Last month the Allahabad state High Court delivered an exemplary verdict. While hearing the case Rakesh v State of Uttar Pradesh, Justice JJ Munir, ordered a complete retrial in a case in which Rakesh, the accused, was facing a sentence of death or life imprisonment if convicted. Rakesh was allotted an attorney at the expense of the state, but his lawyer withdrew service at the most critical juncture of the trial – when prosecution witnesses were due to be cross-examined.

Hearing Rakesh’s appeal against his conviction and death sentence, the High Court initially weighed the option of ordering a retrial from the stage of cross-examination, but when it was brought to his notice how the legal aid lawyer may have been lackadaisical in performing his duties even before the stage of cross-examination, it decided to order a fresh trial from the very beginning.

The judgment stands out as a lesson for other high courts, and even India’s apex court.

Precedent

Indian courts, including the Supreme Court, have often extolled about the importance of essential legal aid to the accused to ensure a free and fair criminal trial.

The right to free legal aid is even a fundamental right, as the Supreme Court court laid down in the Hussianara Khatoon case in 1979. However, missing from all judicial discussions and pronouncements is the crucial fact that the right to legal aid that is not only free, but also effective.

There have been numerous instances where courts have ordered a retrial because the accused did not have a counsel to represent him, but there has not been a strong emphasis on effective assistance of counsel.

Even India’s Supreme Court was accused of abdicating responsibility and basing its reasoning on a flawed precedent, when it came to the seminal case of Afzal Guru, who was convicted for his role in the 2001 attack on Parliament. He was executed in 2013.

Indira Jaising, a senior advocate in the Supreme Court, wrote a chapter in Arundhati Roy’s book on the Parliament attack ‘13 December: A Reader’, in which she alleged that Guru was deprived of his right to effective legal aid and counsel’s assistance.

She wrote that Justice PV Reddi, who authored the judgment convicting and sentencing Afzal, had an opportunity to salvage Afzal’s fundamental right to life, but instead, condemned him to death by laying down a fatally flawed precedent.

Reddi had ruled that there was no violation of Afzal’s right to effective legal representation, because all the criteria of the “Strickland Test” had been fulfilled.

The Strickland Test

Justice Reddi went by the United States Supreme Court’s decision in Strickland v. Washington (1984), which laid down a two-pronged test to determine if the legal assistance was adequate.

Adopting a “highly deferential attitude” to the lawyer’s performance, and proceeding on the presumption that the representation was effective, the court required the accused to prove, one, that counsel’s performance was deficient, and, two, that this deficiency prejudiced the defence so seriously as to deprive him of a fair trial, a trial whose results are reliable. The court demanded an “objective standard of reasonableness” without laying down any, and cautioned against the “distorting effects of hindsight” when confronted with a situation that called for invalidating a trial because the standard has not been met.

Many in the legal community believe that adherence to such pre-judicial standards, which are so loaded against the accused, would more often than not result in ‘punishment by procedure’ (as stated by the majority in Gideon vs Wainwright). The ‘Strickland standard’ has, hence, been subjected to trenchant criticism in recent times.

The right to effective counsel

Any accused has an inalienable right to be defended by a lawyer of his choice, and such representation and defense must be ‘effective’ – this has been a part of Indian jurisprudence since 1966.

It traces its roots to American jurisprudence, where, in Powell vs Alabama (1932), for the first time, the US Supreme Court allowed the right to counsel to three black teenagers who had been charged with rape and robbery of white women, and had been sentenced to death, because it was considered an ‘essential jurisdictional prerequisite’ to depriving a person of his life or liberty.

The leading case on the issue, however, remains Gideon vs Wainwright, where Justice Hugo Black pronounced that an accused’s right to counsel is one of the fundamental principles of liberty and justice.

Senior criminal lawyer Kamini Jaiswal says that although access to legal aid is a fundamental right, its implementation in India has been desultory. Efforts have been made only to increase access, but not to ensure that the quality of such services is commensurate with the elementary standards of fair and just lawyering, she says.

In Delhi’s Patiala House and Tees Hazari courts, as well as numerous other trial courts across the country, this right is trampled on day in and day out while the judges remain mute spectators, she laments.

Hailing the Allahabad High Court’s decision as a landmark one and a wake-up call for the Supreme Court, she asserts that the apex court must deliver an emphatic judicial pronouncement junking the Strickland Test before further damage, especially irreparable, is caused.