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
Andy Mitchell/Wikimedia
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In the Outback, the waiters come from East Grimsby

One of the many great things about Australia is a genuine, if slightly abrasive egalitarianism.

The atmosphere in the Red Ochre Grill is distinctly chilly – not exactly what you would expect in the middle of a desert. There was an early-bird discount of 20 per cent for guests of the attached hotel, if you booked before 6pm for a table before 7pm; but we screwed up by 15 minutes and the maître d’ was emphatic: we’d have to pay full whack. Now I’ve been sitting over the remains of my kangaroo and macadamia salad for a full half-hour, waiting to pay the inflated bill, and my temperature has been plummeting the while. There’s nothing more real than this sort of tourist gouging – and Alice Springs is a tourist town, among other things. A tourist town serviced by tourists: mostly backpackers, most of whom in turn are from Britain.

Last night in Casa Nostra, a Calabrian restaurant sited on the parched banks of the Todd River (it flows about once in an average lifetime), we were served by a nice young man from Aberdeen, and the many miles between the Grey City and the Red Centre were eliminated by his opening remark: “I read something you wrote recently about Scots independence. I myself am not in favour.” Then this morning, at a café in the mall, he popped up again – working a second job, this time with his Edinburghian girlfriend, so they can gather a sufficient sum to keep on truckin’.

All down the Stuart Highway (known colloquially as “The Track”) from Darwin, we’ve been waited on by young folk from East Grinstead and Letterkenny, Dewsbury and Great Malvern. They come on working visas, not available to the nationals of countries which aren’t either historic (Britain) or contemporary (United States) overlords of Australia, and work these jobs out in the back of Bourke, where young Australians are loath to go. To the backpackers the Outback is a mythic realm suffused with wonder, presided over by an ancient people steeped in sorcery who are also wizard at graphic arts – but to most young Australians it’s too much of nothing, while their largely deracinated and welfare-dependent Aboriginal fellow citizens are a source of perplexity, shame and ignorance.

All this is running through my mind as I ask the waitress where she’s from. “Israel,” she replies. “Ah,” I say, “I didn’t know you could get a working visa for Australia on an Israeli passport.” “You can’t,” she says, “but my parents are American and I also have a US passport.” Of course it’s not this young woman’s fault in any way, but there is still something slightly nauseating about this: the Americans have a spy base outside Alice, called Pine Gap. So it is that geostrategic “considerations” and neoliberal “economics” vibrate through the rudaceous rocks of the MacDonnell Ranges as our elders sing up a nightmarish dreamtime.

“Ah, well,” I say, “you must be used to desert country, then.” “Ye-es,” the Israeli waitress bridles a little, “but Israel isn’t as desert as here.”

One of the many great things about Australia – where I’ve spent a fair amount of time over the years, my first sojourn being on a working visa exactly like the waitress’s – is a genuine, if slightly abrasive egalitarianism: the original Digger mentality of mateship suffuses even the 21st-century globalised food industry, such that tipping is frowned on as shameless evidence of a de haut en bas attitude. These young folk are being paid adequately by the establishment, but that’s the problem: they have no incentive to get the tucker to the table quickly, and they aren’t trained. Thus my long wait for the undiscounted bill has become tangled up in my mind with all the world’s woes, and I snap back: “I’ll thank you not to lecture me on geography, young lady. Your state has been snaffling up deserts throughout my lifetime, beginning with the Sinai. Granted, its most recent acquisitions have been relatively piecemeal ones on the West Bank of the Jordan, and only semi-arid, but still . . .”

Later on, my eldest takes me to task for this solecism, bringing the misfortunes of the Middle East into the heart of the great southern continent, but I am unrepentant. True, the parallels aren’t exact, but both Israel/Palestine and Australia are polities that have pursued the old colonialist agenda under modern dispensations; both are states in which there’s a grotesque disparity between the conditions in which the indigenous people survive and those that the expropriating incomers enjoy. The Red Ochre Grill, with its pseudo-gourmet dishes confected out of “native” ingredients (emu, kangaroo and camel meat mostly), is a perfect instance of this phenomenon, a sort of gustatory colonialism, if you will.

Outback of the restaurant, in the sandy slough of the Todd River’s bed, the “Long Grass people” – Aboriginals bushed by the grog – stand in for benighted Palestinians. The rates of alcoholism among them are eclipsed only by those of diabetes. An old Australian friend in Darwin put it to me thus: “As you drive south to the Alice you’re travelling along a broad highway of renal failure.”

True, from time out of mind all sorts of holidays have been taken in other people’s misery. Yet there is something particularly queasy about whites working away in the well-appointed restaurant while, out in the darkness, welfare-dependent blacks are killing themselves with Coca-Cola.

Next week: On Location

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 27 August 2015 issue of the New Statesman, Isis and the new barbarism