The Supreme Court has said that advocates should be continuously examined for fitness to conduct criminal trials on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This has been suggested with the objective of ensuring that the litigants do not suffer due to the incompetence of lawyers. These observations were made by the Supreme Court in the Uber rape case, in which the Supreme Court set aside order of Delhi High Court to re-examine witnesses. This judgment was delivered by a 2-judge bench of the Supreme Court, comprising of Justice J.S. Khehar and Justice Adarsh Kumar Goel, on 10 September 2015.
It may be pointed out that in the Uber rape case, the question before the Supreme Court was whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (Cr.P.C.) had been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses, having regard to the facts and circumstances of this case.
The Supreme Court held that there is no inflexible rule routinely permitting a recall of witnesses on the ground that cross-examination was not proper for reasons attributable to a counsel. The court observed that it has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system, noted the court. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.
It was in this context that the Supreme Court observed that the interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability.
The court went on to say that the interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise.
The Supreme Court made the following important observations:
“Perhaps time has come to review the Advocates Act and the relevant Rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the concerned authorities including the Law Commission and the Bar Council of India.”
Tilak Marg view: Anxiety of the Supreme Court is well-taken, but the question remains whether a fitness test of the advocates on continued basis will be effective. Given how such tests are conducted, what purpose would be served by such tests, remains doubtful. Requests for recall of witnesses are not made that often and are generally made in a very few cases. Such requests can perhaps be considered on the merits of each case. However, subjecting all advocates to continued medical fitness tests for physical and mental capacity will be like using a sword where a needle is required. In any case, what happens if an advocate declared medically fit, still commits mistakes in cross-examination and further requests for recall of witnesses is made? Will you then insist for continued professional competence tests also, given the fact that the first professional test being conducted by Bar Council of India [in the name of All India Bar Examination (AIBE)] for the young advocates has miserably failed to be effective?
