The right to counsel is an integral component of securing access to justice, and more critical when criminal law is involved. There are a few different ideas that are often rolled up together when we speak of this right: it refers to (i) a right of access to counsel, (ii) a right to be defended by the counsel of choice, and (iii) a right to effective assistance of counsel. All three of these aspects are affirmed by the Constitution of India, the Code of Criminal Procedure 1973 [Cr.P.C.], and the Legal Services Authority Act, 1987.
Article 39-A of the Constitution declares that providing free legal assistance to persons unable to afford counsel is a Directive Principle of State Policy. The Legal Services Authority Act, 1987 enforces this mandate, and Section 12 provides that the following persons shall be entitled to free legal services:
(a) A member of a Scheduled Caste or Scheduled Tribe.
(b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution.
(c) A woman or a child.
(d) A mentally ill or otherwise disabled person.
(e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster or
(f) An industrial workman or
(g) In custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987) or
(h) In receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court. (g) in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987); or (h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.
For accused persons in criminal cases, Section 304(1) of the Cr.P.C. secureds a right of access to counsel in a Sessions Trial if it appears that the accused is without sufficient means to engage a lawyer. High Courts and State Governments are required to pass rules regulating this process, and Section 304(3) provides that State Governments could, by notification, extend this beneficial provision to cases beyond those prosecuted as Sessions Trials.
Beyond these categories, the Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India & Ors., (1995) 1 SCC 14 [Supreme Court of India, 3 Judges] held that complainants in sexual assault cases had a right to be provided legal representation, at the stage of the police station itself. The Court directed that police officers had to approach a court to ensure that a competent lawyer was appointed, but clarified that waiting for a court’s approval was not necessary in every case.
Criminal trials are generally imagined as a process between the state and an accused, and victims have limited roles to play as witnesses or informants. In India, we find there are different standards depending on the kinds of cases.
In Sessions Triable Cases, prosecutors have exclusive rights to argue before court vide Section 225, and a victim’s counsel can only “assist” and act “under the directions” of prosecutors, and may submit written submissions at the stage arguments with prior permission from the Court [Sections 24(8) and Section 301(2), Cr.P.C.]. Recently, in Rekha Murarka [Crl. Appeal 1727/2019 decided on 20.11.2019 (Supreme Court of India, 2 Judge Bench)], the Supreme Court has said that this assistance can certainly go beyond merely filing written submissions, but it did not agree that the victim’s lawyer has a right to examine witnesses and make oral arguments.
In cases before Magistrates, the default position is, again, that prosecutors will conduct the trial, and through Section 301(2) a victim’s counsel can render assistance. However, Section 302, Cr.P.C. also recognises the rights of victims to conduct the prosecution. It has been confirmed by the Supreme Court that victim’s must file an application seeking permission from the Court [Dhariwal Industries Ltd. v. Kishore Wadhwani, (2016) 10 SCC 378 (Supreme Court of India, 2 Judge Bench)]. This is not a routine process, and requires careful application of mind by the court, and there must be reasons to permit granting this permission where ordinarily a case is run by prosecutors [Amir Hamza Shaikh v. State of Maharashtra, (2019) 8 SCC 387 (Supreme Court of India, 2 Judge Bench)].
Article 22(1) of the Constitution provides that all persons have a right to be defended by a counsel of their choice. The Supreme Court clarified in State of Madhya Pradesh v. Shobharam & Ors. [AIR 1966 SC 1910 (Supreme Court of India, 5 Judge Bench)] that Article 22 was not restricted to cases involving arrest. Rather, it equally applies to a person who “though not arrested runs the risk of loss of personal liberty”.
The statutory recognition of the right to counsel of choice can be seen in Section 303, Cr.P.C. It is somewhat broader than Article 22(1), as it covers “any person accused of an offence before a criminal court” or against whom “proceedings are instituted” under the Code. This makes it apparent that the right to counsel also extends to appeals, and is not exhausted at trial. At the same time, the Cr.P.C. has also recognised the right to counsel outside the courtroom: Section 41-D entitles an arrested person to request that a lawyer be present during any investigation. However, this is not an absolute right, and police can ask lawyers to be excluded from interrogations under Section 41-D itself.
For persons in custody, the right to access counsel is not absolute and regulated by the authority in whose custody the person is. Thus, where a person is in police custody, the lawyer must file an application for permission with the concerned magistrate, and any legal interview happens in the presence of police. However, for a legal interview with persons in police custody to be effective and respectful of the lawyer-client relationship, courts have held that such interviews must be conducted with police being present, but situated outside of earshot. [See, e.g., Cecilia Fernandes v. State & Anr., 2005 SCC OnLine Bom 1515 (Bombay High Court, Single Judge)]. For persons in judicial custody, the process for interviews with their counsel is regulated under the jail rules, and will normally require an application to be filed by lawyers with the concerned jail furnishing necessary proof of engagement (for e.g., a copy of the vakalatnama).
A right to having counsel “of choice” confirms that an accused person can change her counsel at any point, and there is no legal requirement to retain the same counsel for different proceedings.
The right to counsel is meaningless unless effective legal assistance can be secured for the litigant. The Supreme Court has expressly recognised this aspect of the right to counsel in decisions such as Mohd. Hussain (I) v. State (Govt. of NCT of Delhi) (2012) 2 SCC 584 [Supreme Court of India, 2 Judge Bench]. This is also reflected in the directions that were passed by the Supreme Court in Delhi Domestic Working Women’s Forum (supra) where the Court insisted that a competent lawyer must be provided to the complainant.
There is little clarity on the meaning of “ineffective assistance”, and the courts adopt a case-by-case approach. Thus, in Mohd. Hussain (supra) it was shown that the trial was conducted despite absence of counsel or that the counsel had not cross-examined any witnesses, and the Court was ready to find that the accused had not been rendered effective legal assistance.
Further, in decisions such as Bashira v. State of Uttar Pradesh [AIR 1968 SC 131 (3 Judges)] and more recently in Ambadas Laxman Shinde & Ors. v. State of Maharashtra (2018) 18 SCC 788 [Supreme Court of India, 3 Judge Bench] the Supreme Court quashed a conviction where it was demonstrated that counsel was not given sufficient time to prepare. In Ambadas Laxman Shinde counsel had been asked to make final arguments on the same day that he had been appointed for the court, which was held to be a violation of the right to counsel.
However, reported decisions where a court has upheld a claim for ineffective assistance on less extreme facts have not been found yet.