The Clients’ right to be

represented by an
Attorney
Constitutional provisions, C.P.C., CrPC. Criminal Rules of Practice, Civil
Rules of Practice, High Court Rules

Bharat Ravikumar
IX SEMESTER | 935

05-SEP-18
 ACKNOWLEDGEMENT
I, Bharat Ravikumar of 9th semester wish to express
my deep gratitude and sincere thanks to our Law of
Ethics professor, Dr. Balakrishnan K., for his
invaluable guidance, constructive comments and
immense motivation, which has sustained my efforts
at all stages of this project work. His valuable
classes, advice and suggestions during the lectures
and presentation did enhance the perfection in
performing the topic given to me well.
I would also like to express my sincere thanks to all
those who helped me complete this project
especially the librarian and staff without whom I
would not have completed this project to the fullest
of my abilities.
Bharat Rk 935
 INTRODUCTION
Many international and regional instruments recognize the right to counsel, the characteristics of
which have been defined through the jurisprudence of regional and national courts, treaty bodies,
and additional interpretive documents.
This project examines the current state of human rights law in the country regarding the right to
timely and confidential access to legal counsel following arrest. The Project reviews instruments
in all aspects but mainly focuses on the Indian Constitution and various other statutes which
establish the right to legal counsel and a fair trial.
This Project will address:
1. When there is a right to counsel;
2. What timely access to counsel means, when delay constitutes denial, and when denial
violates fair trial rights; and
3. What confidentiality entails and how lack of confidentiality violates fair trial rights.
The purpose of this submission is to lay out the basic human rights law concerning the
responsibility of states to ensure access to justice for everyone without discrimination as to
economic, social, ethnic, racial, sexual, religious or other status. Internationally, the state
responsibility to provide legal aid is affirmed by UN and regional instruments, jurisprudence
and rulings.
There is a strong interest in the formation of an international system of monitoring that would
evaluate the status and progress of state practices regarding judicial independence and related
issues in relation to international standards.1
A just society is the one where justice prevails throughout alike .To have equal right to approach
the court is rendered useless if the right can't be exercised. It is then, nothing more than a paper
promise.

I. United Nations Instruments

A. When There Is a Right to Counsel

Many UN instruments provide that a fair trial in the criminal context requires that the accused
have the right to counsel. This has been extended to civil proceedings. Two instruments will be
examined in detail: the International Covenant on Civil and Political Rights2 (ICCPR) and the

1
United Nations Human Rights Council, Report of the Special Rapporteur on the independence of judges and
lawyers, Mónica Pinto, 5 April 2016, A/HRC/32/34 at paras 64–65, online:
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/34
2
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171 [ICCPR], available at:
http://www.refworld.org/docid/3ae6b3aa0.html
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
3
(Principles and Guidelines).
First, Article 14 of the ICCPR recognizes the right of an accused in criminal proceedings to a fair
trial. An element of this right, set out in subsection (3) (d), is the right of the accused to be
represented by legal counsel of his or her choice.
Article 14(3) (d) provides:
14. (3). In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
[...]
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it;
The UN Human Rights Committee (HR Committee) has confirmed that Article 14 extends
beyond criminal proceedings4 to “rights and obligations” in civil proceedings. It stated in CCPR
General Comment No. 32:
While article 14 explicitly addresses the guarantee of legal assistance in criminal
proceedings in paragraph 3 (d), States are encouraged to provide free legal council in
other cases, for individuals who do not have sufficient means to pay for it. In some cases,
they may even be obliged to do so. For instance, where a person sentenced to death seeks
available constitutional review of irregularities in a criminal trial but does not have
sufficient means to meet the costs of legal assistance in order to pursue such remedy, the
State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in
conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of
the Covenant.
Second, the Principles and Guidelines affirm the right of an accused to legal counsel as a key
procedural right in criminal law. It provides:
Principle 3. Legal aid for persons suspected of or charged with a criminal offence

3
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
A/RES/67/187, annex (28 March 2013) [Principles and Guidelines], online:
https://www.unodc.org/documents/justice-and-
prisonreform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf
4
CCPR General Comment No 32, Article 14 (Right to equality before courts and tribunals and to a fair trial),
23 August 2007, CCPR/C/GC/32 at para 10, online:
http://ccprcentre.org/doc/ICCPR/General%20Comments/CCPR.C.GC.32_En.pdf
 20. States should ensure that anyone who is detained, arrested, suspected of, or charged
with a criminal offence punishable by a term of imprisonment or the death penalty is
entitled to legal aid at all stages of the criminal justice process.
22. Children should have access to legal council under the same conditions as or more
lenient conditions than adults.
23. It is the responsibility of police, prosecutors and judges to ensure that those who
appear before them who cannot afford a lawyer and/or who are vulnerable are provided
access to legal council.
The Principles and Guidelines have been read as applicable to civil and administrative
proceedings. Indeed, the Special Rapporteur on the independence of judges and lawyers,
Gabriela Knaul, encouraged the application of legal council to “any judicial or extrajudicial
procedure aimed at determining rights and obligations.” She further advised that the Principles
and Guidelines apply to “civil and administrative law cases where free legal assistance is
indispensable for effective access to the courts and a fair hearing, as well as for access to legal
information and counsel and to mechanisms of alternative dispute resolution.”5

B. Defining and Examining Timely Access

The HR Committee has consistently held that ICCPR Article 14(3) (d) requires that the accused
be granted timely access to counsel, unless it can be shown that there are compelling reasons to
restrict access. This right requires the accused to have access to a lawyer at all stages of criminal
proceedings, including the initial period of police detention, questioning, and investigation.6 As
the right to counsel is “an important element of the guarantee of a fair trial and an application of
the principle of the equality of arms”, its denial may, in the context of the wider proceedings,
constitute a violation of the right to a fair trial.
Jurisprudence
Robinson v. Jamaica

The complainant, Frank Robinson, was charged and convicted for murder. His sentence, the
death penalty, was commuted to life imprisonment. The complainant was tried without legal
representation as his legal counsel had withdrawn from the proceedings and the sitting judge did
not allow an adjournment to allow the complainant to make alternative arrangements.
The Committee stated, “…it is axiomatic that legal assistance be available in capital cases. This
is so even if, the unavailability of private counsel is to some degree and even if the provision of

5
Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, 15 March 2013,
A/HRC/23/43.
6
CCPR General Comment No. 32, supra note 5.
legal assistance would entail an adjournment of proceedings.”7 The Committee found that the
absence of counsel constituted an unfair trial.
C. Confidentiality
The right of accused individuals to private and confidential communication with counsel is
implied in Article 14(3) (b) of the ICCPR, under which an accused is “to have adequate time and
facilities for the preparation of his defence and to communicate with counsel of his own
choosing”. This reading of Article 14(3) (b) is confirmed by case law and was explicitly
confirmed in CCPR General Comment No. 32. Referencing Article 14(3) (b), the HR Committee
states:
Counsel should be able to meet their clients in private and to communicate with the
accused in conditions that fully respect the confidentiality of their communications.
Furthermore, lawyers should be able to advise and to represent persons charged with a
criminal offence in accordance with generally recognised professional ethics without
restrictions, influence, pressure or undue interference from any quarter.8
Jurisprudence
In Nazira Sirageva v Uzbekistan, No 907/2000 (12 December 1999), The HR Committee has
found a violation of Article 14(3) (b) where discussions between an accused and his or her
counsel are conducted within the presence of a third party. The accused who was under sentence
of death, detained and awaiting execution in Tashkent at the time of the communication. The HR
Committee found violations by Uzbekistan of Articles 6, 7, and 14(3) (b) of the ICCPR. Article
14(3) (b) was violated as the suspect and his lawyer were only permitted to meet in the presence
of an investigator during the preliminary investigations.

II. Constitutional Mandate in India

Legal assistance from a lawyer is held by the Supreme Court of India as essential requisite of the
procedure established by law. The court holds that if a person does not have legal representation,
her or his deprivation of liability is unconstitutional and void. In disciplinary inquiries as in other
quasi-judicial proceedings, however, lawyers are not always considered necessary.
A Lawyer can help delineate the issues, present the factual contentions in an ordinary manner,
cross-examine witnesses and otherwise safeguard the interests of the party concerned. The right
to representation by a lawyer or other person may prove to be part of Principles of Natural
Justice in any proceedings before formal authority or investigation if there is no provision to the
contrary. Generally, the right to legal representation is not considered a mandatory party of the
right to Fair Hearing. The right to representation is as regarded more of an exception than the
general rule. The question of legal representation is to be decided in the context of the special
situation in each case.

7
Robinson v Jamaica, No 223/1987, (5 February 1987) at para 10.3.
8
CCPR General Comment 32, supra note 5 at para 34.
The Constitution of India gives much emphasis on the constitutionalism and rule of law. In India
the rule of law is regarded as a part of the basic structure of the Constitution and also of natural
justice. The rule of natural justice says that individuals should not penalized by decisions
affecting their rights or legitimate expectations unless they have been given prior notice of the
cases against them, a fair opportunity to answer them, and the opportunity to present their own
cases.
The preamble of the Constitution secures to its citizen, social, economic and political justice.
Article 14 of the Constitution makes it clear that the State shall not deny to any person equality
before law or the equal protection of the laws within the territory of India. The aim of Article 14
is to ensure equal justice. The guarantee of equal justice is meaningless if the poor or illiterate or
weak persons cannot enforce their rights because of their poverty or illiteracy or weakness.
Article 21. Protection of Life and Personal Liberty. No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Article 22(1). Protection against arrest and detention in certain cases. - (1) No 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.
Articles 38 and 39, of the Constitution of India lay down clear mandate in this regard.
According to Article 38 (1) the State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice, social, economic or
political, shall inform all the institutions of the national life.
Article 39-A directs the State to ensure that the operation of the legal system promotes justice on
a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation
or schemes or in any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.
The denial of legal representation is justified on the ground that lawyers tend to complicate
matters, prolong the proceedings, and destroy the essential informality of the proceedings. It is
further justified on the ground that representation through a lawyer of choice would give an edge
to the rich over the poor who cannot afford a good lawyer. No research has so far been made to
test the truth of these ascertains, but the fact remains that unless some kind of legal aid is
provided by the agency itself, the denial of legal representation, to use the words of Prof. Allen,
would be a ‘Mistaken kindness’ to the poor people.9

In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has been held by a Constitution
Bench of this Court that the procedure for depriving a person of his life or liberty should be fair,
reasonable and just. We are of the opinion 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
9
M.P. Jain, Indian Constitutional Law, 2003, vol. 2, 5th edn.
with law who can properly defend an accused in a criminal case. Hence, in our opinion, 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.
Right to legal representation or free legal service is an essential fundamental right guaranteed by
the Constitution. It forms the basis of reasonable, fair and just liberty under Article 21 of the
Constitution of India, which says, “No person shall be deprived of his life or personal liberty
except according to procedure established by law”.
In Khatri v State of Bihar AIR 1981 SC 928, the Apex Court regretting about the lethargy of the
government in the matter of providing free legal council as per the directions of the Supreme
Court in earlier cases observed—
"It is unfortunate that though this Court declared the right to legal council as a
Fundamental Right of an accused person by a process of judicial construction of Article
21, most of the States in the country have not taken note of this decision and provided
free legal services to a person accused of an offence. The State is under constitutional
mandate to provide free legal council to an accused person who is unable to secure legal
services on account of indigence and whatever is necessary for this purpose has to be
done by the state. We must, therefore, hold that the State is under a constitutional
obligation to provide free legal services to an indigent not only at the stage of trial court
but also at the stage, when he is first produced before the Magistrate, as also when he is
remanded from time to time".
In this case, the need to inform the accused of his right to legal representation was highlighted in
these words:
“The Magistrate or the Sessions Judge before whom the accused appeared must be held
to be under an obligation to inform the accused that if he is unable to engage the services
of a lawyer on account of poverty or indigence he is entitled to obtain free legal services
at the cost of the State."
The right to defence includes right to effective and meaningful defence at the trial. The poor
accused cannot defend effectively and adequately. Assigning an experienced defence counsel to
an indigent accused is a facet for fair procedure and an inbuilt right to liberty and life envisaged
under Article 21 of the Constitution of India.
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil
liberties of our people trampled under foreign rule, and who had themselves been incarcerated
for long period under the formula
“No lawyer, no hearing and no appeal.”
Many of them were lawyers by profession, and knew the importance of counsel, particularly in
criminal cases. It was for this reason that they provided for assistance by counsel under Article
22 (1), and that provision must be given the widest construction to effectuate the intention of the
Founding Fathers.
III. STATUTORY PROVISIONS UNDER CIVIL LAW

Legal council is essential irrespective of cases whether it is criminal case or civil case, Judicial
Proceedings follow the Latin term audi alterm partem, which means ‘hear the other side’, or ‘no
man should be condemned unheard’ or ‘both the sides must be heard before passing any order’ is
one of the principles of natural justice, which cannot be departed from.

Civil Procedure Code, 1908 and Civil Rules of Practice:

The Code of Civil Procedure, 1908 lays down the procedure for the courts of civil judicature.
The civil litigation, dealing primarily with the property of the persons, is not paid that much
concern by the state and society as is done to protect the life of the individual. The latter falling
in the category of criminal law, as we have earlier appreciated has attracted much larger and
broader protection, as a right of persons in India, under the provisions of the Constitution and the
Code of Criminal Procedure. The equality before law and the principle of equal standing is an
essential principle of civil jurisprudence also The Code of Civil Procedure also makes a
provision for extending the benefit of legal council to those who are poor and thereby incapable
to engage the services of a counsel in such litigation and unable to pay the heavy amounts of
court fees, which makes the procuring of civil rights more difficult for the poorest of the poor in
a society.
A Man whose life or liberty is jeopardized by a felony charge has a constitutional right to a
lawyer10. When his property is at stake, in a civil case, he may have a lawyer too But only if he
can afford to hire one. Many people may not know the proper legal proceedings and the
intricacies of the legal world, to meet such requirements a common man must turn to one of the
three sources of counsel: the private, organized private legal aid, and public legal assistance.
Most private attorneys work only for fees, which effectively bar the poor from access to their
services.
ORDER XXXIII
Order XXXIII of Code of Civil Procedure deals with Clients Rights to Legal Representation.
It has three explanations:
The First one deals with explanation of Indigent persons which is very relevant to understand
who are entitled to the benefits of the Order. The second explanation clarifies the point of
property entitlement of the person to whom explanation I applies. The last explanation clarifies
the point when a person sues in representative capacity.
The object of Order XXXIII is to enable persons who are too poor to pay court fee to institute a
suit without payment of it.11

10
Gideon v Wainwright. 372 U.S. (1963)
11
Phoolwati vs Gulzaro Devi C.R. No. 6520 of 2016
The purpose of the provision is that neither party should evade the payment of court fee nor no
genuine cause of litigant should fail for want of funds. This Order has been enacted to save triple
purposes:
a) To protect the bonafide claims of indigent persons,
b) To safeguard the interest of revenue and
c) To protect the defendants right not to be harassed12.
Assigning a pleader:
Rule 9A (1) of Order XXXIII provides for the Court to assign a Pleader to an unrepresented
person. Where a person who is permitted to sue as an indigent person, is not represented by a
pleader the court may, if the circumstances of the case so require, assign a pleader to him.
Rules for Selecting the Pleader:
Rule 9A (2)13 provides for making of rules for selecting the pleader. The High Court may with
the previous approval of the State Government, is empowered to make rules providing for the
mode of selecting pleaders which will be assigned to an indigent person. The rules can also deal
with other matters such as the facilities to be provided to such pleader by the court and any other
matter which is required to be or may be provided for giving effect to the provisions of sub-rule
(1)
Indigent person as a defendant:
As per rule 1714 an indigent person can also figure as a defendant and he can also plead a set-off
or counter-claim, may be allowed to set up such claim as an indigent person.
Power of Government to make supplementary rules for free legal aid services:
Rule 18 of Order XXXIII further empowers the State to make supplementary provisions for
extending legal aid benefit to persons who cannot afford an attorney.
"Subject to the provisions of this order, the Central or State Government may make such
supplementary provisions as it thinks fit for providing free legal services to those who have been
permitted to sue as indigent persons."
The High Court also is empowered with the previous approval of the State Government to make
rules for carrying out the supplementary provisions made by the Central or State Government for
providing free legal services to the indigent persons.
Thus it is noted that High Court can make rules for carrying out supplementary provision. Such
rules may include the nature and extent of legal services and also the conditions under which
they may be made available and the agencies through which such services may be rendered
among others.

12
Kamalatruna v. Karhiyaynani AIR 1973 Ker. 19
13
Inserted by the Code of Civil Procedure (Amendment)Act, 1976, Sec.81(w.e.f.1-2-1977)
14
Inserted by the Code of Civil Procedure (Amendment)Act, 1976, Sec.81 (w.e.f.1-2-1977)
Applicability of Order XXXIII to the Tribunals:
The poor shall not be priced out of the justice, marked by insistence on court fee and refusal to
apply the exemptive provisions of order XXXIII C.P.C. The provisions of Order XXXIII will
apply to tribunals which have the trappings of the civil court.
Court fee not altogether wiped off
Payment of court fees liability is merely deferred not altogether wiped off. "Order directing the
plaintiff to pay the court fee can be made in four different situations."
a) When the plaintiff failed in the suit,
b) When the plaintiff is dispaupered,
c) When the suit is withdrawn,
d) Where the suit is dismissed under the circumstance specified in clause (a) or (b).
Effect of false statement
Plaintiff seeking exemption from payment of court fees on ground that she has no source of
income by suppressing true facts would be liable to be punished

The Civil Rules of Practice [Andhra Pradesh Civil Rules of Practice and Circular Orders,
1980], is mostly read with the Civil Procedure Code as it mainly emphasizes the following:

o There shall be maintained in each court a panel of advocates willing to appear for the
indigent person or persons in a suit or proceeding at the expenses of the State or free of
charge.
o Such panel shall be prepared by the District Judge after consultation with the Presiding
Officer of the court, the President of the Bar Association and such other persons as the
District Judge may consider necessary
o The panel may be revised by the District Judge at the end of each calendar year.
o The panel to be prepared and maintained under sub-rule (1) of the Rule 299 shall be in
two parts. The first part of the panel shall contain the names of suitable advocates who
offer themselves to appear for the undefended indigent persons without charging any fee
and party two there of shall have the names of such advocates as are willing to appear for
such persons at State expense and are selected for the purpose.
o In any case where it is decided to assign a pleader under, the court shall endeavor in the
first instance to select a suitable advocate from that part of the list which compromises to
names of the advocates, if any, willing to appear for undefended indigent persons without
charging any fee.
IV. IMPORTANCE OF LEGAL REPRESENTATION IN
CRIMINAL JURISPRUDENCE

In recent years, the need for legal representation for the poor has increased. One of the golden
principles of administration of justice is that 'Justice should not only be done but it should also
appear to have been done.' To make justice appear to having been delivered, a fair procedure is
essential. Fair procedure, even apart from the dynamic interpretation made in Maneka Gandhi
1978 AIR 597, 1978 SCR (2) 621 under the Constitution of India, demands equal standing
before the courts. It is an accepted reality that our laws and court procedures are very complex
and intricate. Therefore, ordinarily an accused person does not have the knowledge of law
(though ignorance of law is known to be no excuse) and the professional skill to defend himself
before a court of law wherein the prosecution is conducted by a competent and an experienced
prosecutor. To meet the requirement and to match the parties, the Code, in line with Article 22
(1) of the Constitution, has specifically recognized the right of a person against whom criminal
proceedings are instituted to be defended by a counsel.
Right to be heard, in its proper sense, includes the right to be heard by the counsel. For even an
educated and intelligent man has a little knowledge about the science of law. He does not know
about the science of law. He does not know how to rebut the allegation made against him; he
may be completely unfamiliar with the rules of evidence procedure and so on. Therefore, if he is
put on a trial without counsel he may be convicted of offences even where the allegations are not
true and legal.
The First Law Commission of India in 1958 examined as part of its 14th report the question of
making available legal aid to indigent accused in criminal proceedings. It recommended that
lawyers at state expense should be provided to the accused in session's courts, in jail appeals and
in criminal proceedings.
The Law Commission in its 41st report in 1969 examined the Criminal Procedure Code 1898 and
was of the view that the government should make available the right to counsel at least in trials
before the courts of session. The Law commission recommended that Sec.340 A be added to
Criminal Procedure Code 1898.

STATUTORY PROVISIONS UNDER CRIMINAL LAW

a) Early Times
The right to counsel was available since 1839 in the jurisdiction of the Supreme Courts in
the presidency towns. In other courts, particularly the nizamat Adalat, a circular issued in
1836 stating that parties before a session's court could take the advice of vakils. However, it
was stipulated that the vakils could not plead before the judge or intervene in the
proceedings. Act 31 of 1841 gave parties in a criminal trial the right of appeal to a superior
court. Act 38 of 1850 provided for the right to counsel.15

15
Muralidhar S., Law, Poverty and Legal Aid (Lexis Nexis ,New Delhi, 2004) 83
b) Modern Times
Article 14(3) (d) of International Covenant on Civil and Political Rights, 1966, and Article
22 (1) of the Constitution of India declare that no person who is arrested shall be denied the
right to consult and to be defended by a legal practitioner of his choice. It is worth
mentioning that prior to the constitutional guarantee, this right of an accused was protected
by Section 340 (1) of the Code of Criminal Procedure, 1898 (now Section 303 of Criminal
Procedure Code, 1973) which provided that any person accused of an offence before a
Criminal Court or against whom criminal proceedings were instituted under this Code could
as of right be defended by a pleader.

Further Article 39A of the Constitution that was inserted later on by the 42nd Constitutional
Amendment Act 1976 provides for the right to free legal aid to indigent person. Section 304
of Criminal .Procedure Code 1973 also provides that
"Where in a trial if the accused is not represented by a pleader due to insufficient means
the Court shall assign a pleader for his defence at the State expenses.”
Due to the importance of these rights, the apex court of India has declared that at any
stage if an accused remains undefended by a lawyer the entire criminal proceedings
would be vitiated.
Code of Criminal Procedure, 1973
In 1972, the Law Commission of India gave its 48th report where it recommended that all
accused persons must be furnished with counsel for their defence at state expense. The Law
Commission explained its recommendation thus:
Defence of the indigent accused by a pleader assigned to the state should be made available to
every person accused of an offence, i.e. in all criminal trials, so that mere poverty may not stand
in the way of adequate defence in a proceeding which may result in the deprivation of liberty or
property or loss of reputation. The assistance of counsel is required at every step in the
proceedings and irrespective of the nature of the offence under trial.16 The Law Commission
recommended that Legal Aid be made available for all criminal cases including maintenance
cases.
Legal aid to the accused
Section 304 of code of criminal procedure deals with legal to the accused at the state expenses.
This section appears under chapter XXIV title as general provisions as to inquiries and trials.
Under sub section 1 in a trial before the Court of Session where the accused is not represented by
pleader and it appears to the court that the accused has no sufficient means to engage a pleader,
the court has to assign the pleader for his defence at the expense of the state. Sub Section 2
empowers the High Court to make the rules with the previous approval of state government for
providing matters such as mode of selecting the pleaders for defence, facilities to be allowed to
the pleaders by the courts and the fee which is payable by the government to such pleaders

16
14th Report of the Law Commission of India on Reforms in the Administration of Justice 1958
among others. Under Sub Section 3 the state government is empowered through a notification
direct that the provisions of sub section 1 and 2 to apply in relation to class of trials before the
courts in the state as they apply in relation to trials before the court of Sessions. Thus we see that
the first sub section refers to trials before Court of Session whereas the third sub section applies
to a class of trials before other notified courts in the State.
Analysis of Rules framed under Sec.304 (2):
An analysis of the rules framed by the various High Courts under Sec.304 (2) of CrPC reveals:
1. Legal Aid is made available only to persons facing trial in session's courts.
2. The criterion for entitlement to Legal Aid is usually poverty and indigence about which a
certificate, after inquiry has to be issued by the committing magistrate.
3. There is no requirement in the rules that the court should inform the accused about the
availability of Legal Aid.
4. The rules do not give the accused a choice of a lawyer. They do not provide for a change
of the lawyer if the accused is dissatisfied with the performance of the lawyer. There is
no mechanism in the rules for receiving complaints against the lawyer assigned to the
accused.
5. The panel from which a Lawyer is assigned to the accused is usually prepared by the
district judge. The only criterion for empanelment of a lawyer is the number of years of
experience at the bar. A lawyer is expected to have a standing of not less than five years
for being empanelled, rules made under Sec.304 CrPC by the High Courts of Calcutta,
Assam, Gujarat and Madhya Pradesh. The High Courts of Bihar, Punjab and Haryana and
Orissa require a standing of not less than seven years.
6. The CrPC. 1973 provides for legal assistance at the state expense only to the accused
facing trial in a session's court. The stages prior to the trial and after its conclusion are not
accounted for by S.304 (1). For examining the availability of legal assistance at other
stages in the criminal justice process, for those facing criminal proceedings in courts
other than the sessions courts and for complainants and victims of crime, the schemes
made by the government at the centre and the states have to be looked into. These have
been supplemented or replaced by the LSAA and the Regulations and Rules made there
under since 1995.
Judicial response in Criminal Cases
There are three stages of the development, through judicial pronouncements, of the right to
legal representation in criminal cases.
The first was from 1898 until the making of the Constitution in 1950. During this phase the
emphasis was on ensuring that, no accused was denied access to legal representation and that
no accused person was undefended in criminal proceedings. At a time when statute law had
not acknowledged the requirement, courts had to devise rules of practice by which legal
representation at state expense could be provided to an indigent accused facing serious
charges that entitled capital punishment. However, there were passing references to the plight
of the indigent accused, the obligation of the state to provide for his defence. There was no
 right in an accused, to the services of a lawyer at state expense in all criminal trials, and the
judiciary could not enforce such right.
The second phase between 1950 and 1974 when the Code of Criminal Procedure 1973 was
enacted, of which Sec.304 specifically provided for legal aid at state expense.
The third phase from 1974 till date, has been developments to the growing need for providing
access to justice to the under privileged and disadvantaged sections of the masses.
In India, Supreme Court and various High Courts gave judgments on the importance of Legal
Aid. Some of the decisions interpret the provisions of procedural laws with regard to Legal
Aid and its applicability to various stages and types of cases.
Deprived of a fair trial
Certain important issues with respect to the fairness in providing appropriate legal aid are —
1. Whether appointing a fresh lawyer on the date of the trial, when the accused faced with a
grave offence of culpable homicide amounting to murder, amount to providing free legal
aid?
2. Was it just expedient proper and rational to handover the charge of an important case to a
new lawyer, call upon him to prepare the case, cross-examines the witness and argues it
on the very same day?
It is humanly impossible even for an experienced lawyer to prepare such a case without
instructions, without having at least a fortnight's time to prepare the case. Council given should
be meaningful and not self — denial of its content. Under such a circumstance, the accused was
found to be deprived of a fair trial and the trial was held vitiated.17
Applicability of Provisions of Legal Aid under Criminal Law
i) The right under Sec.304 cannot be restricted to a person under arrest as a person who
has been released on bail can avail of it.
ii) In Subbayyan Achari v. State of Kerala 1981 Cr.L.T. 1359 (Ker.), Legal Aid must be
given to persons in proceedings under sec.110 of Cr.P.C74, as they are likely to
remain in jail
iii) The obligation to provide free legal services to a person not only arises when the trial
commences but also when the accused for the first time is produced before the
Magistrate.18

Trial without defence lawyer

i) A conviction is not at all vitiated due to failure to appoint a counsel at State expense
when the plea of guilty in a serious offence is voluntary, genuine and true.19

17
Arjun Karmakar v. State of Assam 1987 (1) Crimes 133 (Gau-DB)
18
Elanth Sahu v. State, 1991(1) Crimes 545 (Ori )
19
Tyron Nazarath v. State 1989 Cr.LJ 123 (Bomb-DB)
 ii) Where the High Court had decided an appeal in the absence of the appellants counsel,
Court directed disposal of criminal appeal afresh.20
iii) In Sukdas v. Union territory of Arunachal Pradesh AIR 1986 SC 991, the Supreme
Court reaffirmed the right of Legal Aid as a fundamental right and observed:

It may, therefore now be taken as settled law that free legal assistance at State cost
is a fundamental right of a person accused of an offence which may involve
jeopardy to his life or personal liberty and this fundamental right is implicit in the
requirement of reasonable, fair and just procedure prescribed as under Article 21.
Of course, it must be recognized that there may be cases involving offences such
as economic offences or offences against.

Supreme Court further observed, "About 70% of the people living in rural areas
are illiterate and even more than that percentage of the people are not aware of the
rights conferred upon them by law. Even literate people do not know what are
their rights and entitlements under the law. It is this absence of legal awareness
which is responsible for the deception, exploitation and deprivation of rights and
benefits from which the poor suffer in this land. The result is that poverty
becomes with them a condition of total helplessness. This miserable condition in
which the poor find themselves can be alleviated to some extent by creating legal
awareness amongst the poor. That is why it has always been recognized as one of
principle items of the details of the legal aid movement in the country to promote
legal literacy."

In this case, Additional Deputy Commissioner had not informed the appellants
that they were not entitled to free legal assistance, nor he inquired form the
accused whether they wanted a lawyer to be provided to them at State cost.
Therefore, the appellants remained unrepresented by a lawyer and the trial had
resulted in their conviction. The court held that it was violation of the
fundamental right of the appellants under Article 21 and so the trial was vitiated
consequently, the conviction and sentence recorded against the appellant was set
aside.
This case is significant in the matter of promoting legal literacy. The Supreme Court added one
more feather in the cap of Legal Representation concept, emphasizing the need to include Legal
Education and Legal Literacy under it. The Court also recommended the Union Government and
State Governments to frame free legal schemes.
The conviction needs to be set aside and the appeal deserves to be allowed ... it would be
appropriate to note that courts while dealing with accused persons during trial when they are not
represented by counsel to keep in view the mandate of Sec.304 CrPC.21

Extension of Right of accused

Since an accused is entitled to free legal aid, he is also entitled to copies of deposition of
witnesses on which the prosecution wants to rely, free of costs.22

20
Joginder Kumar v. State of Maharashtra 1990 Cr.LJ 1326 (SC)
21
Dilwara Singh v. State of Delhi 2007 Cr.L.J 4709 (SC)
22
G.S.Reddy v. State of A.P 2002 Andh LT 477
 Criminal Rules of Practice
Wherever necessary, the Criminal Court, including the High Court, shall extend legal aid to a
person in accordance with the rules made under Section 304(2) of the Code or under the
provisions of the Legal Services Authority Act, 1987 and the rules/regulations made thereunder.
[Rule 69, Criminal Rules of Practice, 2018: Madras]
Amicus Curiae: The Court may, of its own motion or on application by the Public Prosecutor,
appoint an Advocate as amicus curiae in a case of importance or difficulty. [Rule 70]
Inherent powers of Court
Several methods have been used to satisfy this increasing need for legal services for the poor.
Legislatures have established organizations that employ lawyers to represent the poor or have
provided compensation for court appointed attorneys
In the absence of such legislative action, some courts have exercised their inherent power to
compel legislative expenditures for necessary judicial operations, requiring localities to
compensate court-appointed attorneys. Others have attempted to force legislative action by
relieving attorneys of their obligation to accept uncompensated court appointments. Some courts
however have continued to appoint attorneys without compensation in both criminal and civil
cases.
Duty of State
It is the duty of the government to see that proper fee be paid to the Amicus curiae appointed in
the case.
A three judges Bench of the Supreme Court reading Articles 21 and 39A along with Article 142
and Section 304 Cr. P. C together, declared that the government was under a duty to provide
legal services to the accused persons. Justice Krishna Iyer observed that the Indian socio-legal
milieu makes free legal service at trial and higher levels an imperative processual piece of
criminal justice.23
Steps should be taken by State to provide counsel to the person accused of offence entailing
capital punishment because they want of legal aid may amount to negation of fair tria1.24
Rule 30 and 31 of the Kerala Criminal Rules of practice 1982, talks about the allocation of
pleaders to indigent persons.
.

23
M.H.Hoskot v. State of Maharashtra AIR 1978 SC 1548
24
Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217
V. HIGH COURT RULES
Legal Aid to Accused Rules, 1992
These rules specifically apply to granting legal aid to accused in Criminal Cases
o When the accused cannot engage a lawyer on account of indigence or being in judicial
custody or other reasonable grounds it shall be the duty of the court to engage a lawyer
on his behalf
o When the accused is brought before the court it must ascertain whether a lawyer must be
engaged on the behalf of the accused
o Such pleader must be chosen from a panel prepared according to the rules
o If the accused refuses such representation and desires a preference for someone outside
the Panel, such lawyer must be engaged as far as practical
These rules were enacted following the pronouncements in:
Madhav Hatawaimarao v State of Maharastra (AIR 1978 SC 1548) where it was held that when
the prisoner is disabled from engaging a Pleader on reasonable grounds such as incommunicable
situations, the court shall assign the service of a competent counsel for the prisoner’s defence and
the State shall bear the expenses for the same.
Hussainara Khatoon v State of Bihar (AIR 1979 SC 1369 where it was held that Legal Aid is a
fundamental right of the accused under Art. 21 of the Constitution.
Further the High Court’s judgment in Chandran v. State of Kerala (1983 KLT 315) and
Unnikrishnan v State of Kerala ( 1983 KLT 586) brought to light the necessity to make rules
under Sec. 304 of CrPC, moreover these rules also aim to regulate the appointment of pleaders.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
1. Bound to accept briefs
An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practice. He should levy fees which is at par with the fees
collected by fellow advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service
An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient
notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to
the client.
K.S.Pandruanga vs. State Of Karnataka (2011) 4 SCC 729 on 1 March, 2013, 2 JUDGES SC
The appellant was convicted for the offences punishable under Sections 7, 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo
one year rigorous imprisonment and to pay a fine of Rs.10,000/-, in default, to suffer a
further rigorous imprisonment for two months on the first score and four years rigorous
imprisonment and to pay a fine of Rs.15,000/- and on failure to pay fine to suffer further
rigorous imprisonment for three months on the second count, with the stipulation that
both the sentences shall be concurrent.
In appeal, the High Court of Karnataka by the impugned judgment, confirmed the
conviction, but reduced the sentence to two years’ rigorous imprisonment from four years
as far as the imposition of sentence for the offence under Section 13(1) (d) read
with Section 13 (2) of the Act is concerned and maintained the sentence in respect of the
offence under Section 7 of the Act.
One of the issues raised was that the High Court could not have heard the appeal in the
absence of the counsel for the accused and proceeded to deliver the judgment.
Although the counsel appeared and put forth his contention, yet the fundamental defect in
proceeding to deal with the appeal vitiates the verdict
Reference was made to Mohd Sukur’s Judgment where it was held 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 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.”
The decision was based on the role of the lawyer and the role of the Bar Association in
the backdrop of professional ethics and norms of the Constitution.
It has been categorically held therein that the professional ethics require that a lawyer
cannot refuse a brief, provided a client is willing to pay his fee and the lawyer is not
otherwise engaged and, therefore, no Bar Association can pass a resolution to the effect
that none of its members will appear for a particular accused whether on the ground that
he is a policeman or on the ground that he is a suspected terrorist.
“It does not flow from the said pronouncement that it is obligatory on the part of
the Appellate Court in all circumstances to engage amicus curiae in a criminal
appeal to argue on behalf of the accused failing which the judgment rendered by
the High Court would be absolutely unsustainable.”’
In Bapu Limbaji Kamble, the High Court had convicted the appellant under Section 302
of the IPC on the charge of murdering his wife by strangulating her to death. At the time
 of hearing of the appeal, the counsel for the accused did not appear. The High Court
perused the evidence and decided the matter. In that context, this Court stated thus:-
“We are of the view that the High Court should have appointed another advocate as
amicus curiae before proceeding to dispose of the appeal. We say so especially for the
reason that there are arguable points in the appeal such as the delay in giving the report to
the police, the material discrepancy between the version in the FIR and the deposition of
PW 4 and the non- disclosure by PW 3 of the alleged confession made by the accused
after PW 4 came to the house. The question whether there is clinching circumstantial
evidence to convict the appellant also deserves fuller consideration. Without expressing
any view on the merits of the case, we set aside the impugned order of the High Court
and remand the matter for fresh disposal by the High Court expeditiously, after
nominating an amicus to assist the Court.”
Right to be represented- Tribunals, Dept enquiry
J.K. Aggarwal Vs. Haryana Seeds Development Corporation Ltd. (1991) 2 SCC 283, in the
context again of departmental enquiry, holding that right of representation by a lawyer "may not"
in all cases be held to be a part of natural justice except when a man’s reputation or livelihood is
at stake and that the discretion in this regard is to be exercised taking into consideration, whether
there is likelihood of the combat being unequal, entailing a miscarriage or failure of justice and a
denial of a real and reasonable opportunity for defence by the reason of one being pitted against
a presenting officer who is trained in law;
National Seeds Corporation Ltd. Vs. K.V. Rama Reddy (2006) 11 SCC 645 laying down that in
domestic / departmental enquiry, there is no right to representation by somebody else, unless the
rules and regulations or standing orders concerned specifically recognize such a right and
provide for such a representation; the reasons given in that case for permitting representation, of
the misappropriated amount being very large, number of documents and witnesses being
numerous and workman being not able to get assistance of any other able co-worker, were held
to be irrelevant;
Poolpandi Vs. Superintendent, Central Excise (1992) 3 SCC 259 where the contention, that since
there was no statutory provision in the Customs Act, 1962 prohibiting the presence of a counsel
during the interrogation of a person concerned, a request in that regard, if made cannot be
legitimately refused, was rejected;
A Division Bench of the High Court of Punjab and Haryana in Paramjit Kumar Saroya Vs.
Union of India MNU/PH/0765/2014, in the context of the provision in the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 debarring representation through an advocate
before the Tribunals constituted under the said Act, held that after the coming in to force of
Section 30 of the Advocates Act, there cannot be an absolute bar to the assistance by legal
practitioner to before a Tribunal.
 Conclusion
Of course, clients’ right to legal representation as a vehicle for equal justice would be ineffective
without a system of procedure wherein those who need and deserve are endowed and supported
with this basic right. The fundamental procedural law applicable in the Indian justice delivery
system viz., the Code of Civil Procedure, 1908 and the Code of Civil Procedure, 1973 clearly
brings out the intention of the law makers that legal aid has to be an essential component of
procedure for delivery of justice. The intricacies and detailed procedures and its efficacy in
providing legal aid is critically analyzed in this chapter. If anyone anywhere speaks of the Indian
Justice delivery system the first thought that comes to one's mind is that of our judiciary and
more so of the Supreme Court, which has effectively stood the test of time and proved not only
to the nation but to the whole world that India is a democratic nation ruled by law and therefore
justice is held paramount in this great nation. It is of course no doubt that it is the judiciary that
has asserted itself in ensuring that effective legal aid becomes the order of the day and no
government and any other authority can give a go by to it on one pretext or the other. Thanks to
stalwarts like Justice Bhagawati and Justice Krishna Iyer that legal aid has become a respectable
right to the poor and needy in India. Their judgments as cited in this chapter bring out not only
the fact that giving legal aid is an essential ingredient of judicial system but may also highlights
the role of the judge in ensuring that this right will be available to the needy and deserving who
so- ever it may be. One can conclude that, if not for the stern and uncompromising insistence of
these judges of High Court and Supreme Court, legal aid in the present form might have been
delayed at least by half a century.
After several verdicts of the Supreme Court and various High Courts in respect of Legal Aid,
Government of India enacted Legal Services Authorities Act in 1987, by which several
Authorities were constituted viz.
National Legal Services Authorities, State Legal Services Authorities, District Legal Services
Authorities and Taluk Legal Services Committees.
The major drawback of legal aid movement in India is the lack of legal awareness. People are not
aware of rights and protection available under the law. It needs to be realized that the promotion
of awareness regarding legal aid is not the exclusive duty of the Legal fraternity. It is equally the
concern and responsibility of the society at large. Constitutional commitment for legal aid can
only be cherished if society comes forward to care for its vulnerable population.
In a democracy, where rule of law is supreme; it is essential to ensure that even the weakest
amongst the weak, poorest among the poor, in the country does not suffer injustice arising out of
any abrasive action on the part of State or private person. As a way forward there is need to
ensure capacity building for legal aid movement. More volunteers to act as intermediates
between rural people and legal service institutions. This is only possible if there are adequate
number of law colleges with necessary infrastructure, good teachers and staff.
 Bibliography
o http://pib.nic.in/newsite/mbErel.aspx?relid=118011
o http://www.un.org/en/index.html
o Jstor
o Code of Criminal Procedure,1973 Bare Act
o Civil Procedure Code along with Kerala Civil Rules of
Practice
o Manupatra
o Kerala Criminal Rules of Practice
o Madras Criminal Rules of Practice
o AP Civil Rules of Practice
o Times of India Archives