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5. At the hearing it was urged by learned Counsel for the petitioner that suitable directions be made in conformity with the interim orders passed by the Court for payment of a reasonable amount as fees to the amicus curiae who appears for the petitioner at the trial. The learned Additional Solicitor-General on the other hand takes serious exception to the directions made by the Court and contends that the petitioner has no legal right to be supplied with a lawyer by the State nor is there any corresponding obligation cast on the State to give financial assistance to him to engage a counsel of his choice. According to him, the remedy of the petitioner is to make an application before the learned Additional Sessions Judge under Sub-section (1) Section 304 of the CrPC, 1973 to provide him with free legal aid and it is for the learned Additional Sessions Judge to be satisfied on material placed before him that the petitioner is not possessed of sufficient means to engage a counsel. The submission is that it is upon the fulfilment of this condition that a direction can be made to provide a counsel for his defence at the expense of the State. He accordingly contends that no petition under Article 32 of the Constitution is maintainable.

7. There can be no doubt that the petitioner is not entitled to the grant of a writ of Mandamus for the enforcement of the Directive Principle enshrined in Article 39A by ordaining the Union of India to give financial assistance to him to engage a counsel of his choice on a scale equivalent to, or commensurate with, the fees that are being paid to the counsel appearing for the State. As is clear from the terms of Article 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge under Sub-section (1) of Section 304 of the CrPC, 1973, and not by a petition under Article 32 of the Constitution.

5. The traditional view expressed by this Court on the interpretation of Article 22(1) of the Constitution in Janardan Reddy and Ors. v. The State of Hyderabad and Ors. [1951] S.C.R. 344 that the right to be defended by a legal practitioner of his choice could only mean a right of the accused to have the opportunity to engage a lawyer and does not guarantee an absolute right to be supplied with a lawyer by the State, has now undergone a change by the introduction of the Directive Principle of State Policy embodied in Article 39A by the Constitution (Forty-Second) Amendment Act, 1976, and the enactment of Sub-section (1) of Section 304 of the CrPC. It was in this case that the Court observed that the American rule enunciated in the case of Powell, v. Alabama 77 L.Ed. 158 founded on the doctrine of due process was not applicable to India and that under Article 22(1) there was no absolute right to an accused to be supplied with a lawyer by the State. There has been a definite shift in the stance adopted by the Court by its decisions in Maneka Gandhi v. Union of India , E.P. Royappa v. State of Tamil Nudu R.D. Shetty v. The International Airport Authority of India and Ors. [1979]. S.C.R. 1014. In Maneka Gandhis case, supra, the Court observed that the requirement of compliance with natural justice was implicit in Article 21 and that if any penal law did not lay down the requirement of hearing before effecting him, that requirement would be implied by the Court so that the procedure prescribed by law would be reasonable and not arbitrary procedure. The procedure which was arbitrary oppressive or fanciful, was no procedure at all. A procedure which was unreasonable could not be said to be in conformity with Article 14 because the concept of reasonableness permeated that Article and arbitrariness is the antithesis of equality guaranteed under Article 14. It is difficult to hold in view of these decisions that the substance of the American doctrine of due process has not still been infused into the conservative text of Article 21.

12. In recent years, it has increasingly been realized that there cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge laid down and unless he has competent professional assistance. The Law Commission in its Fourteenth Report Volume I on the subject "Reform of Judicial Administration" made certain recommendations for State aid. One of those was that "representation by a lawyer should be made available at Government expense to accused persons without means in all cases tried by a Court of Sessions". This recommendation has now been codified in Sub-section (1) of Section 304 of the CrPC which reads: