Is there a ‘Right’ to Legal Representation in Administrative Proceedings – A Comparison of English, Indian and American Law.


The topic of legal representation in administrative proceedings has a dubious status in countries like India and England. This is due to several inconsistencies in the application of the right i.e. if it may be termed as a right. The law regarding the right to a legal counsel in India and England is similar but in the USA there is a very different approach.

The Indian Supreme Court judgment in the case of M. H. Hoskot v. State of Maharashtra, delivered by Hon’ble Justice Krishna Iyer, which follows the landmark judgment in the case of Maneka Gandhi v. Union of India, governs subject of legal representation in Indian administrative law.

In the case of Indian law, it seems that legal representation could not be demanded as a right. It is not mandatory in all cases to give the accused a right of counsel but the law is leaning towards the making legal representation a mandatory right. The Courts have in some cases made the requirement of legal representation mandatory and the procedural restrictions in the representation of such party has also been diluted.

There are some Indian statutes that specifically disallow the right to counsel.  With respect to factory laws, some statutes permit appearance of advocates only with the permission of the tribunal concerned eg. The industrial Disputes Act, 1947. However, in some statutes, the right to be represented by an advocate is recognized, eg. Income Tax Act, 1961.

The position in India seems to be that, based on the circumstances of the case and whether the complexity of the matter will render the party unable to understand the issues involved, the counsel should be appointed. If the matter is of a complex nature and a trained counsel is representing the other party, the individual would be denied natural justice. Where the person is unable to understand the problem due to its complex nature and no counsel is appointed, it is a failure of natural justice. However if the case is a fairly simple one and no legal complexity or oral testimony is involved, or the individual is himself able to handle the case, there is no failure of natural justice if right to counsel is denied to him.

In England also, there is no absolute legal “right” to be represented by a counsel in administrative proceedings. It is understood that legal representation may be counterproductive, unnecessary or overly cumbersome in cases where a matter must be speedily resolved. The position in English law has been crystallized by the decisions in these following cases.

In Pett v. Greyhound Racing Association, the Court unanimously upheld the right to legal representation before a tribunal enquiring into matters affecting a man’s livelihood or reputation or other serious matter meriting an oral hearing were at stake. However this decision was overruled and reversed by the appellate court.

In the case of Enderby Town F.C. Ltd. v. Football Association Ltd., the courts have held that tribunals may exercise discretion to allow such representation. The Court may look at the statute and decide if it should be construed that the legal representation be allowed. Thus the adjudicator may not lay down an absolute rule against legal representation in a particular area, but he may reserve the right to allow legal representation if he so deems necessary.

It is clear from the judgments in both these cases that the courts play the final role in deciding whether or not legal representation in administrative proceedings is necessary.

The right to legal representation in the USA is more or less guaranteed as a right. This is because of the “due process” clause in the American Constitution and also because of S. 555(b) of the Administrative Procedure Act, 1946 which runs as follows, “a person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel….a party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding…”The emergence of this right may be seen through its evolution in the following cases. Firstly, in the case of Powell v. Alabama it was held by the US Supreme Court that the right the counsel was essential for the safeguarding of American freedoms guaranteed by the Constitution. However the judgment still gave the states the power to decide just how far this right would extend.

In Betts v. Brady, the Supreme Court held that there would be a “case to case determination” of whether legal representation was required. Legal representation would be allowed only in cases where it was found that denial of legal representation would amount to a breach of the due process clause and render the trial unfair. However this was found to be rather illogical because of the very high standards that were required to prove a breach of the due process clause.

The Decision in Betts v. Brady, was overruled in the landmark case of Gideon v. Wainwright where it the Court praised the judgment in Powell and criticized Betts.  The courts ruling amounted to the effect that no one, regardless of wealth, education or class, should be charged with a crime and then be forced to face his accusers in court without the guidance of counsel. The right to counsel was considered to be essential to the right of fair trial and also to the due process clause.

Thus in the United States of America, the right which extended only to capital cases has been extended to federal and state cases that involve possible loss of liberty in felony cases, misdemeanors where a sentence of imprisonment is imposed, juvenile prosecutions and appeals from convictions. It confirms the sixth amendment to the United States constitution whereby the person charged with a federal crime had the right to be represented by a retained lawyer. The sixth amendment did not however include a right to have a counsel appointed to an indigent person. However, many of the courts in the federal and state legal systems have adopted the rule that they have the inherent right to appoint counsel to an indigent person also. The lawyer will represent the person without any fee.

Thus, on a comparison of the position in Indian, English and American law it is clear that only American law recognizes legal representation as an actual right. The Indian and English law place the ultimate decision in the hands of the courts as they will have to interpret the relevant statute and decide on more or less a case to case basis.

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