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Right to Counsel
by Santosh paul, Advocate, Supreme Court

Cite as : (1997) 8 SCC (Jour) 14

The U.S. Supreme Court as early as in 1962 pointed out the correlation between the standards of criminal law enforcement and level of civilization thus:

"The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged."1

The absence of the right to counsel in the early English law indicates that it could not make up the grade for a civilized system. It was only in 1836 that a prisoner charged with felony was allowed counsel in England.

The first opportunity for the United States Supreme Court to deal with this right arose in the famous Scottsboro case2. In this case nine Negro boys were tried in Alabama for the rape of two white women. All were found guilty and sentenced to be hanged in the trial which lasted for one day without the aid of counsel. The Supreme Court struck down the conviction and held that it was the duty of the Court to assign counsel to the accused in such cases. Justice Sutherland wrote what is a universal truth and the raison d'etre of the right to counsel thus:

"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 indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and convicted on improper evidence. 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 man of intelligence how much more true is it of the ignorant and illiterate, or those of feeble intellect."

The Court later in Escobedo3 and Miranda4 expanded and expounded the right to counsel to a pre-trial necessity. In Escobedo v. Illinois3 the police did not advise the accused of his right to remain silent. Instead they confronted him with an alleged accomplice who accused him of having perpetrated a murder which was denied. He was also denied a counsel. He was handcuffed and interrogated for four hours after which he confessed. The Court took note of the famous Wickerham Report to the Congress. The report after making extensive studies had found widespread prevalence of police brutality - beating, hanging, whipping - to extort confession. It found violence was also used to extort statements to incriminate third persons5. The conviction of Escobedo was struck down as violative of his constitutional right to remain silent and his right to have assistance of counsel.

In Miranda v. Arizona4 the Court categorically held that it was obligatory upon the police to warn the accused of his right to remain silent, which must be accompanied by the explanation that anything said could and would be used against the individual in a court of law. Chief Justice Warren cast a constitutional obligation upon the authorities to inform the suspect of his right to counsel and ruled:

"It is necessary to warn him not only he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the administration of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one."6

On the recommendation of the Law Commission of India in its 48th Report of new Section 304 was introduced in the Code of Criminal Procedure 1973 stipulating 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."7

The Supreme Court of India also recognised the right to counsel in R.M. Wasawa case8 and dwelt on the quality of legal assistance to be made available to the accused thus: (SCC p. 581)

"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 patronising 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 Supreme Court of India in Hussainara Khatoon (V) v. Home Secy., State of Bihar9 held that a duty was cast on the Magistrate or the Sessions Judge to inform the accused who is indigent that he is entitled to obtain free legal services at the cost of the State. This was reiterated in Ranjan Dwivedi v. Union of India10.

Now in India custodial violence has become a norm and the incidence of custodial deaths is widespread. Even though there exists no serious study on the extent of custodial violence it is often the subject of literature and the popular arts in almost all languages confirming its presence.

It assumed much importance when the Supreme Court of India in D.K. Basu v. State of W.B.11 took cognisance of its existence after a letter was sent to the Chief Justice of India drawing attention to newspaper reports regarding death in police lock-ups and custody. The Court took note of the Third Report of the Indian Police Commission and other data. Delivering the landmark judgment Justice Anand wrote: (SCC p. 426, para 17)

"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."

This judgment lays down a detailed code to be scrupulously followed by the police personnel prior to and after making the arrest. This may have far-reaching consequences in the development of a humane jurisprudence. One of the rights recognised is the right of the arrestee to meet his lawyer during interrogation, though not throughout the interrogation. The presence of a lawyer during the investigation process is perhaps the only foolproof method to prevent human rights abuses which has been the bane of the Indian investigating system. The Supreme Court's code governing arrest and detention expressly prohibits third-degree methods and torture by the police. This judgment is a watershed in judicial history in its efforts in ridding the system of human rights violations during custody and investigation. Its importance lies in the recognition of the right to counsel at the investigation stage.

1. Coppedge v. U.S., 369 US 438 (1962) Return to Text
2. Powell v. Alabama, 287 US 45 (1932) Return to Text
3. Escobedo v. Illinois, 378 US 478 (1964) Return to Text
4. Miranda v. Arizona, 384 US 436 (1966) Return to Text
5. Id. Return to Text
6. Id. Return to Text
7. S. 304, CrPC, 1973 Return to Text
8. Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581 Return to Text
9. (1980) 1 SCC 108 Return to Text
10. (1983) 3 SCC 307 Return to Text
11. (1997) 1 SCC 416 Return to Text