August 10, 2026

Right To Be Represented In Court Is Part Of Due Process

By Sunil Garodia
First publised on 2020-12-28 15:20:10

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Is the High Court right in deciding a case on merits if the accused in not represented by any lawyer in the court or is otherwise not able to put up a defense? The Supreme Court does not think so.

Reiterating that the right to be represented in court by a counsel is part of due process clause, the apex court went on to add that it is also referable to the right to life guaranteed under Article 21 of the Constitution of India.

In the case Subedar vs State of Uttar Pradesh, it was found that when the appeal came up for final hearing in the Allahabad High Court, the lawyers of the appellant-accused were not present in court despite their names being on the cause list. The bench went on to consider matters on merit and dismissed the appeal.

The Supreme Court said this was erroneous. It said that "it is well accepted that right of being represented through a counsel is part of due process clause and is referable to the right guaranteed under Article 21 of the Constitution of India. In case the Advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented."

There are earlier orders of the Supreme Court, mainly Shaik Mukhtar vs State of Andhra Pradesh and Shankar vs State of Maharashtra, where the court had clearly stated that appointing an Amicus Curiae or referring the matter to the Legal Services Committee to appoint an advocate to represent the accused/appellant/petitioner are the options before the courts and matter cannot be decided on merits if the cause is unrepresented. In Shankar's case, the court had observed that "once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal."

The apex court has once again pointed out to the High Courts that scoring goals in an empty field is not right. Due process demands that both parties be heard and the judges decide the matter after weighing in the evidence provided or arguments put forward. But if one side is unrepresented and the case is decided on merits, it amounts to miscarriage of justice. The courts must attempt to get the cause represented as per due process before deciding the matter.