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Published : December 18, 2017 | Author : nivedha krishnamurti
Category : Miscellaneous | Total Views : 182 | Rating :

  
nivedha krishnamurti
i am doing by UG in school of excellence in law, chennai.
 

Right To Legal Representation

A Lawyer can help delineate the issues, present the factual contentions in an ordinary manner, cross-examine witnesses and otherwise safeguard the interests of the party concerned. The right to representation by a lawyer or other person may proved to be part of Principles of Natural Justice in any proceedings before formal authority or investigation if there is no provision to the contrary. Generally, the right to legal representation is not considered a mandatory party of the right to Fair Hearing. The right to representation is as regarded more of an exception than the general rule. The question of legal representation is to be decided in the context of the special situation in each case. This will be discussed under this chapter.

Aim of The Study:
1. To study the administrative proceedings in representation through a lawyer as considered an indispensable part of rules of Natural Justice.
2. To discuss the essential requisite of the procedure established by law by the Supreme court of India in Legal Assistance from lawyer.
3. To deal the extent of Right of Legal Representation in administrative proceedings depends on the provisions of statute.
4. To enquiry the justified grounds of denial of right of legal representation in the administrative proceedings.
5. To present the position of right of Representation by lawyer or other person may prove to be part of natural justice in suitable cases.
6. To study the position of Right to Legal Representation in India in administrative proceedings and in quasi- judicial proceedings.

Limitation of The Study:
The limitation of right to legal representation is justified on the ground that Representation through a lawyer tend to complicate matters, prolong the proceedings, and destroy the essential informality of the proceedings. It is further justified on the ground that Representation through a lawyer of choice would give an edge to the rich over the poor who cannot afford a good lawyer. No research has so far been made to test the truth of these ascertains, but the fact remains that unless some kind of legal aid is provided by the agency itself, the denial of Legal Representation, to use the words of Prof. Allen, would be a ‘Mistaken Kindness’ to the poor people.

Hypothesis:
Generally, Representation through a lawyer in any administrative proceedings is not considered as an indispensable part of the rule of Natural Justice and also the extend of the right to legal representation any administrative proceedings or quasi-judicial proceedings depends on the provisions of the statute. However, the question of right of legal representation is always to be decided in the context of the specific factual situation in each case.

Methodology:
This study is based on the Secondary sources or Doctrinal research method. The secondary sources are text books, articles, law journals, Newspaper, e-sources, indexes, etc. This study is mainly relay upon the secondary sources, in particular mainly based on text books.

Scheme of The Study:
Need of Legal Representation:
Normally, representation through a lawyer in any administrative proceedings is not considered as an indispensable part of the rule of Natural Justice, as Oral hearing is not included in the minima of fair hearing.However, the courts in India have held that in need of legal representation in situations, where the persons is illiterate, or matter is complicated and technical or expert evidence is an record, or a question of law is involved, or the person is facing a trained prosecutor, some professional assistance must be given to the party to make his right to defend himself meaningful. These were said by several case laws.

Right To Legal Representation; Position In Other Countries:
England:
In Britain, the Franks Committee was of the view that the right to legal representation, “should be curtailed in the most exceptional circumstances, where it is clear that the interests of the applicants generally would be better served by a restriction. There is, however, some difference of judicial opinion on their point in England. In Pett(1),the court of Appeal unanimously upheld the right to legal representation before a tribunal enquiring into matters affecting a man’s reputation or livelihood, or any matters of serious import at least where thereis a right to an oral hearing. This was on the principal that what a person would himself do. He could get it done by his agent and a legal Practitioner would only be his agent.

But in Pett(2),the court dissented from the view taken in Pett (1). Discussing the matter again in Ender by case, the court held that there was no absolute right to legal representation; it was a matter for the discretion of the adjudicator. But the adjudicator cannot lay down an absolute rule against legal representative; he should be willing to permit it in a exceptional case.

In R vs. Board of Visitors of H.M. Prison, the Maze, ex.p. Hone, the House of Lords has rules that a prisoners could not claim legal representation in a disciplinary proceedings as of right even when the charge laid against him constituted a crime in law. The matter of permitting legal representation is one of discretion with the board of visitors. “Everything must depend on the circumstances of the particular case”.

In an earlier case, R vs Secretary of state, ex.p. Tarrant, the court allowed legal representation to prisoners in the disciplinary proceedings because some of the charges laid against them raised difficult issues of interpretation and the others involved severe penalties.
European Convention on Human Rights also recognizes a right to legal assistance and representation. A party conducting his case in person would be allowed the assistance of a friend to give advice and take notes.

Australia:
In Australia, appearance of a lawyer before a tribunal is a rule, non-appearance is an exception.

United States of America:
In U.S.A., the right of legal representation is guaranteed, for many purposes by the combined effect of the “Due Process” clause of the U.S. Constitution and section 555(b) runs as follows: “A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel….A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding……”

Right To Legal Representation; Position In India:

Legal assistance from a lawyer is held by the Supreme Court of India as essential requisite of the procedure established by law. The court holds that if a person does not have legal aid, her or his deprivation of liability is unconstitutional and void.In disciplinary inquiries as in other quasi-judicial proceedings, however, lawyers are not always considered necessary. In fact, the very purpose of creating administrative tribunals is to provide a de-professionalized dispute settlement mechanism and therefore, at times there are statutory provisions for the exclusion of lawyers.

In a domestic enquiry, where allegations in the charge-sheet were not complicated but quite simple, failure to permit that employee to engage a lawyer did not violate the principles of Natural Justice.

Denial of Legal Representation:
The denial of legal representation is justified on the ground that lawyers tend to complicate matters, prolong the proceedings, and destroy the essential informality of the proceedings. It is further justified on the ground that representation through a lawyer of choice would give an edge to the rich over the poor who cannot afford a good lawyer. No research has so far been made to test the truth of these ascertains, but the fact remains that unless some kind of legal aid is provided by the agency itself, the denial of legal representation, to use the words of Prof. Allen, would be a ‘Mistaken kindness’ to the poor people.

Right to Legal Representation through a lawyer or agent of choice may be restricted by a standing order also. In Crescent Dyes and Chemical Ltd. Vs Ram Naresh Tripathi, the Supreme Court held that where a standing order restricted the right of representation to any employee of the factory only, it would not be considered as a denial of Natural Justice as to vitiate an administrative enquiry.

To what extent Legal Representation would be allowed in administrative proceedings depends on the provisions of the statute. Factory laws do not permit legal representation, Industrial Disputes Acts allow it with the permission of the tribunal and some statutes like the Income Tax Act, 1961 permit legal representation as a matter of right.

Regulation By Law:
However, even this right is not unlimited and can be reasonably regulated by law. In Railway Protection Force vs. K.Raghuram Babu, the Supreme Court opined that the common-law right of representation by a ‘friend’ can be regulated by law. In this case, a standing order rule had provided that a person can take the assistance of a ‘friend’ who is an employee of the Force. This implies that assistance cannot be taken from a friend who is not a member of the Free Court emphasized that ordinarily, in a departmental or domestic enquiry, no person has a right to be represented by a lawyer unless law provides for it or a person has suffered serious prejudice as such proceedings are not suits or criminal trails.

Legal Assistance In Preventive Detention Cases:
Legal Assistance in Preventive Detention cases poses a curious problem because, on the one hand, preventive detention laws disallow legal representation and on the other hand, they seek to detain people for unproved crimes. However, it is qualifying to note that in this highly-sensitive area, judicial behavior, has shown remarkable signs of improvement. In Nandlal Bajaj vs State of Punjab, the court allowed legal representation to the detainee through a lawyer even when section 11 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and section 8(e) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (CofEPOSA) denied of legal representation in express terms because the state had been represented through a lawyer. These observed that even when the law does not allow legal representation to the detenu, he is entitled to make such a request, and the advisory body is bound to consider this request on merit and is not precluded to allow the state to be represented through a lawyer. Maintaining the same tener, the court in A.R. Roy, while deciding the constitutionality of the National Security Act, 1980, held that if the Act disallows legal representation to a detenu, the state also cannot take the help of a lawyer. In its eagerness to protect the interest of the detenu, the court in Phillippa Anne Duke vs. State of Tamil Nadu, conferred upon him the right to appear through his friend who in truth and substance is not a legal Practitioner, and is also not a comrade-in-profession of the detenu for which he is detained. Therefore, even in the face of constitutional and statutory denial of legal representation to a detenu, he is entitled to a common law right of representation through a “friend”. The objection that a lawyer or a friend’s assistance was not made available could not be sustained.

Legal Assistance For Civil Servants:
In the case of disciplinary proceedings against civil servants rule provide that a civil servant may not engage a legal practitioner at the enquiry, “Unless the disciplinary authority, having regard to the circumstances of the case, so permits”. Thus, it is for the inquiry officer to permit or not legal representation to the delinquent civil servant. But, in certain circumstances, refusal by the inquiry officer to permit legal representation to the employee may be challengeable in a court on the ground of denial of Natural Justice, as for example who he is pitted against a trained prosecutor.

In C.L. Subramanian vs Collector of Customs, a civil servant at an inquiry was pitted against a trained prosecutor. His request for engaging a lawyer was refused by the disciplinary authority. His request to get the help of a friend also was not conceded. The Supreme Court ruled that, in the circumstances, he had not been offered a reasonable opportunity to defend himself.

The fact that the case against him was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal Practitioner to defend him but the scales be weighed against him. The disciplinary authority completely ignored that circumstance. The authority thus clearly failed to exercise the power conferred on it under the rule. The refusal to him to engage a legal Practitioner in the circumstances would have caused him from serious prejudice. Accordingly, the order removing him from service was quashed as the inquiry against him was vitiated.

In Krishna chander case, in a disciplinary inquiry against a civil servant, the Supreme Court ruled that refusal of lawyer’s aid to the petitioner did not constitute an infirmity in the context of the factual position for the following reasons:
1.Under the rules, he was not entitled to the assistance of an advocate during the enquiry. 2. There was no oral evidence to be recorded at the inquiry and so there was no need of a lawyer to cross-examine witnesses;
3. There was no complexity in the case and the absence of a lawyer did not deprive the appellant of a reasonable opportunity to defend himself.

The position has thus reached that where a person trained in analyzing issues of facts and law represents the administration before the adjudicatory authority, it will be a denial of natural justice if the request of the affected party to have such an assistance is denied to him.

Conclusion:
The question of legal representation is always to be decided in the context of the specific factual situation in each case. It is for the court to decide in a case whether the adjudicatory body concerned property exercised its discretion as not by rejecting the party’s request for representation by a lawyer. In some situations the court has made the requirement of legal representation mandatory, leaving no discretion with the adjudicator. The party’s request to be represented by a counsel should be made adjudicatory authority early in the proceedings. A belated request is liable to be denied, it has been held that the request was belated when the individual made the request after the defence witnesses had been examined, and the case was at the argument stage. It has also liberalized the procedural restrictions in the matter of representation through a counsel by the party.

Suggestion:
1. According to my study, the question of legal representation is always to be decided in the context of the specific factual situation.
2. On observation, the right to legal representation is not considered as a mandatory part of right of Fair hearing.
3. Legal Assistance in India is held by the courts by procedure established by law.
4. Suggesting, for illiterate, if the matter complicated and technical or expert evidence is on record, or a question of law is involved, then a trained prosecutor must be given to the party.
5. For domestic enquiry also, where allegations in the charge-sheet were complicated, right to counsel should be suggested.

Bibliography:
1. M.P. Jain and S.N. Jain, “Principles of Administrative Law”,5thedition, Lexis Nexis Butter WorthsWadhwa, (Nagpur), 2008.
2. S.P. Sathe, “Administrative Law”,7thedition, Lexis Nexis, (Nagpur), 2005.
3. I.P. Massey,“Administrative Law”,8thedition, Eastern Book Company, (Lucknow), 2010.
4. Wade and Forsyth, “Administrative Law”, 9thedition, London Library Publication, (London), 2011.

1. S.P. Sathe,“Administrative law”,7thedition, Lexis Nexis, Nagpur, p. 234.
2.M.P. Jain and S.N. Jain, “Principles of Administrative Law”,Lexis Nexis Better WorthsWadhwa, Nagpur, (New Delhi), p.310.
3. Pett v. Greyhound Racing Ass., (1968) 2 WLR 1471.
4. Pett v. GreyhoundRacing Ass.,(1969) 2 ALLER 224.
5. Ender by Vown F.C. Ltd. V. Foot ball Ass. Ltd.,(1971) 1ALL ER 215.
6. (1988) 1 AC379.
7. (1985) QB 251; JAIN, CASES, I 699.
8. S.P. Sathe,“Administrative Law”,7thedition, Lexis Nexis, Nagpur, p.234.
9. Harinarayanan Srivastana vs. United Commercial Bank, AIR 1997 SC 3658.
10. (1993) 2SCC 115.
11. (2008) 4 SCC 406.
12. (1981) 4 SCC 327: AIR 1981 SC 2041
13. A.K.Roy vs Union of India,AIR 1982 SC 710: (1982) 1
14. AIR 1982 SC 1178; (1982) 2 SCC 289.
15. AIR 1972 SC 2178 : (1972) 3 SCC 542.
16. AIR 1999 SC 1221 : (1999) 2 SCC 283.

 

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges



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