Saturday, December 22, 2018

The Long Road Towards Ensuring Effective Legal Assistance - Article Update

This past week, the Delhi High Court partly reversed the verdict of a trial court and convicted Mr. Sajjan Kumar for murder and other offences, sentencing him to life in prison. The judgment has been in the spotlight for many reasons - the political stature of Mr. Kumar, the failures of legal systems to stand up to such political figures, and the revisiting of the horrific events of 1984. However, one thing that caught my eye at the start of the judgment itself was the stellar defence team that Mr. Kumar has had throughout his proceedings. I thought to myself, "man, that must have cost a fortune".

Now, this is very obvious; we all know that good lawyers cost money and so naturally rich people can get better legal services. It should also be obvious that this inequality of financial means can help perpetuate an inequality based on calculated discrimination. Since the State has an interest in having high conviction rates, it is incentivised bring more prosecutions against indigent persons unable to afford lawyers. Even if the perverse incentive is removed, most prison systems around the world do confirm that their criminal law perpetuates inequality of outcomes. Prisons have many more indigent than rich people, not because the rich are saints but because a legal defence costs money.  

If a system is bothered by this then it tries to bridge the gap by providing free legal assistance to those who can't afford lawyers. The Indian legal system falls in this category. After the Supreme Court took the lead to recognise free legal aid as a fundamental right in the late 1970s, the federal government took steps to install a legislative framework which finally got going in the mid 1990s. But while all of this work was happening to ensure access to counsel, very little was asked about the quality of the free legal assistance being rendered. In fact, very little was asked about the quality of legal assistance in general

Thus, most people are understandably unaware that Indian law has organically grown to recognise a legally enforceable right to effective assistance of counsel for criminal defendants. Such a right is an invaluable tool in India's systemic commitment towards ensuring that the quality of justice received by both rich and poor persons does not markedly differ. It is a reminder that the mere presence of a lawyer is insufficient, and even counterproductive, for every person deserves a vigorous defence.   

Unaware about it myself, I did some modest research on the issue and the paper can be accessed on SSRN. What I found was rather troubling. It would seem that the lack of attention paid to the issue of quality control in legal aid has meant that rather than being used to harness this transformative potential and move towards a more equal justice, the right to effective legal assistance currently achieves little more than to redress the most glaring of errors. For instance, reversing trial court judgments where the lawyers are asked to finally argue a capital case on the date of appointment. Or lawyers do not appear throughout the trial proceedings. Since such errors could be remedied through other existing rights, it means that the right to effective legal assistance ends up being little more than a fig-leaf.     

Why does this happen? I do not think this is because India has adopted standards from American law in this context, as has been suggested. In fact, a close reading of the cases shows that India has not done so, and the legal doctrine remains quite unclear. But despite all this, what is clear through the law is that defendants bear the burden to prove that their lawyer gave ineffective assistance. How do they prove this? Documents, which ultimately means the trial court papers, which are not focused on what lawyers did during trial but instead on giving a summary of what transpired. The only place where the lawyers appear is in marking their presence and the recording of evidence, which explains why these stages have attracted judicial attention in cases about effective assistance.    

Why is that a problem? Because far too much is excluded from review. Effective legal assistance is about more than just coming to court and examining witnesses. It is about ensuring that the client inputs are heard, that the client is kept informed about the case, that a defence strategy is chalked out, and a consistent and plausible defence is taken at trial. For instance, you cannot deny the prosecution case throughout trial and suddenly change tack and admit the incriminating facts at arguments unless you have good reasons. But those reasons and all these aspects, more generally, remain hidden if we only consult the trial court papers. 

The Indian setting creates other problems. It is widely acknowledged that Indian criminal procedure is very complex and difficult for laypersons to manoeuvre without lawyers. Since lawyers speak for defendants and create an active part in making the trial court record, it is very difficult for them to check if there has been no impropriety and that the record faithfully represents what happened. Not only because of the unfamiliarity with court, but also because when defendants start asking those questions they run a risk of antagonising the lawyer itself.  

Further, since trials take years to conclude in India, effective legal assistance involves questions about what lawyers do during the interim. Was a bail application filed and what grounds were taken? Did the lawyer contest adverse findings in superior courts? If we evaluate effective assistance based on trial performance alone, the whole point of the exercise is potentially rendered redundant. 

This truncation in scope of what comes under the scanner while considering questions about effective legal assistance is bad in itself, but it also carries significant downstream consequences. If the basic premise of the right to effective legal assistance being critical for indigent defendants is sound, then a system where indigent defendants repeatedly fail in their claims except for the worst kinds of error ends up normalising lower standards of legal assistance, and also reducing client expectations.  

What can be done? The answer is not merely a question of better tools or regulating the litigation on effective assistance when it does arise. But instead, the groundwork has to be laid much earlier, by providing everyone clarity on what is meant by effective assistance. Ultimately, all stakeholders — the Government, Judiciary, and Bar Council of India (statutory regulator for the legal profession) — must sit together to help fill the massive gaps one is confronted with when talking about minimum standards of what lawyers are required to do, and what clients can expect. Unless all stakeholders take a long hard look at the status of the right to effective legal assistance in India, that idea will itself end up cementing the very injustice that it was designed to eradicate.     

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