16th December 2012 rings a bell in the minds of most of the Indians. It brought forward one of the most vicious and inhumane faces of our society when a 23 year old girl was brutally gang raped in Delhi. Thirteen days later the girl succumbed to her injuries while undergoing treatment for brain and gastronomical damage in Singapore.
Although hard to believe, this inexcusable and nasty offence also seemed to a have a bright side to it. People came out of their houses to protest against the sad state of affairs in our country and against the atrocities faced by women. The words Jagriti, Amanat, Nirbhaya and Damini became synonymous with the girl, who lost her life to one of the most sadistic offences imaginable, and became a wake up call for the society, as well as for the government.
In continuance with this social phenomenon, the Saket Bar Association openly stated that ‘none of its members would defend the men accused of the crime that united India in anger and grief, corroborated by large protests in cities like Delhi.’ Their refusal was approved of and was lauded by the people and also by the media. None denied its praiseworthiness and flak was drawn towards those who came forward to defend the accused. Such an act however ethical it might have seemed to a bystander, in truth, was perceived by me as a blatant and absolute misconduct and breach of professional ethics.
It was not for the first time that such declaration, of not defending people guilty of committing heinous offences, was being made. Earlier during the trial of the Mumbai terror attack, not only the lawyers from the Bombay bar association refused to represent the accused, but the bar association also passed a resolution banning the lawyers from taking up the case of Ajmal Amir Kasab, the lone militant arrested in the Mumbai terror attacks. Abbas Kazmi, the lawyer who was appointed to defend Kasab, faced accusations and had to seek police protection. One of the most eminent lawyers in India and former Union Law minister, Ram Jethmalani, has also faced criticism, both by the public as well as the legal community, for defending the accused in various high profile cases like the Indira Gandhi murder case, Rajeev Gandhi murder case (2011), Jessica Lall murder case, among many others.
In the Delhi rape case, the lawyers are not only publicly refusing to defend the accused, but are also protesting against those who took up the case, calling them ‘publicity seekers’ and allegedly creating ruckus in the courtroom, which forced the Hon’ble Judge to retire to her chamber.
The public is in support of this decision by the association and is happy with the hostility being shown towards the lawyers defending the accused. To them, the defense counsel in this case, is as much a party to the offence as the six people who have been indicted of committing it. Being governed by their sentiments, these people are forgetting the widely acknowledged legal principle Ei incumbit probatio qui dicit, non qui negat; ie; innocent unless proven guilty. The burden of proving the guilt of a person lies on the state and this must go through a proper process of presenting all the facts and examining each witness and evidence carefully. It is not for social media, blogs, and news channels or even for the police to establish a person’s guilt unless the evidence has been tested in a Court of Law. For this procedure to be carried out in a proper manner the primary criterion is that both the parties get a chance to present their facts before the Court. The maxim, Audi alteram partem, which stands for ‘hear the other side’, comes into play now. It is most frequently used to refer to the opinion that no individual ought to be judged lacking a fair trial in which each party is provided with the chance to counter to the substantiations in opposition to them. This maxim is considered one of the principles of natural justice, which are the most fundamental doctrines of the legal system in almost all democracies. Keeping the same in mind the Constitution of India under Article 22(1) provides that an accused shall not be denied the right to consult with, and be defended by a legal practitioner of his choice.
It is to uphold this very tradition of the legal system that the law provides for free legal aid to an accused who cannot appoint a counsel for his defense; a fact which has been reiterated in cases like Khatri and others v State of Bihar and Hussainara Khatoon and others v State of Bihar. The Hon’ble Supreme Court in Hussainara Khatoon held that "the right to free legal service is clearly an essential ingredient to a reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the status under constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required."
Although seemingly impossible in the case at hand, it is quite probable that an innocent person might get framed for an offence s/he is not guilty of. It would, in no universe be justified to punish that person in the absence of a fair trial, only to appease the public sentiment. There is no dearth of cases in which the innocent were punished, even executed, due to the lack of proper investigation. Some notable among them are Wayne Felker, Thomas and Meeks Griffin, Timothy Evans, Derek Bentley, Quysiletu, et cetera. If one of the parties does not get legal aid to put forth its arguments and an in absentia decision is passed, it would make a mockery of the legal system of our nation.
More so over, a lawyer is not allowed the liberty of flowing with the mob mentality. It is his duty and the obligation towards his profession to take up a case which comes to him, without caring about how it affects his reputation. The Bar Council of India under Section 49(1 )(c) of the Advocates Act, 1961 says that ‘it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.’ This in no way means that he is not allowed refusing to take up a case, but he is barred from speaking the fact out loud and proudly proclaiming how he fulfilled his moral obligation.
When a lawyer states publicly that he won’t defend a particular person, and stops others from taking that case either, he does nothing but cheat with his profession. And when we commend him for this act, instead of condemning it, we too do nothing but cheat ourselves, our society, and the values enshrined with it. What example do we set if we fail to comply with the judicial requirements put forth in the law? Guilty or not, a person has the right to argue his case and be represented in the Court. Once we make an exception from this due process and punish someone, even though his guilt is prima facie established (as with the Delhi rape case), all we would come across as is a failed democracy, a barbaric nation. As a law student, it is my firm belief that such an action of ours would be as heinous as the crime committed by those who dared break the law. The offenders raped that innocent girl, and we would be doing nothing short with the law of the land.
It was not for the first time that such declaration, of not defending people guilty of committing heinous offences, was being made. Earlier during the trial of the Mumbai terror attack, not only the lawyers from the Bombay bar association refused to represent the accused, but the bar association also passed a resolution banning the lawyers from taking up the case of Ajmal Amir Kasab, the lone militant arrested in the Mumbai terror attacks. Abbas Kazmi, the lawyer who was appointed to defend Kasab, faced accusations and had to seek police protection. One of the most eminent lawyers in India and former Union Law minister, Ram Jethmalani, has also faced criticism, both by the public as well as the legal community, for defending the accused in various high profile cases like the Indira Gandhi murder case, Rajeev Gandhi murder case (2011), Jessica Lall murder case, among many others.
In the Delhi rape case, the lawyers are not only publicly refusing to defend the accused, but are also protesting against those who took up the case, calling them ‘publicity seekers’ and allegedly creating ruckus in the courtroom, which forced the Hon’ble Judge to retire to her chamber.
The public is in support of this decision by the association and is happy with the hostility being shown towards the lawyers defending the accused. To them, the defense counsel in this case, is as much a party to the offence as the six people who have been indicted of committing it. Being governed by their sentiments, these people are forgetting the widely acknowledged legal principle Ei incumbit probatio qui dicit, non qui negat; ie; innocent unless proven guilty. The burden of proving the guilt of a person lies on the state and this must go through a proper process of presenting all the facts and examining each witness and evidence carefully. It is not for social media, blogs, and news channels or even for the police to establish a person’s guilt unless the evidence has been tested in a Court of Law. For this procedure to be carried out in a proper manner the primary criterion is that both the parties get a chance to present their facts before the Court. The maxim, Audi alteram partem, which stands for ‘hear the other side’, comes into play now. It is most frequently used to refer to the opinion that no individual ought to be judged lacking a fair trial in which each party is provided with the chance to counter to the substantiations in opposition to them. This maxim is considered one of the principles of natural justice, which are the most fundamental doctrines of the legal system in almost all democracies. Keeping the same in mind the Constitution of India under Article 22(1) provides that an accused shall not be denied the right to consult with, and be defended by a legal practitioner of his choice.
It is to uphold this very tradition of the legal system that the law provides for free legal aid to an accused who cannot appoint a counsel for his defense; a fact which has been reiterated in cases like Khatri and others v State of Bihar and Hussainara Khatoon and others v State of Bihar. The Hon’ble Supreme Court in Hussainara Khatoon held that "the right to free legal service is clearly an essential ingredient to a reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the status under constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required."
Although seemingly impossible in the case at hand, it is quite probable that an innocent person might get framed for an offence s/he is not guilty of. It would, in no universe be justified to punish that person in the absence of a fair trial, only to appease the public sentiment. There is no dearth of cases in which the innocent were punished, even executed, due to the lack of proper investigation. Some notable among them are Wayne Felker, Thomas and Meeks Griffin, Timothy Evans, Derek Bentley, Quysiletu, et cetera. If one of the parties does not get legal aid to put forth its arguments and an in absentia decision is passed, it would make a mockery of the legal system of our nation.
More so over, a lawyer is not allowed the liberty of flowing with the mob mentality. It is his duty and the obligation towards his profession to take up a case which comes to him, without caring about how it affects his reputation. The Bar Council of India under Section 49(1 )(c) of the Advocates Act, 1961 says that ‘it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.’ This in no way means that he is not allowed refusing to take up a case, but he is barred from speaking the fact out loud and proudly proclaiming how he fulfilled his moral obligation.
When a lawyer states publicly that he won’t defend a particular person, and stops others from taking that case either, he does nothing but cheat with his profession. And when we commend him for this act, instead of condemning it, we too do nothing but cheat ourselves, our society, and the values enshrined with it. What example do we set if we fail to comply with the judicial requirements put forth in the law? Guilty or not, a person has the right to argue his case and be represented in the Court. Once we make an exception from this due process and punish someone, even though his guilt is prima facie established (as with the Delhi rape case), all we would come across as is a failed democracy, a barbaric nation. As a law student, it is my firm belief that such an action of ours would be as heinous as the crime committed by those who dared break the law. The offenders raped that innocent girl, and we would be doing nothing short with the law of the land.
