RIGHT TO A PUBLIC DEFENDER

Introduction

A lawyer would protect the interests of the person concerned, help resolve the issues, cross- examine witnesses among other things. Every accused has a right to appoint a lawyer and if he doesn’t have the means to do so, it is the state’s responsibility to allot him a public defender. These right forms a part of principles of natural justice in proceedings which are to take place before any formal authority.  In India, the supreme court has considered the right to representation as an important part of the process established by law. The court has pointed out that when a person is deprived of his right to legal aid then his deprivation of liberty becomes unconstitutional.

Indian laws on Right to counsel

Article 22 in The Constitution of India,

22. Protection against arrest and detention in certain cases

“(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.”[i]

Article 22 talks about a person’s right to consult and be defended by a counsel of his choice. It also mentions that the detention should be informed. In other words, the accused must be informed of the reason for his arrest.

Article 14 in The Constitution of India, “14. Equality before law– The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”[ii]

Article 14 mentions equality before law. According to this article, the state shall not deprive a person of equal protection under the law based on his “religion, race, caste, sex or place of birth.” A public defence should be allotted to every accused who is not in a position to appoint one on his own, due to poverty or any other reasons. The evil of poverty should not stand in the way of justice or proceedings which might lead to deprivation of liberty, loss of reputation and other loss. Therefore, this right is important and basic to criminal trials, the state should ensure that this right is not denied to anyone.

Section 303[iii] of the code of criminal procedure, 1973 provides that a person accused of any crime or against whom proceedings are initiated under this code has a right to be defended by a pleader of his own choice.

Based on the recommendation of law commission of India in its 48th report, a new section was introduced under the code of criminal procedure, 1973- section 304[iv] which stipulated that, “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.”

Supreme court

In Hussainara Khatoon & Ors vs Home Secretary, State of Bihar[v], the apex court of India held that, it was the duty of a session judge or a magistrate to inform the accused before him about his right to obtain free legal aid at the expense of the state.

Ranchod Mathur Wasawa v. State of Gujarat–[vi] The supreme court acknowledged the right to counsel and also dealt with the question of quality of services to be made available to the person accused of a crime. “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 patronizing 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.”

The apex court in D.K. Basu v. State of W. B[vii] pointed out that, “The expression ‘life or personal liberty’ in Article 21 includes the right to live with human dignity and thus would include within itself a guarantee against human torture and assault by the State or its functionaries.” One of the rights that was recognized was the right of the accused to meet his attorney during the process of interrogation.  Perhaps, the presence of an attorney would prevent the human rights violation which has been the plague of Indian investigation system.

In Md. Sukur Ali v. State of Assam,[viii] The Gauhati high court had upheld the conviction of an accused whose attorney failed to appear before the court. The accused had changed his counsel whose name was not mentioned in the cause list, instead his old counsel’s name was listed. The case went to the supreme court, which expressed its views in the following words, “Even assuming that the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even then 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. This is because liberty of a person is the most important feature of our Constitution. Article 21which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ‘heart and soul’ of the fundamental rights.”

The court also cited Article 21 and 22(1) of the Indian constitution to support its view. The apex court directed Gauhati high court to do a retrial in light of the decision.

Conclusion

The right protects a person’s dignity, access to justice and prevents any unnecessary loss to reputation, property or liberty. It is an essential part of the justice delivery system and should not be abused at any cost. The state and enforcement bodies should ensure that the quality of public defenders is maintained so that no person would have to suffer due to poverty.

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[i] INDIA CONST. art. 22.

[ii] INDIA CONST. art. 14.

[iii] Code of criminal procedure, 1973, S 303.

[iv] Code of criminal procedure, 1973, S 304.

[v] Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, 1979 SCR (3) 532.

[vi] Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581.

[vii] D.K. Basu v. State of W.B, AIR 1997 SC 610.

[viii] Md. Sukur Ali v. State of Assam, (2011) 4 SCC 729.