Introduction
Life has changed its shades and meaning from time to time. The debate on life started in A.K Gopalan case, where the Supreme Court held that if the law is valid and there is a procedure established in the law then the law is not a violation of Art 21. In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it was further held by a Constitution Bench of the Hon’ble Supreme Court that not only there has to be a procedure established in the law but the procedure for depriving a person of his life or liberty should be fair, reasonable and just. This is the law of the land and has been applied in various cases. In the present case [ MD. Sukur Ali v. State of Assam Cri Appeal No. 546 of 2011] came for an appeal in the Hon’ble Supreme Court challenging the decision of the Gauhati High Court on 01.06.2010 that in the absence of the counsel for the appellant accused and the conviction was upheld. The main question was:
1.
Whether in a criminal case 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 amicus curiae to defend the accused?
Judgment of the Court
The Hon’ble Supreme Court held that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.
Apart from the above, the Court agreed with the eminent writer H.M Seervai who has said in his “Constitutional Law of India’, Third Edition, Vol. I, Pg. 857:-
“The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh’s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings.”
Setting aside the order of the High Court, the Supreme Court in a recent decision [Md. Sukar Ali v. State of Assam] has declared that no trial of an accused can take place in the absense of a counsel for the accused. Holding that in such circumstances it was obligatory on the part of the Court to provide an amicus curie in the form of a lawyer practicing in criminal law, the Supreme Court held that such right to have a lawyer was a fundamental one and deeply rooted in the constitutional ethos of the country.
That question is whether in a criminal case 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 ?
“We are of the opinion that 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 21 which 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 Supreme Court took a reference form the US Supreme Court decision in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-
“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. 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 upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. 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 men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.
The Court allow the Appeal, setting aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.
Yours Sincerely
Mr. Unknown
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