Right to Legal Representation

Right to Legal Representation

In general, the right to counsel is not considered a mandatory part of the right to fair hearing.

There are several statutory provisions prohibiting the presence of lawyers at adjudicatory proceedings: Ss.36(2)(a), (b), and 36(4), of the Industrial Disputes Act restrict the conditions under which a lawyer can appear before an Industrial Tribunal; Rule 15(5) of the Central Civil Service (Classification, Control & Appeal) Rules 1957 provides that government servants cannot appoint lawyers unless permitted by the disciplinary authority; A.22 (3)(b) of the Constitution prohibits detenues in preventive detention cases from engaging counsel, although the Advisory Board may permit the same. If the government or adjudicating authority is represented through a lawyer, then the concerned person or detenu will have the right of legal representation. (Nand Lal Bajaj v. State of Punjab, (1981) 4 SCC 327).

Section 13, Family Courts Act, 1984 - Right to legal representation - Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner;

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as Amicus curiae.

A bare reading of the said provision prima facie appear to have put a bar for engagement of Advocates by parties in a proceeding before the Family Court and only when the Family Court considers it necessary in the interest of justice, it may seek assistance of a legal expert as Amicus curiae. In this connection, Rule 27 of the Family Court (Orissa) Rules, 1990 is also a relevant. Said provision is quoted below:

A party will be entitled to take legal advice at any stage of the proceeding either before the counsellor or before the Court. A party in indigent circumstance will be entitled to free legal aid and advice.

Rule 8(8) of the Maharashtra Civil services (Discipline and Appeal) Rules, 1979 is as follows :

"The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or, the Disciplinary Authority, having regard to the circumstances of the case, so permits."

"A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a Court presided by an unbiased Judge ? The Enquiry Officer combines the Judge and the prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehension. Add to this uneven scales, the weight of legally trained minds on behalf of the employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys."

While considering the expression "legal practitioner" in Regulation 26(5) of the Khadi and Village Industries Commission Employees (Conduct Discipline and Appeal) Regulations, 1961 observed in Venkatraman v. Union of India, (1986-II-LLJ-62) that words "legal practitioner" cannot be read in their narrow sense as commonly understood. It is enough if the Prosecuting Officer without being a legal practitioner is a legally trained mind with his ability and vast experience as a prosecutor in domestic matters. Therefore, where on behalf of the employer an Inspector who had been looking after the domestic enquiries for several years with his ability and vast experience was allowed to appear and the employee claimed that he was entitled to be represented by a legal practitioner it is clear that in such a case, the employee cannot be denied to be represented by a person having legal knowledge and if the enquiry is carried on denying opportunity to the employee of legal assistance, such domestic enquiry and the findings therein and the action taken on that basis would stand vitiated.

In Krishna Chandra's case (supra), no legal practitioner was employed by the Department and therefore it would be of no assistance to the respondent, while in H. C. Sarin's case (supra) Rule 1730 of the Railway Establishment Code Vol 1, which prescribed procedure for holding a departmental enquiry said nothing in relation to the engagement of a lawyer and in regard to the provisions therein it was held that under the rule the appellant was not entitled to the services of a professional lawyer.

The case of State Bank of Patiala v. S.K. Sharma, reported in 1996 Bank. J. 447 (S.C.) : 1996(3) SCALE 202, where the aspect of prejudice has been considered and the Court or the Tribunal has been clearly directed to make a distinction between a total violation of natural justice and violation of a facet of the said Rule. In other words, a distinction has to be made between "no opportunity" and no adequate opportunity i.e., between "no notice" / "no hearing" and "no fair hearing".

Devji Vallabhbhai Tandel Etc vs The Administrator Of Goa, Daman & Diu & Anr. Supreme Court held that:

Under Article 22 counsel submits there are two distinct and independent rights: (1) to persuade the detaining authority to revoke the order of detention and (2) to persuade the Advisory Board to disapprove the detention. It is only in the second process that the agent called lawyer is excluded. The learned counsel further submits that every person has a common law right to employ an agent and do an act through him. The detenu could, therefore, send an 'agent' or a 'friend' who might have been his lawyer. Let us first examine whether the detenu has a right to appear through a lawyer. This examination need not detain us long.

Section 8 (e) of the COFEPOSA reads: (material portion only)

"For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7), of Article 22 of the Constitution,-(e)-a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.." (emphasis added).

Clause (e) in express terms disentitles the detenu to appear through a legal practitioner in any matter connected with the reference to the Advisory Board. It is indisputable that a detention matter which is pending before the Administrator is undoubtedly a matter connected with the reference to the Advisory Board. The detenu, therefore, has no right to appear before the detaining authority or before the Advisory Board by a legal practitioner. This Court in the case of Smt. Hemlata Kantilal Shah v. The State of Maharashtra & Anr. have held;

"Section 8 (e) has not barred representation of a detenu by a lawyer. It only lays down that the detenu cannot claim representation by a lawyer as of right. It has given the Board a discretion to permit or not to permit representation of the detenu by counsel according to the necessity in a particular case". In the case of A.K Roy v. Union of India relied on by Mr. Jethmalani, a Constitution Bench of this Court has held. "First and foremost, we must consider whether and to what extent the detenu is entitled to exercise the trinity of rights before the Advisory Board; (i) the right of legal representation; (ii) the right of cross- examination and (iii) the right to present his evidence in rebuttal. These rights undoubtedly constitute the core of just process because without them, it would be difficult for any person to disprove the allegations made against him and to establish the truth. But there are two considerations of primary importance which must be borne in mind in this regard. There is no prescribed standard of reasonableness and therefore, what kind of processual rights should be made available to a person in any proceeding depends upon the nature of the proceedings in relation to which the rights are claimed. The kind of issues involved in the proceeding determine the kind of rights available to the persons who are parties to that proceeding. Secondly the question as to the availability of rights has to be decided not generally but on the basis of the statutory provisions which govern the proceeding, provided of course that those provisions are valid.. " (para 84) 'Turning first to the right of legal representation which is claimed by the petitioners, the relevant article of the Constitution to consider is Article 22 which bears the marginal note "protection against arrest and detention in certain cases". That article provides by clause (1) that 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. Clause (2) requires that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest and that no person shall be detained in custody beyond the said period without the authority of a magistrate. Clause (3) provides that nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. It may be recalled that clause (4) (a) of Article 22 provides that no law of preventive detention shall authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention. By clause (7) (c) of Article 22, the Parliament is given the power to prescribe by law the procedure to be followed by the Advisory Board in an inquiry under clause (4) (a)".

"On a combined reading of clauses (1) and (3) (b) of Article 22, it is clear that the right to consult and to be defended by a legal practitioner of one's choice, which is conferred by clause (1), is denied by clause 3 (b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. In view of this, it seems to us difficult to hold, by application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board.. lt is indeed true to say, after the decision in the Bank Nationalisation case, that though the subject of preventive detention is specifically dealt with in Article 22, the requirements of Article 21 have nevertheless to be satisfied. It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22 (3) (b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. If article 22 were silent on the question, of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards. It is unfortunate that courts have been deprived of that choice by the express language of Article 22 (3) (b) read with Article 22 (1)".

"To read the right of legal representation in Article 22 (S) is straining the language of that article. Clause (S) confers upon the detenu the right to be informed of the 1) grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by Section 10 of the National Security Act, the representation made by the detenu is required to be forwarded to the. Advisory Board for its consideration. If anything, the effect of Section 11(4) of the Act, which conforms to Article 22 (3) (b), is that the detenu cannot appear before the Advisory Board through a legal practitioner. The written representation of the detenu does not have to be expatiated upon by a legal practitioner".

"We must therefore hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22 (3) (b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party,........ ".