AG vs. Shiv Kumar Yadav (Supreme Court)

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DATE: September 10, 2015 (Date of pronouncement)
DATE: September 14, 2015 (Date of publication)
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CITATION:
Law Commission and the Bar Council of India should consider whether Advocates should be tested for fitness and competence to argue matters

Lawyers-Fitness

(Image Credit: Hindustan Times)

In the Uber rape trial case, the accused claimed that his counsel representing him earlier was incompetent, being a novice and that he is entitled to recall all the prosecution witnesses now that he has engaged a new counsel. The trial court rejected the plea on the ground that the competence of a Lawyer is subjective and the date of his enrolment with the Bar Council can certainly not be said to be a yardstick to measure his competence. It was also stated that the submission that the earlier advocate was not competent to appear as an Advocate inasmuch as he had not even undergone screening test as required by Bar Council of Delhi Rules and was not issued practice certificate was not fortified by any record. However, the High Court reversed the trial court and directed re-examination of some of the witnesses. On appeal by the State to the Supreme Court HELD reversing the High Court:

(i) While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

(ii) The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. 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 other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the concerned authorities including the Law Commission and the Bar Council of India.

10 comments on “AG vs. Shiv Kumar Yadav (Supreme Court)
  1. vswami says:

    Ref. (Image Credit:Hindustan Times)
    in a lighter vein: Going by one’s instant reaction/ instinct, wonder – should the entire episode, every bit of it, pass muster as THE JOKE of ALL times ?!

  2. really a good judgement to be followed by every court as sec 311 cr.p.c as also sec 118 of evidence act rightly perceived the purpose of fair and reasonable doctrine need be followed for that is indeed a fundamental right of every citizen, after all british indian legal system in the absence of constitution of india rightly crafted right law of crimes, i really wonder how high court failed…but any way rightly the right climate is now established by hon supreme court, that was this court is indeed supreme.

  3. would you say adv. Mr. Jeetmalani would be incompetent due to his age, experience always of a competent lawyer always survives.

    i can understand novices in legal profession, may be new crop of advocates today might qualify for most of them proclaim their competencies, that means new crops need to be examined in procedure codes as also in evidence act, after all a lot of statutes are hasty draft laws, such statutes create problems, see in USA supreme court judges remain as judges till their life ends, would you call them just because of age are dead wood …all judges are generally products of advocates or attorneys at law, sir.

    so problem lies with individual lawyer only there is nothing wrong in advocates act please is my view.

  4. see insurance act for example, for its so called Act of God premise. God none has seen or had seen any time in history, when so how Act of God can work in the statute, Courts go by grounds of facts, not by any so called presumptions, So Courts need to use Doctrine of severability to severe that clause in insurance laws, after all insurance companies work like some midwives, while see in the car accident the driver hit the victim need to be directly responsible to the victim in the accident, if the insurance company tries to give a cover to him under so called insurance contract, the insurance company has to face like the the person -driver who cannot take umbrage that he hit the victim , due to act of god, is it not? who is the real culprit ? here the statute, discipline the statute by using doctrine of severability, instead of permitting the useless and meaningless statute, there the court needs to be strict like under sec 311 of cr.p.c and 118 of evidence act, sir. hit at the bulls eye, after all courts are supposed to deliver justice not to go by a useless and meaningless statutes, if courts do not countenance right grounds of facts duly tested, why we need hon courts at all, that way only judicial reviews got their place in all courts all over, but unfortunately courts take umbrage under the position the party moving need to have pleas, but if he is ignorant of right pleas, would the hon court take umbrage under that ignoratia pleas, certainly not but it has to apply its own mind, is my considered view, sir.

  5. Sher Singh says:

    Why don’t judges start from themselves ?

  6. Every advocate cannot measure up to the demands of the case. prudence needs him to be cautious. such advocates are many that they would not dare in the past. today every fresh advocate thinks he could appear , appearing alone is not the right equipment but really need to know the intricacies of a case as also that of law, see here there are already settled judgements on crpc.311 n sec 118 of evidence act. it shows the lawyers who represented the accused indeed not well equipped but attempted with his less equipment thanks to his non studious nature he brought a bad name to the advocacy as such, it is a well known fact every advocate if he has no briefs too would not waste in idleness but would study the cases laws that way several luminaries including
    palkhiwala rose up sir, you can be a palkhiwala if you are willing to read and study case case laws..1

  7. if you do not want to read but only to earn your living, just be at lower courts just do affidavits and earn your bread, that means all shd not aspire to become top advocates, top advocacy depends ob how much you read and comprehend the case laws, that is all.

  8. Nem Singh says:

    If client appointed any lawyer to present his case before the court then he the best judge to select and judge his fitness..

    • i agree. but fact is client does not know what his is all about in most situations, except he feels that he has some case is in existence and he needs to fight out in a curt of law. so it is essential his advocate need to work on transactional advocacy but might be he might not know that advocacy ,in such circumstances he needs to tie in a trasactional advocate that way he could better serve his client, i think mam.

  9. Law commission and/or bar council can assess the competence of advocate, but i beg to differ only in respect of infirmity or old age could be a defect in an advocate, after all old age, infirm physically might be competent, see stephen hawkins a great physicist with innumerable infirmities is indeed a great professor of physics in the UK , he holds chair in the prestigious university, after advocacy calls for extensive reading abilities as also application abilities in the best way possible.

    we allowed law makers to tinker the indian constitution which is a basic document not to be altered at all after first two years even then if any amendment is wrong court rightly declared null and void like in forst amendment as respects schedule IX, after so many years say in 2007 in a case coelho v st of tamilnadu by hon cji yk sabarwal.

    why court is not reviewing the constitutional amendments suo motu is the serious question before the very hon supreme court of india as of today. it needs to that way all kinds of irrartional laws like irrational constitutional amendments could be stayed and if passed could be quashed .

    fundamental document of constitution cannot be mangled by law makers time and again, by so called radical think and all that.

    fact is constitution cannot be amended, but you need to work with in the constraints of the constitutional tenets would be the doctrine of constitutional propriety.

    if so many amendments are allowed, so criminals could say amend your laws of crime, like laloo prasad yadav and others tried under UPA2 regieme,

    so it is vital court needs to be firm on government as also on parliament.

    see indra shani case court silently looked when it said the kerala chief secretary committed contempt of court on creamy layer issue, but so called kerala govt then passed an irrational statute that creamy layer among backward could continue to get reservations – sans any meaningful logic…so i recommend the hon apex court should not hold its own hands like disciplined soldier in armed forces, but it failed to understand the hon court is the custodian of the constitution, and it has power to direct the governments when they go wrong materially.

    if not how the citizens could feel they are safe under cantankerous governments… which might one day degenerate to become dictators too that situation need to be staved/avoided off under all circumstances.

    rule of law means proper law and order shall continue.

    samkara rightly held the view while action is essential as a means for purification of mind, when wisdom is attained action falls away. wisdom and action are mutually opposed as light and darkness….
    ‘ avidyakamavala eva sarvani srautadini daratani. (sanskrit) Samkara rightly held ‘vedic rites are meant for those who are lost in ignorance and desire’

    therefore, wisdom prevails over action. if governance need to be reasonable is my view.

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