Sandli Pawar

This article examines the applicability of Dworkin’s ‘moral reading’ of a right to the ‘right to legal representation’ to accommodate numerous unenumerated rights therein; it also argues that Article 22(3) of the Constitution is in contravention with the ‘constitutional conception of democracy’ for failing to secure ‘equal status to all citizens’.

Countries globally have recognized certain minimum rights available to an accused under the principles of fairness; one among these rights is the ‘Right to legal representation’. Article 22(1) of the Indian Constitution provides for the “right to consult, and to be defended by, a legal practitioner of his choice”. As a matter of principle and posited rule, it is an obligation on the State to provide the accused with a legal counsel before proceeding with any trial. However, despite the incorporation of ‘Free Legal Aid’ as a Directive Principle in the Constitution, around 60% of death row convicts spend beyond their financial means to hire private counsels to defend them. Moreover, the right to counsel is not available to an enemy alien or a detinue under a preventive detention laws, due to efficiency considerations.

This article seeks to analyze the ‘Right to legal representation’ in India through a Dworkinian lens and his ‘Rights thesis’. The first section analyses the applicability of the concept of moral reading to Article 22(1) and submits that it permits itself to such ‘moral reading’ and thus, could be expanded to include those unenumerated rights which are not explicitly mentioned in the text. The next section focuses upon the ‘Constitutional conception of Democracy’ and argues that Article 22(3) of the Constitution is in contravention to this conception as it denies the concern for ‘equal status to all citizens’.

A Moral Reading of the Right

The Dworkinian approach to constitutional adjudication is premised upon judges performing a ‘more judgmental, and less mechanical role’ while interpreting the Constitution. According to him, this is possible through its ‘moral reading’, which proposes that the principles applied by judges must justify, not only the literal text but also the history and practice that forms part of the constitutional record. Dworkin also warned against a universal application of the theory of ‘moral reading’. Moral reading is appropriate, only, for the clauses which are drafted in a very general or abstract sense, and their enactment is shaped by the circumstances of that particular time frame. For instance, terms like ‘right’, ‘due’ or ‘equal’ may be subjected to a moral reading.

It is submitted herein that the right to legal representation as enacted under Article 22(1) of the Indian Constitution renders itself to ‘moral reading’. This is because, firstly, Article 22 was drafted to compensate for the absence of ‘due process’ clause under Article 21. Also, in Maneka Gandhi v Union of India the Supreme Court has read Article 22 as supplementing the ‘fair, reasonable and just’ procedure under Article 21. Therefore, the right under Article 22(1) has become more general than it was in 1950. Secondly, the incorporation of ‘right to legal counsel’ in the Constitution despite its presence in the Criminal Procedure Code is shaped by the political history. The framers were themselves the part of freedom struggle and have faced the effacement of civil liberties under the adage of ‘Na vakeel, na daleel, na appeal’. They had been incarcerated under brutal colonial rule, particularly the Rowlatt Act which restricted the appearance of counsel for the offences committed under the act. Most of them were lawyers by profession and knew the importance of the right to counsel, and thus decided to enact it include it within the Constitution.

In Freedom’s Law, Dworkin also gave two restraints which may substantially limit a judge’s ability to do the moral reading. First, that it should begin with the history to determine what the framers said and second, that it should be disciplined by the precondition of constitutional integrity i.e. judges should refrain from reading in their own convictions while interpreting moral clauses. He further contends that such moral reading will lead the judges to adopt the ‘best conception of moral principles’, which is devoid of any personal biases or consciences of a particular class or sect. The best interpretation of any general right may also allow for the discovery of other unenumerated rights, which may not be mentioned in the text. For instance, reading ‘non-discrimination against women’ under ‘the equal protection clause’ or ‘ordered liberty’ into ‘due processes.

We see such moral reading and subsequent development of unenumerated rights happening in the Indian context. For instance, in Maneka Gandhi, the ‘procedure established by law’ has been read to include the requirement of ‘just, fair and reasonable’ procedure. Building upon the same, it was held in Hussainara Khatoon v Home Secretary, State of Bihar and MH Hoskot v State of Maharashtra that any trial without counsel vitiates the fair trial requirement. Similarly, courts have identified the right to free legal aid to be an implicit right under Article 21. In all these cases, the reading in of various values, such as fairness or justness, depicts the exercise of moral reading being performed. In Ramchandra Nivrutti Mulak v State of Maharashtra the lawyer for the appellant filed for withdrawal and the trial proceeded without a legal counsel, which gave rise to appeal. The Bombay High Court relied on several precedents to state that an accused has the right to be informed of free legal aid service. It further held that “a right to fair trial includes the right to legal assistance” and thus quashed the previous trial.

We notice in all these judgments courts have tried to include a right to fair trial as being an unenumerated right under Article 22(1). The principled approach which Dworkin talked about in Taking Rights Seriously wherein courts seem to apply a non-legal standard to affect a legal right falls squarely within this exercise of ‘moral reading’. Thus, the inclusion of ‘fair trial’ could be observed as the principle, referring to a dimension of morality. 

The Constitutional Conception of Democracy

While Article 22(1) provides for the right to legal representation, Article 22(3) erases this protective right for enemy aliens and detinues under any preventive detention laws. Though Articles 22(3) to 22(7) were enacted to limit the exercise of legislative power by providing certain minimum safeguards for all preventive detention laws to contain, they may be viewed as the curtailment of basic freedoms. It could be gathered through the Constituent Assembly Debates, that these provisions were introduced to compensate for the loss of the ‘due process’ clause. Further, recognizing that such a clause may leave excessive power to the hands of the legislature, Article 22(4) to (7) were drafted to provide some procedural safeguards. Dr. BR Ambedkar, specifically, mentioned that these procedures are adequate to protect personal liberty in any preventive detention law. The framers intended these laws to be invoked only in the extraordinary circumstances and that the provisions of article 22 would prevent any arbitrary detention.

This intention is reflected from the common theme running through various cases adjudicated by the Supreme Court. For instances, courts have expanded the scope of review in preventive detention cases for two requirements, first that there shall exist a ‘live link’ with the present to justify the use of preventive detention laws, secondly, the court also agreed to look into the grounds of detention if they were arbitrary or vague. Courts have been consistently putting higher thresholds over the state to justify the need for special laws when the cases are already being tried under regular criminal procedure.

This leads us to another issue of the need for restricting legal representation to detinues under any preventive detention laws. On reading the Constituent Assembly debates, the motive behind enacting the procedure for preventive detention is fairly explicit, but the intention behind restricting the right to legal counsel to detinues is not clear. It is said that this was done due to efficiency considerations, allowing lawyers in such cases would lead to delays similar to ordinary criminal process, and this would undermine the very swiftness of preventive detention laws, designed to preserve public order and peace.

The Supreme Court has also upheld such abrogation of the right to legal counsel. In AK Roy v Union of India, the constitutionality of the National Security Act, 1980 was challenged. It was stated that the insufficiency under Article 22(1) could be cured by reading the expanded right to counsel under Article 21. After acknowledging the right to legal counsel at the core of just process, the court reluctantly concluded that “It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3) (b) read with Article 22(1).” Instead of harmonizing Article 21 and Article 22(3), the court upheld the latter contending that the harmonization in various cases has occurred later than the express enactment of Article 22(3) in the Constitution. 

As per Dworkin’s ‘constitutional conception of democracy’, any politically legitimate state institution must show deference towards democratic conditions such as ‘equal status for all citizens’ in its decisions. This conception does not reject majoritarian premise as a whole but it believes that any majoritarian procedure could be accepted if it is driven by the concern for equal status and not by any majoritarian goal. Therefore, it also accepts that sometimes even non-majoritarian procedure could be accepted when it enhances ‘equal status’, which is the essence of democracy. We see blatant disregard for ‘equal status and concern’ when legal counsel is available to someone accused of a crime but not to an innocent person who is detained on mere suspicion. This right is not a mere concession to the accused but is a move to promote the vitality of democratic institutions. As per Dworkin, it is not the enactment which guarantees us rights; these rights pre-exist in some form prior to their enactment so a preventive detention law cannot justify curtailment of the right to legal counsel. 

While commenting upon the ‘USA Patriot Act’ in an essay, Dworkin states that when individuals are treated unfairly on account of our safety, we owe them ‘individual consideration and accommodation’ proportionate to our safety. He further contends that such an unfair treatment cannot be justified merely by balancing costs and benefits but must be viewed in light of ‘what justice requires’. Therefore, fairness requires that we provide, at least, the minimum safeguard available in our system to all those who are brought under it. We act unfairly and against the spirit of democracy when we deny ‘one class of suspect rights’ to a particular class of politically vulnerable or ethnically and religiously distinct people.

Conclusion

A right to assistance of a counsel is indispensable for the fair administration of justice, because even an intelligent layman lacks adequate knowledge to prepare for their defense. The Dworkinian notion of moral reading, constitutional democracy and equal concern, are used throughout this article, to analyze the ‘right to legal representation’. The first section discussed a Dworkinian understanding of the moral reading of a right. It was argued in the section that Article 22(1) due to its abstract nature and peculiar history could be read ‘morally’. Such reading would then yield unenumerated rights such as a fair trial or just process, which is done in various judicial decisions as well. Building upon the same premise, the next section began by mentioning the restraints on a judge’s ability to conduct such a ‘moral reading’ and how such restraints were ignored in a recent judicial decision. The preventive detentions laws are presently designed to curb civil liberties disregarding the extraordinary conditions for which they were designed for. The section argued that Article 22(3) disregards such the constitutional conception of democracy as it ignores the concern for equal status, because it is based only on the majoritarian premise of security and efficiency.

The author is a second year law student at the National Law School of India University.