“SCOPE OF RIGHT TO BE CONSULTED BY A LEGAL COUNSEL AND EFFECT OF

THE RIGHT NOT BEING HONOURED”

-ANURAG SINGH
I. INTRODUCTION

The Code of Criminal Procedure, when drafted in 1973 was done with the intent to aid the
substantive penal code, by laying down how the criminal can be convicted for his crimes. In
doing so, the Code adopted the adversarial system of trial based on accusatorial method
wherein the defendant has to prove beyond reasonable doubt that he is not guilty of the charges
framed against him. 1 In majority of the circumstances, the accused is a layman with regards to
his rights to fair trial, which includes his right to be represented by a legal counsel. In the case
of Zahira Habibullah Sheikh v State of Gujrat,2 it was held that this representation by a legal
counsel is the fundamental right of the accused under Article 22(1) of the constitution.3 In
situations of horrific attacks like instances of terrorism, murder, rape, etc. the “accused” has
been given legal assistance which emphasises the fact that an accused is innocent until proven
guilty, i.e., following the principles of fair trial sufficient opportunities are provided in order to
prove his innocence in front of an impartial judge.
II. Cases in India dealing with the lack of representation by a legal counsel
The earliest case in India dealing with the lack of representation by a legal counsel was
Golkonda v State of Hyderabad (1951), where the High Court used its power under S.482 of
the code and ordered a re-trial in the case where the accused was given a capital punishment
for murder without having a chance to defend himself with the help of the counsel as tis was
seen to be a violation of his Fundamental Right,4 in the same year the case of Bairam Ramreddi
v Hyderabad State,5 with similar fact situations and circumstances gave the same holding and
ordered a retrial. These cases led up to the Supreme Court case of Janardhan Reddy v State of
Hyderabad wherein the accused persons were kept in police custody and not allowed to interact
with the counsel for the entire duration of the trial.6 The learned counsel on behalf of the
Petitioner cited one of the earliest U.S. Supreme court case on this Matter Powell v. Alabama
where the need for a learned counsel on every stage of the criminal proceeding was iterated. 7
Justice Fazal Ali, while concurring with the earlier opinions on holding re-trial, pointed out
that the reliance of the Indian law wholly on the American precedent was wrong as it relied on
“due process of law”.8
III. Duty of State

1
R.V. KELKAR, CRIMINAL PROCEDURE, 6th ed., p.346.
2
(2006) 3 SCC 374.
3
(2004) 4 SCC 158.
4
AIR 1951 Hyd 87.
5
AIR 1951 Hyd 39.
6
1951 AIR 217.
7
287 U.S. 45 (1932).
8
1951 SCR 344.
 The point of contention which now arises is that the Code of Criminal Procedure that was
drafted in 1973 following the 41st Law Commission Report adopted the accusatorial method in
its adversarial process of criminal prosecution.9 This method calls for State intervention, as it
now becomes the duty of the state to provide the indigent, or otherwise unaware accused with
a defendant counsel, for now it primarily assumes two position, i.e., at the time of determination
of guilt it becomes an accuser, and at the time of the trial it assumes the role of the judge. In
matters such as deciding the case, especially where capital sentences are involved and the
accused has a high probability of his life being taken away, the state has now a duty that he has
sufficient chances to defend himself. This goes against what the constitution makers had
originally envisioned by specifically excluding the words “’due process of law” in the
Constitution. 10
This led to a change in the trend of cases beginning from the case of M.H. Hoskot v State of
Maharashtra11 in 1978 where the court recognised the right to free legal assistance to be given
under Article 39-A of the Directive principles of the State Policy, using it as a tool for
interpretation of Article 21. Thus, free legal assistance was made the norm in the cases
following Hoskot. Similar judgements were made in the cases of Khatri v State of Bihar12,
Ranjan Dwivedi v Union of India13 Chandran v State of Kerala14, Unnikrishnan v State of
Kerala15
IV. Effective counsel under the scheme of Legal Aid
This raises a two-pronged contention, firstly, if without invocation of the “due process” clause
by judicial interpretation, the Courts acted in a prudent manner in cases of a lack of legal
counsel then why was there a need for the former, and secondly, was there ever a doing away
of the “due process” in the Constitution, as the drafters had intended.
In the aforementioned case of Janardhan Reddy v State of Hyderabad16, Fazal Ali J. had
redirected the focus of the counsel from American precedents to Article 340 of the Code
17
which said that every accused shall have the right to be defended by a pleader, and he went
on to say that this article must be construed liberally in the sense that in cases giving out capital
punishments the state shall act in favour of the accused giving him adequate representation.
Along with the interpretation of the article, and summarisation of what the High court was
capable of, he also added that this procedure cannot be established as a “rule of law”, thus
limiting the scope of the Article to the discretion of orders, or circulars issued by the High
Courts. His view was in consonance with the intent and purpose of the Constitution drafters.18

9
Law Commission Report, Forty first report, 1973.
10
CONSTITUENT ASSEMBLY DEBATES Vol. III, 797-98 (Dec 3, 1948).
11
(1978) 3 SCC 544.
12
(1981) 2 SCC 493.
13
(1983) 3 SCC 307.
14
1983 KLT 305.
15
1983 KLT 586.
16
1951 SCR 344.
17
Code of Criminal Procedure, 1973, §340.
18
1951 SCR 344.

Page 2 of 5
However, Koppell in his article pointed out the incorrectness of the approach taken by Fazal
Ali in mistaking the intent behind the decision of the case of Powell v Alabama 19 on which on
which the prosecution counsel had placed reliance upon. He thought that the case extended the
rule of the 5th Amendment which followed the due process clause as being the basis of Powell
v Alabama and thus placing non-reliance on it. Koppell says that the decision of the case was
taken in furtherance of the sixth Amendment and not the fifth. Koppell regards the
constitutional letter of the Sixth Amendment (embodying the right to counsel) and the
Fourteenth amendment (equal protection of law) being very similar to the Indian letter, thus
permitting the inclusion in the Indian scenario of cases decided under it. 20This view somehow
resolves the previously contentious issue of including due process in the Indian scenario which
would have otherwise vitiated the Constitution makers’ intent of excluding it for the purpose
of preventing executive and legislative intervention in the functioning of criminal
prosecution.21
Even after the inclusion of the so called “due process clause” by means of judicial decisions,
there have problematic decisions where the Supreme Court has explicitly laid down cases
where the accused need not be given free legal assistance. The Constitution of India, under
Article 22(1), has laid down that the accused has the right to be defended by a counsel of “his
choice”. The choice element has proven to be an issue of deliberate ignorance by the judges,
for this was often taken to be a clause for defence 22
However, in 1981 in the case of Khatri(II) v State of Bihar 23the Supreme Court did recognise
that there was a problem with illiterate and unaware , and mostly indigent persons from rural
areas not being provided free assistance to defend themselves, for the right was fundamental in
nature. However, the SC in the very same judgement also laid down that in cases where social
justice is involved, such as “child abuse and like” , the State may do away with free legal
assistance.24 This precedent means essentially depriving an illiterate, indigent person of his
fundamental right and violating the principle of “Audi Alteram Partem” which means every
party must be heard, a concept in natural justice system which has been adopted by the Indian
Criminal prosecution system by adopting the adversary system. A somewhat moral argument
which also should be noted is that if the state acts as the accuser, the judge, and the accused
remains helpless before it with the state providing it no recourse to let the accused speak, it
seems to be very much of the nature of tyranny.
The 1986 case of Suk Das v UT of Arunachal Pradesh25, it was re-iterated that free legal
assistance is a fundamental right of every individual. 26However, the exclusionary nature of the
Khatri judgement was not discussed until the 2012 case of Rajoo v State of Madhya Pradesh

19
287 US 45(1932).
20
Koppell, G. (1966). LEGAL AID IN INDIA. Journal of the Indian Law Institute, 8(2), 224-251. Retrieved from
http://www.jstor.org/stable/43949898.
21
Id.
22
Abhinav Sekhri, Dancing in the Dark: Right to effective legal assistance in India, 4.3 CALQ (2019) 1.
23
(1981) 2 SCC 635.
24
Id.
25
(1986) 2 SCC 401.
26
Id.

Page 3 of 5
 27
where Lokur J. pointed out that as free legal assistance is a constitutional mandate, the bench
held certain reservations about the exceptions carved out in Khatri judgement. 28However, this
case did not precisely overrule the judgement, they merely expressed their reservations with
using it. This allows the Khatri judgement to still stand as a precedent, and be construed
liberally in cases like child abuse and like, and thus be used to violate the accused’s
fundamental right.
V. American and Indian Scenario
It is but, an implicit understanding that when an accused is to be provided with a legal counsel,
the counsel should not be ineffective, i.e., be unable to defend the accused. If this be the case
then it’d be equal to the right of the accused not being honoured. However, majority of Indian
case decisions remain silent on the matter. Borrowing once again, from the Americans,
majority of the Indian courts decided to adopt the test laid down in the leading decision of
Strickland v Washington 29on assessing the effectiveness of the counsel provided. The test can
be summarised as firstly, the counsel should have made such unprofessional errors that it did
not fit the guarantee of “counsel” under the Sixth Amendment and, secondly, the existence of
a “reasonable probability’ that had such unprofessional errors not been in place, the result
would have been decidedly different.30 This test though hailed to be quite landmark, in
assessment of quality is not without demerits and this can be seen in both Indian and American
scenarios. Justice Marshall the sole dissenting judge in Strickland was of the opinion that this
test will either have no grip or will be extremely malleable thus allowing for a variable
interpretation of the judgement. 31 This opinion was seen to be true in the coming times, the
test was extended to such a degree that the accused was allowed to hold the counsel liable for
even acts preceding the trial.32 However, this can be justified on the grounds that the process
of criminal prosecution begins from the very instance of interrogation, and the presence of a
competent counsel during that time prevents the accused from suffering psychological or
physical torture. However, another consequence arising from this test is that now the counsel
has started pleading incompetency, or ineffectiveness instead to allow for an extension the time
the accused spends without jailtime.33 This is the exact opposite of what Strickland test wanted
to curb.
It must be understood as to why the ineffective assistance test of Strickland is problematic in
the Indian context. Unlike the federal courts where there exists a jury, the Indian Trial courts
have presiding judges who dictate the proceedings in a neutral, and mutual manner.
Furthermore, the Trial court does not have the power to review its own decisions. Therefore, if
the defendant files a case for the ineffectiveness of the counsel, then that will require the
Appellate Court to ask for fresh evidentiary material, a practise that is quite scarce in the Indian

27
(2012) 8 SCC 553.
28
Id.
29
66 U.S. 668, 707 (1984).
30
466 U.S. 668, 707 (1984).
31
Don Geary, Build It and They Will Come: The Realized Prophecy of Strickland v. Washington, 7 J. Marshall
L.J. 307 (2014).
32
Id.
33
Id.

Page 4 of 5
 High Courts. 34 In the case of Salamat Ali, the defendant sued the counsel on numerous grounds,
one of them being ineffective assistance of the counsel. The judge used Strickland to determine
the same, and held that the poor cross examination of the witnesses by the counsel was indeed
a sign of its ineffectiveness. However, in doing so the appellate court did not admit fresh
evidentiary material.35This superintendence of the Strickland test in the Indian courts can prove
to be quite ineffective for the above reasons, and therefore its incorporation must be scarce.
A persisting problem that remains is that there is no sanction against the erring attorney. He
can merely move onto his next case without any repercussions. Therefore, there exists a need
for defining what comes under “effective assistance”, and a process of screening for the same
so that erring attorney can face at least some form of stigma for his incompetence. 36

VI. CONCLUSION
The preceding sections serve to demonstrate the evolution of the scope of Right of the accused
to be defended by the legal counsel. From the British draft of the Criminal Procedure Code of
1889, to the Fundamental Right given to such persons under Article 22(1), and finally, the
codification of the Code again in 1973 which led to the incorporation of “due process clause”,
there has been considerable widening of the scope. After the 1973 Code came into force, the
matter of State intervention which was the precise reason for the exclusion of the due process
clause by the constitution makers came up for discussion. It was held that the State must act in
a prudent manner in giving free legal assistance to indigent people, and make them aware of
their rights as a majority of them where from a rural background. There were instances under
which the Court laid down exceptions where the right of the defendant to have a counsel could
be dis-honoured, although this exception has not been overruled, it has been shown
dissatisfaction to. Following the American Case of Strickland, where there arose a case of
ineffective counsel, which is seen to be an equivalent of having not been given a counsel, we
traced the problem arising in use of the test laid down in the case in the Indian scenario owing
to the structural differences between, the U.S. , and Indian Courts, despite the letter of law in
this regard being almost the same. Thus, the steady evolution of the right of the accused to the
counsel establishes it as an inalienable right which is given to the accused across jurisdictions.
Its nature calls for determining the scope and components of effective assistance so that the
right can be better reaffirmed.

34
(2009) 164 DLT 596.
35
(2010) 174 DLT 558.
36
Abhinav Sekhri, Dancing in the Dark: Right to effective legal assistance in India, 4.3 CALQ (2019) 1.

Page 5 of 5