“Only the wearer knows where the shoe pinches” said George Herbert. In the light of this statement, it may be felt that only an individual knows his/her adversaries absolutely and will be able to articulate it with a tinge of personal care and seek for the most desired remedy. Hence, the question that often arises is whether an individual who is not an advocate represent his/her own case before the Court of law. The terms ‘pro se legal representation’ as in the United States of America, ‘litigant in person’ as in England and Wales, ‘party litigant’ as in Scotland and ‘party in person’ as in India are all references to the practice where an individual can represent his/her own case in the Court of Law. This is not unknown in legal jurisprudence.
Representing oneself in a criminal case
The US Supreme Court in Faretta v. California,[i] has gone to the extent to hold that the criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings. However, the position in India is different.
The Indian judicial system based on common law divides possibly all the suits and proceedings as Civil and Criminal. In criminal proceedings, the prosecution is taken up by the public prosecutor only.[ii] The accused has not only a legal right to be defended[iii] but also a fundamental right which is crystallized in Art.22(1) of the Constitution of India. Art.39A casts an obligation on the State to promote justice by providing free legal aid. It may even be held to be an implicit constitutional right in the light of the guarantee to life and personal liberty under Art.21.[iv]
Also, the Courts have a duty to offer Legal Aid to the accused where it finds that the accused has no sufficient means to engage a defense counsel.[v] The Supreme Court has categorically laid down that the constitutional right of free legal aid cannot be denied even if the accused fails to apply for it. Therefore, it is now clear that unless refused, failure to provide legal aid to an indigent accused would vitiate the trial, entailing setting aside of conviction and sentence.[vi] The appellate or revision courts may even negate the free and fair trial if the accused had not been represented by any defense counsel.[vii]
Representing Oneself in a Civil Suit
As far as Civil cases are concerned the individual, either as plaintiff or defendant, can represent his or her own case. The Civil Procedure Code lays down that the appearance in a suit may be –
- in person,
- by recognized agent or
- By a pleader.[viii]
The term ‘party in person’ is recognized by the Code of Civil Procedure. No one is entitled to prevent or obstruct the litigants or parties from appearing in person in Court.[ix] However litigants appearing for their own cause cannot claim the same privileges or rights being given to the members of the Bar, and they cannot occupy the chairs, tables provided to advocates. However, they are entitled to convenient place to address the Court.[x]
It is pertinent to note that an advocate can also espouse his own cause. However, in such cases he can assume only a single role i.e., he cannot be an advocate or counsel on record but a mere ‘party in person’. The advocate shall not wear robes and collar bands in order to maintain the decorum of the court.[xi]
Writ jurisdiction, Public Interest Litigations, Consumer Forums and other Tribunals also allow the ‘party-in-person’ approach.
However, why should you hire a lawyer?
Even the intelligent and educated layman has small and sometimes no skill in the science of law.[xii] Some of the reasons why you need a lawyer include –
1. The nuances and intricacies of jurisprudence and statutory interpretation,
2. The voluminous and huge legislations,
3. The number of legislations to be aware of in order to approach a case in a holistic manner,
4. The mammoth procedural requirements,
5. Catena of decisions taken by the Courts of law that may either overrule or uphold a previous judgment,
6. The contemporaneous comparative exposure from other legal systems etc.
Hence, it is suggested that a Court of law be approached with a lawyer than by oneself.
[i] 422 US 806 (1975).
[ii] Ss.24 and 301, Code of Criminal Procedure, 1973.
[iii] S.303, Code of Criminal Procedure, 1973.
[iv] Hussainara Khatoon v. State of Bihar. (1980) 1 SCC 98.
[v] S. 304, Code of Criminal Procedure, 1973.
[vi] Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401.
[vii] Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584.
[viii] Order III, R.1, Code of Civil Procedure, 1908.
[ix] K. Mathews v. Registrar – General, Madras High Court, AIR 2003 Mad 411.
[xi] Vidya Verma v. Shiv Narain Verma, AIR 1956 SC 108; T. Venkanna v. The Hon’ble High Court of Mysore, AIR 1973 Kant 127.
[xii] Powell v. Alabama, 287 US 45 (1932).