Can an old lawyer or one suffering from any mental or physical infirmity be deemed “unfit” to conduct a criminal trialIJ With this question in mind, the Supreme Court has asked the law Commission and the Bar Council of India to consider if the Advocates Act needs review to deal with the issue.
The suggestion assumes significance as the question posed by the apex court in a recent judgement could provide the necessary ground for the law Commission to examine the matter and give a report. The judgement came on an appeal filed by the Uber rape victim challenging a Delhi High Court order which allowed the accused Shiv Kumar Yadav to re-examine her along with 12 other witnesses. The HC accepted Yadav’s plea that his earlier lawyer was incompetent as he failed to raise material errors in the statement of the victim, witnesses and evidence collected by the police.
The apex court set aside the HC order and proceeded to hold that the courts must be mindful of the right of the victim and the society as a whole and not just of the accused. In the present case, the court found that the accused was aware of criminal trials in the past and knowledge of the procedures led him to exploit the law to his advantage to delay the trial.
However, having said that, the court still felt there could be a case where an accused is genuinely put to a disadvantage on account of the lawyer being unable physically or mentally to conduct trial on account of any disability. In such cases, the question will be posed whether to have a re-trial or recall witnesses.
The Bench of Justices JS Khehar and Adarsh Kumar Goel said: “The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or mental or physical infirmity.”
By doing so the Bench felt that no accused will have a grievance that his trial lawyer was “unfit” or “incompetent”. Not wishing to give an express opinion on the issue, the Bench added, “This is an aspect which needs to be looked into by the concerned authorities including the law Commission and the BCI.”