Dancing in the Dark: The Right to Effective Legal Assistance in India
4(3) Comparative Constitutional Law and Administrative Law Quarterly 10 (2019)
16 Pages Posted: 6 Jan 2019 Last revised: 3 Apr 2019
Date Written: December 15, 2018
Conversations about legal aid and assistance in India have, by and large, been solely focused on the issue of access alone. As a result courts, lawyers, and academics, are often unaware of the body of law that has developed over time on the question of "effective" legal assistance. This short paper makes a modest effort to begin filling the information gaps on this score. It focuses on a specific issue: the contours of a criminal defendant's right to effective legal assistance, when raised during appeal after conviction. I demonstrate that the contours are extremely difficult to discern and there is an urgent need for clarity on core questions to help better regulate claims of ineffective assistance by defendants. Further, I also argue that this clarity must work towards making it easier for defendants to litigate such claims reducing the many structural barriers that currently make it almost impossible for defendants to win, while also excluding key areas of legal assistance from any judicial scrutiny.
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