Are Delhi lawyers jeopardising justice?

The Lawyers Association's refusal to defend the men accused of the Delhi gang rape might be one step too far.

The recent shocking case of the rape and murder of a young medical student in India has sparked widespread debate about the country’s treatment of women. But it also raises questions over the ethics of their legal code: Recent reports have revealed that the 2500 members of the Lawyers Association in the district of Saket have actively refused to represent the six men accused of the crime in light of the public outcry it has caused worldwide.

Perhaps this is unsurprising, given that passions are inflamed to the degree that protestors have called for the death penalty. But what are the repercussions this legal protest might have for justice in India?

In the UK, barristers are regulated by the Bar Standards Board, which sets out that:

 A barrister who supplies advocacy services must not withhold those services on the ground that the nature of the case is objectionable to him or to any section of the public.

The regulations go on to state that a barrister must comply with the "Cab-rank rule," which means that they must accept any instructions from a field in which they profess to practice. India’s regulations are, interestingly, not too dissimilar. The Bar Council of India’s (BCI) states that an advocate "is bound to accept any brief".

This rule is qualified by an addition that says that “special circumstances may justify his refusal to accept a particular brief”. But what constitutes special enough circumstances to jeopardise justice? The right to a fair trial falls under Article 10 of the Universal Declaration of Human Rights; if it’s deemed important enough to feature there then its merit can’t be just be dismissed.

AFP reported  that one member of the Saket District Bar Council, Sanjay Kumar, spoke on behalf of the lawyers:

"We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case".

He goes on to say that the advocates have taken the decision to "stay away" from the case in order to guarantee "speedy justice". This seems outrageous: justice should be just. It should be allowed to take its course naturally, without intervening factors that might artificially achieve it.

One lawyer who has come forward to represent two of the accused, Manohar Lal Sharma, has been insistent that his clients should have access to a fair trial. Sadly this lawyer is acting with a different set of warped motivations. He declared that "I have not seen a single incident or example of rape with a respected lady", placing the blame for her death “wholly” on the victim. Sharma not only personifies the serious issues India has with its perception of women, but also displays a clear misunderstanding amongst its lawyers.

Advocates involved in this case have openly passed judgement on the accused: the Saket District Lawyers’ Association made an assumption of guilt, while Manohar Lal Sharma deemed the men innocent, and is therefore willing to defend them. What is unfortunately forgotten amongst all this is that it isn’t a lawyer’s job to make judgement - that is up to the judge and jury.

If recent reports that the accused are being tortured in order to force a guilty plea are true, then a fair trial is even more imperative for the sake of justice. This in no way suggests that the accused should be emancipated without trial, or that they have not likely done wrong, but it is important to remember that the stance should be ‘innocent until proven guilty’. How can justice be served and guilty men adequately punished if a fair trial has not ensued?

Protesters demonstrating against rape in Delhi. Photograph: Getty Images
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The conflict in Yemen is a civil war by numbers

Amid the battles, a generation starves.

Ten thousand dead – a conservative estimate at best. Three million internally displaced. Twenty million in need of aid. Two hundred thousand besieged for over a year. Thirty-four ballistic missiles fired into Saudi Arabia. More than 140 mourners killed in a double-tap strike on a funeral. These are just some of the numerical subscripts of the war in Yemen.

The British government would probably prefer to draw attention to the money being spent on aid in Yemen – £37m extra, according to figures released by the Department for International Development in September – rather than the £3.3bn worth of arms that the UK licensed for sale to Saudi Arabia in the first year of the kingdom’s bombing campaign against one of the poorest nations in the Middle East.

Yet, on the ground, the numbers are meaningless. What they do not show is how the conflict is tearing Yemeni society apart. Nor do they account for the deaths from disease and starvation caused by the hindering of food imports and medical supplies – siege tactics used by both sides – and for the appropriation of aid for financial gain.

Since the war began in March 2015 I have travelled more than 2,500 miles across Yemen, criss-crossing the front lines in and out of territories controlled by Houthi rebels, or by their opponents, the Saudi-backed resistance forces, or through vast stretches of land held by al-Qaeda. On those journeys, what struck me most was the deepening resentment expressed by so many people towards their fellow Yemenis.

The object of that loathing can change in the space of a few hundred metres. The soundtrack to this hatred emanates from smartphones resting on rusting oil drums, protruding from the breast pockets of military fatigues, or lying on chairs under makeshift awnings where flags denote the beginning of the dead ground of no-man’s-land. The rabble-rousing propaganda songs preach to the watchful gunmen about a feeble and irreligious enemy backed by foreign powers. Down the road, an almost identical scene awaits, only the flag is different and the song, though echoing the same sentiment, chants of an opponent altogether different from the one decried barely out of earshot in the dust behind you.

“We hate them. They hate us. We kill each other. Who wins?” mused a fellow passenger on one of my trips as he pressed green leaves of the mildly narcotic khat plant into his mouth.

Mohammed was a friend of a friend who helped to smuggle me – dressed in the all-black, face-covering garb of a Yemeni woman – across front lines into the besieged enclave of Taiz. “We lose everything,” he said. “They win. They always win.” He gesticulated as he spoke of these invisible yet omnipresent powers: Yemen’s political elite and the foreign states entangled in his country’s conflict.

This promotion of hatred, creating what are likely to be irreversible divisions, is necessary for the war’s belligerents in order to incite tens of thousands to fight. It is essential to perpetuate the cycle of revenge unleashed by the territorial advances in 2014 and 2015 by Houthi rebels and the forces of their patron, the former president Ali Abdullah Saleh. This demand for retribution is matched by those who are now seeking vengeance for the lives lost in a UK-supported, Saudi-led aerial bombing campaign.

More than 25 years after the two states of North and South Yemen united, the gulf between them has never been wider. The political south, now controlled by forces aligned with the Saudi-led coalition, is logistically as well as politically severed from the north-western territories under the command of the Houthi rebels and Saleh loyalists. Caught in the middle is the city of Taiz, which is steadily being reduced to rubble after a year-long siege imposed by the Houthi-Saleh forces.

Revenge nourishes the violence, but it cannot feed those who are dying from malnutrition. Blowing in the sandy wind on roadsides up and down the country are tattered tents that hundreds of thousands of displaced families now call home. Others have fled from the cities and towns affected by the conflict to remote but safer village areas. There, food and medical care are scarce.

The acute child malnutrition reported in urban hospitals remains largely hidden in these isolated villages, far from tarmac roads, beyond the reach of international aid agencies. On my road trips across Yemen, a journey that would normally take 45 minutes on asphalt could take five hours on tracks across scrubland and rock, climbing mountainsides and descending into valleys where bridges stand useless, snapped in half by air strikes.

Among the other statistics are the missing millions needed by the state – the country’s largest employer. Workers haven’t been paid in months, amid fears of an economic collapse. This is apparently a deliberate tactic of fiscal strangulation by the Saudi-backed Yemeni government-in-exile. The recent relocation of the central bank from the Houthi-controlled capital, Sana’a, to the southern city of Aden is so far proving symbolic, given that the institution remains devoid of funds. The workforce on both sides of the conflict has taken to the streets to protest against salaries being overdue.

Following the deaths of more than 140 people in Saudi-led air strikes on a funeral hall on 8 October, Saleh and the Houthi leader, Abdulmalik al-Houthi, called for yet more revenge. Within hours, ballistic missiles were fired from within Houthi territory, reaching up to 350 miles into Saudi Arabia.

Meanwhile, in the Red Sea, Houthi missile attacks on US warships resulted in retaliation, sucking the US further into the mire. Hours later, Iran announced its intention to deploy naval vessels in the area.

Vengeance continues to drive the violence in Yemen, which is being drawn ever closer to proxy conflicts being fought elsewhere in the Middle East. Yet the impact on Yemeni society and the consequences for the population’s health for generations to come are unlikely to appear to the outside world, not even as annotated numbers in the brief glimpses we get of this war. 

This article first appeared in the 20 October 2016 issue of the New Statesman, Brothers in blood