Right to Counsel in India and other Countries
A Lawyer can help delineate the issues, present the factual contentions in an
ordinary manner, cross-examine witnesses and otherwise safeguard the interests
of the party concerned. The right to representation by a lawyer or other person
may prove to be part of Principles of Natural Justice in any proceedings before
formal authority or investigation if there is no provision to the contrary.
Generally, the right to legal representation is not considered a mandatory part
of the right to Fair Hearing. The right to representation is as regarded more of
an exception than the general rule.
Position in England:
Assigned counsel, a lawyer or lawyers are appointed by the state to provide
representation for indigent persons. Assigned counsel generally are private
lawyers designated by the courts to handle particular cases; in some countries,
particularly the United States, public defenders permanently employed by the
government perform this function.
The right to counsel varies considerably from country to country. Until the late
19th century, access to counsel was almost entirely predicated upon an
individual’s ability to pay. If a person could afford a lawyer, he was entitled
to one; if he was poor, he usually went unrepresented, except at times in
capital cases. In the late 19th century, bar organizations and social-welfare
groups banded together to supply legal aid to the indigent. By the mid-20th
century, the governments of most European countries were participating in these
programs in some fashion, in either their administration or funding or in both.
In civil-law countries and in England, the provision of assigned counsel has
been more limited. For example, in France anyone accused of a crime beyond a
minor misdemeanour must have counsel at the preliminary hearing and the trial,
but this right has not been extended to cover police interrogation.
In Britain, the Franks Committee was of the view that the right to legal
should be curtailed in the most exceptional circumstances,
where it is clear that the interests of the applicants generally would be better
served by a restriction. There is, however, some difference of judicial opinion
on their point in England.
In R vs. Board of Visitors of H.M. Prison, the House of Lords has ruled that a
prisoner could not claim legal representation in a disciplinary proceedings as
of right even when the charge laid against him constituted a crime in law. The
matter of permitting legal representation is one of discretion with the board of
Everything must depend on the circumstances of the particular case.
Position in U.S.:
Although Great Britain provided legal aid earlier (1949) than the United States,
the United States was at the forefront in providing assigned counsel. Beginning
in 1963 in Gideon vs. Wainwright, the United States Supreme Court issued a
series of decisions that upheld the rights of indigent persons accused of
felonies to have counsel during trial and appeal and even during police
interrogation. Although this right was not extended to cover misdemeanours, some
jurisdictions and many public defender offices give coverage in such cases.
Owing to an increase in prisoners on death row and a diminished emphasis on pro
bono work in law firms, at the beginning of the 21st century, many prisoners
sentenced to death in the United States lacked lawyers during the appeals
In U.S.A., the right of legal representation is guaranteed, for many purposes by
the combined effect of the “Due Process” clause of the U.S.
Constitution and section 555(b) of U.S. Code. The US law provides that a person
compelled to appear in person before an agency or representative thereof is
entitled to be accompanied, represented, and advised by counsel or, if permitted
by the agency, by other qualified representative.
Position in India:
Legal assistance from a lawyer is held by the Supreme Court of India as
essential requisite of the procedure established by law. The court holds that if
a person does not have legal aid, her or his deprivation of liberty is
unconstitutional and void. In disciplinary inquiries as in other quasi-judicial
proceedings, however, lawyers are not always considered necessary. In fact, the
very purpose of creating administrative tribunals is to provide a
de-professionalized dispute settlement mechanism and therefore, at times there
are statutory provisions for the exclusion of lawyers.
The right to counsel springs from Article 22 of the Constitution of India which
provides that no person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner of
The defence of the indigent accused by a pleader assigned by the
State should be made available to every person accused of an offense (i.e. in
all criminal trials) so that mere poverty may not stand in the way of adequate
defence in a proceeding which may result in the deprivation of liberty or
property or loss of reputation. The right to counsel is thus recognized as a
“basic ingredient” of a criminal trial, and the law should “go as far as
possible” in assuring that this ingredient is not absent.
This principle has also been affirmed by the Indian Supreme Court in the 1974
case of R.M. Wasawa. In R.M. Wasawa, the Court proclaimed that indigence should
never be a ground for denying fair trial or equal justice. Particular attention
should be paid to appoint competent advocates, equal to handling complex cases,
not patronising gestures to raw entrants at the Bar. Sufficient time and
complete papers should also be made available so that the advocate chosen may
serve the cause of justice.
Moreover in Cr.P.C. section 303 provides that any person accused of an offence
before a criminal court, or against whom proceedings are instituted under this
Code, may of right be defended by a pleader of his choice. Section 304 of Cr.P.C. provides
that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the Court that the accused has
not sufficient means to engage a pleader, the Court shall assign a pleader for
his defence at the expense of the State.
The Cr.P.C. provides that in all criminal prosecutions, the accused has a right
to have the assistance of a counsel and the Cr.P.C. also requires the court in
all criminal cases, where the accused is unable to engage counsel, to appoint a
counsel for him at the expenses of the State. Howsoever guilty the appellant
upon the inquiry might have been, he is until convicted, presumed to be
innocent. It was the duty of the Court, having these cases in charge, to see
that he is denied no necessary incident of a fair trial. It is equally true that
the absence of fair and proper trial would be violation of fundamental
principles of judicial procedure on account of breach of mandatory provisions of
Section 304 of Cr.P.C.
Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader
for the defence of the accused at the expense of the state provided he is
unrepresented and the court is satisfied that he has no sufficient means to
engage a pleader. The selection of such pleader, the facilities to be given to
him by the court and his remuneration are to be governed by the rules that may
be framed by the High Court in this regard with previous approval of the State
Government. This facility also extends to any class of criminal trials before
other courts as indicated earlier to try criminal cases in the State as it
applies in relation to trials before Courts of Sessions.
While interpreting section 304 of Cr.P.C. the Court in the case of Ranjan
Dwivedi v. Union of India (1983), also stated that there is “no doubt” that the
accused is entitled to financial assistance to engage a counsel of the accused’s
choice. It also remarked that the government should implement legislation that
has appropriate schemes for free legal aid.
However the right to counsel during interrogation by the police was not
recognised in Cr.P.C. until the amendments made in 2010 due to the judgment of
the SC in the case of D.K.Basu vs. State of W.B. (1997). Section 41-D was
inserted in Cr.P.C. which provided that when any person is arrested and
interrogated by the police, he shall be entitled to meet an advocate of his
choice during interrogation, though not throughout interrogation.
The denial of legal representation in quasi-judicial proceedings is justified on
the ground that lawyers tend to complicate matters, prolong the proceedings, and
destroy the essential informality of the proceedings. It is further justified on
the ground that representation through a lawyer of choice would give an edge to
the rich over the poor who cannot afford a good lawyer.
Thus right to counsel is an essential right and must be safeguarded by the
Law Article in India
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