Article 22: Right to Consult a Legal Practitioner

An arrested person has a constitutional right to obtain legal advice and representation. Article 22(1) protects access to a legal practitioner of choice, while Article 21 requires free legal representation at state expense for an indigent accused when it is necessary to make the criminal process fair, just and reasonable. Article 39A reinforces this obligation by directing the State to promote equal justice and provide free legal aid.

Right to consult and be defended

The two protections under Article 22(1) become available upon arrest and restrain the authorities from denying reasonable access to legal assistance.

• The arrested person may consult a legal practitioner for advice about the arrest, questioning and available remedies.
• The person may be defended by a legal practitioner of their choice in proceedings arising from the arrest.
• The person must also be informed, as soon as may be, of the grounds of arrest.

Free legal representation under Article 21

The Supreme Court has interpreted fair procedure under Article 21 to include legal assistance for an accused who cannot afford representation. This constitutional duty is not confined to the trial stage.

• In Hussainara Khatoon, the Court recognised free legal services as an essential element of reasonable, fair and just procedure.
• In Khatri v. State of Bihar, the Court held that the duty arises when the accused is first produced before a magistrate and continues during subsequent remands.
• In Suk Das v. Union Territory of Arunachal Pradesh, the Court held that the right is not lost merely because the accused did not apply for legal aid; the accused must be informed of it.
• Free legal aid does not confer a right to demand any particular lawyer at state expense.

Limits and statutory implementation

The chosen-counsel guarantee and the free-legal-aid guarantee have different constitutional foundations and scopes.

• Under Article 22(3), Article 22(1) and 22(2) do not apply to an enemy alien or a person detained under a preventive detention law.
• Article 39A directs the State to ensure that economic or other disabilities do not deny opportunities for securing justice.
• The Legal Services Authorities Act, 1987 creates the institutional framework for providing free legal services to eligible persons.