1994 ALLMR ONLINE 1468
Madras High Court

ARUNACHALAM AND JAYARAMA CHOUTA, JJ.

T. Suthendraraja and another vs. State of T.N. and others

Petitioner Counsel: N. Ganpathi for M/s. P. I. Thirumoorthy (in W.P. No. 309 of 1994), S. Kumaradevan (in W.P. No. 11257 of 1994) and S. Doraisamy, for s

Criminal P.C. (1973), S. 304 - Constitution of India, Art. 22,Art. 39(d) - Legal Aid to Poor Accused Rules (1976), R. 9

ARUNACHALAM, J. :-An unfortunate episode of non-reconciliation between the defence lawyers engaged as State Brief Counsel and the State, on the quantum of fees payable to those counsel, has led to a grinding belt, of the trial in C.C. No. 3 of 1992, on the file of Designated Court, Poonawallas, which is now known as Rajiv Gandhi Assassination case. If only the defending counsel and the State had viewed with care and concern the liberty of the accused and their right to a speady trial vis-a-vis. the obligation of the State of reasonably provide for the defence of these indigent accused, this impasse could have been avoided.

2. While the defending lawyers, after acceptance of their appointments as State Brief Counsel, have demanded payment of fees on par with prosecuting counsel the State has chosen to point out the rules fixing the fee at Rs. 50/- per diem or such lesser fee as may be fixed in the discretion of the Court in the case of work lasting less than a full day, subject to a maximum of Rs. 300/- for the whole case for each pleader, while contending that it has no obligation to pay more.

3. And so, we have before us these two writ petitions, one preferred by one of the accused in the Calendar case and another by a State Brief Counsel on behalf of himself and counsel similarly placed, the former pleading for payment of fees for his counsel on par with the prosecuting counsel, and the latter sticking on to the same prayer.

4. In C.C. No. 3 of 1992, 26 accused are now facing trial. Apart from these 26 accused, 15 others are stated to be involved, of whom 3 are absconding, while 12 are beyond the reach of any Court, since they had expired, after commission of the impugned Crime. Occurrence, which led to this Prosecution, is alleged to have taken place on 21-5-1991. Final report was laid, on completion of investigation, on 20-5-1992. Sriharan alias Murugan, A-3 in this calendar case, has refused legal aid offered to him by the Designated Court and there is no dispute that he is defending himself. Dhanasekaran alias Raju (A-23) and Rajasurya alias Ranjan (A-24) have privately engaged Mr. S. Doraisami, Advocate to defend them, while Ravichandran (A-16) and Susindran alias Mahesh (A-17) have similarly engaged Mr. T. Ramadoss, Advocate, to defend them. Mr. S. Doraisami has been engaged as State Brief counsel for A-1 (Nalini), A-2 (Suthendraraja alias Santhan), A-5 (Vijayananthan alias Hariappa); A-6 (Roopan), A-8 (Chandralekha alias Athirai alias Sonja alias Gowri), A-20 (Bhagyanathan), A-21 (Padma) and A-22 (Subasundaran). Mr. T. Ramadoss has been appointed as State Brief Counsel for A-12 (Vijayan alias Perumal Vijayan) and A-25 (Vicky alias Vignaswaran). Mr. Chandrasekaran, petitioner in W.P. No. 11257 of 1994 represents Shankar alias Koniswarao (A.4), Robertpyes (A-9), Jaikumar (A-10) and Shanthi (A-11) as State Brief Counsel. Advocates Messers. Gopalakrishnan, Ziyauddin Ahamed, K. Thennan, R. Jayaseelan Gnena Guneseelan, Gunasekaran and V. Elangovan represent A-13 (Selvalakshmi), A-14 (Baskaran), A-15 (Shanmugavadivalu), A-18 (Perarivalan), A-7 (Kanagasabanathi) A-26 (Ranganath) and A-19 (Irumporai) respectively. Of these Counsel, Mr. S. Doraisami and Mr. T. Ramadoss have a standing of 24 years and 28 years respectively in the bar. Mr. R. Jayaseelan has been a member of the Bar for 16 years while Mr. K. Thennen has 15 years standing to his credit. Mr. S. Gopalakrishnan and Mr. Guana Gunaseelan are members of the Bar for 12 years and 10 years respectively. M/s. N. Chandrasekarao, Ziyauddin Ahamed and Gunesekaran have been members of the Bar for 8 years, 7 years and 7 years respectively. Mr. V. Elangovan has 3 years experience to his credit as a member of the Bar.

5. Of the prosecuting counsel who are residents of Madras, Mr. E. Jacob R. Danial has put in 19 years in the Bar while Mr. P. Rajamanickam has to his credit 49 years of experience. Mr. A. T. Dante is 39 years old at the Bar, while Mr. V. Gopinathan has completed 40 years as a lawyer. Mr. K. A. Panchapakesan and Mr. N. Dinakar have put in 34 years and 26 years, as members of the Bar. Almost all these counsel have either been public prosecutor or Government Advocates in the High Court or have appeared as Special prosecutors in the Courts of Session or Special Courts

6. Now, let us turn to the averments made by the respective petitioners, in both these writ petitions.

7. Suthendraraja, petitioner in W.P. No. 320 of 1994 has stated in his affidavit, that since he dad not have means to engage a counsel of his own, he had requested the Designated Court to engage a Counsel from the list suggested by him. Since all of them in the list declined to appear, as a last chance, he requested the Designated Court to appoint Mr. S. Doraisami to appear for him. The affidavit further reads that, of Course, Mr. Doraisami had given his consent, on the condition that he would be paid on par with the public prosecutors, considering the fact that there are 1014 witnesses to be examined and more than a thousand documents to be marked. Further, the counsel has to travel from Madras to Poonamallee and engage some juniors to assist him. The affidavit further reads that the Designated Judge, while appointing Mr. S. Doraisami under S. 304(2), Cr. P.C. Made it clear that if an application was preferred by the said counsel for fixation of fees, it would be recommended and forwarded to the Government for favourable orders. Accordingly, Mr. S. Doraisami gave an application to the learned Designated Judge on 15th October, 1993 (appointment was made on 22nd July 1993). The designated Judge by his letter dated 20-10-1993, after giving out the details of the prosecuting counsel and the defence counsel, stated as hereunder :

(i) Having regard to the number of witnesses to be examined and documents and material objects to be marked in this case being voluminous in nature, it will take definitely considerable length of time to conclude the trial of Rajiv Gandhi assassination case in C.C. No. 3/92.

(ii) The abovesaid State Brief advocates have to come to Poonamallee from considerable distance at Madras to attend the above case and thereby they have to forego all other engagements in other Courts at Madras and thereby they have to lose their considerable portion of their remuneration.

(iii) The case being important one requires a deep study of voluminous documents which consumes much of he time of State Brief Advocates, and they are compelled to engage at least one or two juniors to assist them in order to discharge their duties in the interest of Justice to the satisfaction of their client and they have to incur expenditure from their pocket for making payment to their Juniors, transport and the like.

(iv) They have to carry huge case records while going to and from Court at Karayanchavadi, and thereby they have to engage a conveyance from Madras to Karayanchavadi and vice versa, and this will cause them much expenditure.

(5) In this connection the respective State Brief Counsels have also submitted written applications for enhancement of their fees on par with the prosecutors and they are enclosed herewith. In this respect the State Brief Counsel appointed in this case relied upon two Bench decisions of Madras High Court in W.P. No. 17132 of 1990 (unreported judgment dated 6-3-1991) and Rajkumaran v. State of Tamil Nadu (1990 Mad LW (Cri) 521). The Xerox copies of Madras High Court's judgments are herewith enclosed.

(6) After taking into consideration the voluminous nature of the case and importance attached to this case and on basis of the representation made by the State Brief Counsels, I am of opinion that the fees fixed in the said Rules is inadequate and it requires to be enhanced in this particular case to a reasonable extent by relaxing the Rules. With regard to the fixing of quantum of their fees I feel that their fees can be fixed at the rate per diem and that should be paid to them on monthly basis instead of paying to them after the disposal of the case. The advocates feel that they should be paid fees on par with that of the public Prosecutors

appointed in this case, who are stated to be getting Rs. 1,500/- per day for every effective hearing, and it is a matter for consideration and final decision by the Government of Tamil Nadu.

(7) In my view, having regard to the voluminous nature of the case and the Panel of public prosecutors appointed in this case by the Central Government and keeping in mind their fees stated to have been fixed by the Central Government, I am of the opinion that the Advocates appointed as State Briefs in this case also be paid a reasonable amount per day for effective hearing.

According to the deponent, he was advised to State that the High Court had also endorsed the recommendation of the Designated Judge during November, 1993, but still no orders were passed. His counsel had told him in early January, 1994 that unless fee is fixed by the respondent, it will not be possible for him to appear in the case by spending his own money. Petitioner's grievance is that if Mr. S. Doraisami also does not appear for him, there would be none to defend him, though he has a right to engage a counsel of his choice, who would be entitled for fees to be paid by the respondent. In the opinion of the deponent, his counsel was not claiming any extraordinary fees and all that he wanted was payment of fees on par with the Public Prosecutors. The prayer in this writ petition is for issue of a writ of mandamus or order or direction in the nature of a writ directing the respondent to dispose of and pass orders on the application of his counsel Mr. S. Doraisami, presented to the Designated Court at Poonamallee and recommended by the Designated Court and the High Court.

8. Subsequently, an amendment of this prayer has been sought for in the following manner :-

9. Mr. N. Chandrasekaran, counsel engaged as State Brief, is the petitioner in W.P. No. 11257 of 1994. He has chosen to prefer the impugned writ petition on behalf of his collegues who have been engaged as State Brief Counsel in C.C. No. 3 of 1992 as well on his own behalf. His affidavit shows that he had given his consent, to be appointed as State Brief Counsel, on the belief that he would be paid the fees in the same manner as the counsel appearing for the State are expected to be paid. At the time of his appointment, he was only actuated by the consideration to provide legal assistance to friendless foreigners. He was not aware about the exact state of affairs relating to payment of fees for the conduct of the case. He was led to believe that fees would be paid on par with other counsel engaged by the Central Government, despite mention of low fees, in the order passed by the Designated Judge. Only after the trial commenced effectively, he became aware of the enormity of the evidence and the huge demand on his time. Further, long travel between Madras and Poonamallee robbed most of his time. This particular case became the sole pre-occupation for him and his colleagues similarly placed, with non-availability of time, for other engagements in Courts. Thereby they had lost all their private practice which they had accumulated for over a period of time. The conduct of this case demands exclusive dedication. Further, they have to travel about 60 Kms. daily carrying books and bundles. Further, there is a constant threat to their lives. However, the engagement was accepted due to lofty professional consideration which has now been subjected to test, due to poor treatment by the State Government. Only after some time, he and his colleagues realised that they would be paid a paltry sum of Rs. 50/- per day, which, in their view, appears comical and makes a mockery of justice delivery system. Lawyers engaged by the Central Government are paid Rs. 5,000/- a day in addition to transport facility. Their Juniors are also paid. Special Prosecutor and 7 other prosectors

specially appointed to conduct the case are being paid daily fee of Rs. 3,000/- and Rupees 1,500/- respectively. On this anomaly being brought to the notice of the Designated Judge, he found, the demand made by them, to be reasonable, and therefore recommended their case to the State Government through the High Court. The order passed by the State, on this request, in March, 1994 was not communicated to them. The affidavit refers to two earlier Judgments passed by this Court, under similar circumstances. The affidavit further reads, that the doctrine of "Equal Pay for Equal Work" guaranteed under Art. 39(d) of the Constitution, would attract this case also.

10. The counter-affidavit filed on behalf of the State in W.P. No. 320 of 1994, before the prayer was sought to be altered, contains the following averments: This writ petition is not legally sustainable. A writ of mandamus does not lie in cases where there may not be any obligation on the part of the respondent to act against rules concerning the subject-matter, including the case in this writ petition, relating to payment of fees for the state briefs. On a petition preferred, by the Advocate for the writ petitioner requesting recommendation to the State Government, to fix fees for defending the case, on par with public Prosecutor of the Central Government, the Designated Court had recommended to the Registrar, to address the Government on the request of State Brief Counsel, for enhancement of their fees, to defend the accused in C.C. No. 3 of 1992 at the cost of the State under Rule 9 of the Legal Aid to Poor Accused Rules 1976, read with Section 304(2), Cr. P.C. Government had considered the same and passed an order dated 19-4-1993, which reads as follows :-

Therefore, according to the respondent, the relief asked for in the writ petition cannot be sustained. The maintainability of the writ petition preferred by the accused, and not by the counsel, has also been challenged in the counter-affidavit. Respondent has denied, that consent was given by Mr. Doraisami to appear on behalf of the petitioner, on condition that he would be paid on par with public Prosecutors, considering the volume of the case. The respondent was also not aware of the Designated Court having asked the counsel to prefer applications to be forwarded to the Government through the High Court, for fixation of fees. The Counter-affidavit reiterates that the State Government had considered the question of payment of fees and had arrived at the conclusion that the request of the petitioner cannot be complied with. It further states, that the claim for payment to a lawyer appointed as State Brief, on par with public Prosecutor specially appointed by the Central Governments, cannot be sustained. The appointments/engagements, cannot be sustained. The appointments/engagements are by two different agencies who are not governed by the same Rules. In the counter-affidavit, it has been further stated that fees for engagements of counsel for the accused is governed by Legal Aid to Poor Accused Rules, 1976 framed in exercise of the powers conferred by Sub-Section (2) of Section 304, Cr. P.C. (Central Act 2 of 1974). The said rules framed by the High Court govern all cases of State Briefs for the accused, who are engaged to defend the accused. Once Brief is assigned to a counsel for the accused before a Court, the fee payable will be the fee that is mentioned under Rule 9 of the said Rules. Petitioner's counsel has been engaged as State Brief Counsel under the said rules and he has accepted the same and the trial of the case has been proceeding, in which he has been participating. Petitioner's counsel is not entitled to insist, as against the said rule, that he should be paid fees on par with counsel for the Central Government. The Public Prosecutor appointed by the Central Government is one who had been engaged by the Central Government and not under the Rule mentioned above and therefore to state that the fee for counsel appointed by a different person (Central Government), should be the same for counsel appointed by the State Government, cannot be sustained. In conclusion, the counter affidavit

states that the earlier judgments of this Court do not lay down any legal proposition that for state briefs, the state has power to act against the rules made specifically for the purpose. A further prayer has been made to this Court, not to depart from the said rule.

11. Mr. N. Ganapathi, learned counsel appearing on behalf of the petitioner in W.P. No. 320 of 1994, contended that the accused concerned have no friends in this country and are unable to arrange for funds by themselves for the proper conduct of their defence. During the end of 1993, the name of Mr. S. Doraisami was suggested by some of the accused, to be engaged as their counsel and the Designated Judge, after obtaining consent of the said Advocate, to appear on their behalf, engaged him as State Brief Counsel in exercise of the powers conferred by Section 304 of the Code of Criminal Procedure read with rules framed under Legal Aid to Poor Accused Rules, 1976. Those rules were framed in 1976 and they have become antiquated. He then referred to the Tamil Nadu State Legal Aid and Advice Board Rates of Fees and honorariums payable to Lawyers and pointed out therein that for Sessions trial, fees fixed is only Rs. 75/- per day, subject to a maximum of Rs. 500/-. He argued that when Article 21 of the Constitution of India was the bastion of liberty for the accused, taking in its fold free legal aid, such aid must be in substance and not in mere form. He submitted that competent counsel must be engaged and such counsel must be reasonably compensated, at the cost of the State. To a Court question, he submitted that competency of counsel does not arise in both these writ petitions, because the choice was made by the respective accused and the designated Court had engaged them, though they were not in the panel of lawyers. He submitted that a case of this magnitude, deserves special treatment and sticking on to antiquated rules, cannot in any manner advance the case of the State, which owes a duty to provide free, but competent legal aid to the accused concerned. He referred to certain decided cases, which we will consider at the appropriate stage.

12. Mr. Karuppan, learned counsel appearing on behalf of the petitioner in W.P. No. 11257 of 1994 contended, that the State Brief Counsel will have to exclusively devote their time and energy to a single case giving up other personal work. They are constrained to travel several kilometres and several counsel to reach the Court with huge bundles and books and in fairness, the State Government must accept the reasonable demands made by counsel concerned. He submitted, that the designated Court itself has powers to fix the fees demanded by counsel and in any event the State Government should not have refused to accept the recommendation made by the Designated Judge. He submitted that the principle "equal pay for equal work" would be applicable to the defence counsel in this case and they are entitled to be paid fees on parity with Public Prosecutors. He then submitted, that if the fee payable was to be increased, to the defence counsel, on par with prosecutors, then there will be a rush by competent counsel to undertake such work and then the concept of equality before law would stand upheld.

13. Mr. P. Sadasivam, learned Special Government Pleader representing the State submitted, that the argument "equal pay for equal work" was totally misconceived. State Brief Counsel have been appointed under the rules approved by the State Government and the comparison sought to be made, was rather odious. He submitted that the Public Prosecutor are appointed under Section 15 of the TADA Act and such an appointment was different from appointment of counsel to defend the accused as State Brief Counsel. He pointed out, that minimum experience required, for appointment as a public Prosecutor was 10 years. By pointing out, experience of defence counsel and the prosecutors in this case he submitted that the claim for equality cannot reasonably arise. Though initially his contention was, that payment to State Brief Counsel, can only be in terms of the rules framed under the Legal Aid to Poor Accused Rules, 1976, to a pointed question by Court, he had to admit that this Court does have power under Article 227 of the Constitution, as enunciated by Supreme court, to fix a just, fair and reasonable fee to defence counsel, depending upon several circumstances, which are available on the face of the record, which put this case under a special category, distanced from the normal run of cases, to fall under the rules aforementioned.

14. Counsel on either side fairly stated, that proceedings are held before the designated Court from Monday to Thursday (four days in a week) leaving the next working day (Friday) to be

utilised by the Defence counsel, for their other professional work. It was pointed out by Mr. N. Ganapathi, that holidays may have to be spent by State Brief Counsel to obtain instructions from the accused who are confined in prison, to facilitate further cross-examination and hence the whole week must be held to be required by counsel, exclusively for this case thus, preventing them from engaging themselves in other professional work. In his turn, learned special Government Pleader cited certain decided cases, which we will refer to, when we consider the inherent merits of the rival contentions placed for our scrutiny.

15. We have audited the submissions made by counsel on either side, with care and concern, keeping in our view the constitutional rights and duties of the accused and their counsel and the duty cast on the State to provide for the defence of the indigent.

There cannot be any dispute and it has also not been disputed, that C.C. No. 3 of 1992 is a case. distinguishable from the ordinary run of cases due to its magnitude, volume, number of accused involved and the specialised trial under the provisions of TADA Act. Article 39-A of the Constitution, which was inserted by the 42nd Amendment in 1976, directs that the State shall secure equal justice and free legal aid on the basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes on any other way. To ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Under this provision, wherever an accused was unable to engage a lawyer owing to poverty or similar circumstances, the State will have to offer free legal aid for defence, by engaging a lawyer, whose engagement the accused does not object.

16. That there is a guarantee under Article 21 of the Constitution, of the right co free legal services to a person accused of an offence is settled law. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 : (1979 Cri LJ 1045) the Apes Court stated, that the right to free legal services is clearly an essential ingredient of 'reasonable, fair and just' procedure, for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This Principle was reiterated in Khatri v. State of Bihar, (AIR 1981 SC 928) : (1981 Cri LJ 470) wherein the Court stated, that the State was under a constitutional mandate to provide free legal aid, to an accused person, who was unable to secure legal services on account of indigency, and whatever was necessary for this purpose, has to be done by the State. The State will have its financial constraints and its priorities in expenditure, but the law does not permit any Government to deprive it's citizens of constitutional rights on a plea of poverty. Quoting the words of justice Blacknum in Jackson v. Bishop (400 F Supp 2d 571) that "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations", in that case, the Supreme Court further stated, that it was unfortunate that though it had declared the right to legal Aid as a fundamental right of an accused person, by a process of judicial construction of Article 21, most of the States in the country had not taken note of this decision and provided free legal service to a person accused of an offence.

17. In the trial of criminal case, this concept of legal aid, falls within the provisions of Section 304 of the Code of Criminal Procedure, which reads as hereunder :-

(2) The High Court may, with the previous approval of the State Government, make rules providing for :-

(c) The fees payable to such pleaders by the Government, and generally, for carrying out the purposes of Sub-Section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of Sub-Section (1) and (2) shall apply in relation to class of trials before other Courts in the State as they apply in relation to trials before Courts of session".

It is only under this provision, that the learned Designated Judge, had nominated different counsel

to defend one or other of the accused in C.C. No. 3 of 1992. In exercise of the powers conferred by Sub-Section (2) of Section 304 of the Code of Criminal Procedure, 1973, the High Court, with the previous approval of the Government of Tamil Nadu, made certain rules, which were christened as Legal Aid to Poor Accused Rules, 1976. These rules, which have come into force with effect from 17th February, 1977 when it was published in the gazette, provide for preparation of a panel of pleaders, consisting of not less than 10, from among the pleaders in the sessions Division, who have not less than 5 years standing at the bar. This preparation by the sessions judge, shall have to be in consultation with the Collector of the District concerned. Under the proviso, the sessions Judge, may, if the occasion so warranted and for reasons to be recorded in writing, by order requisition the services of a senior member of the Bar, outside the panel and assign the brief to him. In such cases, a copy of the order shall be sent to the High Court, Rules 3 and 4 refer to panel of pleader for the Court of Assistant Sessions Judges and disqualification of pleaders from being included in the panel. The penal prepared shall have to be revised once in two years. If vacancies arise during the said period of two years, they can be filled up by inclusion of fresh names for the rest of the period. Under Rule 6, in a trial before the Court of session, if the accused is not represented by a pleader and where it appeared to the Court that the accused did not have sufficient means to engage a lawyer, the Court concerned shall have to assign a pleader from the panel for the defence of the accused, generally by rotation. If there are several accused persons and the defences are such that it appeared to be unreasonable to entrust the defence of all the accused to a single pleader, as many pleaders as the necessity of the case seemed to require may be appointed for their defence. Under the rules a pleader appointed, should be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence. As far as the fee of pleaders concerned, the Sessions Judge and the Assistant Sessions Judge, as the case may be, stand authorised to sanction payment of a fee of Rs. 50/- per diem or such lesser fee as he may fix in his discretion, in the case of work lasting less than a full day subject to a maximum of Rs. 300/- only for the whole case, of each pleader, assigned by him, for the defence of the accused under these rules. It is apparent that the State Brief counsel, are appointed under these Rules, which have been framed under Section 304(2) of the Code of Criminal Procedure.

18. It has been judicially accepted, that Article 39-A of the Constitution is an interpretative rule for Article 21. Partial statutory implementation of the mandate is found in Section 304 of the Code of Criminal Procedure and in other situations, Courts cannot be inert in the face of Articles 21 and 39-A. In M. H. Hosket v. State of Maharashtra (AIR 1978 SC 1548) : (1978 Cri LJ 1687) Krishna Iyer, J. speaking on behalf of the Bench, stated as hereunder (at p. 1687) :

19. In Ranjan Dwivedi v. Union of India (AIR 1983 SC 624 : (1983 Cri LJ 1052) the Supreme Court stated as hereunder (at p. 1057 of Cri LJ) :

This decision recognises the undoubted jurisdiction of this Court under Article 227(3) of the Constitution for considering if the scales of remuneration prescribed for empanelled lawyers in sessions trials, are not grossly insufficient and call for a revision. While saying so, the Supreme court wished to underline the contention advanced, that the existing rules were wholly antiquated and did not take into account the realities of the situation and that the present scales of fee as prescribed by the Delhi High Court for empanelled lawyers appearing in sessions trials made it impossible for a person facing a sessions trial on a capital charge to get competent professional assistance.

20. In the context of the might conferred for legal aid, we are bound to take note of the observations of the Supreme Court in S.M.D. Kiran Pasha v. Govt. of A.P. (1990 (1) SCC 328) though made in a different context. The Supreme court has stated as hereunder :

21. A question of similar nature, came to be considered by a Division Bench of this Court in Rajakumaran (A4) v. State of Tamil Nadu (1990 Mad LW (Crl) 521). In a pending murder trial, some of the accused preferred a writ petition praying for a mandamus to direct the respondents to treat the prosecution and the defence counsel equally and make the same payment without any differentiation. It was contended that when an indigent accused was entitled to be represented by a lawyer, he must be given the right to pay to him the same fee that is normally paid by the State to its prosecutor. While answering this contention, it was contended by the State, that the recommendations of the Tamil Nadu State Legal Aid and Advice Board from time to time, was taken note of while fixing the fees for the counsel for indigent accused and that it was open to the accused to name any advocate to defend his case, provided he was willing to receive the fees fixed by the Government under the Rules above cited. The Division Bench observed that the fundamental right enshrined in Article 22(1), as reflected by Section 303, Cr. P.C. cannot be observed merely in textual spirit. We must take a pragmatic approach if the said Article is to have meaning and effect. If really there is to be an effective trial with opportunity to put forth proper defence it is but necessary that the accused must have a competent lawyer. In that case, the lawyer had not been chosen and a list of three names was placed before the High Court. The Division Bench felt that it was but proper that the accused be allowed to be defended by a competent counsel and in that view, they considered it just, fair and reasonable to pass the following order :-

(3) This payment is subject to a minimum of Rs. 1,000/- per month and subject to a maximum of Rs. 2,000/- per month.

The Division Bench itself stated, as is visible from the aforestated passage, that the order was made having regard to the peculiar circumstances of that case.

22. Another Division Bench of this court in W.P. No. 17132 of 1990 (Rekha Parameswar @ Gnanambigai v. Assistant Collector of Customs) by its order dated 6-3-1991, after referring to the principles stated in Rajakumaran's case (1990 Mad LW (Crl) 521) stated as follows :-

That was case, where a lady was in custody pending trial, for an offence punishable under Narcotic Drugs and Psychotropic Substances Act. She stated that she was deprived of any legal assistance, since she did not have any means to pay any lawyer of her choice and yet the State had not come forward to provide the needed legal aid and further that copies of prosecution papers and documents had not been supplied to her. A counsel nominated from the Junior Panel to defend her, after charges were framed by the Sessions Judge, Poonamallee, never represented her and hence she had no legal assistance worth mentioning. After referring to the available case law on the subject and holding that the petitioner therein was entitled to legal assistance and service as soon as she was arrested and produced before a Magistrate stated that the concerned Court owed a duty to have informed her that she was entitled to legal aid or at least have enquired if she had engaged any lawyer to defend her and if not ascertained whether she was indigent or not. After referring to S. 304 of the Code of Criminal Procedure, the following observations were made :

Apparently, the said Division Bench was not made aware of "Legal Aid to Poor Accused Rules, 1976" framed in exercise of the powers conferred by Sub-Section (2) of Section 304, Criminal Procedure Code, by the High Court with the previous approval of the Government of Tamil Nadu. It was therefore that the learned Special Government Pleader submitted that the directions issued by the said Division Bench to the State Government, to pay Mr. Sankaran, a Senior Counsel of this Court, in the same way and as the same rate as the counsel for the prosecution cannot be held to have laid any uniform or rigid principle for universal acceptances, since the said Division Bench had no occasion to consider the rules framed under Section 304(2), Cr. P.C.

23. At this Stage, it is relevant to refer to the order of another Division Bench of this Court in H.C.P. No. 1946 of 1993 (Shaik Babu v. Sub-Inspector of Police, Rajkadai P.S.) (Order dated 2-12-1993) wherein the prayer made was to appoint a particular advocate as the defence counsel, though already the Legal Aid Centre had assigned a counsel for the petitioner wherein, to be defended in a sessions trial. Srinivasan, J., speaking for the Division Bench stated as follows :

We respectfully agree with the observations made by the Division Bench and hold, that the constitutional requirement is that the accused must be represented by a competent lawyer so that he will have a fair trial.

24. The next question, to be addressed to ourselves, is whether competence of counsel can always be equated, to the money quotient of the fees received, by concerned counsel. The emphasis of the argument before us was, that the Prosecutors engaged are also Advocates as the defence counsel engaged as State Brief, and hence they have to be treated equally in payment of fees and if that be so, the State Brief Counsel cannot be denied payment of fees on the same parity, as prosecuting counsel. It is well known that any legal practitioner who acts or agrees to act for any person, may settle with that person the terms of his engagement and the fee to be paid for his professional services. Further, the legal practitioner will be entitled under law to institute and maintain legal proceedings against his client for recovery of any fee due to him under the agreement or as per the cost fixed by the Court, where there has been no pre-settlement of the fee. It is, therefore, clear that a legal practitioner engaged by a party on an agreement to pay the fees demanded by him, will stand on a slightly different category, than the counsel engaged as State Brief Counsel, to provide competent legal assistance to those indigent accused, in view of the duty cast on the State by the Constitution to provide such assistance. The legal fraternity, as has been often said, is noble. That nobility will have to exhibit itself. In the past, observations were made by the Supreme Court, that it was high time that senior counsel practising in the Courts concerned volunteered to defend such indigent accused as part of their professional duty. This legal fraternity had sacrificed even in the pre-freedom period and that sense of sacrifice must not cease to pervade, when acceptance is volunteered to perform professional duties to indigent accused. It cannot be gainsaid, that not only competent counsel should be engaged to defend indigent accused, but also a just, fair and reasonable fees should be paid to counsel, by the State, for otherwise, the Constitutional imperative would be nothing but a farce. The nature and magnitude of the case will have to he kept in mind by the Court concerned while nominating State Brief Counsel to the accused who require and deserve such free legal aid. It is not as though the Court concerned has to be wedded to the panel selected by it, for, even according to the rules, it has the power to nominate counsel, even outside the panel, if a particular case deserved such appointment, for ultimately interests of justice will have to reign paramount. We should also be able to make a difference between the contractual obligation of a lawyer, who agrees to appear on payment of agreed fees by the client and counsel who on the concept of aid, condescend to appear on behalf of those accused, who require legal assistance due to poverty on other circumstances, which dictate that course.

25. Let us quickly have a glance as to whether equality will have to be weighed only in terms of remuneration. Quite often competence and remuneration may not go together. A senior and efficient counsel may not be professionally successful and the demand for him may be less, which naturally will have a bearing on the fees what he received. A new entrant to the Bar with practically nil experience, perhaps with his family background and status in society, may be able to demand a heavy fee in spite of his being a nonice at the Bar. Sometimes, competence and money value may go together, but most often they may not. The object of free legal aid is to provide competent advocates to those who require such aid, for the ultimate object is a fair trial, Denial to the indigent of a counsel is nothing less than denial of justice. Quite often records are clear and errors are hidden, which could be brought out by examination of the record by the legal practitioners who would be in a position to marshall, and place the entire facts and law before Court. In the absence of such right being in fact conferred cm the indigent accused that right can, be equated only to a meaningless ritual. As observed by V. R. Krishna Iyer, J. in H. H. Hoskot's case (1978 Cri LJ 1678), the legal profession has a public commitment, which cannot be weighed in term of money, but at the same time mere philanthropy on the part of members of legal fraternity, is bound to yield short mileage in the long run. A reasonable sum will have to be fixed and paid as fees to State Brief Counsel. This reasonable sum cannot

always be uniform, since it depends upon the nature of the brief, its magnitude, the work load of the counsel, the manner in which this brief would affect other professional work and similar such circumstances, which cannot be fully spelt out, making the list exhaustive. We will take an instance of a Public Prosecutor in a High Court, who is paid a fixed fee by the Government for appearance in Criminal appeals and Criminal revisions, while the defence counsel, on agreement, receives a substantial fee, which may be several times higher than the remuneration received by the Public Prosecutor, can it always be said that in view of the fee difference, there is bound to be disparity in competency and lack of equality ? Similarly, if in a given case, one of the defence counsel is engaged in a huge fee, can it be claimed by other counsel who are engaged for a lesser fee that the concept of equality has been undermined ? A classification to be valid must not be arbitrary. In permissible classification, mathematical nicety and perfect equality are not required. It is accepted that persons may be classified it groups and such group may differently be treated, if there is a reasonable basis for such difference or distinction. Unequal treatment does not arise as better persons governed by different conditions and different sets of circumstances. The rule is that like should be treated alike and not that unlike should be treated alike. If all Advocates, irrespective of their experience, volume of work and some being sought after for legal advice even by this fraternity itself, will have to be treated alike and that is the concept of equality, designating some as Senior Advocates on certain norms, will also have to be held, as offending the concept of equality. Similarly prescribing certain years of standing at the Bar for appointments will also have to be struck down on this principle, the concept of equality cannot be allowed to be extended to absurdities.

26. As rightly pointed out, by learned special Government Pleader, the minimum qualification for appointment as Prosecutor under TADA Act is 10 years and the several counsel engaged to conduct this prosecution, have a standing of several years in the Bar, which can in no way stand comparison to the defence counsel appointed as State Brief, in this Calendar Case. We have defence counsel who have less than 10 years of experience, while two of them have experience over 20 years. We cannot overlook that the counsel concerned have accepted their nominations to act as State Brief Counsel and thereafter if they have chosen to stay away from Court proceedings' demanding "Shylock's flesh" that is bound to tell upon the nobility and the respect the legal fraternity enjoys in the society. There was no need to abstain from Court proceedings by State Brief Counsel, more so, when they have brought to the notice of this Court, that a just, fair and reasonable fee has not been fixed for them, with an appending player, that the State must be asked to honour its commitment, which certainly cannot be a Farce. Equally, enstead of insistence on rules framed under Section 304(2) Cr. P.C. The State, which must be aware of the prior decisions of this Court and the Supreme Court, and special treatment which certain cases of magnitude to deserve, need not have turned a blind eye to the demands of the counsel, forwarded by the Designated Judge, for consideration through this Court. It is rather unfortunate, that the State Government did not even choose to give weightage to the opinion offered by the then Advocate-General, that in view of the magnitude of the case and the work involved, C.C. No. 3 of 1992 may have to be treated as a special case and the counsel engaged should reasonably be paid a fee of Rs. 300/- or Rs. 400/- per day. When solutions could have been easily arrived at, continuing to keep them as problems does not benefit any one. As has been observed earlier, prosecuting counsel have been engaged by the Central Government, on agreement to pay the fees stipulated by the counsel or agreed upon by them, whereas by virtue of the provisions of Section 304(2), Cr. P.C., read with the concerned rules, State Brief Counsel have been appointed for one or other of the accused, in this pending prosecution.

27. It will be odd to contend that advocates in general are entitled to equal pay for equal work, for members of this fraternity are not wage-earners governed by scales of pay, conditions of service, etc. etc. We have already discussed how the appointments of prosecuting counsel and the defending counsel stood made under different criteria and how the concept of equality in payment of fees cannot arise even remotely. In that context, reference to Article 39(d) of the Constitution and the Judgment of the Supreme Court in Randhir Singh v. Union of India (AIR 1982 SC 879)

28. In none of the decisions cited before us, any Court has held, as a matter of principle, that payments of fees to the prosecuting counsel and the defence counsel must be on par. All that the Courts have stated, and, to our minds, rightly, is that the counsel assigned to aid shall be paid such sum as fees, as the Court may equitably fix. The argument of Mr. Karuppan, that if an increased fee is fixed, on par with Prosecutors, and that is made a general rule, there will be a rush of competent counsel to take advantage of those appointments as State Brief Counsel does not bring credit either to the legal fraternity or the Counsel who have been chosen an competent, in the present case by the accused concerned. It will be unfair to urge, that colour of the coin would attract competency, the lack of which will only give rise to incompetent defence.

29. Reference was made by Mr. Karuppan to the scale of fees fixed by the Tamil Nadu State Legal Aid Board, with specific reference to it, in the preamble portion which reads as hereunder :

The argument was, that these rates of fees and honoraria payable to lawyers can be legitimately fixed by the Designated Court itself, since fees Rules vested discretion in Court, on an application by the party, to award a higher fees than what was admissible for reasons to be recorded in writing. This argument overlooks reference to Rule 11(2) of Tamil Nadu Legal Practitioners' Fees Rules, 1976 and the facility to provide for easy recovery from the party in a civil cause. This guideline cannot be confused with Rates of Fees or Honoraria, which State Brief Counsel would be entitled to for payment, by the Tamil Nadu State Legal Aid and Advice Board. For Sessions trial, this Board has fixed a fee of Rs. 75/- per day subject to a maximum of Rs. 500/-. As a matter of fact, this argument also overlooks the observation of Mishra, J. speaking on behalf of the Bench in W. P. No. 17132 of 1990, that it was not known if these rules are statutory rules or not. As a matter of fact, Courts have never failed to place on record its appreciation, when counsel of eminence, had volunteered to defend accused persons, who had indicated at some stage that they were not able to engage counsel and when they could have been provided the services of a counsel of their choice, at State expense. In Kehar Singh v. State (Delhi Administration) (AIR 1988 SC 1883) : (1989 Cri LJ 1), the Supreme Court while observing that all through the Courts had maintained the cardinal principle of our Constitution, stated that it must be said to the credit of learned counsel named in the judgment, that they had done an excellent job for the appellants and therefore the Court would like to thank those counsel and also the Additional Solicitor General, who had rendered valuable assistance, though as stated earlier, at State expense a counsel of their choice could have been engaged by the accused themselves. It is an accepted principle, that quality and quantity need not always have to go together. There can be quality and quantity together at the same time, and most often there can be quality without quantity. The object of free legal aid is to emphasise, that there cannot be inequality, merely because an accused, due to indigence cannot afford to engage a lawyer to defend himself. Equality in the eye of law is to get assistance of a competent legal practitioner, and the accused on their own choice, have got it in the instant case.

30. Now, the statge has reached to consider, as to what would be the just, fair and reasonable fee to which the State Brief Counsel in this Calendar Case will be entitled to. Mr. S. Doraisami and Mr. T. Ramadoss have already been engaged privately by four of the accused, two for each of them. Irrespective of their acceptance to appear as State Brief Counsel for other accused in this case, they are duty bound, as counsel engaged privately, to toil for those accused professionally, by going through the voluminous record and taking part in Court proceedings. Their appearance as State Brief Counsel for the other accused, will

only be an addition to those accused, whom they are already defending. Taking note of the fact that these counsel have a standing of 24 years and 28 years at the Bar respectively, and they have also been engaged privately by some of the accused, we are of the opinion that they will be entitled to a daily fee of Rs. 750/- (Rupees seven hundred and fifty only) for an effective hearing. The Designated Court can only certify, that there was an effective hearing on any particular day, if the counsel were engaged inside the court Hall for over three hours. For a period of three hours and less, the counsel shall be entitled to half the fees fixed per day. In the case of Mr. Doraisami and Mr. T. Ramadoss, it shall be Rs. 375/- per day if they work for three hours or less on any particular day. While arriving at the daily fee of Rs. 750/- we have taken into consideration the magnitude of the case vis-a-vis the work load, the distance between Madras City and Poonamallee, needing transport facility to carry the voluminous record to the court premises and back home. We have also taken note of the fact that every week trial is conducted only on four days (Monday to Thursday), thus effectively totalling up the number of working days per month approximately at 16 days. We must also state at this juncture that counsel appearing in this calendar case have opportunity to engage themselves in other professional work on four days in a month or probably even more, depending upon their participation in the trial on other working days, though to some extent, because of their involvement in this trial, there is bound to be a fair amount of affectation in their other professional work. Most of the counsel have been appearing before us periodically.

31. Mr. R. Jayaseelan and Mr. K. Thennan, who have bar experience of 16 years and 15 years respectively will be entitled to receive Rs. 600/- (Rupee six hundred only) for every effective hearing day, while it will be half the said sum if they are engaged in court on any particular day for three hours or less.

32. Mr. S. Gopalakrishnan, Mr. Ghana Gunaseelan, Mr. N. Chandrasekaran, Mr. C. N. Gunasekaran, Mr. N. S. Ziyauddin Ahamed, who have 12, 10, 8, 7 and 7 years experience respectively to their credit, shall receive Rs. 500/- (Rupees five hundred only) on all effective hearing days and Rs. 250/- (Rupees two hundred and fifty only) if they stood engaged only for three hours or less on any hearing day.

33. Mr. V. Elangovan who has just completed three years at the Bar, will be entitled to Rs. 350/- (Rupees three hundred and fifty only) for every effective hearing day, while it shall stand halved on such of those days when he gets engaged in court for three hours or less.

34. The certificate issued by the Designated Court, will be the basis for quantamising the effective daily fees at the rates fixed above or entitlement to half of the same depending upon the work done. We have also taken into consideration that this trial is likely to be long drawn out, while arriving at the just, fair and reasonable fees the State Brief Counsel will be entitled to. The State is bound to honour the bills as and when presented, every month. As far as the past remuneration is concerned, it shall be paid without delay on furnishing of relevant bills certified by the Designated Judge.

35. Before parting with this case, we are bound to observe that Legal Aid to Poor Accused Rules 1976 need drastic changes, at least in respect of payment of fee. As long as this Court has jurisdiction to issue directions under Article 227 of the Constitution, it makes no difference, if a plea has been made for mandamus by the parties concerned. The directions aforestated shall be applicable only to this calendar case.

36. These writ petitions are disposed of, with directions above stated. No costs.

37. A copy of this order shall be forwarded to the Designated Court and the State Government.