Brijesh Kumar vs The State Of Uttar Pradesh Secretary

2021 INSC 197 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. 773 OF 2020

BRIJESH KUMAR …PETITIONER(S)

VERSUS

STATE OF UTTAR PRADESH, …RESPONDENT(S) THROUGH ITS SECRETARY

O R D E R

MOHAN M. SHANTANAGOUDAR, J. :

On merits, we have heard the learned amicus curiae on the

matter and gone through the material on record. The Trial Court as

well as the High Court have gone into, in detail, and meticulously

examined material on record, and came to the conclusion that the

Petitioner be convicted. The Petitioner is a habitual offender. He is

involved in robbery, murder cases, etc. We have also gone through the

material on record and we do not find any ground to interfere in the

impugned judgments. Hence, the Special Leave Petition fails and is

dismissed.

2. However, before parting with the matter, we want to make certain

observations based on the submissions repeatedly made by the 2

learned advocate representing the Legal Services Authority both in

civil and criminal matters. Generally, reputed advocates are being

appointed as advocates for the Legal Services Authority or amicus

curiae. They feel handicapped as they are not making any grievance

against the Authority except the grievance that they are not provided

with necessary assistance to effectively represent the matter. In this

context, we want to make certain observations as under:­

3. The right to legal representation sits at the core of not only the

right to life and liberty conferred by Article 21 of the Constitution, but

at the very foundation of the entirety of our justice system, be it civil

or criminal. For this right to be meaningful, it is imperative that it

does not make distinctions between the rich and the poor, the haves

and have­nots. The right to legal representation, as necessitated by

the demands of justice and equity, must be unfazed by the economic

class or financial resources of the accused.

4. To this end was enacted the Legal Services Authorities Act, 1987

(hereinafter, ‘1987 Act’), setting for itself the following object and

purpose:

“…to provide free and competent legal services to the weaker sections of the society, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.” 3

5. Having secured for itself the above hallowed purpose, the Act has

created a nationwide network of Legal Services Authorities (at the

national, state, district, and taluk level) for framing policies for legal

aid and services, as well as a network of Legal Services Committees

(within the Supreme Court, the High Court, and the taluk level) for the

on­ground implementation of the legal services programme at various

levels.

6. In further recognition of the need to fill a dire gap in access to

justice for the poor, it has also become a well­settled position that,

that where an accused comes before the Court without legal

representation, the Court is duty­bound to either appoint an amicus

curiae or refer him to the appropriate Legal Services Committee who

shall then appoint an advocate to represent the accused (Rakesh v.

State of Madhya Pradesh, (2011) 12 SCC 513; Shaik Mukthar &

anr. v. State of Andhra Pradesh, (2020) SCC OnLine SC 1091).

7. The above developments mark significant leaps forward in

making justice accessible to each Indian citizen. However, the present

matter has brought to our notice a disconcerting trend in the workings

of legal aid institutions.

8. Learned Counsel for the Petitioner in this matter, Mr. Gagan 4

Gupta, was appointed as amicus curiae for the Petitioner herein, vide

letter from the Assistant Registrar, Supreme Court dated 3.12.2019.

Mr. Gupta has brought to our attention that in this, as well as other

matters he was appointed as amicus curiae, he was only provided with

the copies of the impugned judgment and the trial court judgment

preceding it, severely hampering effective representation. This, from

the frequent grievances raised by advocates appearing before us,

seems to be reflective of a general practice, particularly in criminal

matters.

9. This practice only serves to handicap those advocates who seek

to do a commendable service to our legal institutions by offering

themselves as legal aid lawyers and amicus curiae for the cause of

those otherwise unrepresented. In the absence of being provided with

the full record of a particular matter, the promise of “free and

competent legal services” made by the 1987 Act can only remain

unfulfilled for those in the greatest need for justice and representation.

The right to legal representation must, if it is to mean anything,

encapsulate the right to effective legal representation.

10. Thus, to ensure that the great progress we have made in

establishing legal aid institutions does not remain a paper tiger in the

struggle against unequal access to justice, we direct as follows:­ 5

a. The Secretary, National Legal Services Authority shall,

with immediate effect, instruct all concerned authorities

under the 1987 Act to make available all documents (along

with official translations) pertaining to a matter to the

concerned legal aid counsel/amicus curiae.

b. The Supreme Court Legal Services Committee, and all the

High Court and Taluk Legal Services Committees are also

instructed to ensure that the legal aid counsel/amicus

curiae is provided all relevant records of the matter (along

with official translations of any documents in vernacular

language).

c. By way of ample caution, we also clarify that these

documents would include, but are not limited to, pleadings,

affidavits, applications filed in civil proceedings; and the

First Information Report, Charge Sheet and annexed

documents including witness statements, record of the trial

proceedings, testimonies, and exhibits brought on record in

criminal proceedings.

11. It is our expectation that these directions will be complied with

immediately and the status quo changed for better and more effective

legal representation.

6

12. A copy of this order is directed to be served by the Registry of this

Court on the National Legal Services Authority and all the State Legal

Services Authorities for necessary action.

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

…..…………................................J. (MOHAN M. SHANTANAGOUDAR)

…………………………………………J. (AJAY RASTOGI)

NEW DELHI, MARCH 22, 2021 7

ITEM NO.12 Court 9 (Video Conferencing) SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 773/2020

(Arising out of impugned final judgment and order dated 29-08-2018 in JA No. 3220/2011 passed by the High Court Of Judicature At Allahabad)

BRIJESH KUMAR Petitioner(s)

VERSUS STATE OF UTTAR PRADESH, …Respondent(s) THROUGH ITS SECRETARY

(FOR ADMISSION and IA No.16713/2020-EXEMPTION FROM FILING O.T. )

Date : 22-03-2021 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR HON'BLE MR. JUSTICE AJAY RASTOGI

For Petitioner(s) Mr. Gagan Gupta, AOR

For Respondent(s)

UPON hearing the counsel the Court made the following O R D E R

The Special Leave Petition is dismissed in terms of the

reportable signed order.

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

(ASHWANI KUMAR) (R.S. NARAYANAN) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

(Signed reportable order is placed on the file)