How does one feel while defending an accused person in a criminal...

How does one feel while defending an accused person in a criminal case?

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I am writing this from the point of view of an advocate, and that too, an advocate who is practicing criminal law. To appreciate the answer to this question, one should first understand certain basic legal provisions.

Firstly, please appreciate that Article 22 of the Constitution of India gives a fundamental right to an accused person by laying down that he shall not be denied the right to consult, and to be defended by, an advocate / lawyer of his choice. Since it is a fundamental right guaranteed under the Constitution, this right cannot be taken away or abridged.

Likewise, Section 303 of the Criminal Procedure Code, 1973, gives a statutory right to the accused person, by laying down that any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Criminal Procedure Code, may of right be defended by a pleader (i.e., lawyer) of his choice.

Therefore, if an advocate is practicing in criminal law, he is expected to respect the aforesaid fundamental right and/or the statutory right of the accused person, to the extent possible.

In fact, this legal position is fortified by the Bar Council of India, which is the apex professional body of the advocates, set up under a law made by the Parliament, namely, under the Advocates Act, 1961. The Bar Council of India has made certain rules on the professional standards of the advocates.

One of the duty mentioned in these professional standards expected under these rules is that an advocate is bound to accept any brief / case in the courts in which he proposes to practise. He can accept fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. It is only special circumstances which may justify the advocate’s refusal to accept a particular case.

So, generally, if an advocate is practising criminal law and if the client is willing to pay his professional fee, he is not expected to refuse acceptance of the case, unless there are some special circumstances.

Another rule of professional standard requires that an advocate shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. It is laid down that an advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.

Yet another requirement of the rules of professional standards is that an advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings.

I may also point out that Section 126 of the Evidence Act also prohibits professional communication by an advocate. It lays down that no advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course of his employment as such advocate, by or on behalf of his client, or to state the contents of any document with which he has become acquainted in the course of his professional employment, or to disclose any advice given by him to his client in the course of such employment.

Therefore, suppose, an accused person informs his advocate that he is guilty of the offence, the advocate is prohibited under law to disclose such thing to the court or other persons. It is for the accused himself to confess his guilt before the court, if he so wishes, and he may take the advice of the advocate on this issue. But, the advocate cannot disclose about such guilt or such advice to anyone, including the court. The law itself prohibits it.

At this juncture, I may also point out the most important fundamental right guaranteed under Article 21 of the Constitution. It lays down that life and personal liberty of a person cannot be taken away except according to procedure established under law. And, as per judgments of the Supreme Court, such procedure is also required to be just, fair and reasonable.

Therefore, if an accused person is to be imprisoned by way of punishment (which means, taking away his personal liberty), it can be done only by following the relevant legal provisions which should be just, fair and reasonable. If the accused is sentenced in violation of any such legal provisions, then that would be violation of his fundamental right under Article 21 of the Constitution of India, and it may be set aside on this ground alone even if there is evidence to prove his guilt.

It is a basic principle of criminal law that the guilt of the accused person has to be proved by the prosecution (i.e., by the opposite party) by leading evidence, beyond all reasonable doubt, in accordance with legal provisions.

The legal procedure and provisions are complicated in nature. Every person cannot be expected to understand the niceties of law and procedure. That’s why the right to consult and be defended by the lawyer of his choice has been guaranteed to every accused person, so that due to his ignorance of legal procedures, he should not suffer. And, certain duties have been imposed on the advocates to give the accused person all possible legal help, and to not to disclose information provided to him by the accused person in the capacity of his client.

In view of the above legal position, an advocate is supposed to act in a dispassionate manner while defending an accused person, even if he is supposed to be guilty. It is the professional duty of the advocate to do so, as mandated by law.

It is also in the above rules on professional standards of advocates that it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other.

If the advocate is not happy doing so, he should not practice criminal law and/or he should not accept the case of an accused person. I have seen many advocates who do not practice criminal due to this reason alone.

Therefore, the feeling that an advocate should have, while defending an accused (who may be supposed to be guilty), if he chooses to take up his case, should be the feeling of doing his professional duty in a dispassionate manner, as required under the law. He should have a feeling that he is performing a duty in the interests of society which requires that the guilt of an accused person should be proved by evidence beyond all reasonable doubt.

An advocate, while defending such case of an accused, should remember that he is only an advocate and NOT the judge. He has to represent the accused person before the court in a lawful manner and give all possible lawful help. An advocate should not himself judge the case, and he is not supposed to.

The accused is entitled to get benefit of the legal knowledge and experience of the advocate, for which he has paid the professional fee; of course, all in the lawful manner. This is what the law requires.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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