The right to free legal aid is not absolute and is not to be made available in all cases. The circumstances of the case and the ends of social justice must be considered in determining whether legal aid should be provided.

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can pat up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of a free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effec­tive that every citizen shall believe in and benefit by its impar­tiality and fairness."

The above observation of Brennan, J. has more application to this country because of deep poverty here. It was the realization of great social injustice and that too in a forum of jus­tice which must have led to the insertion of Article 39A by the Forty-Second Amendment Act, 1976, in our Constitution. "Equal Justice" bad really been a part of our organic document from its very inception in Article 14 of the Constitution. It is however the liberal interpretation of Article 21 in Mantka Gandhi, AIR 1978 SC 597, which saw fresh thinking on the subject of legal and by the highest court of the land. It was proclaimed in no uncertain terms by Bhagwati, J. in the landmark decision in Mamka Gandhi, AIR 1978, SC 597 that every procedure would not satisfy the call of Article 21. The same has to be "right and just and fair and not arbitrary, fanciful and oppressive." Hoikor, AIR 1978 SC 1548, saw for the first time a clarion call in this regard, which was of course in the wake of Mqneka Gandhi. Article 39A, which reads :-

"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, the ensure that opportunities for secur­ing justice are not denied to any citizen by reason of economic or other disabilities."

“was regarded as an interpretative tool for Article 21 in Hoskot. A partial statutory implementation of mandate has found expres­sion in section 304 of the new Code of Criminal Procedure which has enjoined providing of legal aid "in a trial before the court of session". In Hoskot it has however held that in other situa­tions as well courts cannot be inert in the face of Articles 21 and 39A. Let it be said at this stage to the credit of this State that though the old Cr.P.C. had not contained any provision for legal aid, Rule 19 of the Assam Law Department Manual did speak of providing legal aid, of course, only where the accused was committed for trial of a charge of murder. Even so, it was a lead given by this State in this regard. This court however bad not remained contented in seeing that legal aid is provided in a murder case only where it is specifically provided for. A Bench speaking through Goswami, C. J., as he then was, the State vs. Aji Peyang, ALR 1970 A & N 90, had stated that :

"We cannot countenance the situation of seeing under our jurisdiction trial of a person facing the extreme penalty of Jaw without the aid of Counsel when he is unable to engage one."

2. Hoskot however contains a very bold pronouncement in this regard. It is held in no uncertain terms that providing of legal aid is a State's duty and not Government's charity. As to in which type of cases legal aid should be given, Krishna Iyer, J., observed as below :

"Of course, the court may judge the situation and consi­der from all angles whether it is necessary for the ends of justice to make available legal aid the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion asides in the court."

3. The country was to see bolder pronouncement from Bhagwati, J., In one of the Bussainara cases, AIR 1979 SC

1369, the court observed that :

"when Article 21 provides that no person shall be deprived of his life or