The denial of fair trial violates the accused's right to a fair trial by a competent court, and the court has the power to order re-trial under Section 386(b) of the Cr.P.C. to avert failure of justice.

VINOD GOEL, J.

1. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. This is so held by the Hon’ble Supreme Court in a case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra, (2012) 9 SCC 1.

2. A constitutional amendment was carried out by inserting Article 39-A in the Constitution by the Constitution 42nd Amendment Act , 1976 with effect from 3rd January, 1977 as part of the ‘Directive Principles of the State Policy’. The Article reads as under:-

“Article 39-A. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

3. In order to achieve the object of the amendment of the Constitution by 42nd Amendment Act, 1976, the Parliament enacted the Legal Services Authorities Act , 1987, which came into force from 9th November, 1995. The Statement of Objects and Reasons of the Act, insofar as relevant for the present, reads as under:

“Article 39A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

4. The Hon’ble Supreme Court in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (supra), noted that this development by way of insertion of Article 39-A in the Constitution and enactment of Legal Services Authorities Act, 1987 and its enforcement from 9th November, 1995 indicates the direction in which the law relating to access to lawyers/legal aid has developed and continues to develop. Access to a lawyer is, therefore, imperative to ensure compliance with statutory provisions, which are of high standards in themselves and which, if duly complied with, will leave no room for any violation of Constitutional provisions or human rights abuses.

5. While upholding the right of the accused to be represented through a lawyer, the Hon’ble Supreme Court in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (supra), observed as under:

“474. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it