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Gulshan Prakash v. State of Haryana (2010) 1 SCC477

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Gulshan Prakash v. State of Haryana (2010) 1 SCC 477||Case Summary  Introduction  In this appeal, the Court has interpreted Article 15(4) of the Fundamental Right. It has been added by the 1st Amendment Act, of 1951. Facts The State of Haryana instructed Maharshi Dayanand University (MDU), Rohtak to conduct entrance examination for MD/MS/PG courses for the Session 2008-2009. The appellant made a representation to the Health Secretary for providing reservation for SC and ST in the Post Graduate courses, Since there was no response from the Health Secretary the Appellant filed a petition in the High Court.  The High Court dismissed the petition of the appellant therefore the appellant approached the Supreme Court by Special Leave Petition under Article 136. Appellant Contentions  MDU, Rohtak has provided 20% reservation for the graduate level courses or undergraduate courses therefore the said University should also provide reservation in for the PG courses.  The Government o
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Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012)

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Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012) Case Summary

Facts 

  1. Ajmal Kasab, a Pakistani national and a member of the terrorist organisation named "Lashkar-e-Taiba", came to India with 9 others. He carried 12 coordinated shooting and bombing attacks which lasted for four days till 29 Nov 2008 across Mumbai resulting in the death of a total of 175 people with more than 300 injured.
  2. After his arrest, he refused to take the services of Indian lawyers and demanded a lawyer from his country.
  3. Later on, getting no help from his country, the appellant was convinced to be represented by Indian lawyers. This appeal was raised against the order of the High Court which upheld the conviction order of the Trial Court.
  4. The Trial Court relying on the evidences, witnesses and his confessional statement convicted him and sentenced him to death.

Contentions of the Appellant's Counsel

  1. Fair trial is an essential right of every person, which includes the right to be represented by a lawyer. In this case, it was the refusal of the constitutional rights provided by Article 22(1) i.e., the right to counsel or representation by lawyers of his choice at the earliest.

Contentions of the Respondent's Counsel

  1. The right under Article 22(1) can only be invoked at the stage of commencement of trial.

Main Issue 

  1. Whether it is the violation of fair trial and Article 22 (1) of the Constitution in the present case by not providing a lawyer of his choice at the pre-trial stage.
  2. What is the legal consequence of not providing a lawyer of his choice to an accused?

Court Observation

  1. Constitutional and statutory development clearly indicates that legal aid has developed and also continues to develop as per time.
    1. Article 22(1) is available from the commencement of the Constitution (26 Nov 1950) which talks about the right of an arrested person to consult a legal practitioner of his choice. 
    2. Section 304 (CRPC) which came in 1973 also says to provide legal aid at State expense where the accused is not represented by a pleader or does not have sufficient source to engage a pleader. 
    3. Article 39A inserted in the Constitution by the 42nd Amendment Act, 1976 as part of the “Directive Principles of the State Policy" similarly says to provide free legal aid to promote justice.
    4. Under Article 39A, Parliament enacted the Legal Service Authority Act, 1987 to pass equal opportunity to represent and to promote justice along with free legal assistance.
  2. In the famous case 'Hussainara Khatoon v. State of Bihar, 1980 the Court observed that the right to free legal aid is the essential ingredient of a reasonable, fair and just procedure, it is part of  Article 21 (Fundamental Right) of the Constitution. 
  3. In the case 'Khatri, 1981' also the Court similarly observed that:- 
    1. the right to free legal aid is an essential ingredient of due process which is included in the right to life and personal liberty under Article 21. 
    2. This right is not limited to the stage of trial but also can be enforced at the stage when the accused is first produced before the Magistrate because his personal liberty comes at stake soon after his arrest.
    3. Also, it is the duty of the Magistrate or the Session Judge to inform the accused of this right to get free legal aid.
  4. Failure to provide legal counsel at the pre-trial stage will make the Magistrate liable for disciplinary proceedings or the accused will have a right to get compensation from the State. Also, it can vitiate the trial if such failure to provide legal aid causes prejudice to the accused.
  5. Failure to provide legal counsel at the commencement of the trial would vitiate the trial and the resultant conviction and sentence.

Decision 

  1. The Court held that the right to consult with a lawyer of own choice does not arise by the commencement of the trial but it begins when the accused is for the first time present before the Magistrate within 24 hours of the arrest as it is the first step where the accused get first opportunity to apply for bail and where he can be remand in judicial custody.
  2. In the present case, it has been seen that the accused himself refused to accept the service of an Indian Lawyer and demanded a Pakistani lawyer. His demand was impossible to fulfil when Pakistan refused to accept him as a citizen. Therefore it is no violation of fair trial.
  3. Appeal Dismissed. 

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Ashbury Railway Carriage and Iron Co. Ltd. v. Riche (1875)

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