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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 representation:
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 visitors.
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 process.

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 his choice.

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 judiciary.

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