Dear lawyers, please leave out passion in dealing with gangrape

While law says a person is innocent until proven guilty, the Saket dist bar councilís diktat, saying its lawyers wonít defend the gangrape accused, seems to have already announced the verdict: guilty. Though that contention is okay for the protesting youth, itís not the same for members of judicial fraternity

shantanu

Shantanu Datta | January 3, 2013


Delhi Police to file chargesheet in gangrape and murder of 23-year-old at fast-track court in Saket on Thursday, Jan 3.
Artwork by Kunal Sheoran, student, C-DAC, Noida

While the fast-track court to deal with the gangrape and murder of the 23-year-old paramedic at Saket would start proceedings today, the Saket district bar council has made it clear that not one of the 2,500 or so advocates registered with the council would stand up for the six persons accused in the case.

This, according to reports, is a bid to ensure “speedy justice” in the case — the logic being the government would have to appoint a lawyer for the defendants.

"We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case," Sanjay Kumar, a lawyer and member of the Saket District Bar Council, was quoted by the NDTV website in a report by AFP.

While that sounds extremely sanctimonious of the lawyers, what it does is mix the personal with the professional. While law says a person is innocent until proven guilty, the bar council’s diktat seems to have already set the tone and tenor of the case: guilty.

As a report in The Hindu (read it here) said this morning, even chief justice of India Altamas Kabir has “appreciated people’s anger over rape but warned against letting it overwhelm the due process of law”.

“... Let us not get carried away. A swift trial should not be at the cost of a fair trial,” he said while inaugurating the fast-track court at the Saket district court complex. “Let us not lose sight of the fact that a person is presumed innocent until proven guilty”.

In contrast, Saket court bar association president RP Kasana said, “It has been resolved in the meeting of the bar association executive committee that no lawyer from the Saket court bar association will defend the accused.”

Kumar and Kasana’s two-line quotes throw up more than as many disturbing questions:

1. How can the bar council set the terms for lawyers, who individually might or might not want to take up the case? As eminent defence lawyer Ram Jethmalani said several lawyers’ bodies refused to take up the case of Ajmal Amir Kasab, the lone militant arrested in the 2008 Mumbai terror attacks, "No lawyer has the right to say that he will not defend an accused.” (Read story here) "There is the express rule of the Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular," Jethmalani had then said.

2. How can the Saket bar council decide it would be “immoral” to defend the accused in this particular case? Is it not, by such implication, guilty of ‘leading’ the court? It could well be immoral but it is certainly not unprofessional for a defence lawyer.

3. Is the bar council correct in presuming that the mere fact of refusal to defend the accused would ‘expedite’ the case? Going back to the Kasab trial, the dismissal and opting out by several lawyers was cited as one of the reasons for the trial being prolonged. Can office-bearers of Saket bar council be reasonably sure that their diktat would not affect the time-bound nature of the case; that would be disposed of in a month or month-and-half at most, as is being projected?

4. While the people protesting against the gangrape and the gruesome and ghastly violence perpetrated on the young woman have all the right to call for public hanging and other such kangaroo court-esque demands in the passion of argument, can lawyers make similar impassioned contentions?

5. Can we start acting professionally, rather than being emotionally charged? If this remains our attitude, it could be months before the case is taken to a logical conclusion. Little wonder that so few rape accused are convicted.
 

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