the accused. 
    • Even when the accused does not have legal representation, the Public Prosecutor has a mandatory duty to intervene. 
  • Duty to conduct proper examination under Section 313 of CrPC: 
    • The Public Prosecutor is obligated to assist the Trial Court in recording the accused's statement under Section 313 of CrPC. 
    • If the Court fails to address any material circumstance presented against the accused, the Public Prosecutor must proactively bring this to the Court's attention during the accused's examination. 
    • The Public Prosecutor must actively help the Court in formulating appropriate questions to be put to the accused during the examination. 
    • It is the Public Prosecutor's duty to prevent any procedural irregularities or infirmities that might potentially prejudice the accused's legal standing or trial process. 
  • An accused is entitled to free legal aid at all stages, even to file bail petitions. 
  • Duty of the Court to ensure that the accused has proper representation. 
    • It is the duty of the Court to make the accused aware of his right to get fee legal aid at all material stages.  
    • The Trial Court must ensure that a legal aid advocate is appointed to represent the accused. 
  • Quality of Legal aid. 
    • Eligibility for Serious Cases: Advocates with a minimum of 10 years of criminal law practice should be appointed as amicus curiae or legal aid advocates in cases involving life sentences or the death penalty. 
    • Competency Requirement: In other criminal cases, accused persons are entitled to legal aid advocates who have strong legal knowledge and trial experience in criminal law. 
    • Training for Legal Aid Advocates: Legal Services Authorities should provide proper training for newly appointed legal aid advocates. 
    • Mentorship and Practical Experience: Training should include not only lectures but also opportunities for new legal aid advocates to work with senior lawyers in several criminal trials. 
  • Duty of State Legal Services Authority. 
    • 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. 
    • It shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed. 
  • Same legal aid advocate must be continued throughout the process unless there are compelling reasons to not to do so. 
  • In case of offences of serious nature. 
    • In cases involving very serious crimes with complex legal and factual issues, the court can appoint a senior and experienced lawyer, rather than a regular legal aid advocate, to ensure the accused receives the best possible legal representation. 
  • Infringement of Article 21 of COI.  
    • The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India, 1950 (COI).  
    • 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 
  • Legal aid provided must be effective.  
    • Legal aid is not just a formality but must be genuinely meaningful and substantive in protecting the accused's rights. 
    • Lawyers appointed for legal aid must possess:  
      • Comprehensive knowledge of criminal laws. 
      • Strong understanding of evidence laws. 
      • Thorough expertise in procedural laws. 
      • Familiarity with other relevant legal statutes. 
      • The constitutional guarantee of legal aid is meaningful only when the provided legal representation is of high quality and competence. 
    • An ineffective or incompetent legal aid lawyer can fundamentally undermine the accused's legal rights and compromise their fair trial. 
    • Merely appointing a lawyer is insufficient; the appointed advocate must be capable of:  
      • Understanding the case intricacies. 
      • Efficiently conducting the trial. 
      • Effectively defending the accused's interests. 
    • Quality legal aid goes beyond mere representation and requires genuine, skilled, and competent legal advocacy.

What are the Legal Provisions Relating to Legal Aid? 

• Constitutional Provisions: 
  • Article 39A: 
    • Free Legal Aid can be found in the Constitution under Part IV i.e. Directive Principles of State Policy (DPSP).   
    • This has been added by the 42nd Constitutional Amendment.   
    • This provision states that the State 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.   
    • Thus, the above is the constitutional goal.
  • Article 21: 
    • This is a fundamental right from which right to free legal aid emanates as interpreted by the Supreme Court in several judgments. 
    • Article 21 of the COI provides that no person shall be deprived of his right to life and personal liberty except in accordance with procedure established by law.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)/ CrPC: 
  • Section 303 of CrPC or Section 340 of BNSS: 
    • This provision provides for the rights of a person against whom proceedings are instituted to be defended. 
    • It provides that any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. 
  • Section 304 of CrPC or Section 341 of BNSS: 
    • Section 304 of CrPC and Section 341 of BNSS provides for grant of legal aid to an accused free of costs. 
    • Clause (1) of this provision provides that: 
      • Where, in a trial or appeal before a Court. 
      • The accused is not represented by an advocate. 
      • Where it appears to the Court that the accused has not sufficient means to engage an advocate. 
      • The Court shall assign an advocate for his defence at the expense of the State.