Case Summary
| Citation | Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1 |
| Keywords | terrorists, fair trail, injustice, Indian and Pakistan advocate, Taj hotel attack |
| Facts | This case is concerned with the imposition of the death penalty for one of the convicted terrorists in association with the “Mumbai Terror Attack’’ at the different places where all the 10 terrorists were divided into groups and had targeted at each place which were CST station, Taj and Oberoi Hotel, Leopard café, Nariman House. This culminated in the murder of 166 people and the injury of a further 238 people, sometimes grievously. Policemen, military officials and foreign nationals were among the casualties. The property loss was estimated at over U.S. $ 1.5 billion. He was convicted under 302/307, 120B,121,121A IPC. Initially no lawyer agreed to represent the Ajmal Kasab as his client before the Court, and Kasab also denied all the services provided by the India and demanded the lawyer from his Country. Pakistan even did not accept the Kasab as his citizen and Kasab then accepted a lawyer from India. |
| Issues | Whether Article 22(1) comes into force only on the commencement of the trial as provided under Section 304, CrPC? Whether not providing a lawyer as per the choice of the accused person is violation of the accused’s fundamental rights under the Indian Constitution?Observations |
| Contentions | Mr. Ramachandran argued from the appellant said: The appellant was not informed his constitutional right to counsel under Article 22(1) of the Constitution, at the time of his arrest and remand proceedings and Right against self-incrimination under Article 20(3) of the Constitution when his confession was recorded. The appellant didn’t get chance of fair trial, which is the fundamental right under Article 21 of Indian constitution. That a mere offer of legal aid is not enough, and the appellant should have been made aware of his Constitutional right to consult and be defended by a legal practitioner. Mr. Subramanium learned counsel from the state said: That all Constitutional Rights of the appellant, including the right to consult with the lawyer and protection against self-incrimination, were fully upheld during the trial, it is incorrect to say that the trial was unfair. That the right to legal assistance under Article22 (1) is not a mandatory right upon arrest, but rather an option that can be exercised by the person who has been arrested.That the right against self-incrimination under Article 20(3) does not prohibit voluntary statements made by a person of their own free will. That the section 304 Cr.P.C allows for the assignment of a pleader to the accused for defence in a trial before the Court of Session if the accused cannot afford a pleader. The effectiveness of the right to legal aid happen only at the stage of trial. |
| Law Points | Ajmal Kasab was involved in a pre-planned conspiracy to carry out the terror attack in Mumbai, and he was found guilty of multiple offenses, including murder, attempted murder, and other acts of terrorism. The court also noted that the attack was an act of waging war against India, which posed a grave threat to the security and sovereignty of the country. The Court said that the right to defend does not arise only at the time of commencement of the trial but also when the accused is present before the Magistrate as he is remanded from time to time. The Magistrate is under obligation to inform the accused about his right to free legal aid just before the accused was produced. The right to access legal aid to consult and to be defended by a legal practitioner arises when a person arrested in connection with a cognizable offence is first produced before a Magistrate. The right to free legal services is clearly essential for the reasonable, fair and just procedure for a person accused. The Court further said it is the constitutional duty of the Court to provide the lawyer to the accused even if he doesn’t ask for the lawyer. |
| Judgement | The Court concluded that as the accused refused to accept the lawyers provided by the India and demand for the Pakistan lawyer, but it was unacceptable because Pakistan did not even consider him as its citizen.And when he asked for the lawyer, the two lawyers were provided to him, hence there is no violation of the fundamental rights of the appellant under Constitution of India, 1950.The SC also upheld the decisions of the Trial Court and accused was hanged to death in complete secrecy on 21st Nov 2012 at 7:30 AM at Yerwada jail in Pune. |
| Ratio Decidendi & Case Authority |
Full Case Details
Aftab Alam, J.: 401. Proceeding from the premise that fair trial is an inalienable right of
every person, Mr Ramachandran submitted that in case of the appellant the constitutional
guarantee remained unsatisfied because of denial to him of two valuable constitutional
rights/protections: first, the right to counsel at the earliest, as provided under Article 22(1) of
the Constitution; and secondly, the right to protection against self-incrimination as stipulated
by Article 20(3) of the Constitution.
459. But on the issue of the right of the suspect or the accused to be represented by a lawyer,
we find Mr Subramanium’s submissions equally unacceptable. Mr Subramanium contends that
Article 22(1) merely allows an arrested person to consult a legal practitioner of his choice and
the right to be defended by a legal practitioner crystallises only at the stage of commencement
of the trial in terms of Section 304 CrPC. We feel that such a view is quite incorrect and
insupportable for two reasons. First, such a view is based on an unreasonably restricted
construction of the constitutional and statutory provisions; and second, it overlooks the socioeconomic realities of the country.
460. Article 22(1) was part of the Constitution as it came into force on 26-1-1950. The
Criminal Procedure Code, 1973 (2 of 1974), that substituted the earlier Code of 1898, came
into force on 1-4-1974. The Criminal Procedure Code, as correctly explained by Mr
Subramanium in his submissions, incorporated the constitutional provisions regarding the
protection of the accused against self-accusation. The Criminal Procedure Code also had a
provision in Section 304 regarding access to a lawyer, to which Mr Subramanium alluded in
support of his submission that the right to be defended by a legal practitioner would crystallise
only on the commencement of the trial.
461. But the Constitution and the body of laws are not frozen in time. They comprise an
organic structure developing and growing like a living organism. We cannot put it better than
in the vibrant words of Justice Vivian Bose, who, dealing with the incipient Constitution
in State of W.B. v. Anwar Ali Sarkar [AIR 1952 SC 75] made the following observations: (AIR
p. 103, para 85)
“85. I find it impossible to read these portions of the Constitution without regard to the
background out of which they arose. I cannot blot out their history and omit from
consideration the brooding spirit of the times. They are not just dull, lifeless words static
and hidebound as in some mummified manuscript, but living flames intended to give life to
a great nation and order its being, tongues of dynamic fire, potent to mould the futureas well
as guide the present. The Constitution must, in my judgment, be left elastic enough to meet
from time to time the altering conditions of a changing world with its shifting emphasis and
differing needs. I feel therefore that in each case Judges must look straight into the heart of
things and regard the facts of each case concretely much as a jury would do; and yet, not
quite as a jury, for we are considering here a matter of law and not just one of fact: Do these
‘laws’ which have been called in question offend a still greater law before which even they
must bow?”(emphasis supplied)
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462. In the more than four decades that have passed since, true to the exhortation of Justice
Bose, the law, in order to serve the evolving needs of the Indian people, has made massive
progress through constitutional amendments, legislative action and, not least, through the
pronouncements by this Court. Article 39-A came to be inserted in the Constitution by the
Constitution (Forty-second Amendment) Act, 1976 with effect from 3-1-1977 as part of the
“Directive Principles of the State Policy”. The Article reads as under:
“39-A. 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.”
463. In furtherance to the ideal of Article 39-A, Parliament enacted the Legal Services
Authorities Act, 1987, that came into force from 9-11-1995. The Statement of Objects and
Reasons of the Act, insofar as relevant for the present, reads as under:
“Article 39-A of the Constitution provides that 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.”(emphasis added)
464. Sections 12 and 13 in Chapter IV of the Act deal with entitlement to legal services,
and provide for legal services under the Act to a very large class of people, including members
of the Scheduled Castes and the Scheduled Tribes, women and children and persons in receipt
of annual income less than rupees nine thousand (Rs 9000) if the case is before a court other
than the Supreme Court, and less than rupees twelve thousand (Rs 12,000) if the case is before
the Supreme Court. As regards income, an affidavit made by the person concerned would be
regarded as sufficient to make him eligible for entitlement to legal services under the Act. In
the past seventeen (17) years since the Act came into force, the programme of legal aid had
assumed the proportions of a national movement.
465. All this development clearly indicates the direction in which the law relating to access
to lawyers/legal aid has developed and continues to develop. It is now rather late in the day to
contend that Article 22(1) is merely an enabling provision and that the right to be defended by
a legal practitioner comes into force only on the commencement of trial as provided under
Section 304 CrPC.
466. And this leads us to the second ground for not accepting Mr Subramanium’s
submission on this issue. Mr Subramanium is quite right and we are one with him in holding
that the provisions of CrPC and the Evidence Act fully incorporate the constitutional
guarantees, and that the statutory framework for the criminal process in India affords the fullest
protection to personal liberty and dignity of an individual. We find no flaws in the provisions
in the statute books, but the devil lurks in the faithful application and enforcement of those
provisions. It is common knowledge, of which we take judicial notice, that there is a great hiatus
between what the law stipulates and the realities on the ground in the enforcement of the law.
The abuses of the provisions of CrPC are perhaps the most subversive of the right to life and
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personal liberty, the most precious right under the Constitution, and the human rights of an
individual. Access to a lawyer is, therefore, imperative to ensure compliance with statutory
provisions, which are of high standards in themselves and which, if duly complied with, will
leave no room for any violation of constitutional provisions or human rights abuses.
467. In any case, we find that the issue stands settled long ago and is no longer open to a
debate. More than three decades ago, in Hussainara Khatoon (4) v. State of Bihar [(1980) 1
SCC 98] , this Court referring to Article 39-A, then newly added to the Constitution, said that
the article emphasised that free legal aid was an unalienable element of a “reasonable, fair and
just” procedure, for without it a person suffering from economic or other disabilities would be
deprived from securing justice. In para 7 of the judgment the Court observed and directed as
under: (SCC p. 105)
“7. … 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
require, provided of course the accused person does not object to the provision of such
lawyer. We would, therefore, direct that on the next remand dates, when the undertrial
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, provided that no objection is raised to such lawyer on behalf of such
undertrial prisoners and if any application for bail is made, the Magistrates should dispose
of the same in accordance with the broad outlines set out by us in our judgment dated 12-2-
1979 [Hussainara Khatoon (1) v.State of Bihar, (1980) 1 SCC]. The State Government will
report to the High Court of Patna its compliance with this direction within a period of six
weeks from today.”
468. Two years later, in Khatri (2) [(1981) 1 SCC 627] relating to the infamous case of
blinding of prisoners in Bihar, this Court reiterated that the right to free legal aid is an essential
ingredient of due process, which is implicit in the guarantee of Article 21 of the Constitution.
In para 5 of the judgment, the Court said: (SCC p. 631)
“5. … This Court has pointed out in Hussainara Khatoon (4) case [(1980) 1 SCC 98]
which was decided as far back as 9-3-1979 that the right to free legal services is 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 and the State is under a
constitutional mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so require, provided of course the accused person does not
object to the provision of such lawyer.”(emphasis supplied)
469. Then, brushing aside the plea of financial constraint in providing legal aid to an
indigent, the Court went on to say: [Khatri (2) case [(1981) 1 SCC 627, pp. 631-32, para 5]
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“5. … Moreover, this constitutional obligation to provide free legal services to an
indigent accused does not arise only when the trial commences but also attaches when the
accused is for the first time produced before the Magistrate. It is elementary that the
jeopardy to his personal liberty arises as soon as a person is arrested and produced before
a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and
obtain his release as also to resist remand to police or jail custody. That is the stage at
which an accused person needs competent legal advice and representation and no
procedure can be said to be reasonable, fair and just which denies legal advice and
representation to him at this stage. We must, therefore, hold that the State is under a
constitutional obligation to provide free legal services to an indigent accused not only at
the stage of trial but also at the stage when he is first produced before the Magistrate as
also when he is remanded from time to time.”(emphasis supplied)
470. In para 6 of the judgment, this Court further said: [Khatri (2) case [(1981) 1 SCC 627,
p. 632, para 6]
“6. But even this right to free legal services would be illusory for an indigent accused
unless the Magistrate or the Sessions Judge before whom he is produced informs him of
such right. … The Magistrate or the Sessions Judge before whom the accused appears must
be held to be under an obligation to inform the accused that if he is unable to engage the
services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal
services at the cost of the State. … We would, therefore, direct the Magistrates and Sessions
Judges in the country to inform every accused who appears before them and who is not
represented by a lawyer on account of his poverty or indigence that he is entitled to free
legal services at the cost of the State. Unless he is not willing to take advantage of the free
legal services provided by the State, he must be provided legal representation at the cost of
the State.”(emphasis added)
471. The resounding words of the Court in Khatri (2) [(1981) 1 SCC 627] are equally, if
not more, relevant today than when they were first pronounced. In Khatri (2) [(1981) 1 SCC
627] the Court also alluded to the reasons for the urgent need of the accused to access a lawyer,
these being the indigence and illiteracy of the vast majority of Indians accused of crimes.
472. As noted in Khatri (2) [(1981) 1 SCC 627] as far back as in 1981, a person arrested
needs a lawyer at the stage of his first production before the Magistrate, to resist remand to
police or jail custody and to apply for bail. He would need a lawyer when the charge-sheet is
submitted and the Magistrate applies his mind to the charge-sheet with a view to determine the
future course of proceedings. He would need a lawyer at the stage of framing of charges against
him and he would, of course, need a lawyer to defend him in trial.
473. To deal with one terrorist, we cannot take away the right given to the indigent and
underprivileged people of this country by this Court thirty-one (31) years ago.
474. We, therefore, have no hesitation in holding that the right to access to legal aid, to
consult and to be defended by a legal practitioner, arises when a person arrested in connection
with a cognizable offence is first produced before a Magistrate. We, accordingly, hold that it is
the duty and obligation of the Magistrate before whom a person accused of committing a
cognizable offence is first produced to make him fully aware that it is his right to consult and
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be defended by a legal practitioner and, in case he has no means to engage a lawyer of his
choice, that one would be provided to him from legal aid at the expense of the State. The right
flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We,
accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty
and obligation and further make it clear that any failure to fully discharge the duty would
amount to dereliction in duty and would make the Magistrate concerned liable to departmental
proceedings.
475. It needs to be clarified here that the right to consult and be defended by a legal
practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during
police interrogation. According to our system of law, the role of a lawyer is mainly focused on
court proceedings. The accused would need a lawyer to resist remand to police or judicial
custody and for granting of bail; to clearly explain to him the legal consequences in case he
intended to make a confessional statement in terms of Section 164 CrPC; to represent him when
the court examines the charge-sheet submitted by the police and decides upon the future course
of proceedings and at the stage of the framing of charges; and beyond that, of course, for the
trial. It is thus to be seen that the right to access to a lawyer in this country is not based on
the Miranda [(1966) 16 L Ed 2d 694 : 384 US 436] principles, as protection against selfincrimination, for which there are more than adequate safeguards in Indian laws. The right to
access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution
and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in
practice.
476. At this stage the question arises, what would be the legal consequence of failure to
provide legal aid to an indigent who is not in a position, on account of indigence or any other
similar reasons, to engage a lawyer of his own choice?
477. Every accused unrepresented by a lawyer has to be provided a lawyer at the
commencement of the trial, engaged to represent him during the entire course of the trial. Even
if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the
court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the court, in clear and unambiguous words, that he does
not want the assistance of any lawyer and would rather defend himself personally, the obligation
to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so
would vitiate the trial and the resultant conviction and sentence, if any, given to the accused
(see Suk Das v. UT of Arunachal Pradesh [(1986) 2 SCC 401] ).
478. But the failure to provide a lawyer to the accused at the pre-trial stage may not have
the same consequence of vitiating the trial. It may have other consequences like making the
delinquent Magistrate liable to disciplinary proceedings, or giving the accused a right to claim
compensation against the State for failing to provide him legal aid. But it would not vitiate the
trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted
in some material prejudice to the accused in the course of the trial. That would have to be judged
on the facts of each case.
485. The appellant’s refusal to accept the services of an Indian lawyer and his demand for
a lawyer from his country cannot be anything but his own independent decision. The demand
for a Pakistani lawyer in those circumstances, and especially when Pakistan was denying that
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the appellant was even a Pakistani citizen, might have been impractical, even foolish, but the
man certainly did not need any advice from an Indian court or authority as to his rights under
the Indian Constitution. He was acting quite independently and, in his mind, he was a “patriotic”
Pakistani at war with this country.
486. On 23-3-2009, the appellant finally asked for a lawyer, apparently convinced by then
that no help would come from Pakistan or anywhere else. He was then immediately provided
with a set of two lawyers.
487. In the aforesaid facts we are firmly of the view that there is no question of any violation
of any of the rights of the appellant under the Indian Constitution. He was offered the services
of a lawyer at the time of his arrest and at all relevant stages in the proceedings. We are also
clear in our view that the absence of a lawyer at the pre-trial stage was not only as per the wishes
of the appellant himself, but that this absence also did not cause him any prejudice in the trial.
