Advocate-on-Record System: High Courts Lack Power

To Restrict 'Right To Practice' Of Advocates

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July 27, 2020

Lawyers' Enrollment (File Image)

"Now, lawyers can practise in all courts." This was how 'The Hindu' reported the
news of coming into effect of Section 30 of the Advocates Act on 15th June 2011.
Though the Advocates Act became a law in 1961, Section 30, which can be termed as
the heart of the statute, came into force only fifty years later.

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Gazette Notification

AOR Systems in High Courts

Basically, AOR system puts some additional criteria and qualifications on Advocates
like passing of AoR exam conducted by a High Court, local office stipulations,
minimum practice etc. Only after an Advocate satisfies this criteria, he can practice as
of right in the High Court. The system that is being followed in Patna HC can be taken
as an example .

Also Read - Pre-Trial Prejudice: Time To Identify The Evil In India?

As discussed in earlier Articles, the Advocate on Record system in Patna High Court
came into force in 2009 before Section 30 was notified. Similarly, the observations of
the Supreme Court that the High Courts may consider making of rules, on the subject
of Advocate-on-Record, on the pattern of Supreme Court, were made in R.K. Anand
Vs. Registrar, Delhi High Court (2009) 8 SCC 106, a judgment delivered in 2009. The
Supreme Court had upheld its own AOR system on the ground that it has
Constitutional Power under Article 145 of the Constitution of India to frame Rules as
to the persons practising before it.

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Case: Whither Law Of Precedent?
Presently, the Kerala High Court is also contemplating to introduce AOR system. The
Madras and Gujarat High Courts have also this idea in the pipeline since 2015. The
Allahabad High Court has a 'Roll of Advocates' system since 2011.

This article ventures to examine the legal and constitutional validity of AOR system
and also the scope of power of the High Courts to frame Rules under Section 34
restricting the 'right to practice' of an Advocate, especially after Section 30 came into
force in 2011.

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Advocates Act- An overview

Before starting the discussion on the topic, it is necessary to briefly deal with the
provisions of the Advocates Act,1961.

An Advocate's right to practice is statutorily recognized under Section 30 of the

Advocates Act, 1961. This provision (which came into effect on 15th June 2011)
provides that every advocate, whose name is entered in the State roll, shall be entitled
as of right to practice throughout the territories to which this Act extends, (i) in all
courts including the Supreme Court; (ii) before any tribunal or person legally
authorized to take evidence; and (iii) before any other authority or person before
whom such advocate is by or under any law for the time being in force entitled to
practise. But the provision begins with the phrase "Subject to provisions of this Act."

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As per Section 2(a) of the Advocates Act, 1961, "Advocate" means an advocate entered
in any roll under the provisions of this Act. Section 24 lays down qualifications
required for a person to be qualified to be admitted as an advocate on a State roll
Further it is clear from Section 16 of the Act that there shall be two classes of
advocates, namely, senior advocates and other advocates.

Section 29 emphasizes that Advocates are the only recognised class of persons entitled
to practise law. But this provision is also made subject to the provisions of this Act and
any rules made thereunder. There shall, as from the appointed day, be only one class of
persons entitled to practise the profession of law, namely, advocates, Section 29 reads.
Section 32 gives power to a court to permit appearances in particular cases:
"Notwithstanding anything contained in this Chapter, any court, authority, or person
may permit any person, not enrolled as an advocate under this Act, to appear before it
or him in any particular case", the provision reads. Section 33 reiterates that Advocates
alone are entitled to practise: "Except as otherwise provided in this Act or in any other
law for the time being in force, no person shall, on or after the appointed day, be
entitled to practise in any court or before any authority or person unless he is
enrolled as an advocate under this Act. "

The three provisions which can affect an Advocate's Right to Practice under Section 30
are Sections 34, 49(ah) and 52.

Section 52 is a saving provision which states that nothing in the Advocates Act shall be
deemed to affect the power of the Supreme Court to make rules under Article 145 of
the Constitution of India for (a) for laying down the conditions subject to which a
senior advocate shall be entitled to practise in that Court; (b) for determining the
persons who shall be entitled to act or plead in the Supreme Court. Article 145 is the
Constitutional power of the Supreme Court to make Rules as to the persons practising
before the Court.

Section 34(1) empowers the High Courts to make rules laying down the conditions
subject to which an advocate shall be permitted to practice in the High Court and the
courts subordinate thereto. Section 49(1)(ah) empowers the Bar Council of India [BCI]
to make rules for prescribing the the conditions subject to which an advocate shall have
the right to practise and the circumstances under which a person shall be deemed to
practise as an advocate in a court. It is interesting to note that Section 34(1) and 49(1)
(ah) empowers both the BCI and the High Courts to lay down certain 'conditions'. The
High Court can lay down conditions subject to which an advocate shall be permitted to
practice in the High Court and the courts subordinate thereto whereas the BCI can
prescribe the conditions subject to which an advocate shall have the right to practise.

Interplay between Various Provisions of Advocates Act

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In order to examine the scope of power of the High Court to frame Rules to bring in
AoR system, it is necessary to see the interplay between various provisions of the Act,
especially, Sections 16, 24, 30, 34 and 49(ah).

It is trite to begin this discussion by quoting from a Supreme Court judgment

(Constitution Bench) in Ex-Capt. Harish Uppal vs Union Of India [AIR 2003 SC 739]:
"Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to
lay down conditions on which an Advocate shall be permitted to practice in Courts.
Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly
show that there is no absolute right to an Advocate to appear in a Court. An
Advocate appears in a Court subject to such conditions as are laid down by the Court.
It must be remembered that Section 30 has not been brought into force and this also
shows that there is no absolute right to appear in a Court. Even if Section 30 were to
be brought into force control of proceedings in Court will always remain with the
Court. Thus even then the right to appear in Court will be subject to complying with
conditions laid down by Courts just as practice outside Courts would be subject to
conditions laid down by Bar Council of India. There is thus no conflict or clash
between other provisions of the Advocates Act on the one hand and Section 34 or
Article 145 of the Constitution of India on the other."

It is to be noted that these observations were made by the Constitution Bench about 9
years before the Section 30 of the Act was notified. Further these observations were
made while requiring the High Courts to frame appropriate Rules under Section 34 of
the Act by making it clear that strike by advocate/advocates would be considered
interference with administration of justice and concerned advocate/advocates may be
barred from practising before Courts in a district or in the High Court. This
constitution bench and the judgments that followed have not elaborately discussed the
interplay between Section 16, 30, 34 and 49(ah).

Section 34 vs. Section 16: Can the High Court create a new class of
Advocates?

When the High Court invokes Section 34 to introduce an AoR system, what it would
effectively do is to fix some eligibility criteria like local office requirements, minimum
practice, exams and other conditions. So from a set of Advocates, it filters some of
them and creates a new class which it terms 'Advocates on Record.'

As stated earlier, Section 16 unambiguously states that there shall be two classes of
advocates, namely, senior advocates and other advocates. The use of the word 'shall'
implies that the stipulation is mandatory. There cannot be another class of Advocates,
apart from those stipulated in Section 16. It is to be further noted that Section 16 is an
independent provision in itself, and is not made subject to any other provisions or any
other law.

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In the light of Section 16, it appears that the High Court has no statutory authority to
create a class of Advocates like 'Advocate on Record', apart from the classes mentioned
in Section 16 of the Act. Section 16 gives authority to the High Court to designate an
Advocate as a Senior Advocate. But it does not give it the authority to confer a separate
title like 'Advocate on Record'.

In this context, the following observations made by 5 Judge Bench of Supreme Court in
Chandra Prakash Agarwal vs Chaturbhuj Das Parikh 1970 AIR 1061, assumes
relevance: "The distinction, if any, between the words "an advocate" in Art. 233(2)
and the words "an advocate of a High Court" in Art. 217(2)(b) has no significance in
any event after the coming into force of the Advocate Act, 1961, as by virtue of s. 16 of
that Act there are now only two classes of persons entitled to practice, namely, senior
advocates and other advocates."

Section 34 vs. Section 30: Can Section 34 Conditions make Section 30

Right redundant or otiose?

A High Court is empowered by Section 34 only to lay down some conditions subject to
which an advocate shall be permitted to practise in the High Court and the courts
subordinate thereto.

Every advocate whose name is entered in the [State roll] shall be entitled as of right to
practise by virtue of Section 30 of the Act. The issue to be examined is whether Section
34 be invoked to make Section 30 redundant or otiose merely because the latter starts
with "Subject to the provisions of this Act" ?

The Parliament made a law and made Advocates 'entitled as of right' to practise in any
Court including the Supreme Court. It is also true that it gave a power to the High
Court to impose certain conditions subject to which an Advocate can practice in that
court. Was it the intention of the Parliament to give the High Court such a power to
make the rights conferred by it redundant?

It is a settled principle of Statutory interpretation that an effort must be made to give

effect to all parts of statute and unless absolutely necessary, no part thereof shall be
rendered surplusage or redundant. True meaning of a provision of law has to be
determined on the basis of what provides by its clear language, with due regard to the
scheme of law. Scope of the legislation on the intention of the legislature cannot be
enlarged when the language of the provision is plain and unambiguous. In other words
statutory enactments must ordinarily be construed according to its plain meaning and
no words shall be added, altered or modified unless it is plainly necessary to do so to
prevent a provision from being unintelligible, absurd, unreasonable, unworkable or
totally irreconcilable with the rest of the statute. [Bhavnagar University vs Palitana
Sugar Mill Pvt. Ltd. [AIR 2003 SC 511]]

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The objective of Section 34 is to put in place some conditions on an Advocate who
practices in the High Court and not to negate the very right by imposing stringent
criteria like it is done in the name of AOR system. The High Court cannot put
conditions which stipulate further qualifications of passing an exam, or limit the right
granted to a person Section 30 to class on the basis of their residence or office location.
What the High Court can do under Section 34 is to put conditions on practice of the
Advocate inside the said Court and not on their right to practice. In my humble
reading of the Section, the absence of term 'right' in Section 34 and its presence in
Section 49(1) (ah) justifies this interpretation.

An example of such a condition is the Rule 11 of the Rules framed by the High Court of
Kerala which forbids a lawyer from appearing, acting or pleading in any court till he
got himself purged of the Contempt by an order of the appropriate court. The validity
of this Rule was upheld by the Supreme Court in Pravin C. Shah Vs. K.A. Mohd [(2001)
8 SCC 650]. Ali and later in Bar Council Of India vs High Court Of Kerala [(2004) 6
SCC 311]. In Pravin C. Shah (Supra) the Court observed that the High Court has the
power to make rules for regulating the appearance of Advocates and proceedings
inside the courts. "The right to practise, no doubt, is the genus of which the right to
appear and conduct cases in the court may be a specie. But the right to appear and
conduct cases in the court is a matter on which the court must have the major
supervisory power. Hence the court cannot be divested of the control or supervision
of the court merely because it may involve the right of an advocate.", Justice KT
Thomas observed in Pravin C. Shah (Supra) while upholding the Rule.

Section 34 vs. Section 49(1)(ah)

Section 49(1)(ah) of the Act empowers the Bar Council to prescribe the conditions
subject to which an advocate shall have the right to practise and the circumstances
under which a person shall be deemed to practise as an advocate in a court. The text of
this provision underlines the above interpretation of Section 34 that it is not the right
to practice which the High Court can restrict by imposing the condition, but it is only
the practise which can be regulated.

To elaborate, the 'other provisions' (in Section 30) which restricts the entitlement of an
Advocate to practise as of right in any court, are Section 34, 49(1)(ah) and 52. Section
34 empowers the High Court to lay down some 'conditions' subject to which an
advocate shall be permitted to practise in the High Court and the courts subordinate
thereto' while 49(1) (ah) gives power to BCI to prescribe 'conditions' subject to which
an advocate shall have the right to practise.

In other words, Section 30 confers right on an advocate to practise in any court. But
the High Court can require an Advocate to satisfy certain conditions on how to
practice. However, Bar Council can require an Advocate to satisfy conditions on 'right
to practice'. This subtle change seen in terminology of Section 34 and Section 49(1)
(ah) reveals the intention of the legislature while enacting these provisions.

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The Bar Council of India has made Rules invoking Section 49(1)(ah) which stipulates
that every advocate shall be under an obligation to see that his name appears on the
roll of the State Council within whose jurisdiction he ordinarily practices. The
application has to be made within six months of the start of such practice. The
consequence of not complying with this requirement is that he shall be deemed that he
is guilty of professional misconduct within the meaning of Section 35 of the Advocates
Act. This Rule interferes with the general 'Right to Practice' conferred by Section 30,
but Section 49(1)(ah) empowers Bar Council to make such a Rule. The power to
suspend an Advocate for violation of various Rules is also derived from Section 49(1)
(ah).

Therefore, in my view, a High Court can invoke Section 34 only to make such
conditions pertaining to the way an Advocate practises in the Court. It cannot, in the
name of conditions, interfere or restrict the very 'right to practice' of an Advocate. The
control over an Advocate as far as his 'right to practice' is concerned, is only on the
statutory authority which enrolled him as an Advocate, i.e. Bar Councils.

Section 34 vs. Section 52 and Article 145

Another significant provision that should be looked into is the Saving provision, i.e.
Section 52. This provision makes it clear that none of the provisions of the Act (that is
including Section 30) would affect the power of the Supreme Court to make rules
under Article 145 (b) for determining the persons who shall be entitled to act or plead
in that Court. The Supreme Court, as detailed above, has constitutional power to lay
down the rules as to the persons practising before the Court. Section 52 adds that the
Supreme Court can also determine the persons who shall be entitled to act or plead in
that Court.

Section 52 and Article 145 gives wide powers to the Supreme Court to regulate even the
right to practice and these provisions cannot be equated with the power conferred on
the High Court to merely regulate practice, and not the right to practice. The above
interpretation becomes more clear when we take note of the saving section. If the
legislature intended to give a power to the High Court akin to that given to the
Supreme Court, it would have clearly saved the powers of the High Court in the saving
provision itself.

To conclude, I am of the view that the AoR system certainly violates the provisions of
Advocates Act and that the High Courts cannot interfere with the Right to Practice of
an Advocate in any Court, including itself. It is my humble understanding, on the
reading of provisions of the Advocates Act, that the High Court is empowered by
Section 34 to put in place some conditions on practice of Advocates and not on their
very right to practice.

Does the AOR system violate Lawyers' Fundamental Right To Practice

Law?

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Article 19(1)(g) of the Constitution of India provides that all citizens shall have the
right to practise any profession, or to carry on any occupation, trade or business.
However, Article 19(6) places reasonable restrictions on this right by stating that
nothing in sub clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular, nothing in the said sub clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State
from making any law relating to, (i) the professional or technical qualifications
necessary for practising any profession or carrying on any occupation, trade or
business, or (ii) the carrying on by the State, or by a corporation owned or controlled
by the State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.

As far as the profession of Advocacy is concerned, the Parliament has made a law
(Advocates Act) relating to the professional or technical qualifications necessary for
practising as an Advocate. The Advocates Act places several professional qualifications
to enroll as an Advocate. It is also incontrovertible that the Advocates Act, imposes, in
the interests of the general public, reasonable restrictions on the exercise of the right
to Practice as an Advocate. The Bar Council of India is empowered by the Advocates
Act to make Rules regarding the right to practice of Advocates.

When a citizen of India satisfies all the conditions and requirements placed on him by
a statute in relation to his practice of profession, his right to practice that particular
profession, ripens into a fundamental right. To wit, a person who is a graduate in
Science cannot claim the right to practise law by invoking Article 19(1)(g) because
Article 19(6) places restrictions on the exercise of that right. But a citizen who is a
graduate in law and also satisfies every other conditions placed by the Act and Rules
made by competent authority, he has a fundamental right to Practise law. So it is my
humble view that, a citizen who is enrolled as an Advocate and has met the conditions
imposed on him by the Act and Rules, has a Fundamental Right To Practice Law.

Whether the Statutory Right of the Advocates is a fundamental right under Article
19(1)(g) has been considered by the Apex Court in several judgments. The latest one in
this regard is Jamshed Ansari vs High Court Of Judicature at Allahabad [(2016) 10
SCC 554]. In this case, the issue was whether the Rules 3 and 3A of the Allahabad High
Court Rules, 1952 violate the right of a lawyer under Article 19(1) (g) of the
Constitution of India. In this context, Justice AK Sikri, who authored the judgment
said: "Article 19 of the Constitution of India guarantees certain freedoms to the
citizens of this country which includes right to practice any profession, or to carry on
any occupation, trade or business. It, therefore, naturally follows that right to
practice law, which is a profession, is a fundamental right that is conferred upon all
citizens of this country. Therefore, it can be said that the appellant has right to

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appear in any Court in India which would include right to appear and argue the
matters even in High Court of Allahabad." However, the Court ruled the ROA system
followed by Allahabad High Court only places reasonable restrictions.

Without prejudice to my basic contention that the High Court cannot place conditions
on right to practice, I would also examine the reasonableness of the proposed AOR
system. It is trite that even if the High Court has the right to put conditions on practice,
they ought to be reasonable. Unreasonable restrictions would not override
fundamental Right to Practice.

The Supreme Court in N.K.Bajpai vs Union Of India [(2012) 4 SCC 653], observed
thatthe right to practice, which is not only a statutory right under the provisions of the
Advocates Act but would also be a fundamental right under Article 19(1)(g) of the
Constitution is subject to reasonable restrictions. "An argument could be raised that a
person who has obtained a degree of law is entitled to practice anywhere in India,
his right, as enshrined in the -Constitution and under the Advocates Act cannot be
restricted or regulated and also that it is not necessary for him to enroll himself on
any of the State rolls. This argument would be fallacious in face of the provisions of
the Advocates Act as well as the restrictions contemplated in Article 19(6) of the
Constitution. The Legislature is entitled to make a law relating to the professional or
technical qualifications necessary for carrying on that profession.", the Court had
observed.

The Patna HC AOR model prescription of a local office or residence near the High
Court building places unreasonable restrictions on the right to Practice of a lawyer. To
illustrate, take the case of a lawyer who normally practises in Kasargod District Courts.
He exercises his right to practice Kerala High Court only on a few occasions i.e. when
the cases which he appeared before the District Court reaches High Court in the form
of Appeal or Revision or as Original Petitions. It is not reasonable to require such a
lawyer to have a local office near the High Court. It is also not reasonable to require
him or his client to join with an AoR only for the purpose of exercising his right
conferred by the Advocates Act. Requiring a lawyer who has already passed LL.B. and
obtained Certificate of Practice to write an examination to become an AoR also appears
to be unreasonable.

To conclude, the AOR system, especially the Patna HC model, puts unreasonable
restrictions on the right of a lawyer to practice and thus violates his Fundamental
Right to Practice as a Lawyer under Article 19(1)(g).

Independence of the Bench

'Bar and Bench' is a name given to signify the relationship between lawyer community
and judges community. Last year, the Supreme Court bench headed by Justice Arun
Mishra made some significant observations in this regard while quashing some Rules

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made by the Madras High Court (invoking Section 34) which empowered it to debar an
Advocate from practicing. The court held that the autonomy of the Bar in the
disciplinary matters cannot be taken over by the Courts.

"The Bar is an integral part of the judicial administration. In order to ensure that
judiciary remains an effective tool, it is absolutely necessary that Bar and Bench
maintain dignity and decorum of each other. The mutual reverence is absolutely
necessary. The Judges are to be respected by the Bar, they have in ​turn equally to
respect the Bar, observance of mutual dignity, decorum of both is necessary and
above all they have to maintain self-​respect too...There is a fine balance between the
Bar and the Bench that has to be maintained as the independence of the Judges and
judiciary is supreme. The independence of the Bar is on equal footing, it cannot be
ignored and compromised and if lawyers have the fear of the judiciary or from
elsewhere, that is not conducive to the effectiveness of judiciary itself, that would be
self-​destructive.", the Court observed in R. Muthukrishnan vs The Registrar General
[AIR 2019 SC 849]. The judge also observed that the Bar is the mother of judiciary in
one sense.

Conclusion

To conclude the discussion, it is my humble opinion that High Courts have no power,
under Advocates Act or the Constitution, to frame Rules restricting 'right to practice'
of Advocates. It is in the realm of the Bar Council to stipulate any such conditions. Any
interference made by the High Court hampering this 'right to practice' of an Advocate
can violate his fundamental right.

Both Bar and Bench are independent from each other, but should work together for
bringing justice to the masses. Bar cannot control the Bench and the Bench also cannot
exercise a strict control over the Bar as far as their 'right to practice' is concerned. By
bringing an AOR system, the control of the Bar goes into hands of the Bench. This
situation creates an imbalance and it, as observed by the Supreme Court, "is not
conducive to the effectiveness of judiciary itself, that would be self-​destructive."

(Ashok Kini is an Advocate practising in the High Court of Kerala and a

reporter/contributor for LiveLaw. Views are personal.)

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Columns

Pre-Trial Prejudice: Time To Identify The Evil In India?

Yashdeep Chahal
10/15
28 July 2020 12:16 PM

On November 4, 1948, the Constituent Assembly of India, while discussing the

proposed form of administration in the draft Constitution, witnessed the introduction
of the phrase - "constitutional morality". Babasaheb Ambedkar introduced the phrase
and called it a non-natural sentiment, something that has to be cultivated in the
Indian society, a society that he referred to as "essentially undemocratic". By calling it
a non-natural sentiment of society, Babasaheb drew a line of conflict between
constitutional morality and societal morality. The line still exists. The undemocratic
nature of the society is often reflected in the legal machinery and assumes its worst
shape in the field of criminal law. Theoretically, it is understood that the right to fair
trial is amongst the most fundamental tenets of a criminal justice system. In practice,
however, this fairness often becomes a victim of societal realities, the realities which
are born out of the prevailing standards of morality and which reflect in various
elements of a criminal proceeding, as we shall see.

A criminal proceeding is constituted by both trial as well as the pre-trial stage. Though
on a comprehensive view, they constitute a cohesive unit, for the ulterior effect of
improprieties committed during the pre-trial stage also falls upon the fairness of the
trial. Strictly speaking, a trial is staged inside a courtroom. However, what eventually
gets staged inside the courtroom is, directly or indirectly, controlled by events outside
the courtroom. The testimony of witnesses, securing appearances, personal
examination of accused under Section 313 Cr.P.C., fairness of prosecutors, police
discipline during investigation, successful production of evidence, role of bar, media
reporting of proceedings etc. are certain facets of a criminal trial that are controlled by
pre-trial developments outside the courtroom. Precisely thus, pre-trial events with
potential to cause prejudice cannot be treated casually. Their probable impact upon
the fairness of a trial needs to be examined. We have shunned any such examination
thus far.

Pre-trial prejudice

The expression "pre-trial prejudice" is a borrowed one. Borrowed from Rideau v.

Louisiana, this expression is largely used to refer to jury prejudice in criminal trials.
The jury system involves few members of the community in the adjudication of guilt or
innocence of the accused and since these members come from the community (and are
not professional judges), they come with certain social prejudices. When such social
prejudices adulterate their decision making ability, it becomes a case of pre-trial
prejudice. The inclusion of the phrase "pre-trial" before the word "prejudice" indicates
that such prejudice emanates from their social and community experiences before they
were called upon to be a part of the criminal trial. By virtue of Indian Jury Act, 1826,
the jury system was introduced in India and was continued (arguably) till the
enactment of 1973 Code. The country witnessed a living demonstration of jury

11/15
prejudice during the famous Nanavati trial, wherein the jury recommended acquittal
by 8-1. Judge R.B. Mehta, Sessions Judge, while submitting the case for review to the
High Court, had famously remarked "I feel our whole law is on trial".

However, the jury system, as it turned out, was not the only cause of pre-trial
prejudice. It was one of the many possible causes and though we abolished the jury
system, the other causes continued to reign. Today, the criminal justice system in India
is facing the threat of informational prejudice. Illustratively, there is no law in
India to protect the identity of the accused. Right from the stage of information of
crime, a wave of media reportage runs parallel with the stages of investigation and
enquiry. The ensuing discourse outside the courtroom soon starts adversely affecting
the proceedings inside. Let's explore further.

Prejudice in practice

In order to understand this phenomenon, one must understand the elements that join
together to build a criminal proceeding. In reaching upto a decision, a judge ought to
be assisted by professional lawyers, fair prosecutors, untainted witnesses and
disciplined investigating officers. The professionalism of a judicial officer would be of
little value if she is not adequately assisted in the process. The pursuit of justice is a
collective task. Let me illustrate.

An accused charged with sedition for giving a speech which is circulated, twisted and
talked about extensively on the internet is more likely to end up with a charge-sheet
and not with a closure report. An accused arrested on the charge of a widely reported
heinous rape is more likely to be subjected to custodial violence after arrest, not only
by the police but also by other inmates.

The Hyderabad encounter of 4 "suspects" of gang rape was a textbook example of how
extreme pre-trial prejudice could result from excessive discourse in the community.
The 4 suspects, with their pictures, names and details of family members revealed, are
prejudiced for life. Did the police wait for conducting their identification before
publishing their information? No. The police felt the need to satisfy the society with
immediate action.

Furthermore, what are the chances for a medical officer, himself outraged at a widely
reported rape, to truly report custodial violence injuries on the body of the accused,
arrested in relation to the said offence and brought to him for inspection?

Let's see some more illustrations. A witness living in a regressive community is less
likely to fearlessly testify in the court against an incident of honour killing if it has been
a subject of heavy discussion in the community. We live in a society where bar
associations pass resolutions to refrain the lawyers from defending those accused with
popular crimes. Such bar associations feel one with the local sentiment to punish.

12/15
Would it, then, be an exaggeration to say that such accused are less likely to be
defended by a legal practitioner of their choice in the court? The emphasis comes
from Article 22, a fundamental right guaranteed to all by the Constitution. I wonder,

Aren't these instances of pre-trial prejudice?

Aren't they more likely to result from excessive information?

Wouldn't they go on to revolt against the fairness of trial (assuming the stage of trial
comes)?

The cause

The illustrations discussed above would reveal that there is no uniform phenomenon of
prejudice. Some plausible explanation, however, does exist. It begins with excessive
information at a premature stage. When heinous crimes in a largely uninformed
society are met with extraordinary media coverage without protecting the identity of
the accused, the whole community starts sharing the trauma of victims and starts
believing that nothing less than the harshest of punishment would be acceptable as the
outcome of the criminal proceeding. What acts as a final nail in the coffin of fairness is
the absence of basic legal knowledge, more importantly of the presumption of
innocence, both in the media and citizens. The impact is unimaginable and
unexplored. I feel compelled to borrow words from Judge Matsch, who, in U.S. v. Mc
Veigh, expressed that "the entire state had become a unified community, sharing the
emotional trauma of those who had become directly victimized".

What gets collapsed under this collective zeal to punish is the impartiality and free will
of those who play a role at various stages - police, witnesses, doctors, experts, lawyers,
prosecutors etc. They feel the need to pass societal expectations with flying colours and
end up becoming the weak links in a trial. Local sentiment prevails over constitutional
sentiment. Understandably, the causes are continuously evolving. In fact, it is this
complexity of causes that has allowed these glaring improprieties to escape the
clutches of law. We consider them a part of the "chalta hai" doctrine.

Pre-trial prejudice is not targeted against the accused only. Victims also face the music
every now and then. Let's venture into the monotony of Bollywood and recall the story
of gangrape of a poor village girl by a few rich men of the community. The incident is
followed by abduction of witnesses, suppression of evidence and denial of legal
assistance. The local media reports it as a suicide and creates enough sentiment for the
witnesses and police to toe the 'right' line. The question here is - Are the trial courts
open to such victims on the same terms as they are to others? An even bigger question
is - Are our trial courts equipped enough to remedy this pre-trial fiasco?

In Sheppard v. Maxwell (1966), it was observed that "Given the pervasiveness of

modern communications and the difficulty of effacing prejudicial publicity from the
minds of the jurors, the trial courts must take strong measures to ensure that the
balance is never weighed against the accused". I propose to replace the word "jurors"
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with other constituents of a trial - police, witnesses, media etc. - and call upon an
urgent need for the trial courts to effectively control what precedes the stage of trial.
Lest, the trial itself will become a sham because the balance of power is increasingly
being weighed against the accused in our system.

What does law offer?

The remedy against most of the evil scenarios illustrated above lies in higher courts in
India- either through writs under the Constitution or appeals under the criminal
procedure. Whereas the former is largely inaccessible to the majority, the latter comes
at such an advanced stage that the vindication of what is lost before the trial becomes
impossible. The criminal procedure and law of evidence in India lack preventive tools
against such prejudice. They provide for remedial measures and put a heavy burden
upon the accused to prove "failure of justice" before providing any remedy in appellate
courts.

More challenges emerge when we understand our jurisprudential approach towards

the concept of "prejudice". For instance, in Mohd. Hussain vs. The State (Govt.
of NCT) Delhi, the Court observed, ".... 'Prejudice' is incapable of being interpreted
in its generic sense and applied to criminal jurisprudence. The plea of prejudice
has to be in relation to investigation or trial and not matters falling
beyond their scope."

It is high time that we recognize the possibility of prejudice even beyond the traditional
stages of investigation or trial. The limited meaning of "investigation", as we adopt, has
the effect of excluding a myriad set of circumstances having the potential to prejudice
the case. It is time that law circumscribes such circumstances within its reach.

The call of the hour is to empower the trial courts, to enable them to independently
examine the question of pre-trial prejudice during the trial- irrespective of its cause -
and rule upon procedural improprieties. For the strong foundation of a trial, a trial
court must be able to effectively counter such out-of-court prejudices. Leaving such
questions for appellate forums leads to loss of spontaneity, continuity and above all,
loss of faith in the system of criminal justice. Because not every prejudice is capable of
being traced, identified and cabined in a category after it has played its role and
damaged the trial. Its effect can not always be proved as a failure of justice at the
appellate stage. It is also high time that a provision akin to Section 228A of IPC is
crafted for the accused for protection of identity. An accused is entitled to
"informational privacy" and fair trial under Article 21, even if it demands some curbs
in the competing right to press. The balance, in my opinion, tilts towards the former.
The ever evolving causes that lead to prejudice need to be trapped before the law itself
becomes a subject of trial.

Views are personal only.

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