Thursday, October 24, 2013

#008 Lawyers and Bar Associations should not refuse to defend accused rapists

Abhaya Rape Case refers to the rape of a 23 year old IT techie of Madapur, Hyderabad, in a volvo cab, by two men posing as taxi drivers. They drove the victim to an isolated mango grove in kollUr (medak District), where she was raped and threatened with dire consequences. Later, they dropped the bleeding victim at her hostel in Gowlidoddi. This took place on 22nd October 2013. It is heartening to note that Cyberabad Police acted very swiftly and arrested the two accused in a very short time and produced him before Miyapur Court. The Cyberabad police could get two days custody of the rapists.


Deccan Chronicle reported that Rangareddy District Bar Association has resolved to request its advocates not to accept the case for defence.


The resentment of the society and the lawyers to the ghastly series of rapes taking place in Hyderabad, is undestandable. Yet, it it not reasonable NOT to take up the case of the accused for defence.


It tantamounts to pre-judging even before trial. This is against jurisprudence.

Lawyers are only assistants to courts in ascertaining facts and truth. They cannot have anything to do with their clients, even if the clients pay them fees. In fact, it would have been more apt for Indian courts to collect fees from clients from time to time and pay to defence lawyers, instead of asking the defence lawyers to collect the fees themselves from the clients.

Question: Defence lawyers are eating the salt of the clients. Hence they have both a legal and moral duty to defend them by all means.

Answer: Their legal and moral duties can extend only to exercising reasonable care (not to be negligent), showing reasonable diligence (meaning as per artha dictionary of wordnet: conscientiousness in paying proper attention to a task; giving the degree of care required in a given situation; persevering determination to perform a task), not to ditch the clients in middle abandoning the case abruptly without giving notice. And nothing beyond.

Defence lawyers, whenever they come across clear evidence which adversely affect their clients, cannot hide such evidences from the court. If the evidence is so serious that it will not be morally tenable for the Defence lawyers to save their clients, they can probably allow their clients to shift to another defence lawyer, with the consent of court. This may not tantamount to ditching.

There is some difference between 'caught-red-handedly cases' (where eye witnesses immediately catch hold of the accused and hand over to police) and 'apprehended subsequently on the basis of supplementary evidence'. Eye witnesses and police going wrong in 'caught-red-handed' cases is very rare. Cases based on closed circuit cameras and other useful information, can sometimes misdirect, though such chances may be few. In the second type of cases, defence lawyers may have to undertake some independent investigation work, in addition to information revealed by the prosecution and the accused.

Obligations of defence lawyers to clients do not including bringing out incongruous arguments in support of their clients.

One great lawyer was reported to have argued (later denied) before Court:
The complaining girl is suffering from a chronic disease “which draws a woman to a man”.

Even if what the great lawyer said was true, was there no duty for the accused rapist to stay away from that girl? Did the accused has a duty to rape her?

Defence Lawyers often try to present complaining girls as women of loose morals and present arguments of intercourse with consent.

If defence lawyers stop raising ridiculous and run-of-the mill arguments, rape cases move fast in courts, whether fast-track was made available or not.

Public images of criminal defence lawyers should not go down to the level of sick persons suffering from an irresistable obsession to defend rogues. Their arguments may be permitted by law. Yet, they, within their consciences, should know that they were not presenting facts which they arrived at with care, diligence and a crystal-like conscience. If they look into mirrors of their own clear consciences, they will know that they were presenting only routine arguments, which trying judges might have heard thousands of times, like film songs.

Question:Are court judgements really unpredictable?

One Senior lawyer said that it might be difficult for lawyers to predict how judicial decisions will turn out after trial, and an astrologer might have to be consulted. This unpredictability results from the actions of the accused (bribing or threatening witnesses), defence lawyers (dilly-dallying by presenting cockeyed arguments), prosecutors (influenced by powerful persons), judges (may be from idiosyncrasies and foibles), caselaw (conflicting Supreme Court judgements owing to numerous variations among cases) and interpretation of Sections of statutes.

Question: Don't give more reasons. Suggestion solutions.

Answer: Probably we may have to computerise factors which form the ratio decidendi. We have to use sets of say 50 parameters of facts, arguments, dependencies, reliabilities, statutes, case-law, giving appropriate weightage for each parameter (say example - mandatory section 25%, primary evidence 25%, circumstantial evidence 10%, case law 10% etc.). All the three parties (prosecution -weight=2, defence -weight=1.5, and judges -weight=6) have to feed their responses y/n/can't say into the computers. Computer algorithms are to be built for mathematically arriving at the right decision. This decision can be reviewed by Senior judges to examine if computers have arrived at absurd conclusions. The main object should be to minimise subjective idiosyncratic personal elements in judgements, without sacrificing the benefit of interpreting with human intellect. We have to strike a balance of 40% + 60% for these two.

Question: We have two arguments. 1) Justice delayed is justice denied. 2) Justice hurried is justice burried. Which argument, should we choose?

Normally, except accused + their family members and victims + their family members, others may not have any real personal interest in the outcome of criminal cases. Though reputation of prosecuting lawyers, defence lawyers, police officers, trial court judges, may be at stake and may affect their professional progress, yet, their interests will not be as hard-stressed as those of accused and victims. With the afflux of time, all the stake holders (except accused and victims) may start taking things impersonally. I shall not venture to compare the transformation of Stakeholders into stakeless stones , to guards of graveyards where everyday they see dozens of corpses passing through the gates end up in pyres or trenches.

Question: Can you give an example?

Answer: A gunfire took place in a film actor's home and a producer was hurt. There were indications of wiping out evidence, by cleaning the premises. Subsequently after somedays, a watchman on the lawn of house was murdered. The victim-complainant film producer turned adverse and went back from his own statements. Outcome= acquittal. Film business as usual.

Question:If some accused comes out unscathed after trials and appeals, can we say that he is clean and innocent?

Answer:Answer for this question will depend on facts, arguments, interpretations, afflux of time which has taken place (in the meantime witnesses may turn hostile or may die), and umpteen other things.

Courts deliver only legal justice which depends on evidence, interpretation of evidence and circumstances. Legal justice can sometimes coincide with natural justice, in which case we can say that the goal of rule of law has been served. Legal justice can sometimes convict innocent persons and acquit guilty persons owing to lack of evidence or adequate representations for parties, lack of skills on the part of lawyers and judges, short-comings of witnesses, anything under this sky.

Thus, legal justice converging with natural justice is an ideal situation.

Question: So, conclusion?

Answers: Lawyers and Bar Associations, may better come forward to defend accused rapists, without prejudging them. Lawyers will serve the cause of justice, by working honestly with diligence and commitment to law. No need to unduly commit to clients (rapists or not court will decide), simply because they pay fees. Union Government should make a law which facilitates appointment of defence lawyers by courts in every criminal case without consulting clients, and collection of fees from clients for passing on to defence lawyers. Courts may have to decide whether the fees is to be collected from clients or from the State Exchequer (in case of poor clients). Release of fees to lawyers is to be made in instalments.
(To continue to edit/revise, as may be needed).

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