Legal Issues

Friend of the court

Print edition : July 26, 2013

However heinous the crime, the accused has a right to legal representation. Here, V.K. Anand, lawyer for the chief accused in the Delhi gang-rape case. Photo: Rajeev Bhatt

The courts are obliged to do justice in individual cases and must deal with the inability of the accused to engage a lawyer when no lawyer is willing to appear for him/her. Thus, the resort by the court to a friend, amicus curiae, forms an important pillar of the justice delivery system in the Indian context.

ARTICLE 39A of the Constitution of India obliges the state to ensure that the legal system promotes justice on the basis of equal opportunity to all citizens, and the state shall, in particular, provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disability. The right to legal representation has also been read into Article 21 of the Constitution. Thus, the right to legal representation in all cases exists not because the Constitution provides for it, but because it is a fundamental condition for the sustenance of the rule of law, which in turn is a constitutional goal.

We are aware that in certain cases involving heinous crimes, the concept of “fair trial” becomes more nuanced than we can ever imagine. In addition to the widespread “trial by the media”, there is also immense societal pressure that may abridge the right of the accused to be treated fairly and with dignity during the trial (or even after that). It may also prejudice the investigator who may be motivated by the feeling of being “answerable” to society rather than being responsible to the Constitution. Likewise, at every stage, there may be factors posing challenges to the fairness of the trial. The reason why “fairness of a trial”, irrespective of the nature of the offence, is of extreme importance is that it is one of the basic judicial guarantees entrenched in the concept of the rule of law, and failure to ensure fair trial is reflective of failure of the Constitution. Even if a person has committed a crime, which may be heinous in nature, it is a requirement under the ideals protected by constitutionalism that there should be a trial where the person has full opportunity to satisfy the court of his or her innocence.

Such a right is equally available in so-called “open and shut” cases. In fact, it is in “open and shut” cases that in addition to the accused being tried, democracy and the values of the Constitution are put to test. Reactions by bar associations making it difficult for the accused to get legal assistance after gruesome incidents such as the Parliament House attack, the 26/11 attack, or the Nirbhaya case, have all compelled the courts to crystallise a new jurisprudence.

Bar associations in India have been torch-bearers in the movement for upholding, maintaining and strengthening constitutional values. In 1951, the Supreme Court Bar Association expressed its opposition to the first Constitutional amendments by which fundamental rights were sought to be abridged. In December 1962, the media reported the government’s attempt to combine the offices of the Attorney General of India and the Law Minister on the grounds that the idea of having separate offices of the Attorney General and the Law Minister was a “relic of the British days”, that it involved “divided responsibility in respect of legal advice”.

The move by the government was resisted by bar associations across the country. During the tenure of Indira Gandhi as Prime Minister, the supersession of three senior judges of the Supreme Court was strongly opposed by most bar associations.

The words of Justice V.R. Krishna Iyer (“A judge is a leader whether he wants to be or not. He cannot escape responsibility in his jurisdiction for setting the level of the administration of justice…”) have been put into action by the Supreme Court by making a trial judge responsible for ensuring that the fairness of trial is not vitiated on account of insufficient or inadequate legal representation. The responsibility of ensuring fair trial is also shared by lawyers, individually, and also collectively through their professional associations. It is neither feasible nor proper to allocate the full responsibility of ensuring fair trial to any single actor, and the responsibility is shared, albeit in various proportions, by various actors including the judges and the client. To deal with the situation where the accused does not get adequate representation, the courts have now begun to appoint an “amicus curiae”.

History demonstrates that bar associations in India have played a significant role in upholding the rule of law and in resisting any attempt by the government or any other body to fetter either the judiciary or the bar. Attempts to scuttle the independence of the legal profession have been resisted by the bar. In the light of long traditions, while contemporary developments of passing resolutions to disallow its members from defending those accused of heinous crimes pose a challenge to the rule of law, I am firmly of the view that these challenges are momentary and that the Indian legal profession will strengthen itself over time.

Under Article 51(c) of the Constitution, Indian courts are also required to adhere to and promote Principle 1 of the United Nations Basic Principles on Role of Lawyers, which states that “all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings”. A logical corollary of incorporating these provisions into our domestic law is an obligation cast on every lawyer, by virtue of his/her profession, to represent accused persons irrespective of the nature of the offence involved. Such a right forms the cornerstone of fair trial because it ensures that adequate and fair facilities are available for the preparation of defence. Owing to the organised nature of the profession and the overwhelming control of the leaders of the bar on the members of the associations, it is the duty of those leaders to constantly remind the members of the foundational values of the legal profession, including the independence of the legal profession as well as of the individual lawyer.

A lawyer cannot refuse brief

In A.S. Mohammed Rafi vs State of Tamil Nadu (2011), Justice Markandey Katju observed that it was a disgrace that lawyers and their associations were passing resolutions against appearing for certain accused and that professional ethics required that a lawyer did not refuse a brief, provided a client was willing to pay his fee and the lawyer was not otherwise engaged. The legal profession works on the ideal that none should be condemned without sufficient evidence in a fair trial conducted after following due procedure, and an advocate is duty bound to ensure that this principle is complied with at all times. Veiled as camaraderie and unity of the legal profession, it is possible that an advocate or a group of advocates is able to influence the views of another advocate or a group of advocates so much so that, unknowingly, the independence of the legal profession may be compromised.

Service of amicus curiae non-expendable

Traditionally, the assistance of an amicus curiae was required to provide his or her dispassionate opinion as well as an objective analysis to the court acting as an outsider or as an independent person. sHowever, such expectation of a dispassionate assistance was absent in criminal cases where the lawyer was typically appointed by the court to defend the accused who could not afford a lawyer. Services of an amicus became extremely important and in a certain sense non-expendable in a democracy like India where a large number of people are unable to approach the courts either on account of economic or social impoverishment or inherent or forced disarticulation.

While the jurisprudence of legal aid and that pertaining to amicus curiae seem to have developed in respect of disarticulated and impoverished litigants, in my assessment, until recently India had not faced a situation where the court had to appoint counsel because lawyers had resolved not to appear for the accused. The courts are, on the one hand, faced with the obligation to do justice in individual cases and, on the other hand, with the inability of the accused to engage a lawyer for himself/herself as no lawyer is willing to appear for him/her. Thus, the resort by the court to a friend—amicus curiae—forms an important pillar in the access to justice in the Indian context.

Keeping in mind the above, the appointment of a lawyer to defend the accused in a criminal trial and calling that lawyer an amicus curiae is actually a progressive development. It can safely be said that in the Indian context, amicus has actually proved to be the true friend of the court—and of constitutionalism. With the help of amicus curiae, the court was able to ensure that the trials in Afzal Guru’s case and in Ajmal Kasab’s case were fair. The duty of a lawyer is to the court, where the Constitution reigns supreme and it is the collaborative duty of all the actors in a courtroom to protect the spirit and faith of the Constitution. While, passing resolutions or otherwise preventing lawyers from appearing for the accused either in heinous crimes or in petty offences is deplorable, I find great satisfaction in the fact that the court has developed the institution of amicus curiae to ensure that the rule of law and the values of the Constitution are not overridden by emotions.

(This article is excerpted from the author's talk at the 8th Annual IBA Bar Leaders’ Conference in Zurich, Switzerland, on May 23 as the Indian Representative.)

Gopal Subramanium is Senior Advocate, Supreme Court of India; former Chairman, Bar Council of India; and former Solicitor General of India.

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