Indian bar must represent Delhi gang rape defendants, says Bar Council
The Bar Council has called on the Indian Bar to end its refusal to represent a group of men accused of carrying out a gang rape in Delhi.
Delhi
Individual barristers have also called upon their Indian peers to uphold “high ethical standards” so a fair trial can take place.
A statement from The Bar Council said that it was “concerned” by reports that both the Saket Bar Association and the Delhi Bar Association have resolved not to represent five men charged with the rape and murder of a 23-year-old student.
A judge in Delhi has ordered the hearings to take place in secret and there was an argument today when lawyer Manohar Lal Sharma offered to represent the men but was shouted down by colleagues, according to reports.
The Bar Council said no one should be deprived of the right to legal representqtion based on the gravity of the alleged crime.
It said: “The allegation in this case is horrendous, and has rightly sparked protest and debate about the levels of sexual violence in India, and the inadequacy of the response on behalf of the state.
“However, the presumption of innocence and the right to a fair trial are fundamental human rights, and cornerstones of democracy. Effective legal representation is a central component of a fair trial.
“Indeed, those accused of the most pernicious crimes have the greatest need for effective and fearless representation.”
Matrix silk Alex Bailin QC agreed, saying the Indian Bar’s current boycott was “completely wrong”.
“Whatever the strength of evidence, everyone facing a criminal charge needs effective legal representation - all the more so when the crimes are this serious,” he said.
“The English bar has a proud tradition of representing everyone regardless of the nature of the charges and strength of the case - I’m sure the Indian Bar has equally high ethical standards.”
Jo Sidhu QC of 25 Bedford Row explained that UK barristers do not have a right of audience in India so could not represent the defendants.
He said one of the key issues was threats to lawyers if they represented the defendants. At the moment an ‘amicus curiae’ – a neutral ‘friend of the court’ - is speaking on behalf of the accused.
Sidhu said: “No sentient human being can fail to have been horrified by the circumstances which led to the victim’s death in this case. And I fully understand the outpouring of anger and frustration of Indian citizens who are determined to see perpetrators of sexual violence punished.
“But no democracy can survive very long if its lawyers can simply be intimidated into boycotting defendants whom the public despises. Where would it end?
“Indian lawyers have been threatened with dire consequences should they agree to represent these men. Those lawyers have our sympathy. British defence advocates have also faced hostility when acting for defendants in notorious cases and yet we recognise that the system cannot give true justice to victims without us playing our part.
“From the local yob who terrorises his neighbourhood to the war criminal who terrorises an entire nation; all are entitled to representation.
“The gift of the verdict does not, of course, repose in the lawyer but in the people.
“I hope the Indian judiciary and government can find a way to reiterate these fundamental principles to their public. The credibility of their system depends on it.”
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Readers' comments (12)
Anonymous | 7-Jan-2013 7:17 pm
I am a dual qualified barrister in India and England and cannot say how far removed this article is from reality.
The present reaction of the Delhi Bar was the initial reaction of the Mumbai Bar when Ajmal Kasab, the terrorist from the 26/11 Mumbai attacks who was recently hanged, needed representation. The Court assigned a public prosecutor to him who regrettably took up the role, but represented him as honestly as he could. Likewise, the accused in the Delhi rape case will ultimately find representation.
It is not at all the fear of dire consequences that would keep the advocates away. Indeed the Indian Bar are known to be fearless. The reason for not wanting to represent the accused in this matter is straightforward - the guilt of representing persons against another whom one believes to be innocent. It is a detestable feeling to have to represent accused whom one would like to believe have committed an inhumane crimes.
Another point in relation to the alleged threats is that the accused are generally those with political clout and those representing the victim are likely to be threatened. Not the other way around as this article has portrayed.
As for the reaction in relation to UK barristers representing the accused, it is, in my opinion, a fairly self-centred statement given the circumstances. It is well known that the lawyers in England are attempting to get as much legal work they can from India and are hoping to gain representation rights in India, but it is not about business development for once. It is about the outrage at the brutality of the act (and the fight to change the mindset in India). It is about a country which is speaking out against its own and has the right to do so without being mis-judged by those who are resident abroad.
While I agree that both sides must be represented for a fair trial, I do not believe the credibility of an entire system can be shaken only because the Delhi Bar are being human in joining the rest of the country in their abhoring this act.
Lastly, I have confidence that the accused will ultimately get representation. It is only a matter of time before the court requests a lawyer to put aside his / her personal feelings of outrage to represent the accused.
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Anonymous | 8-Jan-2013 2:13 am
I don't think that it is possible to underestimate the sense of national outrage over the offence that these defendants are accused of. Of course the English legal system is faultless - The tax payer in this country will happily pay several criminal silks millions upon millions in legal aid to cover the trial and numerous appeals in spite of the overwhelming evidence. This may just be a case of mitigation after all.
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kim philby | 8-Jan-2013 9:54 am
When Roger Casement was charged with treason not a single silk in London would represent him. He was ably represented by Serjeant Sullivan and a young US Attorney. The Bar should be careful when it seeks to lecture to other nations.
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Roger Casement | 8-Jan-2013 10:07 am
Quite right Kim Philby, how dare we lecture India on its poor legal system when something bad happened in the UK in, er........ the 1910s. Or perhaps the British system has improved a little in the last one hundred years? Everyone is entitled to a proper defence, no matter what they are accused of - it's just a simple fact that the Bar is stating, just as it would state that 2+2=4.
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Serjeant Sullivan | 8-Jan-2013 11:16 am
"The reason for not wanting to represent the accused in this matter is straightforward - the guilt of representing persons against another whom one believes to be innocent."
I'm not sure this entirely makes sense (no one has accused the victim of a crime, she is innocent, its a question of whether the accused are guilty) but anyhow, isn't this the entire point.
It doesnt matter that the advocate is repulsed by the crime or that he believes for whatever reason the accused are guilty. The point of a court is the recognition that such prejudgments are not a valid way of assigning guilt. It doesnt matter what 'everyone knows' or believes - the evidence needs to be tested in the adversarial crucible of a courtroom.
Surely advocates understand that if nothing else, and understand that its toxic for a society not to have a sound system of rule of law? If the are not properly defended, their guilt will not be properly established and doubts / consipracy can flourish,which, if they are guilty, is terrible.
It was clearly wrong re: Mr Casement, and is clearly wrong now. The bar is just stating the obvious and learning from its predecessors' mistakes.
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kim philby | 8-Jan-2013 11:57 am
As I live in Ireland the Casement trial came to mind. Glad to see the Serjeant is still alive and kicking!
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Anonymous | 8-Jan-2013 12:17 pm
One of the key principles of the Bar is that you represent anyone who needs representation. In the same way that black lawyers must represent those accused of racism, and a father with a young child must represent those accused of creating child pornographic images, the Indian Bar must represent someone accused of rape. By representing someone accused of heinous crimes, you are not condoning those crimes. It is a mark of the professionalism of the Bar that personal feelings are put aside and every person is represented using a "cab rank" rule. It worries me that a barrister who claims to be qualified in both England and India does not appear to support this role of the profession.
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Binda Sahni | 8-Jan-2013 1:59 pm
Point 1: Some lawyers in India want justice to be done.
Point 2: These same lawyers believe that justice will be delivered if the accused are not represented by the legal fraternity.
In other words, there should be no trial.
Issue 1: Does this mean that these lawyers are asking for vigilante justice?
Issue 2: How professional and legal is this attitude?
Issue 3: Do these lawyers understand that the purpose of holding trials is to learn more about what happened?
Really, the purpose is to uncover the facts so that justice is delivered. & in the process, a solid foundation will be built to convict the culprits.
Ratio: This is how presumption of innocence works. The proper legal mechanisms must prove that an accused is guilty. Merely terming or charging a person as an 'accused' does not deem that the person is guilty. That is mere wishful thinking.
The person retains his innocence before the judicial system.
Conclusion: Otherwise, the judicial system is a banana republic.
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Anonymous | 8-Jan-2013 2:35 pm
I am the author of the first comment. While I agree that the cab rank rule must be adhered to, I understand the Delhi Bar's outcry against observing it in this instance. My comment does say that the accused will ultimately find representation from within the Indian Bar.
What this article does not capture is the fact that this case has exploded beyond proving whether the accused are guilty. Tthe article is disconnected with this sentiment in India, especially when it
(a) alleges that the Indian Bar is not taking up the case for fear of threats; and
(b) states insensitively that the UK Bar is not allowed to represent the accused (with an implied term that would if they were so allowed, be happy to fly down and mark their fees for representing the accused when the rest of the Indian nation grieves the loss of this girl as if she was their own daughter).
The English Bar is not faultless (and I do not claim the Indian Bar is perfect when I say this), but to my mind, the faults are closer than the early 1900's. For example a barrister not accepting a matter on a full CFA is akin to refusing to represent. I realise the Bar's Code of Conduct allows this as an exception to the cab rank rule. But in practice, for that impecunious person with say a borderline case, isn't it just the same as a refusal to represent?
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Anonymous | 8-Jan-2013 2:57 pm
It is very easy for us here in the UK to be supercillious about the shortcomings of the Indian Bar - in the first place they dont get paid a fraction of what the criminal silks get from 'legal aid' in high profile cases and more to the point their lives are not threatened. it is all so easy to decry them as being unethical - what silk in this country would represent those defendants for barely any pay and have his and his families life put at risk - yes the English Bar is fearless
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