All India Bar Examination (AIBE) 3-III Previous Year Question Papers with Answers

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20.

The Panchayat Act of a state provides that all matters relating to criminal trespass shall be decided by the nyaya panchyat of that area. The Panchayat Act also provides that no lawyer may plead a case before a nyaya panchayat. A is arrested on a charge of criminal trespass and is produced before the relevant Nyaya Panchayat. A demands access to a lawyer, but is denied. Which of the following is most correct?


Principle :

Article 22(1) of the Constitution, which is a fundamental right, provides that no person who is arrested shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

A: A has the right to consult a legal practitioner, and to be defendant by one. However, this right would be overruled by the provisions of the Panchayat Act.
B: Promoting local self-government is one of the constitutional ideals, and individual liberties cannot be allowed to hamper the development of such ideals. As such, A does not have the right to consult or be defended by a legal practitioner.
C: A may consult a legal practitioner. However, it cannot be argued that merely appearing before a nyaya panchayat on criminal grounds requires a 'defence'. As such, A does not have the right to ask for a lawyer when appearing before the Nyaya Panchayat.
D: A has the right to consult a legal practitioner, and to be defended by a legal practitioner. However, this right would only come into operation if A is convicted of the offence of criminal trespass, and not before.
E: The state cannot make a law that is in contravention of the fundamental rights. As such, A has the right to consult and be defended by a legal practitioner before the nyaya panchayat.

The answer is: E

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Explanation

The correct option is E: The state cannot make a law that is in contravention of the fundamental rights. As such, A has the right to consult and be defended by a legal practitioner before the nyaya panchayat.

This is because Article 22(1) of the Constitution, which is a fundamental right, provides that no person who is arrested shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. This right cannot be taken away or abridged by any law made by the state, as it would violate Article 13(2) of the Constitution, which states that "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Therefore, the provision of the Panchayat Act that denies A the right to consult or be defended by a lawyer before the nyaya panchayat is unconstitutional and void.

The other options are incorrect because:

Option A is incorrect because it implies that the Panchayat Act can overrule the fundamental right guaranteed by Article 22(1), which is not possible as explained above.

Option B is incorrect because it ignores the fact that promoting local self-government is not a constitutional ideal at the cost of individual liberties. In fact, Article 40 of the Constitution, which directs the state to take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government, is only a directive principle of state policy under Part IV of the Constitution, which is not enforceable by any court. On the other hand, Article 22(1) is a fundamental right under Part III of the Constitution, which is enforceable by any court. Therefore, individual liberties cannot be sacrificed for local self-government.


Option C is incorrect because it makes a distinction between consultation and defence by a legal practitioner, which is not supported by Article 22(1), which grants both rights to an arrested person. Moreover, it assumes that appearing before a nyaya panchayat on criminal grounds does not require a defence, which is not true as nyaya panchayats have jurisdiction to try certain offences and impose penalties under Section 14 of the Gram Nyayalayas Act, 2008.


Option D is incorrect because it postpones the right to consult and be defended by a legal practitioner until after conviction, which defeats the purpose of Article 22(1), which is to protect an arrested person from arbitrary detention and unfair trial. The right to consult and be defended by a lawyer is available to an arrested person at every stage of the criminal process, including before trial.