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
ANDREY BORODULIN/AFP/GETTY IMAGES
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Letter from Donetsk: ice cream, bustling bars and missiles in eastern Ukraine

In Donetsk, which has been under the control of Russian backed rebels since April 2014, the propaganda has a hermetic, relentless feel to it.

Eighty-eight year-old Nadya Moroz stares through the taped-up window of her flat in Donetsk, blown in by persistent bombing. She wonders why she abandoned her peaceful village for a “better life” in Donetsk with her daughter, just months before war erupted in spring 2014.

Nadya is no stranger to upheaval. She was captured by the Nazis when she was 15 and sent to shovel coal in a mine in Alsace, in eastern France. When the region was liberated by the Americans, she narrowly missed a plane taking refugees to the US, and so returned empty-handed to Ukraine. She never thought that she would see fighting again.

Now she and her daughter Irina shuffle around their dilapidated flat in the front-line district of Tekstilshchik. Both physically impaired, they seldom venture out.

The highlight of the women’s day is the television series Posledniy Yanychar (“The Last Janissary”), about an Ottoman slave soldier and his dangerous love for a free Cossack girl.

They leave the dog-walking to Irina’s daughter, Galya, who comes back just in time. We turn on the TV a few minutes before two o’clock to watch a news report on Channel One, the Russian state broadcaster. It shows a montage of unnerving images: Nato tanks racing in formation across a plain, goose-stepping troops of Pravy Sektor (a right-wing Ukrainian militia) and several implicit warnings that a Western invasion is nigh. I wonder how my hosts can remain so impassive in the face of such blatant propaganda.

In Donetsk, which has been under the control of Russian-backed rebels since April 2014, the propaganda has a hermetic, relentless feel to it. If the TV doesn’t get you, the print media, radio and street hoardings will. Take a walk in the empty central district of the city and you have the creeping sense of being transported back to what it must have been like in the 1940s. Posters of Stalin, with his martial gaze and pomaded moustache, were taboo for decades even under the Soviets but now they grace the near-empty boulevards. Images of veterans of the 1941-45 war are ubiquitous, breast pockets ablaze with medals. Even the checkpoints bear the graffiti: “To Berlin!” It’s all inching closer to a theme-park re-enactment of the Soviet glory years, a weird meeting of propaganda and nostalgia.

So completely is the Donetsk People’s Republic (DPR) in thrall to Russia that even its parliament has passed over its new flag for the tricolour of the Russian Federation, which flutters atop the building. “At least now that the municipal departments have become ministries, everyone has been promoted,” says Galya, wryly. “We’ve got to have something to be pleased about.”

The war in the Donbas – the eastern region of Ukraine that includes Donetsk and Luhansk – can be traced to the street demonstrations of 2013-14. The former president Viktor Yanukovych, a close ally of Vladimir Putin, had refused to sign an agreement that would have heralded closer integration with the EU. In late 2013, protests against his corrupt rule began in Maidan Nezalezhnosti (“Independence Square”) in Kyiv, as well as other cities. In early 2014 Yanukovych’s security forces fired on the crowds in the capital, causing dozens of fatalities, before he fled.

Putin acted swiftly, annexing Crimea and engineering a series of “anti-Maidans” across the east and south of Ukraine, bussing in “volunteers” and thugs to help shore up resistance to the new authority in Kyiv. The Russian-backed rebels consolidated their power base in Donetsk and Luhansk, where they established two “independent” republics, the DPR and its co-statelet, the Luhansk People’s Republic (LPR). Kyiv moved to recover the lost territories, sparking a full-scale war that raged in late 2014 and early 2015.

Despite the so-called “peace” that arrived in autumn 2015 and the beguiling feeling that a certain normality has returned – the prams, the ice creams in the park, the bustling bars – missiles still fly and small-arms fire frequently breaks out. You can’t forget the conflict for long.

One reminder is the large number of dogs roaming the streets, set free when their owners left. Even those with homes have suffered. A Yorkshire terrier in the flat next door to mine started collecting food from its bowl when the war began and storing it in hiding places around the flat. Now, whenever the shelling starts, he goes to his caches and binge-eats in a sort of atavistic canine survival ritual.

Pet shops are another indicator of the state of a society. Master Zoo in the city centre has an overabundance of tropical fish tanks (too clunky to evacuate) and no dogs. In their absence, the kennels have been filled with life-size plastic hounds under a sign strictly forbidding photography, for reasons unknown. I had to share my rented room with a pet chinchilla called Shunya. These furry Andean rodents, fragile to transport but conveniently low-maintenance, had become increasingly fashionable before the war. The city must still be full of them.

The bombing generally began “after the weekends, before holidays, Ukraine’s national days and before major agreements”, Galya had said. A new round of peace talks was about to start, and I should have my emergency bag at the ready. I shuddered back up to the ninth floor of my pitch-dark Tekstilshchik tower block. Shunya was sitting quiet and unruffled in his cage, never betraying any signs of stress. Free from Russian television, we girded ourselves for the night ahead.

This article first appeared in the 05 February 2015 issue of the New Statesman, Putin's war