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Report No. 35

Topic Number 62

Legal aid to persons concerned in capital cases

1166. Legal aid to persons concerned in capital cases.-

We may now consider the question of legal aid to persons accused of capital offences1. In all States of India, provision is made for the employment of counsel in the Court of Session and in the High Court for the defence of persons accused of offences punishable with death2. By way of example, we may refer to the rules issued in the State of Bombay3. The salient features of the Bombay rules are as follows:

1. In all cases committed for trial in a criminal sessions of the High Court or in the Court of Session and in confirmation cases, references from the verdict of the jury, appeals from acquittals and enhancement proceedings in revision, in which any person is liable to be sentenced to death, the accused shall be informed by the committing magistrate at the time of committal, or if the accused has already been tried by the court, by the trial court, that unless he intends to make his own arrangement for legal assistance, the higher court will engage a pleader at Government expense to appear before it on his behalf.

2. If he so desires, a pleader shall be so engaged.

3. The fees prescribed by the relevant rules shall be paid to the pleader so engaged.

4. The pleader is appointed in sufficient time to enable him to take copies of the depositions and other necessary papers, which are furnished free of cost before commencement of the trial. He is also allowed to make copies of these papers during the trial, without fees.

5. Copies required by the pleader for defence are prepared by the copyist in the establishment of the Public Prosecutor of the District, who may, if necessary, even employ an extra copyist for the purpose.

6. Fees chargeable under the Court Fees Act on the copies have been remitted.

1. The whole question of legal aid has been examined in the Fourteenth Report of the Law Commission, Vol. I.

2. See Fourteenth Report, Vol. I.

3. Criminal Manual issued by the High Court of Bombay, (1948), p. 41, para. 75, and amendments of 11th January, 1949 and 6th July, 1954.

1167. Position in America.-

The subject has engaged attention in detail in U.S.A. For the purposes of this topic a detailed consideration of the position in the United States of America regarding counsel in criminal cases is unnecessary1-2. There are provisions in the Federal and State constitutions relating to due process and also specifically relating to counsel, which are different from the provisions in India.

1. For a detailed study, see Beaney Right to Counsel in American Courts (University of Michigan Publication), (1955), pp. 36, 80, 87 and 142 and Brownell in (1961) American Bar Association Journal Decade of progress.

2. For a summary of four recent cases, see (1963) American Bar Association Journal, 587-589.

1168. The Sixth Amendment to the Constitution of the United States of America (so far as is relevant) provides: "In all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defence" Adequate compensation to counsel has been regarded as necessary to make this right satisfactory in practice1.

1. See, "Uncompensated counsel. They do not meet the constitutional mandate", (1963) American Bar Association Journal, 435.

1169. In the U.S.A., the right to counsel in criminal cases is derived from various sources. These sources are statutory as well as constitutional. It is unnecessary to refer to those provisions and the prolific case-law thereon. Stating the position very broadly, one may say that this right is derived-

(a) in the Federal field

(i) for capital cases, from statute, and

(ii) for capital as well as non-capital cases, from the Sixth Amendment1;

(b) in the State field

(i) for capital cases, from State enactments, and

(ii) for capital as well as non-capital cases, from the "due process of law", clause in the Fourteenth Amendments1-2.

1. Johnson v. Zerbst, (1938) 304 US 458.

2. Hamilton v. Alabama, (1961) 368 US 52.

3. Gideon v. Wain Wright (1963) 372 US 335.

1170. So far as the Sixth Amendment is concerned, the interpretation based on "assistance of counsel" has been a wide one, so as to embrace the right to have the effective assistance of counsel-what is known as the right to "appointed counsel."

1171. So far as the due process of law is concerned, the leading cases are Powell v. Alabama (1932) 287 US 45. and the recent case of Gideon1. The former was a capital crime; the latter related to a non-capital crime. The effect of the leading cases (stated very roughly) is that failure to furnish counsel to an indigent person, accused of a crime, is a deprivation of due process, and may be regarded as fatal if the trial has been prejudiced.

1. Gideon v. Wain Wright, (March 18, 1963), 372 US 335, overruling Belts v. Brady.

1172. In another case1, failure to furnish counsel, on appeal from a conviction for felony, has been held to be a denial of the equal protection of laws2. Thereafter, several cases dealing with pre-trial right to counsel have been decided3.

1. Douglas v. California, (March 18, 1963), 372 US 353.

(These and other cases are discussed in 1963 American Bar Association Journal 587 and 1192).

2. For a review of the position, see Spies Due Process and the American Criminal Trial, (1964) 38 Aust. Law Journal, 223, 234, 235 and Note (1963) 77 Harvard Law Review, 103-108 "Supreme Court 1962 Term"

3. See "Developments in the Law-Confessions" (1966) 79 Harvard Law Review, 935, 996 to 998, 1022 and 1110 (Indian position compared).

1173. Any provision, however, on the subject, will remain an idle formula, securing no practical benefit, unless steps are taken to ensure that the representation provided to the accused is effective. It is commonplace that the particular counsel who is assigned to the accused would not be able to render assistance to the best of his ability unless he gets sufficient time and facilities for preparation, and is adequately paid. Poor payment will not attract counsel of reasonable talent. The quality of counsel will also depend upon the appointing agency. Having regard to these considerations, we think that the main factors on which the adequacy of assistance in the shape of counsel depends, would be-

1. The time at which counsel is provided.

2. The time up to which counsel is provided.

3. The agency by which counsel is appointed.

4. The agency by which counsel is paid.

5. The facilities allowed to counsel for preparation.

6. The remuneration allowed to counsel.

7. The awareness of the accused that he is entitled to counsel.

1174. At first sight, a provision for appointing counsel would seem to be a matter of sympathy, or a gratuitous concession allowed on grounds of compassion. A close study will, however, show, that such a facility is not a luxury; it seems to go to the root of the matter. Without the "guiding hand of counsel", laymen cannot present their case properly. Cross-examination, which still remains the most effective tool for testing the veracity of a witness, is a weapon which no layman, however intelligent he may be, can ordinarily employ in the atmosphere of a courtroom and with efficient counsel pitched on the other side. It is from this point of view that we attach the greatest importance to the assistance of counsel in capital cases.1

1. For the purpose of this Report, it is unnecessary to discuss how far this right should be available in non-capital cases also.

1175. Recommendation.-

We would, therefore, recommend1 very strongly, that all State Governments and High Courts should review the provisions regarding the assistance of counsel in capital cases, in order to consider-

(a) whether the right is effective in practice, with reference to the criteria which we have indicated above, and

(b) particularly, whether the fees allowed to counsel are adequate to attract good talent.

The general question of legal aid has been examined, more than once in India by various Committees, and we need not repeat what is already contained in the reports of those committees.2

1. See Fourteenth Report of the Law Commission, (Reform of Judicial Administration), Vol. 1.

2. See Fourteenth Report of the Law Commission (Reform of Judicial Administration), Vol. I.



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