It's a question that has polarised the legal fraternity in India. Does Ajmal Amir Kasab, the only terrorist caught alive in the Mumbai terror strikes, deserve to have legal representation? The answer is yes, if one considers some landmark rulings by the Supreme Court that elevate the right to have legal aid as an extension of Article 21 (protection of life and personal liberty) and a valuable ingredient of a just and fair trial.

In an authoritative ruling in 1979, the Supreme Court, perhaps for the first time, categorically stated that the right to free legal services is “an essential ingredient of reasonable, fair and just procedure for a person accused of an offence.” The ruling came in the case of Hossainara Khatun vs. the state of Bihar, which brought to light the fact that hundreds of undertrial prisoners were languishing in various jails for a period longer than the maximum terms for which they would have been sentenced, if convicted.

Justices P N Bhagwati and D A Desai, hearing the case, were appalled by the state of affairs and the callous attitude of the judicial system. “This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programmes, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them,” stated Bhagwati.

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