A CRIMINAL CASE IS NOT TO BE DECIDED AGAINST ACCUSED IN THE ABSENCE OF COUNSEL FOR WHATSOEVER REASONS

[Mr. M. GOVINDARAJAN]

                       U.S.Supreme Court in ‘Powell V. Alabama’ – 287US45 (1932) observed – “What, then, does a hearing include?  Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right.   The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.  Even the intelligent and educated layman has small and sometimes no skill in the science of law.   If charged with crime, he is incapable, generally, of determining for himself whether the incident is good or bad.   He is unfamiliar with the rules of evidence.   Left without the aid of counsel he may be put on trail without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.   He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one.   He requires the guiding hand of counsel at every step in the proceedings against him.   Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.   If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.  If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and therefore, of due process in the constitutional sense.

                        In ‘Gideon V. Wainwright’ – 372US335 (1963) the US Supreme Court delivering the unanimous judgment of the Court observed that lawyers in criminal courts are necessities, not luxuries. 

                        In ‘Brewer V. William’ – 430US387 (1977) the US Supreme Court observed that the pressure on state executive and judicial officers charged with the administration of the criminal law are great.   But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.

                        The right to appear through counsel has existed inEnglandfor over three centuries.   InRomethere were great lawyers who defended the accused.   The higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted.   In theNurembergtrials the Nazi war criminal, responsible for killing millions of persons, were yet provided counsel.

                        Rt. Hon. Srinivasa Sastri, in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919, which prohibits counsels to appear for the accused in cases narrated – “When Government undertakes a repressive policy, the innocent are not safe.   Men like me would not be considered innocent.   The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes and salaams all the government officials all round.   The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect.  I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked.   It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery….” .   “Much better that a few rascals should walk abroad than the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land. 

                        Indian Constitution also stresses the liberty of a person.   It is the most important feature of our Constitution.   Article 21 guarantees the protection of life and persona liberty.  No person shall be deprived of his life or personal liberty except according to procedure established by law.   It is the most important fundamental right of the fundamental guaranteed by the Constitution.   It can be said to be the ‘heart and soul’ of the fundamental rights.   Article 22(1) 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 be denied the right to consult, and to defended by, a legal practitioner of his choice.

                        In ‘Maneka Gandhi V. Union ofIndia’ – AIR 1978 SC 597, it has been held by a Constitution Bench that the procedure for depriving a person of his life or liberty should be reasonable and just.

                        The eminent jurist Seervai in his book ‘Constitutional Law of India’ Third Edition Vol I Page. 857 have said that the right to be defended by counsel does not appear to have been stressed and was clearly not considered in any detail in ‘Ajaib Singh’s case- (1953) SCR 254.   But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.PC is a valuable right which was recognized by Section 340 Cr.PC.  Article 22(1) on its language makes that right a constitutional right, and unless there are compelling reasons.  Article 22(1) ought not to be cut down by judicial construction.   It is submitted that Article 22(1) makes the statutory right under Section 340 Cr.PC a constitutional right in respect of criminal or quasi-criminal proceedings.

                        In ‘Md.SukurAliV.StateofAssam’ – 2011 (266) ELT 32 (SC) the Supreme Court confirm the said principle discussed above.   In this case earlier the counsel for the appellant accused was Shri A.S. Choudhury but the appellant changed his counsel and appointed Shri B. Sinha in the year 2007 as his new counsel.   Unfortunately, the name of Shri Sinha as counsel for the appellant was not shown in the cause list when the case was listed and the name of the former counsel Shri Choudhury was show.   In these circumstances, Shri Sinha, the new counsel did not appear.  The High Court in the absence of the counsel for the appellant accused decided the matter and the conviction was upheld.  Hence the appellant filed this appeal before the Supreme Court. 

                        The question to be decided by the Supreme Court is whether in a criminal case if the counsel for the accused does not appear, for whatsoever reasons, should the case be decided in the absence of the counsel against the accused or the court should appoint an amicus curiae to defend the accused.

                        The Supreme Court is of the opinion that even assuming the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.        

                        The Supreme Court of further opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel.   It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case.   If a criminal case whether a trial/appeal/revision is decided against an accused in the absence of a counsel there will be violation of Article 21 of the Constitution.

                        The Supreme Court further observed that the founding fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula ‘no lawyer, no hearing, no appeal’.   Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases.   It was for the reason that they provided for assistance by counsel under Article 22(1) and that provision must be given the widest construction to effectuate the intention of the founding fathers. 

                        The Supreme Court allowed the appeal, setting aside the judgment of High Court and remanded the matter to the High Court for a fresh decision after hearing Shri Sinha, the new Counsel for the appellant accused.   The Supreme Court reiterated that in the absence of a counsel, for whatsoever reasons, the case should not be decided forthwith against the accused but in such a situation the court should appoint a counsel who is practicing on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.