STRICT RULING

New Delhi, Feb. 25: The Supreme Court has held that no person facing criminal charges should be tried in the absence of a lawyer and if the counsel doesn’t appear for any reason, the case should not be decided against the accused.

If no lawyers are available, an amicus curiae — an officer appointed by a court to assist it in a case — should defend the accused, the bench of Justices Markandey Katju and Gyan Sudha Mishra said yesterday.

“The liberty of a person is the most important feature of our Constitution. Article 21, which guarantees protection of life and personal liberty, is the most important fundamental right guaranteed by the Constitution. In our opinion, a criminal case should not be decided against the accused in absence of a counsel.”

The judges noted that the founding fathers of “our Constitution” were freedom fighters who had seen civil liberties trampled under foreign rule and were incarcerated for long periods under the policy of na vakeel, na daleel and na appeal (no lawyer, no arguments and no appeal).

“Many of them were lawyers by profession and knew the importance of (a) 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,” the bench said.

The judges set aside a Gauhati High Court’s conviction of an Assam resident last year in the absence of his lawyer and ordered that his case be heard by another bench of the high court. His bail shall continue till then.

Mohammad Sukur Ali had appointed A.S. Choudhury as his counsel in 2007. Ali later hired B. Sinha for the job. But Sinha’s name was not shown when the case was listed. Instead, the name of the previous counsel, Choudhury, was mentioned. “In these circumstances, Sinha, engaged as the new counsel, did not appear,” the bench noted.

Senior counsel Fali S. Nariman, asked to help the top court decide the larger implications of the case, pointed out that no court could convict without giving a chance to the accused to defend himself through a counsel.

The apex court also cited a US Supreme Court ruling to underscore its point that no person should go undefended.

“Even the intelligent and educated layman has small, and sometimes, no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad…. He may be put on trial without a proper charge. He lacks both the skill and knowledge to prepare his defence, even though he may have a perfect one,” the bench said, quoting from the US ruling.

Nazi war criminals, responsible for killing millions, were also provided lawyers in the Nuremberg trials, the court said.

“Therefore when we say that the accused should be provided counsel, we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed,” the bench said.