Khatri v. State of Bihar (1981)

Hussainara Khatoon established that a legal service programme is a constitutional requirement. The next question is practical and is the one examiners ask: at what point in a criminal case does the State's duty to provide a lawyer begin? If it begins at trial, an accused may spend months in custody, be remanded repeatedly and make statements, all without advice. Khatri — the blinded prisoners case — fixes the moment much earlier and removes the two excuses most often offered for not meeting it.

It matters for this paper in a second way. The Act you study gives legal services to persons in custody under s. 12(g), but the constitutional right stands independently of the Act. Khatri is the authority for that independent right.

The prisoners concerned had not been given legal representation. The magistrates' records showed that none had been asked for: the accused had not applied, and no lawyer had been assigned. The question for the Court was whether the State could justify the absence of representation on that basis, and on the further basis that providing it was beyond its financial and administrative means.

Three holdings, each usable on its own.

1. The State's obligation to provide free legal services to an indigent accused arises not only at the stage of trial but when he is first produced before the Magistrate, and it continues at every remand.
2. The State cannot plead financial or administrative inability as an answer to that obligation.
3. Because an accused who does not know of the right cannot claim it, the Magistrate or Sessions Judge must inform every unrepresented accused that he is entitled to free legal services at State cost.

The Court directed all magistrates and Sessions Judges to give that information, and directed every State to provide such services. The obligation was stated subject to a qualification: the offence must be one which on conviction would result in imprisonment, and one where social justice requires representation.

1. Identify where liberty is actually decided. The first production before a Magistrate and the remands that follow are the stage at which custody is imposed and continued. A right to counsel that attaches only at trial leaves that stage unprotected, and so fails the fairness that Article 21 requires of the procedure.
2. Treat inability to pay as the very mischief. Since the right exists because the accused is poor, the State's own want of funds or machinery cannot be an answer; if it were, the right would be available only where it was never needed.
3. Convert the right into a duty on the court. A poor and illiterate accused does not know that free legal services exist. The Court therefore placed an affirmative duty of information on the Magistrate or Sessions Judge, which is what makes the right operative rather than theoretical.
4. Keep the duty proportionate. The qualification — an offence carrying imprisonment on conviction, and a case where social justice requires representation — is what prevents the right from becoming unworkable across every petty proceeding.

It opens the stage-of-attachment question and the duty-to-inform question, and it is the first case to cite whenever a problem says that the accused did not have a lawyer at remand. Pair it with s. 304 of the Code of Criminal Procedure, 1973, which requires the Court of Session to assign a pleader at State expense to an unrepresented accused without sufficient means and allows the State Government to extend that to other classes of trial; the counsel assigned must be competent and be given the brief and time to prepare, and the accused's choice under Article 22(1) must be respected. The criminal procedure code has since been replaced, so give the corresponding provision of the current code alongside s. 304.

It disposes of the State's plea of poverty or administrative difficulty, and disposes of any argument that the duty is discharged by making a lawyer available only when the trial opens.

It does not decide whether the right survives where the accused, knowing of it, does not ask — that is Suk Das — and it does not lay down who is entitled to legal services under the statutory scheme; s. 12 of the Legal Services Authorities Act, 1987 does that. In a short note on persons entitled, the usual structure is the s. 12 categories, then s. 13(1) and (2), then one line each on Khatri and Suk Das.