Currently, in many countries with a democratic system and rule of law, criminal procedure puts the burden of proof on the prosecution. That is, it’s up to the prosecution to prove that the accused is guilty beyond a reasonable doubt. Similarly, all such jurisdiction allows the accused right to legal counsel of his choice and provides court-appointed lawyer when the accused cannot afford one. As we know the accused person has numerous rights which is embedded in the constitution itself. All these rights were provided so that no single person who is not guilty would be punished. Likewise, once the suspect person desires to self-represent, he will do therefore with the leave of the court. The thought of self-representation is often copied back to the practices that existed throughout the colonial amount. Accused were self-directed and distrustful of others. The rationale for declarative self-representation might vary. Some accused do not trust their lawyer and some wanted to plead guilty which do not need the presence of counsel. The question that arises is how the right to self-representation can be guaranteed.
SELF-REPRESENTATION AS A STATUTORY RIGHT:
Our justice system has been designed in such a way that even a litigant can conduct his own case before any court of law though he needs comprehensive knowledge about the subject matter of his own case, legal procedure, sections and how to file cases and about previous judgments and case laws to strengthen the case. The Advocate’s Act, 1961 recognizes the right to self-representation as a statutory right. The Act states that “the court may allow any person to appear before it even if he is not an advocate.”1 The Act authorizes the court to permit any person who is not an advocate to appear before it in particular cases.2 As we know no right is absolute and every right has a reasonable restriction attached to it. The court may allow self-representation when it thinks necessary.3 Each court has their rules which act as a guideline for implementation and these rules also discuss contending case by the accused person.
The accused must be competent to argue his case. To determine the competence, accused’s age, his level of education, his understanding capacity, the seriousness of the crime with which the accused is charged is taken into consideration. The defendant in the criminal trial has a right to conduct his own defence without assistance of counsel when he voluntarily elects to do so.4
1. Order 3 Rule of CPC recognized agents and pleaders – Appearances, etc., may be in person, by recognized agents or by a pleader.
2. Section 32 of The Advocate’s Act, 1961 – Power of court to permit appearances in particular cases.
3. Section 2(q) of Crpc – “Pleader”, when used with reference to any proceeding in any Court, means a person authorized by or below any law for the time being in force, to apply in such Court, and includes the other appointed with the permission of the Court to act in such purpose. This implies that any person can be appointed by the court to represent in the interest of delivering a fair and just judgment.
Indian judiciary in many cases dealt with the matters concerning self-representation. Our justice system allows even the defendant to conduct his own case.
In Jamshed Ansari v High court of judicature, Allahabad5 the court held that Section 32 of the Advocate’s Act is an enabling provision which enables and regulates right to practice by any person subject to restrictions.
In N.K. Bajpai v. Union of India6, the Court made it clear that the right to practice is often regulated and isn’t absolutely right that is free from restrictions or any limitation.
In Lakshmi Suri v Union of India and others, it was held that “ the court grants permission to appear and argue, on being satisfied with regard to the level of equipment of the person pleading before the court.”
Every court has its own rules and procedures. So the person arguing must be aware of the procedural and legal nuances, failure of which would change the case against the person arguing. These procedures are required to be followed mechanically even if they may appear to be ridiculous. There exists an exact and set mechanical procedure for filing cases in courts. Courts are enthralled by their own procedure. For everything there exist steps that you’re automatically needed to follow. Courts won’t enable you to digress from the established procedures. Even for filing a petition, there’s a collection of procedure which can change from court to court. It’s solely the dearth of data of law and procedure which will cause difficulties. Another choice maybe to fight your own case, however, take the guidance (about procedures and basic provisions of law).
Our judicial system permits even litigant to conduct his own case before any court of law. He needs a comprehensive knowledge about the legal provisions, the procedure to file a case, clarity about previous judgments to strengthen the case. Lack of this would end up in losing the case. Even permitting someone to argue his case before a court isn’t a matter of right. It’s a discretion bestowed by the Act on the court to allow anyone to look in a very specific case although he’s not listed as an advocate. On considering the seriousness of the offence committed by the accused he can defend himself. When it is a serious offence it’s always better to engage a lawyer.
1 Section 32, The Advocate’s Act, 1961.
2 Derby Textiles Ltd. Vs. Mahamantri, Derby Textiles Karmachari, (1994) IIILLJ 528 Raj.
3 Bhiwa Yeshwant Vs. Regional Director, E.S.I. Corp. and ors., (1978) 80 BOMLR 361.
4 FARETTA V. CALIFORNIA, 422 U.S. 806 (1975)
5 (2012) 4 SCC 653
6 (2012) 4 SCC 653
7 (2014) 5 SCC 236.
This article is authored by Haripriya. B, Fifth-Year, B.A. LL.B (Hons.) Student at School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University.