Tuesday, March 1, 2011

Right to Counsel in India

The Supreme Court of India ruled last week in Ali v. State of Assam that a criminal defendant has a right to counsel under Article 21 of the Constitution of India.

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Article 21, Protection of life and personal liberty, provides:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution."  But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.

The Court even drew on its own brand of originalism:

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 periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal).  Many of them were lawyers by professor, 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.

The Court extended the right to appeals, even though the case involved only the right to counsel at trial.  In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals.  Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first.  As Anthony Lewis wrote in Gideon's Trumpet:

A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals.  To any informed listener it was obvious that the same rule must apply at trials . . . .  Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."

But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection.  Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:

In either case, the evil is the same: discrimination against the indigent.  For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."

SDS

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