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India: Supreme Court Ruling on Right to Counsel

(Mar. 10, 2011) On February 24, 2011, India's Supreme Court issued a ruling in a case on appeal reinforcing the principle that criminal defendants have the right to counsel. The legal and constitutional question posed was whether, “if the counsel for the accused does not appear, for whatever 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.” (Md. Sukur Ali v. State of Assam, Criminal Appeal No. 546 of 2011 (arising out of S.L.P. (CRL.) No(s).679 of 2011) (Feb. 24, 2011) [use search options in left-hand column]; Dwyer Arce, India Supreme Court Finds Constitutional Right to Counsel, PAPER CHASE NEWSBURST (Feb. 28, 2011).)

In the case under consideration, the Gauhati High Court apparently upheld the conviction of the appellant-accused in the absence of counsel. The appellant-accused had changed his counsel in 2007, a few years before the High Court's 2010 decision, but the name of the new counsel was not shown in the cause list when the case was listed; instead, the prior counsel's name was shown, and, as a result, the new counsel did not appear. In the Supreme Court's view,

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. (Md. Sukur Ali v. State of Assam, supra.)

In addition to citing article 21 of the Constitution, the Court referred to article 22(1) on the accused's right to counsel in a criminal case. The article states: “[n]o 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 Constitution of India (as amended up to Dec. 1, 2007), Ministry of Law & Justice website.) The Court also cited several U.S. Supreme Court cases in support of its decision; namely, Powell v. Alabama, Gideon v. Wainwright, and Brewer v. William. (Arce, supra; Md. Sukur Ali v. State of Assam, supra.)

The Court further stated that in ancient Rome “there were great lawyers … who defended the accused and in England the right to a defense has existed for over three centuries, and [e]ven in the Nuremberg trials the Nazi war criminals … were yet provided counsel.” (Md. Sukur Ali v. State of Assam, supra.) Therefore, in asserting the right of the accused to counsel, the Court was not instituting a new principle “but simply recognizing what already existed and which civilized people have long enjoyed.” (Id.) The Court added that a number of the founders of the Indian Constitution, freedom fighters who had seen Indians' civil liberties crushed under foreign rule and been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal), were lawyers who understood the importance of counsel, especially in criminal cases. That is why they included the right to counsel in article 22(1), “and that provision must be given the widest construction to effectuate the intention of the Founding Fathers,” the Court emphasized. (Id.)

The Supreme Court subsequently remanded the case to the Gauhati High Court for retrial in light of the decision. (Arce, supra.)