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Report No. 189

The position in India

In our country, there can be no doubt that the citizens had always access to the King, right from the time of Ramayan according to our history. When the Indian Courts later absorbed the common law of England, the right to access to courts became part of our constitutional law, even long before the coming into force of our Constitution. That continued even after the Constitution because of Article 372. We wish to refer to two interesting cases that arose in the pre-independence era which would indicate that concept of a non-derogable right of access to justice was recognised and enforced by the courts in this country.

Among the early decisions was one rendered by the Bombay High Court in Re: Llewelyn Evans AIR 1926 Bom 551. In that case, Evans was arrested in Aden and brought to Bombay on the charge of criminal breach of trust. At the stage of granting remand of the prisoner to police custody, Evans' legal adviser was denied access to meet the prisoner. The Magistrate who ordered the remand held that he had no jurisdiction to grant access despite the fact that s.40 of the Prisons Act, 1894 provided that an unconvicted prisoner should, subject to proper restrictions, be allowed to see his legal adviser in jail.

The question that arose was whether this right extended to the stage where the prisoner was in police custody. Justice Fawcett, who presided over the Bench of the Bombay High Court which heard the case referred to the report of the Rawlinson Committee in England and noted that "the days have long since gone by, when the state deliberately put obstacles in the way of an accused defending himself, as for instance, in the days when he was not allowed even to have counsel to defend him on a charge of felony." Referring to s.340 of the Code of Criminal Procedure, 1898 the Judge held that "the right under that provision implied that the prisoner should have a reasonable opportunity "if in custody, of getting into communication with his legal adviser for the purposes of preparing his defence".

The other judge on the Bench, Justice Madgavkar added that "if the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely, and fairly, before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice - advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance".

Another instance of the courage and craftsmanship of our Judges, particularly during difficult times of our political and legal history, is provided in the decision in P.K. Tare v. Emperor, AIR 1943 Nagpur 26. The petitioners, who had participated in the Quit India Movement of 1942, challenged their detention under the Defence of India Act, 1939 as being vitiated on account of refusal of permission by the authorities to allow them to meet their counsel to seek legal advice or approach the court in person. The Government of the day contended that the Defence of India Act 1939 took away the right to move a habeas corpus petition under S.491 of the Cr.PC 1898.

The court rejected this relying on the observation of Lord Hailsham in Eshugbayi v. Officer Administering the Govt. of Nigeria that "such fundamental rights, safeguarded under the Constitution with elaborate and anxious care and upheld time and again by the highest tribunals of the realm in language of utmost vigour cannot be swept away by implication or removed by some sweeping generality. No one doubts the right and the power of the proper authority to remove, but the removal must be express and unmistakable; and this applies whatever government be in power, and whether the country is at peace or at war."

Justice Vivian Bose, giving the leading opinion of the court, explained that the right to move the High Court remained intact notwithstanding the Defence of India Act, 1939. Further, although the courts allow a great deal of latitude to the executive and presumptions in favour of the liberty of the subject are weakened, "those rights do not disappear altogether." The court categorically ruled that the "attempt to keep the applicants away from this Court under the guise of these rules, is an abuse of power and warrants intervention."

Justice Vivian Bose, in the course of his judgment, emphasised the importance of the right of any person to apply to the court and demand that he be dealt with according to law. He said: "The right is prized in India no less highly than in England, or indeed any other part of the Empire, perhaps even more highly here than elsewhere; and it is jealously guarded by the courts."

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