Examining the legal controversies surrounding the recent New Delhi gang rape and murder case

The now infamous New Delhi gang rape that occurred on 16th December 2012 has caused much controversy and outrage within and outside of India. It has highlighted what many see as an outdated view of women in indian society and exposed widespread sexual harassment and violence in India. But as legal proceedings against those accused of the crime gather pace questions must now be raised against the legal profession and authorities in India.

Social media has recently been awash with the controversial statements from one indian lawyer representing one of the accused in this case. When Manohar Lal Sharma heard that the defendants in one of the most high-profile rape cases in recent years were about to be tried, he was the first to rush to court so he could offer to represent them pro bono. In Mr. Sharma’s opinion, the victim’s male friend is to blame for the attack, not the six men who are accused of raping and assaulting her:

“This all happened because of the lust of the boy. This is the boy who should be hanged,” Mr. Sharma said during a telephone interview on Thursday. “He’s responsible for everything. He should be punished.”

In an earlier media interview, Mr. Sharma had suggested the victim was responsible for the attack, saying, “Until today I have not seen a single incident or example of rape with a respected lady.”

These statements have, perhaps deservedly, caused consternation and outrage on social networking sites like Twitter and Facebook with some users suggesting that Sharma should experience first hand what the victim in this case experienced. Outrage originally directed towards the accused has now shifted to their legal representative with many asking how anyone could represent someone who committed such a heinous and invasive crime. However, I believe that there is a far more shocking issue that has been glossed over in this matter, and that is that Mr Sharma was the only lawyer willing to represent the defendants.

Sharma was heckled by members of the Saket Bar Association in the district court when he offered to represent the accused. The association had appealed to its members not to defend the men:

“We are human beings first, and then we are lawyers, let us not forget that,” said Raj Pal Kasana, president of the association, which has 13,000 members. “We will not obstruct fair trial, but we issued an emotional appeal to our members not to defend the accused.”

With the greatest respect to Mr Kasana by failing to represent a client you will be obstructing a fair trial. How can the accused get a fair trial if he has no legal representation? When a person chooses a career in law, especially criminal law, they need to be able to put their personal opinions, beliefs or views and emotions to one side and to act in a manner befitting the legal profession. Moreover, it is an access to legal representation that is a fundamental right in any democracy. So for a professional body to deny defendants the right to defensive representation is truly shocking in the least. A district court in New Delhi was forced to appoint attorneys for five of the accused, despite the calls by bar associations to boycott the men. Clearly India does not appreciate the Cab-rank rule.

Under English law the expression Cab-rank rule refers to the obligation of a barrister to accept any work in a field in which they profess themselves to be competent to practise, at a court in which they would normally appear, and at their usual rates of service. The rule derives its name from the tradition by which a Hackney carriage driver at the head of a queue of taxicabs is supposed to take the first passenger requesting a ride. In essence neither the barrister nor taxi driver can pick and choose their clients.

Paragraph 602 of the Code of Conduct of the Bar of England and Wales states:

A self-employed barrister must comply with the “Cab-rank rule” and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

(a) accept any brief to appear before a Court in which he professes to practise;

(b) accept any instructions;

(c) act for any person on whose behalf he is instructed;

and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

In the absence of such a rule, such as we see in India, it would be difficult for an unpopular person or group/institution or corporate entity to obtain legal representation, and barristers who act for such people might be criticised for doing so as Mr Sharma has been in this case.

In 1999, Lord Irvine, the then Lord Chancellor, said: “The “cab-rank” rule is one of the glories of the Bar. It underscores that every member of the Bar is obliged, without fear or favour, to represent clients who offer themselves, regardless of how unpopular they may be in the community or elsewhere.”

It should be noted that the Cab-rank rule is not universally admired; and, in 2010, the Law Society of England and Wales said, “The Society questions whether the cab-rank rule remains a necessary and proportionate rule for the Bar at a time when there is increasing competition for advocacy services.”

Of course we can all wince internally at the obvious insensitivity of a lawyer suggesting that the rape was in fact the victim’s own fault but this is not a new legal strategy or one limited to India. Many jurisdictions have varying degrees of “rape shield” laws to protect victims from being effectively put on trial themselves but few are all-encompassing.

In a landmark UK judgment in 2001 five law lords ruled that a law that banned juries in rape trials from hearing evidence that the accused had a previous sexual relationship with his accuser breaches his right to a fair trial.

“Good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers,” said Lord Steyn at the time. “To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice.”

The “rape shield” law, section 41 of the Youth Justice and Criminal Evidence Act 1999, was pushed through with great determination by the government of the time to spare rape victims humiliating cross-examination and to boost the level of rape convictions, which had slumped to an all-time low. The law virtually removed the discretion of trial judges (who were seen and often criticised by the government as exercising it too freely) to allow evidence about the complainant/victim’s sexual past where the issue was consent. Criminal lawyers complained that it could bar a jury even from knowing whether a man accused of rape was a long-term live-in partner or a stranger.

It is a criminal offence under the Sexual Offences (Amendment) Act 1992, as amended by the YJCEA 1999, schedule 2 to name a victim of rape. Furthermore, section 11 of the Contempt of Court Act 1981 empowers the court to impose a permanent ban on the publication of any name or other matter in connection with the proceedings before it which it has allowed to be withheld from the public. The section complements the common-law power of a court, sitting in public, to receive a small part of the evidence (such as the name or address of a witness) in a form which is not communicated to the public. The law gives victims and alleged victims of rape and other sexual offences lifelong anonymity. (For more information please see my previous post on the law of anonymity.)

“I support the death penalty for rapists, but I am standing up here for a man who has not yet been proved guilty,” Sharma said. “My friends, families and clients are all against my decision to defend the men. I got threat calls, too. Should we do away with the idea of fair trial and the judiciary because of the public mood? Do they want revenge or justice?”

Mr Sharma’s comments above may well be applauded for his dedication to the idea of defendant’s right to be considered innocent until proven guilty, but they do also bring me to another controversial element to this whole case which is the possible punishment for these men should they be found guilty. The death penalty.

In 1983 the Supreme Court of India ruled that the death penalty should be imposed only in “the rarest of rare cases.” Capital punishment crimes in India are murder, gang robbery with murder, assisting in the suicide of a child or person with mental impairment, and treason. Recently, the Supreme Court in Swamy Sharaddananda v. State of Karnataka made imposing the death penalty even harder. The judgment in the case holds that the “rarest of the rare” test prescribed in Bachchan Singh’s case was diluted in the Machchi Singh case. The judgement then goes on to say that the “rarest of the rare” must be measured not only in qualitative but also in quantitative terms.

India’s courts have recently recommended the death penalty be extended to those found guilty of committing honour killings. The Supreme Court have stated that honour killings fall within the “rarest of the rare” category and deserves to be a capital crime. Taking into account the circumstances of this case and the public outcry for retribution it is unlikely that should these men be found guilty they can expect any other punishment than a capital one.

In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. And in November 2012 India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban the death penalty. In India the death penalty is carried out by hanging. An attempt was made to challenge this method of execution but it failed in the Supreme Court, which stated in its 1983 judgement that hanging did not involve torture, barbarity, humiliation or degradation. I will leave you, the reader, to decide for yourselves whether or not hanging can be considered as any of the above. For those interested in my own opinions on capital punishment (assuming you cannot tell already) then you can see my previous post on the work done by Amicus-ALJ here.

If the failure of India’s legal professionals to represent the accused and India’s draconian punishments were not bad enough there are accusations that the police have manipulated the evidence and taken shortcuts in this case. That confessions had been coerced through torture by the Police. Furthermore it has been suggested that jail inmates assaulted the five suspects when they were first brought in possibly with the full knowledge of the authorities. Now, jail authorities say, the accused men are currently on suicide watch.

This case is incredibly tragic and saddening not least because a young girl lost her life under truly horrific circumstances. However, the questions and failures that have arisen since the arrest of those alleged to have committed the crime should not be ignored. If India truly wants to portray itself to the rest of the world as a real democracy and player in world politics then not only should they roightly take note of the various protests aimed at changing attitudes to sexual assault and harassment of women in India, but also look to ensuring that their legal system including its forms of punishments, as well as their legal authorities and profession bodies are beyond reproach, so as to ensure that miscarriages of justice are limited and repairable. Those preparing for trial may well be guilty but until it has been proven so they deserve the full protection of the law. Shortcuts should not be taken to prove them guilty. In law, the end does not justify the means.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.