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India Supreme Court finds constitutional right to counsel

By Dwyer Arce

[JURIST] The Supreme Court of India [official website] has ruled that criminal defendants have a right to counsel [judgment, PDF] under the Indian Constitution [text, PDF]. The court found Thursday that under Article 22(1) of the Constitution, a court could not decide a criminal case without a lawyer present for the defendant, and should appoint counsel where the defendant cannot obtain a lawyer. Citing the US Supreme Court [JURIST news archive] cases of Powell v. Alabama, Gideon v. Wainwright and Brewer v. William [opinion texts] to support its decision, the Supreme Court of India went on to note that even the defendants at the Nuremberg trials [LOC backgrounder] had a right to counsel, as did defendants in England and ancient Rome. From this the court concluded that it was "not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed." The court continued:

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 "Na vakeel, na daleel, na appeal" (No lawyer, no hearing, 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.

Following the ruling, the Supreme Court remanded the case to the Gauhati High Court for rehearing in light of the decision.

The right to counsel has been the subject of numerous court cases worldwide in recent years. In October, the UK Supreme Court ruled that Scottish police could no longer question a suspect in custody [JURIST report] without the presence of a lawyer. The court found that the previous law, which permitted interrogation of suspects without a lawyer for up to six hours, violated the Article 6 right to a fair trial of the European Convention on Human Rights [text, PDF]. The week prior, the French Court of Cassation had ruled that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers [JURIST report] from the outset of criminal proceedings. Also in October, the Supreme Court of Canada ruled that Canadians do not have the right to have counsel [JURIST report] present during custodial interrogations under the Charter of Rights and Freedoms [text]. In May 2009, the US Supreme Court ruled that the Sixth Amendment did not require police to cease interrogations [JURIST report] after a suspect had invoked his right to counsel, ruling that the Fifth Amendment provides adequate protection.

Full post as published by JURIST - The Paper Chase on February 28, 2011 (boomark / email).