RIGHT TO CONSULT A LAWYER

September 9, 2023

This article has been written by Kumari Shalini, a student studying B.A. LL. B from Lloyd Law College, Gr. Noida. The author is a 3rd -year law student.

INTRODUCTION

An attorney can aid in defining the issues, presenting the factual contentions in a straightforward manner, cross-examining witnesses, and other ways of defending the interests of the party in question. If there is no provision to the contrary, the right to legal or other counsel in any proceedings before official authority or investigation may show to be one of the Principles of Natural Justice. Generally speaking, the right to counsel is not viewed as a necessary component of the right to a fair hearing. The right to representation is seen more as the exception than the rule. According to the Supreme Court of India, legal counsel is a necessary requirement of the legal process. According to the court, it is illegal and invalid to absolve a person of responsibility if they do not have access to legal representation. However, attorneys are not always viewed as necessary in disciplinary inquiries or other quasi-judicial hearings. In fact, statutory provisions for the exclusion of solicitors are occasionally present because the whole goal of forming administrative tribunals is to offer a de-professionalized dispute resolution process.

As oral hearings are not included in the minimum requirements of a fair hearing, representation by a lawyer is typically not seen as a necessary component of the rule of Natural Justice in any administrative process. However, Indian courts have ruled that parties who require legal representation must receive some form of professional assistance to enable them to effectively exercise their right to self-defense in circumstances where they are illiterate, the case is complex, and technical or expert testimony is on the record, a question of law is at issue, or they are up against a skilled prosecutor.

Also, in the case of Powell v. Alabama, 1932, Supreme Court of America, where the Honourable judges stated that the golden rule of the rule of law regarding the right to be heard before a court cannot be effectively followed and will be of little avail if the person is not being heard by its counsel. This was noted because it’s likely that the defendant will not be aware of the rules of evidence, and if he is tried without a qualified attorney, he may be tried using irrelevant or inadmissible evidence. In addition, it was determined in the cases of Maneka Gandhi v. UOI 1978 and Hussainara Khatoon v. State of Bihar, 1980 that the right to consult a lawyer is a crucial principle to be followed while adhering to the privilege under Article 21 of the Indian constitution. These cases were based on the free and fair trial proceeding provided under Article 21 of the Indian constitution.

The fundamental right under Article 22(1)

The right to counsel derives from Article 22 (1) of the Indian Constitution, which states that no one who is arrested shall be held in custody without being informed, as soon as is reasonably possible, of the reasons for such arrest, and that he shall not be denied the right to consult with and be represented by a legal practitioner of his choice-

“(1) 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”

Every person accused of a crime should have access to the defense of the indigent accused by a pleader appointed by the State in all criminal trials, so that a person’s lack of resources won’t prevent them from mounting a strong defense in a case that could cost them their freedom, their property, or their reputation. Thus, it is acknowledged that the right to counsel is a fundamental component of a criminal trial, and the law should take all necessary measures to ensure that this component is present. In the R.M. Wasawa case from 1974, the Indian Supreme Court upheld this premise. In R.M. Wasawa, the Supreme Court ruled that financial need should never be an excuse for depriving someone of a fair trial or equal justice. Instead of showing contempt towards inexperienced representatives, special emphasis should be devoted to selecting qualified attorneys capable of managing complex situations and who can reach out to the person’s help. In order for the chosen counsel to further the interests of justice, sufficient time and entire documentation must also be made available.

Right to a lawyer in other substantive law

Section 303 of the Criminal Procedure Code Cr PC states that anyone who is charged with a crime in a criminal court or who is the subject of procedures under this Code has the right to choose the pleader who will represent him in court. According to Section 304 of the criminal procedure Code, the Court shall appoint a pleader for the State to pay for the accused’s defense in any trial before the Court of Session where the accused is not represented by a pleader and where it appears to the Court that the accused lacks sufficient means to engage a pleader.

The CrPC stipulates that the accused has a right to legal representation in all criminal trials and that the court shall provide legal representation for the accused at the State’s expense in all criminal proceedings where the accused is unable to retain legal representation. Whatever the outcome of the investigation, the appellant is assumed innocent unless proven guilty. In charge of these instances, the Court has a responsibility to ensure that he receives every necessary aspect of a fair trial. It is also accurate to say that failure to comply with the Section’s required provisions would result in a violation of the fundamental principles of judicial procedure if a fair and proper trial were not conducted.

In accordance with Section 304 of the CrPC 1973, the Session Courts may designate the pleader for the accused’s defense at the state’s expense if the accused is not represented and the court determines that the accused lacks the financial resources to hire a pleader. The High Court may establish rules in this regard with prior State Government permission. These rules would govern the appointment of such a pleader, the facilities the court would provide for him, and his compensation. As was said previously, this facility also applies to any category of criminal trials before other courts to try criminal cases in the State as it does with respect to trials before Courts of Sessions. In the case of Ranjan Dwivedi v. Union of India (1983), the court also held that there is no doubt that the accused is entitled to financial help to hire a lawyer of the accused’s choice in interpreting section 304 of the CrPC. Additionally, it suggested that the government enact laws with suitable programs for free legal help.

The Supreme Court determined in the Krishna Chander case, which involved a disciplinary investigation against a government official, that the petitioner’s refusal of legal counsel did not amount to infirmity in the context of the factual circumstances for the following reasons:

According to the rules, he was not entitled to an advocate’s help during the investigation.
There was no complexity to the matter, and the appellant was not deprived of a reasonable opportunity to defend himself because,
there was no oral evidence to be recorded at the inquiry and no requirement for a counsel to cross-examine witnesses.

CONCLUSION

The decision about legal representation must always be made in light of the unique facts of each case. In a case, the court will determine whether or whether the adjudicating body used its discretion by denying the party’s request for legal assistance. In certain circumstances, the court has mandated the need for legal counsel, giving the adjudicator no leeway. Early on in the procedures, the party’s request to be represented by counsel should be made adjudicatory authority.

REFERENCES

September 9, 2023