Mooting the idea of fitness test for advocates, the Supreme Court has suggested changes in the Advocates Act and the relevant rules to ensure that they are physically and mentally fit to conduct a trial.
Setting aside a Delhi high court order to re-examine 13 prosecution witnesses, including the victim in the Uber rape case, a bench comprising Justices JS Khehar and Adarsh Kumar Goel asked the authorities concerned, including the Bar Council of India and Law Commission to look into the issue.
“Perhaps the 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,” the bench said.
“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,” it noted.
In the Uber rape case, the new counsel of the accused had sought to recall and re-examine all the witnesses on the ground that the witnesses could not be cross-examined on account of illness of his predecessor.
But the SC said recall of witnesses cannot be allowed in a routine manner on the ground that cross-examination was not proper for reasons attributable to a counsel.
“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,” the SC said.
“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,” the bench said.